author: KENNISH, P. J.

text:
    THE STATE v. CLYDE W. GOW, Appellant.
    Division Two,
    June 20, 1911.
    1. ACCESSORY: Abortion: Sufficient Information. Under the statute (Sec. 4898, R. S. 1909) an accessory before the fact may properly be charged as though he alone committed the criminal act,' and without setting forth in the charge the name of the principal. And this rule is applicable to a charge of one who is an accessory to an abortion. Though the theory of the-State be that an unnamed physician was the principal in the abortion, and that defendant, who is not a physician, was an accessory before the fact; and though the information charge that defendant die! “use and employ” upon the woman the instrument described, which was used, if used at all, by the physician; and though the information charge that defendant did “advise, cause and procure” the doing of the criminal act, without naming the physician, yet under an information charging defendant directly with doing the acts which by the statute (See; 4458, R. S. 1909) are made to constitute the offense declared by it to be “manslaughter in the second degree,” the defendant may be convicted as an accessory by proof that he advised, caused and employed a physician to produce the abortion which resulted in the woman’s death.
    2. Sufficiency of Proof. A charge and conviction of an accessory may be sustained upon facts which would be insufficient if the accused was proceeded against as principal for the same offense.

      3. Abortion: On Advice of Physician. Where the prosecution is against the physician who committed the act of abortion that resulted in the woman’s death, it is not necessary- to charge or prove that he did not act upon the advice . of a physician. Therefore, it is not necessary to charge or prove such fact against an accessory before the fact to a principal who was a physician.
    4. VENUE: Proof. Proof of the venue of the crime charged is necessary to sustain a conviction; but direct evidence that it was committed in the county is not required. It is sufficient if that fact can be reasonably inferred from the facts and circumstances in evidence.
    5. DYING DECLARATION: Competency for Court: Attendant Facts. The competency- of a dying declaration is a question of law for the determination of the court; but all the facts and circumstances in connection with it are competent evidence to enable the jury to determine the weight and probative force to which it is entitled.
    6. Facts Constituting Admissibility. The State showed that the young woman went to the physician’s office Thursday morning; that she returned to her mother’s home in about two hours in . a sick and nervous condition; that on Friday evening she was very sick and had a burning fever; Saturday her condition did not improve, and her cheeks began to flush; she continued to grow worse, and on Sunday night her cheeks were a dark purple; on Monday morning about three o’clock her mother went to her room to relieve her sister who had attended her that far during the night; the mother testified that declarant was then “as bad as she could be to be alive;” as soon as they were alone, declarant said to her, “Ma, I am going to die and I have something awful to tell you.” She then went on to say defendant “deceived me” and procured the physician to produce an abortion upon her, and closed by saying, “Ma, you don’t know what it cost me to tell you this, but I couldn’t die and meet my God face to face with this awful stain on my soul.” The mother testified she requested her to tell no one what she had revealed to her until she died; and there was much testimony that, at the coroner’s inquest and to other persons, declarant had requested her to tell no one unless she died. Defendant died Tuesday afternoon. Held, that the court did not commit error in permitting the mother to detail what declarant said to her on Monday morning.
    7. -:-: Contradictory Statements. And whether the mother used exactly the same words each time she undertook to recite declarant’s words is not of any great importance in determining the competency of the declaration. Declarant’s clearness of mind, her dying condition, her statement of her belief in impending death and the circumstances under which she made her disclosures, met the requirements of the law.
    8. INSTRUCTION: Covered by Others Given. The court does not commit error in refusing an instruction asked by defendant, if another which is unobjectionable is given upon the same subject.
    9. CONSPIRACY: Declarations of Conspirator After Fact: Abortion: Testimony of the acts done and declarations made by the physician, the principal, after the abortion and before the death of the young woman, is admissible in evidence against his accessory, and is not to be excluded on the theory that the conspiracy ended with the abortion.
    10. -: Abortion: Demurrer to Evidence: Waiver. Where defendant did not stand upon his demurrer to the evidence offered at the close of the State’s case, but offered testimony in his defense, he waived his right to have the court determine that upon the State’s evidence alone a verdict of guilty cannot stand.
    11. -: -: Sufficiency. The evidence in this case is set out in the statement, and reviewed in the opinion, and held sufficient to sustain a verdict convicting the defendant, an unmarried minister thirty-eight years old, of procuring a physician to commit an abortion on an unmarried female school teacher, aged twenty-two.
    Appeal from Audrain Circuit Court. — Eon. James D. Barnett, Judge.
    Affirmed.

      B. E. Norton, Dudley S Palmer, Avery, Young & Woolfolk for appellant.
    (1) The court in the information on which defendant was tried, charged the defendant at the county of Lincoln on the 20th day of February, 1908, with making an assault upon one Lizzie Gleason and did use and employ a certain instrument .... and did thrust and force said instrument and advise, cause and force the said instrument to be inserted, thrust and forced into the body, womb and private parts of the said Lizzie Gleason . . . . from the effects of which she died on the 25th day of February, 1908. The-court at the trial, under this charge, permitted evidence-to be given that the defendant advised and procured one Dr. W. A. Hemphill to perform an abortion on the deceased Lizzie and in this, we think the court erred. Sec. 22, Art. 2, Constitution of Missouri; Chitty, Cr. Law, 169!; State v. Murphy, 141 Mo. 270; State v. Hayward, 83 Mo. 304; State v. Fraker, 148 Mo. 143; State v. Barbee, 136 Mo. 440; State v. Kruger, 134 Mo. 262; State v. Stowe, 132 Mo. 199'; State v. Nunley, 185 Mo. 102; State v. Thierauf, 167 Mo. 429'; State v. Burke, 151 Mo. 136; State v. Metsenberger, 171 Mo. 601; State v. Cameron, 117 Mo. 371. (2) The defendant asked and the court refused to give an instruction to- the effect that Dr. W. A. Hemphill was a licensed physician at the time of the alleged operation and al so-to the effect that even though an operation was performed on Lizzie by Dr. Hemphill, but'not on the advice of Clyde Gow, then defendant was entitled to acquittal. State ex xel. v. Goodier, 195 Mo. 551; State v. Mathews, 20 Mo. 55; State v. Reed, 154 Mo. 122; State v. Davis, 141 Mo. 522. (3) The court erred in admitting any evidence as to the alleged dying declaration of deceased Lizzie Gleason. State v. Horn, 204 Mo. 546; State v. Parker, 172 Mo. 194; State v. Draper, 65 Mo. 340; State v. Yansant, 80 Mo. 76; State v. Parker, 96 Mo. 392; State v. Bowles, 146 Mo. 16; State v. Kelleher, 201 Mo. 636; State v. Zorn, 202 Mo. 31; State v. Simon, 50 Mo. 372; State v. Johnson, 118 Mo. 504; State v. Kelleher, 201 Mo. 638; State v. Draper, 65 Mo. 335; State v. Johnson,' 118 Mo. 491. (4) There was no conspiracy proven by the evidence in this ease. State v. Kennedy, 177 Mo. 102; Weinstein v. Reed, 25 Mo. App. 41; State v. Reed, 85- Mo. 198; State v. Duncan, 64 Mo. 266; Spies v. People, 3 Am. St. Rep. 449; Metcalf v. Conner, 12 Am. Dec. 341.’ (5) The court should have sustained the demurrers offered both at the close of the State’s evidence and at the dose of all the testimony given in the case. Authorities above cited. (6) The State did not prove the venue or that the alleged offense was committed in Lincoln county, Missouri. (7) Nor did the State prove that the alleged operation was unnecessary to save life. State v. Meek, 70 Mo. 358. (8) The offense, if any, committed by the defendant was that an abortion being committed on the deceased, and the offense so far as he was concerned, was completed ■upon the commission of the abortion and her death occurring several days after could be no part of the offense, and therefore any statement.of a co-conspirator after the completion of the offense, that of abortion, could not be given in evidence against the defendant. Cone v. Horner, 153 Mass. 343; Routing v. Korn, 110 Pa. 1; State v. Bean, 85 Mo. App. 473. (3) The particular statute must be proceeded under to the exclusion of the general statute. State v. Green, 87 Mo. 587; State ex rel. v. Foster, 187 Mo. 610; State v. De Bar, 58 Mo. 395.

      Elliott W. Major, Attorney-General, and James T. Blair, Assistant Attorney-General, for the State.
    Appellant concedes, in effect, that in so far as the information sought to charge that appellant did, himself, “insert, thrust and force said instrument,” by which the abortion was procured, it is not subject to' attack. It is insisted, however, that in so far as it sought to charge that appellant advised the procure* ment of the abortion, the information is invalid. The information follows closely the language of the statute. Sec. 4458, R. S. 1909. The contentions made by appellant’s counsel resolve themselves into these: First— The information does not charge that appellant was not a duly licensed physician. Second — The information does not name the person whom appellant “advised.” 1. Under section 4458, R. S. 1899', under which section the information in this case was framed, it is not necessary to charge that the defendant is not a duly licensed physician. It is to be observed that the information does charge that the procurement of the abortion was not “necessary to preserve the life of the said Lizzie Gleason and not .... necessary to preserve the life of ah unborn child then in the womb of the said Lizzie Gleason. ’ ’ It further charges that the abortion had not “been advised by a duly licensed physician to be necessary for the purpose of preserving the life of an unborn child then in the womb of the said Lizzie Gleason.” The portion of the statute upon which the charges mentioned and the contention of appellant are based, is a general exception applicable to all cases where the act was necessary to save the life of the woman or the child. From the provisions of the statute, still rigorous despite the general exception first' made (Hatchard v. State, 79 Wis. 362), a person who is not a licensed physician is further absolved if he acted under the advice of a physician. In fact, there.are but two possible defenses under this clause, i. e.,. that the act was necessary (this being a defense for all) and that the act was advised by a physician (this defense being restricted to those who are not physicians.). The information negatives both the general defense or exception and also negatives the additional defense open to those who are not licensed physicians. The phrase ‘ ‘ dr if such person is not a duly licensed physician, ’ ’ is not an additional exception in itself, but merely a parenthetical , phrase, descriptive of those who might avail themselves of the second exception. A physician could defend only under the first exception. Any other could defend under either exception. State v. Fitzporter, 93 Mo. 394. Both exceptions are negatived by the information on which appellant was tried. The case of State v. Meek, 79 Mo. 357, is cited on this point. .The information in the case at bar meets, exactly, the requirements of the rule laid down in-that case. In that case there was a total failure to negative the fact that the defendant acted on the advice of a physician. Here that fact is negatived. The informátion negativing any necessity for the operation and negativing the performance of the operation under the advice of a; physician, negatives both the exceptions in the clause, thus negativing all the defenses open to appellant whether he be physician or layman. There would be no additional virtue imparted to the information by including a clause informing him that he was not a licensed physician. "Whether licensed physician or not, the information so negatives the exceptions as to show (waiving other objections for the moment) that if the facts charged be true appellant is necessarily guilty. This is the sole purpose of negativing exceptions in any case — that the information may state a prima-fací e case. 1 Bishop’s New Crim. Proe., see. 636. Where the statute makes the advice of physicians a defense, the fact that the offender is a physician does not aid him if the operation was, in fact, unnecessary. Iiatehard v. State, 79 Wis. 362. 2. So far as we have been able to discover, no case requires the information to name the person advised where the offense alleged is the advising of the procurement of an abortion. But the answer to the second criticism made of the information in appellant’s brief is that appellant is charged as a principal,-as was proper. Sec. 4898, R. S. 1903; Sec. 5105-, R. S. 1909; State v. Steptoe, 65 Mo. 642; State v. Orrick, IOS Mo. 119; State v. Sykes, 191 Mo. 79; Bishop’s New Cr. Law, secs. 604, 664, 670', 673, 653. 3. Hnder these authorities and statutory provisions, the information easily meets the criticisms lodged against it. Certainly, it was not objectionable to charge conjunctively the several acts which the statute, disjunctively, denounces as crimes. State v. Currier and Moore, 225 Mo. 649. Further, “a portion of an indictment may be stricken out, or be treated as surplusage, if enough be left to make a valid and substantial charge of the crime intended to be charged.” State v. Currier and Moore, 225 Mo. 658.
   KENNISH, P. J.

— At the January term, 1909, of the circuit court of Audrain county, appellant was convicted of manslaughter in the second degree, sentenced to imprisonment in the penitentiary for a term of four years, and appealed to this court.

The original information, which contained three counts, was filed in the circuit court of Lincoln county on March 20', 1908: Two amended informations were filed, each containing three counts. . After the defendant had entered a plea of not guilty to the second amended information, he applied for and was granted a change of venue to the circuit court of Audrain county. The case was tried in the Audrain Circuit Court at the January term, 1909. The State dismissed as to the first and third counts, the defendant was again arraigned, entered a plea of- not guilty to the second count of the second amended information, was placed on trial, found guilty, and his. punishment ássessed as stated.

The count of the information upon which the' defendant was' convicted is as follows:

“And the said Brevator J. Creech, prosecuting attorney within and for the county of Lincoln, in the State of Missouri, acting herein under his- oath of office and on his knowledge, information and belief, gives the court to further understand and be informed that Clyde Cow on the 20th day of February, A. D. 1908, at the county of Lincoln, in the State of Missouri, -in and upon the body of a certain woman, to-wit, one Lizzie Cleason, did then and there willfully, unlawfully ■and feloniously make an assault, and did then and there willfully, unlawfully and feloniously use and employ ■and advise and cause and procure to be used, and employed in and upon the body, womb and private parts of the said Lizzie Gleason, a certain instrument, the exact nature and description of which instrument is to this informant unknown, and did then and there willfully, unlawfully and feloniously insert, thrust and force the said instrument, and advise, cause and procure the said instrument to be inserted, thrust and forced into the body, womb and private parts of the said. Lizzie Gleason, with the willful, unlawful and felonious intent then and there' to procure and promote the miscarriage and abortion of the said Lizzie Gleason, the same not being necessary to preserve the life of the said Lizzie Gleason, and not being necessary to preserve the life of an unborn child then in the womb of the said Lizzie Gleason, and not being advised by a duly licensed physician to be necessary for the purpose of preserving the life of the said Lizzie Gleason, and not being advised by a duly licensed physician to be necessary for the purpose of preserving the life of an unborn child then in the womb of the said Lizzie Gleason, thereby then and there willfully, unlawfully and feloniously inflicting in and upon the body of the said Lizzie Gleason and in and about the womb and other internal parts of the said Lizzie Gleason certain mortal wounds and lacerations and creating in the said Lizzie Gleason a mortal sickness, disease and feebleness of body, of which mortal wounds, lacerations, disease and feebleness of the body, she, the said Lizzie Gleason, did languish and languishing did live from .the 20th day of February, A. D. 1908, until the 25th day of February, A. D. 1908, on which said 25th day of February, A. D. 1908, the said Lizzie Gleason, at the county of Lincoln, in the State of Missouri, by means and in consequence of the willful, unlawful and felonious use and • employment of the said instrument as aforesaid, and of the mortal wounds, lacerations, sickness, disease and feebleness of body produced and inflicted by the use and employment of the said instrument as aforesaid, did then and there die.
“And so the said Bevator J. .Creech, prosecuting attorney, as aforesaid, upon his oath of office aforesaid, does say that the said Clyde Gow, by the-means and in the manner and form aforesaid, the said Lizzie. Gleason, willfully, unlawfully and feloniously did kill and murder contrary to the form of the- statute in such case made and provided, and against the peace and dignity of the State-.”

The evidence for the State tended to show the following facts: From the fall of 1906 until the latter part of February, 1909', the. defendant, an unmarried man, thirty-eight years of age,' was pastor of two churches in Lincoln county, one located in Elsberry and the other a country church known as-Smith’s Chapel, located several miles north of Elsberry.

In the winter of 1907 and 1908', Lizzie Gleason, twenty-two years of age, taught a country school about eight miles north of Elsberry. During' that winter she boarded at the home of B. F. Greene, which was near her school and Smith’s Chapel, but usually went to her mother’s home in Elsberry on Friday or Saturday and remained until Monday morning.

During the fall and winter of 1907 and 1908 the defendant showed Miss Gleason some attention, accompanied her to and from church several times, drove her to and fro between Elsberry and her school three or four times, visited the. home of Greene where she was boarding, visited her school, met and engaged her in conversation frequently on the streets and in the stores of Elsberry.

In the latter part of January, 1908, the young woman became sick, exhibited symptoms of pregnancy, and in February gave up her school and returned to the home of her mother in Elsberry. On. Thursday, February 20', 1908', she went down town from her mother’s home in Elsberry and returned in about two hours in a very nervous condition. According to her mother’s testimony she'“seemed like anybody with a very hard chill.” She took to her bed on the same day, and on ■ Friday evening became violently ill. Saturday she grew worse and had Dr. Hemphill, a physician-of Elsberry, called to attend her, requesting that he be called instead of Dr. Bailey, the family physician. Dr. Hemphill made several visits, but the condition of the young woman grew rapidly worse. Sunday night her sister remained with her and waited on her until about three o ’clock Monday morning. At that hour her mother came to the sick room to care for her during the remainder of the night. After the sister left the room she said to her mother: “Ma, I am going to die and I have got something awful to tell you. ’ ’ She then stated that Clyde Gów had ‘ ‘ deceived her;” that he got her to go to Dr. Hemphill to have an operation performed; that Dr. Hemphill performed the operation, on Thursday, February 20th; that “he took the child away and they killed it;” that when she promised the defendant she would go to Dr. Hemphill and have the operation performed he told her if she didn’t get along under Hemphill’s care she should have one of the best physicians in St. Louis to pull her through. She then requested her mother to tell no one what she had revealed until she died and said she didn’t care what her mother did then. The mother stated to her that she couldn’t bear it alone and would tell Frank, her brother. She thereupon threatened to immediately kill herself by taking carbolic acid from a bottle that was then in the room unless her mother promised to tell no one.

Dr. Hemphill was then sent for and arrived in about an hour. He first assured the mother that her daughter was “getting along fine” and would be up in a few days. He said he would admit that he “gavé her too much calomel, not knowing she had missed her monthlies, and the treatment for her bowels brought it all on at once and left her in a weakened condition.” There was then a short conversation between Dr. Hemphill and the young woman, which the mother did not hear, when Dr. Hemphill said to the mother: “Look here, Mrs. Gleason, there don’t anybody know this but us four, and if you are a true mother you will keep1 it; you know human nature is weak and will fall, and I did that for her, aiming to put her back in the proper position she once held.” Dr. Hemphill made several visits afterwards and on the following day Dr. Bailey, the family physician, was called. Miss Gleason stated to Dr. Bailey, in the-presence of Dr. Hemphill, that the latter had operated on her, “dilating the cervix,” whereupon Dr. Hemp-hill said to the girl: “Didn’t you promise me you would never tell this to anyone, you would die first?” She said, “Tes, but I couldn’t keep it.” The efforts of the two physicians to save the young woman’s, life were futile and she died in the afternoon of February 25 th.

A post-mortem examination of the body was made. There was evidence tending to show that death resulted from peritonitis* superinduced by the procurement of an abortion, as well as evidence that the postmortem examination did not disclose any symptoms of an abortion.

During the evening of the day Miss Gleason died, two members of the defendant’s church called at his home to see him. When they knocked at the door defendant asked if Dr. Hemphill was there. Upon being told who his visitors were he invited them in. They went inside and one of them said: “Brother Gow, there is a sensation in town; you are implicated or accused in this case. Miss Lizzie Gleason is dead and you are accused.” The defendant immediately declared he was innocent. In the conversation that followed he said: “I might be brought into this case in this wise: I took her to and from school and church several times. During one or whether more of these rides, I disremember, she said to me that she was in trouble. At first I thought possibly it was over some youngster, some love affair. It impressed me further that possibly the nature of the trouble was different. She says, ‘I have no father to go to and I come to you as a friend,’ is my recollection. I then said, ‘Go to your mother.’ She said, ‘I can’t go to my mother.’ I said, ‘Go your family physician, D'r. Bailey.’ She said, ‘I can’t go to D,r. Bailey.’ I said, ‘Then go to Dr. Powell.’ She said, ‘I can’t go to Dr. Powell.’ I said, ‘Then go to Dr. Hemphill.’ ”

The three then went to the residence of Dr. Hemp-hill, but failed to find him at home. One of the men then suggested to defendant that by reason of the excitement in the town it would be best for him to go to the home of Mr. Welch at the edge of town and spend the night, and defendant did go there and spend the night. The next afternoon the defendant sent for a brother minister, Mr. Reavis, to come to see him at Dr. Hemphill’s. Mr. Reavis went to Hemp-hill ’s and found the defendant there weeping. He protested his innocence. In the conversation that followed he said: ‘ ‘ She spoke to me about having some throat trouble, and said she was blue about the matter, and asked me concerning the physicians, as to Dr. Hemphill being an osteopath, and I told her he was an osteopath, practiced osteopathy, and she asked how he was by other osteopaths. I said, ‘I don’t know about that; possibly as good as any.’ ” In the same conversation the defendant stated that he had told Dr. Hemphill that the girl was coming to him for treatment for her throat.

That evening the defendant went to the home of Mr. Magee, some distance in the country, and that night the constable arrested him at the Magee home. Officer and prisoner remained at Magee’s during the night. The next morning as they were preparing to leave, Magee asked the defendant if lie sent Lizzie Gleason to Dr. Hemphill for treatment and defendant replied that he did. Asked if he told Dr. Hemphill to treat her, he replied “I told him to treat her and do what he could for her. That I suspected that something was wrong with her, and. if there was I would be accused of it.”

The defendant at this time was very nervous and seemed to fear mob violence. He requested the constable to take him to Troy instead of Elsberry. The constable had received a telephone message that morning that it would not be best to take the defendant to Elsberry on account of the excitement over the tragedy and, upon this advice and at the request of the defendant, the officer took him to Troy.

The evidence for the defendant tended to show the following facts:

At the coroner’s inquest, held over the body of Lizzie Gleason, the mother,..Mrs. Sarah Gleason, testified that when her daughter made the dying statement she said the information was not to be imparted to any one unless she died, and if she died she didn’t care what her mother did with it. This was shown by two members of the coroner’s jury and by a newspaper man who heard the testimony and made notes of it.

On the evening of her daughter’s, death Mrs. Gleason said to a neighbor woman who was at her house that her daughter had required of her that she should not reveal the dying statement if she lived, but if she died then she didn’t care. In this conversation Mrs. Gleason further stated that her daughter had said the defendant was the author of her trouble, and that he was with her only once and that was on December 18, 1907. Defendant was not with Lizzie Gleason on that date. On the day following the death, Mrs. Gleason said to another neighbor woman that Lizzie had confided a secret to her about her condition and had made her promise that if she lived she wouldn’t tell it, but said if she died she didn’t care what her mother did with it. In this conversation Mrs. Gleason again stated that her daughter told her that she had had intercourse with the defendant but once and that wa,s. on the 18th of December.

Several medical witnesses testified that Lizzie Gleason’s death was due to peritonitis and that the female organs showed no indications of there having been an abortion or that she had been pregnant. There was also testimony tending to show that she died of appendicitis.

The testimony given by Mrs. Gleason was also shown to be inconsistent with her former statements concerning details of less importance.

The defendant testified in his own behalf, giving the full details of his early life and struggles to obtain an education and of his work in different places as a school teacher and as a minister of the Gospel. He denied that there had ever been any improper relations between him and Lizzie Gleason. Denied in toto the conversation testified to by Magee. His denial of this conversation is supported by the testimony of the constable, who testified that no conversation was had between defendant and Magee at the time and place stated by Magee.

The defendant further testified that he had been in the Gleason home but one time, and then for only a few minutes. His testimony on this point was not contradicted. He also testified fully as to each time he had been in the company of Miss Gleason, which does not differ materially from the testimony for the State on that point.

Twenty-one witnesses testified to the good reputation of the defendant in different localities in the State where he had resided.

The certificate issued to Dr. Hemphill, authorizing him to practice medicine, was also introduced in evidence by the defendant.

The foregoing is deemed a sufficient statement of the facts disclosed at the trial to afford an understanding of the questions presented to this court for review, except such parts of the evidence as will be referred to later.

I. The sufficiency of the second count of the information, on which the defendant was convicted, is challenged on the ground that it failed to inform the defendant of the nature and cause of the accusation against him.

That part of the statute (Sec. 4458, R. S. 1909) upon which the prosecution was based and necessary to an understanding of the question under consideration, is as follows: ’

■ “Any person who, with intent to produce or promote a miscarriage or abortion, advises, gives, sells or administers to a woman (whether actually pregnant or not), or who, with such intent, procures or causes her to take, any drug, medicine or article or uses upon her, or advises to or for her the use of, any instrument or other method or device to produce a miscarriage or abortion (unless the same is necessary to preserve her life or that of an unborn child, or if such person is not a duly licensed physician, unless the said act has been advised by a duly licensed physician to he necessary for such a purpose), shall, in event of the death of said woman, or. any quick child, whereof she may be pregnant, being thereby occasioned, upon conviction . be adjudged guilty of manslaughter in the second degree, and punished accordingly. ’ ’

It will be observed that the information, which is set forth in- the statement accompanying this opinion, charges the defendant directly with the doing of the acts constituting the offense, and also charges that he advised, caused and procured the doing of such acts. It is provided by section 4898, Revised Statutes 1909, that an accessory before the fact to any murder or other felony, “shall, upon conviction, be adjudged guilty of the offense in the same degree, and may be charged, tried, convicted and punished in the same manner, as the principal in the first degree.” Under this rule of criminal procedure it is well settled that an accessory before the fact may properly be charged as though he alone committed the criminal act and without setting forth in the charge the name of the principal. [State v. Rucker, 93 Mo. 88; State v. Schuchmann, 133 Mo. 111; State v. Edgen, 181 Mo. 582; 1 Bishop’s New Crim. Proc. (2 Ed.), see. 3(32; 22 Cyc. 361.]

Appellant’s contention, as we understand it, is that the general rule as to the prosecution of an accessory before the fact is not applicable to the case at bar; that the averment that the defendant did “use and employ” the instrument described, upon the body of Lizzie Gleason, could be sustained only by proof that the defendant in person committed the overt act as charged, and that to sustain a conviction upon the theory that the defendant did ‘ ‘ advise, cause and pro • cure” the doing of the criminal act as charged, by another, it is essential to set out in the information the name of the person through whose instrumentality the act was committed, in order that the defendant may be sufficiently informed of the accusation and be. thus enabled to prepare his defense. The further contention is made by appellant that in negativing the exception of the statute, in case the act was done upon the advice of a licensed physician, it is essential to a valid charge to allege, in accordance with the language of the statute, that the defendant was not a duly licensed physician.

Under the construction of the statute as thus maintained by appellant, if a defendant, who was not a physician, advised, caused and.employed a physician to do the felonious act charged, it would be necessary to alleg’e the name of the physician through whom the act was committed and further that defendant was not a physician and that the act had not been advised by' a physician. It also follows from appellant’s position that a defendant who was not a physician could not be prosecuted jointly for the offense charged in this case with a physician whom he had employed and procured to commit the forbidden act and for the reason that the charge and evidence to sustain a conviction against each would be essentially different. We cannot agree to this construction of the law. If the offense denounced by the statute under consideration be committed by a defendant not a physician, either directly or by advising the female or another not a physician to commit it, then it would be necessary in such case to allege that the act was not done upon the advice of a duly licensed physician. Section 4459, Revised Statutes 1909', defining the crime of abortion, excepts from the provisions of the section a case in which the act is necessary to preserve the life of the woman or in which the act has been advised by a physician to be necessary for the same purpose. It was held in the case of State v. Fitzporter, 93 Mo. 390', that a physician charged with an offense under that section was entitled to interpose the defense that the act was advised by a physician. But by the terms of the statute upon which the prosecution is lodged in this case that defense is expressly restricted to a person who is not a physician.

The theory of the State in this ease was that a physician was the principal in the crime and that the defendant was an accessory before the fact and there • fore subject to be charged and tried as a principal. If the prosecution had been against the physician who committed the act it clearly would not have been necessary to charge or prove that he did not act upon the advice of a physician and therefore it was not necessary to charge or prove such facts against the defendant who was proceeded against as an accessory before the fact to a principal who was a physician. A charge and conviction against an accessory may be sustained upon facts which would be insufficient if the accused was proceeded against as principal in fact for the same offense. [Boggus v. State, 34 Ga. 275; People v. McKane, 143 N. Y. 455; State v. Comstock, 46 Iowa, 265; People v. Chapman, 62 Mich. 280; 12 Cyc. 189.] We hold that the information is sufficient and the complaint against it without merit.

II. It is assigned as error that the State failed to prove the venue of the offense as charged.

There is no direct evidence in the record that the offense was committed in Lincoln county. However, while proof of the venue of the crime charged is necessary to sustain a conviction, direct evidence of such fact is not required. It is sufficient if it can be reasonably inferred from the facts and circumstances in evidence. [Kelley’s Crim. Law and Prac. 132; State v. Pennington, 124 Mo. 388; State v. Shour, 196 Mo. 202; State v. Daugherty, 106 Mo. 182; State v. McGinnis, 76 Mo. 326.]

It was in evidence that the home of Lizzie Gleason was in the town of Elsberry, Lincoln county, Missouri; that Dr. PEemphill resided and had an office in said town; that Lizzie Gleason went to Dr. Hemphill’s office three times and that the operation which caused her death was performed the third time, being the 20th day of February, 1908; that on the morning of February 20, 1908, Lizzie Gleason left her home about nine o’clock a. m., and returned in about two hours in a sick and nervous condition; that she immediately retired to her bed, gradually grew worse and died five days thereafter. It was also in evidence that the defendant had made her promise to have the abortion performed, and said to her if she did not get along well under Hemphill's care she should have the best physician in St. Louis, and that the defendant told Hemphill the girl would come to him for treatment.

We are of the opinion that these facts and circumstances fully authorized the jury to find that the crime was committed at Dr. Hemphill’s office in Lincoln county.

III. It is strongly urged that the court erred in admitting in evidence the alleged dying declaration of Lizzie Gleason.

It is shown by the record that before the dying declaration, was offered in evidence the court, in the absence of the jury, heard the testimony for the State tending to show the competency of what Lizzies Gleason had said to her mother as a dying declaration and also the opposing testimony of the defendant. Thereupon the court, over the defendant’s objection, held the declaration admissible. The jury was then brought in and heard substantially the same evidence as was given to the court in their absence.

The competency of a dying declaration is a question for the court, but all the facts and circumstances in connection therewith are competent evidence to enable the jury to determine the weight and probative force to which the declaration is entitled.

Because of its controlling importance on the issues on trial we have carefully read and considered the evidence bearing- upon the admissibility of the dying declaration.

In support of its competency it was shown by the State that the declarant had gradually grown worse from the Thursday morning when she came home sick until she died. On Friday evening she was very sick and had a high, burning fever. Saturday her condition did not improve, and her cheeks began to flush. She continued growing weaker and on Sunday night her cheeks were a dark purple. On Monday morning about three o’clock her mother went to her room to relieve the other daughter who had been attending her during the night. The mother found the daughter, as she testified, “as bad as she could be to be alive. ”- As soon as they were alone the daughter said to her mother, “Ma, I am going to die and I have something awful to tell you.” After confessing her condition and what the defendant and the doctor had done she continued, “Ma, you don’t know what it cost me to tell you this, but I couldn’t die and meet my God face to face with this awful stain on my soul.” She died on the following day.

A number of witnesses testified for the defendant to conflicting statements made by the mother, both' out of court and at the inquest, as to what her daughter had told her in the alleged dying declaration. Whether the mother used exactly the same words each time she told it we do not consider of much importance. The wasting fever and suffering of the declarant, the surrounding conditions under which she made the disclosure, her statement of her belief in impending death, and her clearness of mind, indicated by the manner in which she stated to her mother the facts constituting the dying declaration, fully met all the requirements of the law in such cases and leave no doubt in our minds as to the correctness of the ruling of the court in admitting this dying declaration in evidence. [State v. Kelleher, 201 Mo. 614; State v. Craig, 190 Mo. 332; State v. Nocton, 121 Mo. 537.]

IV. Appellant complains of the action of the court in refusing the following instruction asked by the defendant, to-wit:

“If you believe from the evidence that Dr. Hemp-hill was. a duly licensed physician and that Clyde Gow advised Lizzie Gleason to go to him for the purpose of securing such treatment as Dr. Hemphill would advise, and that the operation, if any, was performed ■upon her hy the advice of Dr. Hemphill and not on the advice of Clyde Grow, then your verdict will be for the defendant, acquitting him, although you may further believe from the evidence that Dr. Hemphill performed upon her a criminal abortion and that her death was caused thereby, and you are further instructed in this connection that Dr. Hemphill was a duly licensed physician at the time of the alleged operation. ’ ’

The court did not err in refusing this, instruction. 'The theory of the State was that the defendant was a co-conspirator and accessory before the fact of Dr. Hemphill, and instructions were given to the jury submitting the case upon that theory. There was evidence tending to prove that the defendant advised- the deceased to go to Dr. Hemphill without intending that any criminal operation should be performed. This theory of the defense was fully covered by defendant’s modified instruction numbered six. And it is well settled that it is not error to refuse an instruction, although it correctly declares the law, if another instruction which is unobjectionahle is given upon the same subject. [State v. Sharp, 233 Mo. 269; State v. Nelson, 166 Mo. 191; State v. Franke, 159 Mo. 535; State v. Bradford, 156 Mo. 91.]

V. Appellant complains that the court erred in admitting in evidence against the defendant the acts done and declarations made by Dr. Hemphill after the alleged conspiracy had ended, that is, after the abortion and before the death of Lizzie Grleason. That question has been considered by this court in the recent case of State v. Casto, 231 Mo. 398, and decided against appellant’s contention. It has been suggested that the question was not involved in "the decision of the Casto case and that what was there said is obiter and not binding as a precedent on this court. However, we consider the doctrine of that ease a correct declaration of law as applied to the facts ot this case.

VI. It is urged in appellant’s brief and was argued at the bar with much earnestness and ability that the evidence is insufficient to sustain the verdict and that the court erred in refusing an instruction directing a verdict of not guilty, as requested by the defendant at the close of the evidence for the State and again at the close of all of the evidence'.

It is not necessary to. review the. action of the court in refusing such an instruction at the close of the State’s case, for the reason that the defendant did not stand upon it, but offered testimony in his defense, and by so doing, as in a civil case, waived his rights under the instruction. [State v. Martin, 230 Mo. 680; State v. Meagher, 49 Mo. App. 571.]

But the instruction in the nature of a demurrer at the close of all of the evidence and the ground of the motion for a new trial that the verdict is against the evidence, call for a brief review of the incriminating facts disclosed by the record and upon which the State relies to uphold the verdict.

Lizzie Gleason made her home with her mother, a widow residing in the town of Elsberry in Lincoln county, this State. She was about twenty-two years of age and unmarried at the time of her death. In the winter of 1907 and 1908 she was teaching a district school in the country about eight miles north of her home and boarded in the same neighborhood, going to her home at the close of each week and returning at the beginning of the next.

The defendant was a minister of the Gospel, unmarried and about thirty-eight years of age when Lizzie Gleason died.' His home was also in the town of Elsberry where he was the regular pastor of a church. He was also pastor of a church known as Smith’s Chapel located in the neighborhood where Miss Gleason taught school. In going back and forth between Elsberxy and Smith’s Ohapel, Miss- Gleason rode with defendant in his buggy several times, and he was in her company publicly a number of times besides. In the month of January, 1908, Miss Gleason became sick and there were symptoms of pregnancy. In February she left her school and returned to her home in Elsberxy. On Thursday morning, February 20, 1908,- she left her home and returned after an absence of about two hours in a sick and nervous condition and immediately retired to her bed. She would take no nourishment and soon a high fever developed. Her condition rapidly grew worse and on Sunday night and Monday morning she was suffering greatly and her face had become flushed and purple. At three o’clock Monday morning, while alone with her mother, she called her mother to her bedside and told her that she was going to die and wanted to confess to her what she had done and the cause of her ailment. She then related how the defendant had gotten her in a pregnant condition and caused her to go to Dr. Hemphill where an abortion had been produced upon her on the 20th day of February, 1908. She then said to her mother, “Ma, you don’t know what this cost me to tell you, but I couldn’t die and meet my God face to face with this awful stain on my soul.” She died the nest day in the afternoon.

As soon as the death of Lizzie Gleason was known and on the evening of the same day two members of the defendant’s congregation went to his home and informed him of the rumor associating his name with the cause of Lizzie Gleason’s death. He at once protested his innocence, but admitted he might be brought into the case for the reason that he had taken her to and from school and church several times; that on one of these trips she informed him that she was in trouble and asked his advice; that he thought it was some love affair, but afterwards thought it was of a different nature and then advised her to go to her mother.; she said she could not do that; that he then advised her to go to Dr. Bailey, their family physician; she again said she could not; and so with Dr. Powell; and that he finally advised her to go to Dr. Hemphill. The next night he rode out to the home of Mr. Magee, a member of his church, living in the country near there. The constable placed him under arrest that night on the charge of manslaughter for causing the death of Lizzie Gleason. Before leaving Magee’s the next morning in charge of the constable, the defendant asked Magee what he should do, saying at the same time that he was innocent. Magee asked him: “Did you send Lizzie Gleason to Dr. Hemphill to be treated?” He answered, “I did.” Magee then asked: “Did you tell Hemphill to treat her?” The defendant answered “I did. I told him to treat her .and do what he could for her; that I suspected that something was wrong and that I would be accused.” The defendant also told a minister in Elsberry that Lizzie Gleason spoke to him about some throat trouble and asked him about Dr. Hemphill and that he told her that Hemphill was probably as good as any, and further that he told Dr. Hemphill that the girl was coming to him for treatment for her throat.

The morning after Lizzie Gleason had made her statement to her mother, Dr. Hemphill asked her in the presence of Dr. Bailey, the family physician, if she did not promise not to tell anything. Dr. Hempr hill on the same day had told the mother that only four of them knew what had been done and that it was her duty to her family to conceal what, she had learned.

At the autopsy more than a half gallon of pus was found in the abdominal cavity of the deceased arid experts testified that a microscopic examination of the uterus indicated recent pregnancy and a criminal operation.

Because of the seriousness of the consequences to the defendant and because of the. improbability of a person of his professed high-calling' being guilty of such an offense, we have considered from every standpoint the facts of this case. That this young girl, when first conscious of her trouble, would go to the man who had brought it upon her is as natural as that a ’child should run to its mother when hurt. If the defendant had been innocent when he learned of this girl’s trouble, how improbable it is that he should have suggested to her treatment by a physician and not a word of inquiry as to the guilty party so as to bring about a marriage or punishment for the offense. Without dwelling longer on the evidence and the inferences fairly drawn therefrom, we shall conclude this review with the observation that in our judgment there is no rational explanation of the facts and circumstances in evidence consistent with the defendant’s innocence and that the jury was fully warranted in the verdict returned.

Finding no error in the record the judgment is affirmed.

Ferriss, J., and Brown, J., concur.


source: Caselaw Access Project

author: ROY, C. PER CURIAM.

license: Public Domain

text:
    THE STATE v. CARL DEITZ, Appellant.
    Division Two,
    June 20, 1911.
    1. INSTRUCTIONS: Must Be Read Together: Statements Made by Defendant. The instructions relating to the same subject must .be read together, and if together they contain a full and correct enunciation of the law on the subject, neither constitutes error. Where the jury were told in one instruction that statements made by defendant are to be considered altogether, and what he said against himself are presumed to be true, etc.; and in another instruction, that if defendant at the time he made such statements was unconscious or delirious and not able to understand what he was saying, such statements will not be considered, the infirmity of the first was cured by the second.

      2. REMARKS OF COUNSEL: Repetition After Rebuke. Where the trial court sustains objections to improper remarks of counsel for the State, and they persist in making them, thereby asserting that they do not bow to the mandate of the court' or of the law, a verdict for the State should be set aside. In this case, counsel 'for the State said '‘the statement of the grocery clerk stands undenied;” and on objection by defendant’s counsel, he said, “He was on the stand, and didn’t dispute or deny these facts.” Defendant’s counsel objected “to the statement of the attorney as to the failure of defendant to testify as to certain matters while on the stand.” The court sustained the objection, and thereupon counsel said, “He was on the stand and didn’t dispute or deny these facts.” The prosecuting attorney said, “If deceased [defendant’s wife] had been the kind of a woman defendant would have you think she was, why didn’t they call in the witnesses, the neighbors '. . .” and an objection being made that the prosecuting attorney knew such evidence would not be proper or competent, the court directed the jury to disregard the remark, and then the prosecuting attorney said: “Here is another murderer. Will he be turned loose to go forth ....”■ The court sustained an objection, and directed the jury to disregard it, and then the prosecuting attorney repeated the remark that defendant was a murderer, and after another rebuke said: “The murderer can go on from day to day without being punished.” Held, reversible error.
    Appeal from Jasper Circuit Court . — Hon. Henry L. Bright; Judge.
    EuVERSED' AND REMANDED.

      A. F. Gonder and Walden & Mathews fo,r appellant.
    (1) Instruction 91 is bad. Tbe evidence showed that statements made by defendant were made while defendant was delirious from the wound in his head, and under such circumstances it was erroneous to instruct the jury that statements by defendant against himself are presumed to be true. The instruction should have been qualified to require the jury to find that the defendant was in a condition of mind that he understood the statements when made. State v. Webb, 216 Mo. 391. (2) Instruction 17 is erroneous. It tells the jury that the defendant is entitled to the benefits of what he said in his own behalf, but required the jury to consider such statements with caution. As the defendant testified in this, case this instruction might easily be construed to comment on defendant’s testimony offered at the trial and tell the jury to receive them with caution, making it prejudicial to defendant. (3) The remarks of State’s counsel were highly prejudicial and were a comment on the defendant’s failure to testify to particular facts, which constituted reversible error, and the court permitted the attorney to repeat his remarks three times without rebuke of any kind. State v. James, 216 Mo. 202; State v. Graves, 9'5 Mo. 5101; State v. Elmer, 115-'Mu. 401; State v. Raulamb, 121 Mo. 137; State v. Quinn, 174 Mo. 688; State v. Miles, 199 Mo. 562; State v. Spiv-a, 191 Mo. 87; State v. Woodward, 191 Mo. 617. The abusive and improper remarks of the prosecuting attorney, and the failure of the court to rebuke the attorney when his attention was called to the same, were highly prejudicial to defendant, and reversible error. State v. Bobest, 131-Mo. 338; State v. Jackson, 95 Mo. 623; State v. Nerich, 110- Mo. 35-0; State v. Fisher, 124 Mo. 460; State v. Upton, 130- Mo. 316; State v. James, 216 Mo. 394; State v. Clapper, 203 Mo. 549. The prosecuting officers, even in the heat of debate, ought not to forget that they owe a duty to the defendant as well as to the State; to the State, to fairly prosecute and endeavor to secure conviction by all proper-and legitimate methods; to the defendant, to refrain from doing and saying aught which the highest sense of professional honor will not sanction. State v. Pagels, 92 Mo. 300’; State v. PUshon, 33 Mo. 44. If the prosecuting attorney is permitted by the trial court, in spite of the objections from the defendant, to address improper re-marks to the jury, the Supreme Court will reverse the judgment. State v. Johnson, 76 Mo. 121. Mere personal abuse of the prisoner is not to be tolerated in any tribunal that calls itself a court of justice. State v. Yound, 99 Mo. 666.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    (1) Instruction 9 is a full, fair and complete instruction upon statements made by appellant instructing the jury how to consider such statements. State v. Coleman, 186 Mo. 160'; State v. Henderson, 186.Mo. 473. (2) Instruction 17 is a correct instruction defining the rules under which the jury should consider the statements and conversations of the defendant. See authorities cited under point one. (3) Appellant testified that on the evening of the homicide he was at the store twice looking for his wife. It is true that he did not deny saying what the clerk stated he said at the store on his last visit there. The court sustained the objection. No harm can be predicated-upon this remark of the attorney.
   ROY, C.

— On September 14, 1909, an information was filed in the circuit court of Jasper county, charging the defendant with murder in the first degree in having shot and murdered his wife, Josephine Deitz, on August 14,1909;, in the city of Joplin. On February .5, 1910, defendant was put upon his trial, and on February 9, 1910', he was convicted by the jury of murder in the second degree and was sentenced to twenty-five years in the penitentiary. In due time he perfected his appeal to this court.

The defendant had been jealous of the attentions of other men to his wife. They lived with Mrs-. Crane, the mother of Mrs. Deitz. The evidence of Mrs. Crane is that the three took supper together, and that defendant and his wife quarreled, when the mother went into the yard and Deitz went to town and was gone more than an hour and, returned. In the meantime Mrs. Deitz had gone to the grocer’s and paid a bill and had come back. When Deitz returned Mrs. Crane was in the front yard, and Deitz and his wife went on the back porch. Mrs. Crane heard the wife scream and heard the two shots. When the second shot was fired, Mrs. Crane was half through the dining room and saw the flash.

Mrs. Deitz was lying down, and Deitz was lying with his feet against her face, and when he came to he kept kicking her until they moved him. She lived about fifteen minutes. Mrs. Crane testified to threats by defendant that he would kill his wife and himself. Before he left, after supper, he gave his wife money to pay the grocer’s bill.

Mr. Williams testified that he lived in the adjoining house and heard a woman scream and then the gunshots, and when he got there Deitz was lying with his feet against his wife’s head. That Deitz, when he came to, said, “Where is my wife, bring her to me; she drove me to it and made me do it.” When they picked them up, the revolver was lying under the side of her shoulder.

Dr. Baird testified: “I am the coroner of the county. I held the inquest over the deceased. There was a gunshot wound on the left side of the skull, near the median line, and about an inch or two above the base of the skull. The wound went inward and slightly down. Her hair about the wound was slightly powder-burned and there were powder-burns on the left arm slightly below the élbow on the outside. I don’t think the wound could have been'self-inflicted.”

Mr. Carmichael testified: When they got him in the front yard he called for water.

John Anderson testified: I am a grocer. That evening Deitz asked me if his wife had been in yet. I told him no, and he went out. Then his wife came in and paid her hill and after she was gone, he came in again and asked if she had been there. I told him yes and that she had paid her hill and he said, “All right,” and turned around and said, “By God, I will find her,” or, “Damn her, I will get her.”

Clarence Kier, deputy sheriff, testified: After defendant was arrested he said he did the shooting. He had the wound in the side of his head at the time and the brains were oozing out. He was in a semiconscious state. He wasn’t natural. I could see he wasn’t natural, couldn’t articulate plain. He was in a paralyzed state. He recognized me and some others. I talked with him as late as one or two o’clock the next morning after we had removed him down- stairs from the doctor’s office and he then said he was sorry he didn’t get the bullet wound lower in his head, and that he was sorry he did what he did; that was shortly after the shooting, after midnight. On the next day he was not in his right mind.

Dr. "Winchester, for defendant, testified: “I examined both wounds. Her wound was close to center of back of head, just a little above the hair line, right at the base of the skull. I removed the ball from the wound of Deitz at the police station. It penetrated the skull, and he lost between a teáspoonful and a tablespoonful' of brain matter. "There were no powder-burns around the wound. Prom the course of the bullet, it could have been self-inflicted; but it couldn’t have been self-inflicted without either singeing the hair or powder-burning.”

Dr. J. M. Winchester testified: I treated Deitz at the police station. There was a gunshot wound on right side in which the bullet had gone through the skin and bored just beneath, seemed like it had just cut a curve in the bone and just creased the end of the brain and the bullet was lying at the upper edge of the skull, and of course there was' a good deal of blood there. He lost a little bit of brain tissue. There were no powder-burns.

The defendant testified: After quitting work I went home, took a bath, went up' town, was. gone an hour, went back home and had supper. I got $15.25 in wages and gave my wife $13 to pay grocery bill. I went to the grocery to look for her, before supper and after supper. The first time she had not been there. The last time, she had been there and paid the bill. .When I got home my wife’s mother was in front yard. I went in the house and talked with my wife. I told her I was going to leave her. We had had several quarrels and couldn’t get along. We was mismated, our marriage was a failure. I said wasn’t there a man out here to-day? She says why? and I says, “This evening when I came home from work wasn’t there a cigarette butt in the cuspidor?” and she says, “No,” and after other quarreling I started to leave her and she said, “Don’t you leave me, if you do, I will kill you. Let’s go out on the porch and talk it over.” I went on the porch, she then came out. We quarreled and she told me she had been intimate with a man, a banker, and I told her if she was as bad as that I can’t live with you any longer and I started to rise and she shot me.

The instructions were in the usual form and beyond critcism, except as hereafter shown. The following were among the instructions:

“9. You are instructed that, if you find and believe from the evidence that the defendant made any statement or statements in relátion to the homi. cide charged in the information as to how said homicide was committed, you must consider such statement, or statements, altogether. The defendant is entitled to anything he said for himself, if true, and the State is entitled to the benefit of anything he said against himself in any statement or statements proven by the State. What the defendant said against himself the law presumes to he true, because said against himself. What the defendant said for himself, the jury are not bound to believe, because it was said in a statement or statements proven by the State, but the jury may believe or disbeleve it as it is shown to be true or false by the evidence in the case. It is for you to consider, under all the evidence or circumstances, how much of the whole statement or statements of the defendant proven by the State you, from the evidence, may deem worthy of belief.
“17. The court instructs the jury that in making up your verdict, you have a right to consider any statements, if any, shown to have been made by the defendant, but in considering such statements, you must consider the whole statements or conversation together. The defendant is entitled to the benefit of what he said in his own behalf if you believe it is true, but if you do not believe it is true, you are not bound to believe and consider it because proven by the State. You should consider such statements, however, with • caution on account of the liability of the witnesses to forget or misunderstand what was really said or intended.
“If you believe and find from the evidence that the defendant, at the time he made any' statement or statements, if any, concerning the crime charged in the information and Ms connection .therewith, was unconscious or delirious and not able to understand or apprehend what he was saying then such statement or statements made by the defendant while in such condition you will not consider.”

During the course of the argument of Mr. Mooney-ham, of counsel for the State, the following occured:

“Mr. Moonevham: The-statement of the grocery clerk, Anderson, stands undenied.
“Mr. Walden: We object to that.
“Mr. Mooneyham: He was on the stand and didn’t dispute or deny these facts.
“Mr. Walden: We object to that, and we desire to except to tbe statement of the attorney as to the failure of defendant to testify as to certain matters- while on the stand.
“The Court: That is improper, sustained.
“Mr. Mooneyham: He was on the stand and didn’t dispute or deny these facts.
“Mr. Walden: We object to that. We except to that statement of the attorney as not the law and prejudicial to the defendant.
“The Court: Sustained.”
During the argument of Prosecuting Attorney Coon, the following occured:
“Mr. C'oon: If this deceased had been the kind of a woman this defendant would like to have you think she was, why didn’t they call in the witnesses, the neighbors—
“Mr. Walden: We object. Judge Coon knows that evidence would not have been proper or competent.
‘ ‘ The Court: It is not proper and the jury will disregard it in arriving at the verdict in this case.
“Mr. Coon: Here is- another murderer. Will he be turned loose to go forth—
“Mr. Andrews: We object to him referring to defendant as. a murderer—
“Mr. Coon: The jury will find out too late after their verdict is rendered.
“Mr. Andrews: We object to that.
“The Court: It is not proper and the jury must not regard that.
“Mr. Andrews: We except as not being sufficient to take the sting out of the remark.
“Mr. Coon: The murderer can go on from day to day without being punished.
“Mr. Andrews: We object to that.
“The Court: Sustained.”

I. The objection made that tbe instruction numbered 9 should have been qualified so as to require the jury to find that the defendant was in such a condition of mind as to understand the statements when made is answered by calling attention to instruction numbered 17, which fully met that requirement. Those two instructions must be read and construed together. [State v. Brown, 188 Mo. 451, l. c. 466; State v. Sykes, 191 Mo. 62, l. c. 82, 83.]

II. Numerous objections are made to the conduct of counsel for the State in the trial of the case and in their argument to the jury. .

It is true that the learned trial judge sustained the objections to such conduct. But in addition to the conduct complained of as set out in the above statement, a careful reading of the record reveals numerous instances where counsel for the State went outside the limits allowed by law, and it appears that frequently, after being called to order by the court, they repeated the offense instantly and in the face of the court’s ruling.

We know that there is a long line of cases holding that such an offense unrebuked is reversible error. It is also true that ordinarily where counsel offend against the rule and are rebuked by the court, it is not a cause for reversal. Yet here is a case in which counsel for the State seem to have asserted that so far as they are concerned, they do not propose to bow to the mandate either of the law or of the trial court. An objection on the part of the defendant, even when sustained by the court, only resulted in an aggravated repetition of the offense. So far as this defendant is concerned, the law provided for his protection has been trampled upon in the face of the court and over its protests. We are bound to presume that it influenced the jury. Counsel for the State evidently thought it would do so, or they would not have done what they did. Even if he would have been convicted without it, he might have received lighter punishment.

Fox, J., in State v. Spivey, 191 Mo. l. c. 112, says: “The record abounds in cautions from the learned trial judge to the representative of the State, yet they seem to have been practically unheeded. While the zeal and earnestness of the successful and learned prosecuting attorney in this case, in the prosecution of offenses, is to be commended, yet we must not overlook the fact that he represents the entire people, including the defendant, and that convictions can only be fully justified when secured upon the facts developed in the case and not by improper remarks during the progress of the trial or in the argument to the jury, which frequently go far toward influencing the conclusions reached. While we, from experience, can make allowances for the many trials to which the circuit judge is subjected in the trial of an important case, and the record in this cause discloses that he made frequent efforts to keep the prosecuting attorney within the record, yet there is only one course for the' trial court to pursue in cases of that character, and that is, if the prosecuting officer insists upon getting out of the record, to promptly set aside verdicts of convictions procured in that way.”

For the reasons above given the judgment is reversed and the cause remanded for new trial.

Bond, C., concurs.

PER CURIAM.

— The foregoing report of the commissioners is hereby adopted as the opinion of the court.


text:
    THE STATE v. STELLA MARTIN LOVELL, Appellant.
    Division Two,
    June 20, 1911.
    1. EVIDENCE: Statement Made by Deceased in Defendant’s Pres* ence. Where a physician had called at the house where the shooting occurred soon after defendant had taken a revolver from a drawer and shot deceased, and inquired what was the matter, and defendant replied she had shot deceased, but it was an accident, a statement in her presence and hearing made by deceased, “She knows better than that,” and not denied by her, is admissible in evidence. And the facts of this ease show the statement was made in her hearing.
    2. -: Objection Sustained: No Offer of Proof. If an objection to a question is sustained, there should be an offer of proof by the party against whom the ruling is made.
    3. -: Improper Answer. Ah improper answer by a witness should be followed by a motion to strike out, to be available for review on appeal.
    4. -: Prior Quarrel and Threats: Felonious Intent: Accident. Testimony that defendant and deceased had quarreled shortly before the shooting, and that during the quarrel defendant was angry and used vile and profane language and threatened to tear down deceased’s place of business unless he complied with her demands, is competent as tending to show that the fatal shot was fired with felonious intent, and not by accident as defendant contends.
    5. -: Irrelevant Matter. Testimony that the man who was in charge of defendant’s house after her arrest for shooting deceased therein, was seen near the house with a pistol the next morning after the shooting, in no manner connecting the defendant with the man’s possession of the weapon, had no place in the case, and ought not to have been admitted; yet as it is conceded that defendant had a pistol at the time of the shooting and fired the fatal shot, such testimony could not have prejudiced the defendant, and is not reversible error.
    6. -: Part of Conversation: No Proffer of Balance: Non Prejudicial Error. When the State introduces in evidence statements made out of court by the defendant, the entire conversation thereby becomes admissible; and where the State had shown that defendant in the county jail on the night of the shooting said she shot to kill and she hoped she had killed “the s — ■ of a b — ,” it was error to deny to her the privilege of narrating other portions of her conversation on that occasion. But where she testified that it was the deputy sheriff to whom she referred and not the deceased, and no offer of proof of the balance of the conversation was made by her counsel, the error will not on appeal be held to be prejudicial.
    7. DYING DECLARATION: Necessary Showing. A dying declaration, to be competent as evidence, must be made under the belief that death is impending and that there is no hope of recovery. Where defendant was fatally shot through the body and bladder, suffered greatly from hemorrhage and shock, and died within forty-eight hours; had been informed by his physician that he could not recover, and had said to his father he was going to die, a declaration signed by him after it had been reduced to writing by an attorney, is competent evidence.
    8. -: Prejudicial Words In Same. A statement in the dying declaration that defendant fired three shots at deceased “without any cause known to him,” is favorable to defendant rather than prejudicial, where the defense is that the shooting was accidental.
    9. ACCIDENTAL HOMICIDE. The evidence in this case, where the defense was that the shooting was accidental, was sufficient to sustain a verdict convicting defendant of murder in the second degree for having shot her paramour after drinking and quarreling with him for two or three hours in her own house.
    Appeal from Bates Circuit Court. —How. Charles A. Benton, Judge.
    Aitirmed.

      W. O. Jackson and Thomas J. Smith for appellant.
    (1) The court erred in permitting the defendant to prove by the witness Dr. Chastain that defendant stated to him that she shot deceased by accident, and, then, over the defendant’s objection, permitting the witness to testify that tbe deceased, while the defendant was in the same room, said to him, “She knows better than that,” and that defendant made no reply at all. The witness admitted that he did not know whether defendant heard the statement of deceased or not. 1 O-reenleaf on Ev. (14 Ed.), Sec. 197; State v. Glahn, 97 Mo. 679'; State v. Mullins, 101 Mo. 517; State v. Murray, 126 Mo. 615; State v. Swisher, 186 Mo. 10. (2) The court erred in permitting the witnesses McGinnis and McManus to testify to alleged conduct and statements made by the defendant prior to the .time of the shooting. Such statements being in no sense a threat against the deceased, but prejudicial. State v. Jaeger, 66 Mo. 180, (3) The court erred in permitting the witness Thomas to testify to having seen one Klepper, who is shown to have had charge of the defendant’s house after she was arrested, to. have in his possession a pistol near the defendant’s house on the morning following her arrest; there being no evidence at all that he had been in the house at the time, that he had procured the pistol from the house or that he was there by direction of the defendant, or that the defendant knew of his being there or of his having a pistol in his possession. Even if Klepper had been in a conspiracy with defendant to murder deceased, which is not charged, what he did next day after the shooting, in defendant’s absence, was not competent against the defendant. State v.. Swain, 68 Mo. 601; State v. Elkins, 101 Mo. 344; State v. Duncan, 64 Mo. 266; State v. Roberts, 201 Mo. 728. (4) The court erred in refusing to permit the defendant to testify as to the conversation had with Chambers at her house on the night of the shooting; said Chambers had testified on behalf of the State as to what the conversation was. The defendant had a right, therefore, to give the whole conversation which occurred at the time. The court also erred in refusing to permit defendant to testify as to the conversation which she had with Babe Card at the jail on the night following the shooting at her house. The State having introduced a part of the conversation, the defendant had a right to have the whole conversation go to the jury. 1 Greenleaf on Etv. secs. 201-202; Best’s Prin. of Ev., p. 511; Underhill on Ev., see. 80; State v. Martin, 28 Mo. 530; State v. Branstetter, 65 Mo. 149; State v. Napier, 65 Mo. 462; State v. Hayes, 78 Mo. 319; State v. Young, 119 Mo. 496. (5) The evidence all shows the deceased was told, prior to the time he made his ante-mortem statement, that the wound was serious and most likely would prove fatal, unless he submitted to an operation. Whereupon he consented to the operation being performed. This statement, not having been made in the belief that death was inevitable and then imminent, was not competent. Greenleaf on Ev. sec. 156; Under-hill on Elv. sec. 101; State v. Simon, 50 Mo. 3701; State v. Ridder, *90’ Mo. 54; State v. Partlow, 90 Mo. 608; State v. Elkins, 101 Mo. 341; State v. Johnson, 118 Mo. 491; State v. Wilson, 121 Mo. 434 ;• State v. Craig, 190 Mo. 641; State v. Kelleher, 201 Mo. 614; People v. Hodgdon, 55 Clalif. 73'. (6) That part of the antemortem statement to the effect that defendant, “without any cause known to him, ’ ’ fired the shots, is not a statement of a fact occuring at the time, but is the conclusion of the witness, and was incompetent in any event and prejudicial. State v. Draper, 65 Mo. 335; State v. Elkins, 101 Mo. 450; State v. Barker, 172 Mo. 202; State v. Horn, 204 Mo. 548.

      Elliott W. Major, Attorney-General, and John M. Daioson, Assistant Attorney-General, for the State.
    (1) Appellant complains as to the action of the court in refusing to permit defendant to testify as to the conversation that she had with Chambers at the jail on the night following the killing at her house. A perusal of the appellant’s testimony would show that she was permitted to testify in full as to what happened on the night of the killing and after the killing, as well as to what was said at the jail. No reversible error was committed by this ruling of the court. All the witness could have done was to deny the conversation, and she, in effect, had done that. The court permitted the appellant to cross-examine witnesses Mc-Manus and Winn. State v. Branstetter,. 65 Mo. 156; State v. White, 189 Mo. 339;. (2) The rule that admits dying declarations and ante-mortem statements is that they are declarations made in extremity when the parties are at the point of death and every hope of this world is gone, when every motive to falsehood is . silenced, and the mind is induced to speak 'the truth. The form of a dying declaration is immaterial so that it clearly shows that it was made under a sense of impending dissolution. State v. Nocton, 121 Mo. 550. It is the impression of almost immediate dissolution and the rapid succession of death in point of fact that renders the testimony admissible. 1 G-reenleaf on Ev. sec. 158; 3 Russell on Crimes (9 Am. Eid.), 250; 9 Am. & Elng. Ency. Law, 108;- State v. Bowles, 146 Mo. 6; State v. Craig, 190 Mo. 338. After the consideration of all the evidence in this case with reference to the condition of the deceased at the time he made the antemortem statement, the court can arrive at no conclusion other than that the deceased made the antemortem statement under a belief of impending dissolution, and after he had abandoned all hope of recovery. This seems to be the rule under which this sort of evidence is admitted. State v. Elkins, 101 Mo. .350; State v. Colvin, 226 Mo. 488. The fact that the deceased did not die for some little time after his formal dying declaration had been written and signed does not effect its admissibility, if at the time of making it he believed that death was impending. State v. Hendricks, 172 Mo. 654; State v. Parker, 172 Mo. 203; State v. Vaughn, 152 Mo. 73; State v. Sexton, 147 Mo. 89. From the time the deceased was taken back from the appellant’s porch and put on the bed he was considered in extremis. The evidence shows that he said he was all in. He soon began to bloat, was exhausted and weak. At the time he made the statement he was advised by his physicians that he could not live, and he knew it. State v. Garth, 164 Mo. 563; State v. Brown, 188 Mo. 451.
   KENNISH, P. J.

— Under an information charging her with murder in the first degree for having shot and killed one Duke Benefield on the 20th day of December, 1909', appellant was tried in the circuit court of Bates county at the February term, 1910', convicted of murder in the second degree, and her punishment assessed at imprisonment in the penitentiary for a term of ten years. She appealed to this court.

The evidence for the State tended to show the following facts:

At the date of the homicide and for some time prior thereto the defendant lived alone in a small cottage in the city of Butler, she and her husband having been separated for a number of years.

The deceased, an unmarried man about thirty-three years of age, resided at Rich Hill, where he was employed as a bartender. He had formerly lived in Butler, and while living there, before the defendant and her husband separated, there, were frequent clandestine meetings between him and the defendant. The defendant’s husband left her on account of the attentions shown her by the deceased and afterwards instituted a suit for divorce. The divorce suit was still pending at the time of the homicide. After the separation, both while the deceased lived in Butler and after he moved to Rich Hill, he frequently went to the home of the defendant and remained there with her during the night.

On December 20', 1909, the deceased was in the city of Butler attending a political convention. E'arly in the afternoon he sent some beer and whiskey to the home of defendant and notified her that he would be down that evening and would spend the night with her. He also arranged for an oyster supper at defendant’s house that evening and invited a woman named Nell Golden and a man known as “Dusty” Laster to attend the supper. Early in the evening the deceased, Laster and Nell Golden went to the defendant’s home, taking with them such things as they wished to have prepared for the supper. While the defendant was cooking the supper, during the meal and later in the evening there was considerable drinking, especially upon the part of the defendant and the deceased. Neither Laster nor Nell G-olden drank enough to affect them to any extent, but the defendant and the deceased both became very much intoxicated.

In the course of the evening the defendant and the deceased had several quarrels, but at the time of the shooting of deceased they were not quarreling and to all appearances had forgotten their differences.

Between ten and eleven o’clock the deceased began to undress and insisted that the defendant go to bed with him. He sat down on the edge of the bed and continued taking off his clothes. Laster and Nell Gulden announced that they were going to leave and were preparing to take their departure when defendant walked to a dresser that was in the room, took a revolver from a drawer, faced the deceased and discharged the revolver, the bullet striking him in the abdomen and inflicting a wound from the effects of which he died the following day.

The bed on which the deceased was seated at the time he was shot was in the southwest corner of the room. The head of the bed was to the west. The dresser was in the northwest corner of the room. There was also a stove in the room near the north wall and midway between the east and west walls. Just east of the foot of the bed was the door through which Laster and Nell Golden would have passed in leaving the house. Laster was standing by the side of the bed talking to deceased, while Nell Golden was nearer the door. The bed was directly in front of a window in the south side of the room.

When the shot was fired the deceased and Raster both started toward the defendant. She walked behind the stove and toward the east side of the room. Nell Golden ran to her, reached her before either of the men, grabbed her hand and pointed the revolver upward. The two women struggled for a moment for the possession of the revolver when defendant released her grasp of the weapon and told Nell G-olden to take it if she wanted it. In the meantime the two men walked' out on the porch and the women followed them to the porch after Nell Golden toók the revolver from the defendant. There was no evidence as to what was done with the revolver at that time.

When the women reached the porch the deceased said he was hurt and Raster and the two women assisted him in walking back into the house and to the bed. Nell Golden called a physician by telephone. The doctor arrived in a few minutes and shortly thereafter the sheriff came to the house accompanied by two men.

When the physician arrived he inquired how the deceased had been .shot and the defendant said it was by accident. Thereupon the deceased said: “She knows better than that.” To this statement the defendant made no reply. The deceased pointed to Raster and Nell Golden and said they had nothing to do with it.

When the sheriff arrived he also inquired as to how the deceased had been hurt and defendant again said it was by accident. She then told the officer to step; into the kitchen and she would tell him all about it. The two went to the kitchen and the defendant began to relate to the officer the circumstances of the quarrel she had had with the deceased during the evening. By this time so many people were crowding into the house and into the kitchen that the defendant’s statement was interrupted and she did not complete it by any explanation of the events immediately connected with the shooting.

The sheriff searched the premises for the revolver bnt failed to find it. A hole having the appearance of having been made by a bullet of the Same caliber as the revolver with which the deceased was shot was discovered in a pane of glass in the window south of the bed on which deceased was seated when the shot was fired. This hole was two or three feet higher than the deceased’s head would have been while he was sitting on the bed. No other bullet marks were found in the room. Nell Golden testified that she thought two shots were fired, but would not say positively that there was more than one. Witnesses living in the neighborhood testified that they heard three shots.

The sheriff took the defendant to the county jail and during the night she was heard to say that she hoped she had killed the “s-of a b-.” That she hoped he would die before morning. The witnesses who heard these remarks said she did not mention the name of the deceased just at that time, but the evidence tended to show that she made the remarks concerning him.

On the following morning the deceased was taken to his father’s home at Rich Hill. The physicians attending him found that the bullet had passed through the upper part of his bladder, and decided upon a surgical operation, which was performed in the afternoon. Just before the operation the deceased made a dying statement which was signed by him after it had been reduced to writing by an attorney. .The statement was in words and figures as follows:

State oí Missouri, County of Bates, ss.
Duke Benefield, being-first duly sworn, upon bis oatb states: Tbat on December 20, 1909, in tbe evening, be visited tbe dwelling place of tbe woman known as Estella Martin, sucb dwelling 'place being in the northeast part of tbe city of Butler, Bates county, Missouri. Tbat while engaged in conversation with tbe said woman, and without any cause known to him, tbe said Estella Martin fired three shots at him from a revolver, one of which shots took effect and penetrated the body of affiant.
That he, affiant, is advised by his physician that the wound caused by the said shot is of very serious and dangerous nature and may cause his.death.. That he makes this statement herein-before set out in anticipation of death and as his dying declaration,
DUKE BENEFIELD.
Subscribed and sworn to before me this 21st day of December, 1909.
GEORGE TEMPLETON, •
(Seal.) Notary Public.
My commission expires on March 25th, 1913.
Witnesses to signature: W. H. Allen, A. Benefield.

The young man died a few hours after the dying declaration was signed.

The defendant was a witness in her own behalf and testified that the shooting was accidental; that she had been drinking during the evening, but remembered clearly and distinctly all that happened up to the time of the shooting; that only one shot was fired; that she had been in the habit of sleeping with the revolver under her pillow; that when Laster and Nell Golden announced that they were going to leave she went to the dresser to get the revolver for the-purpose of placing it under her pillow, preparatory to retiring with deceased; that when she took the weapon from the drawer she turned toward the deceased, put one hand back of her to close the dresser drawer, staggered back against the dresser and in some manner unknown to her the revolver was discharged. She further testified that there was no ill-will between the deceased and her the evening he was shot; that their apparent quarreling was only in a joking way; that they were on the best of terms, were engaged to be_ married and had intended to be married as soon as her husband obtained a divorce. She denied making a statement in the county jail concerning deceased to the effect that she .hoped she had killed him or hoped he would die, her explanation of such statements being that she was talking ahont the deputy sheriff, and that she was angry at the deputy by reason of. his conduct at her home after the shooting.

A brother-in-law of the defendant, who owned the house in which she lived when deceased was shot, testified that the hole in the window above the bed had'been there for seven years. He further testified that on the day following the shooting he found the revolver with which the shot was fired; that it whs in the kitchen of the defendant’s house, lying upon a chair and covered with a woman’s wrap of some- kind; that there was only one empty chamber in the revolver when he found it.

Several witnesses testified to the good reputation of the defendant as to her honesty and veracity. These witnesses, on cross-examination, testified that her reputation for chastity was bad.

It was shown by the State in rebuttal that a number of years before the shooting of deceased the defendant, in the circuit court of Bates county, entered a plea of guilty to the charge of running a bawdy house.

The court instructed the jury- upon murder in the first degree, murder in the second degree and upon the theory advanced by the defendant that the shooting was accidental, and also gave such general instruction as was necessary for the information of the jury in deciding the issues thus presented.

I. Appellant first assigns as error the ruling of the court admitting in evidence the statement made by deceased shortly after the shooting and in the presence of the defendant.

It appears from the testimony that Dr. Chastain was one of the first to arrive at defendant’s home after Duke Benefield was. shot. He was a witness and testified that upon his arrival he inquired as to what was the matter; that defendant answered she had shot Duke Benefield but that it was an accident; that when defendant said it was an accident Benefield answered, “She knows better than that,” and that defendant made no reply.

It was shown that defendant was standing near enough to have heard what Benefield said, and as she was under no legal restraint at the time, the case falls within the rule that an admission of guilt may be implied from the silence of the accused when statements are made in her presence and hearing, implicating her in the crime. [Kelley’s C'rim. Law and Prac. sec. 288; 1 Ency. Evidence, 386; State v. "Walker, 78 Mo. 380; State v. Swisher, 186 Mo. 1; State v. Vickers, 209' Mo. 12.]

Neither is there any merit in the complaint that the court erred in striking out a part of the testimony of the witness Bullock on cross-examination and in. permitting him to answer that he never had heard of the bullet hole in the window before. The record does not bear out the statements in appelant’s brief upon this point. It shows that on the cross-examination of the witness Bullock the following occurred:

“Q. And you never did find any other shot except that one up in the window that was there when . Jim Thomas bought the house?
“Object to that.
“Q. Well, one that was said to be there?
. “By Mr. Dawson: Object to that and ask that it be stricken out.
“By the Court: So ordered.
“To which ruling of the court the defendant then and there excepted and still excepts.
“A. Never heard tell of that before.”

No offer of proof was made when the objections to- the foregoing questions were sustained, nor did the defendant move to strike out the answer of the witness.

If an objection to a question be sustained there should be an offer of proof by the party against whom the ruling is made in order that prejudicial error shall appear. [State v. Arnold, 206 Mo. 589; State v. Hedges, 144 Mo. 50; State v. Martin, 124 Mo. 514.]

And an improper answer by the witness should be followed by a motion to strike out, to be available for review on appeal. [State v. Bateman, 198 Mo. 212; State v. Sykes, 191 Mo. 62; State v. Foley, 144 Mo. 600.]

Witnesses McManus and McGinnis were permitted to testify, over defendant’s objections, to a quarrel between the defendant and the deceased shortly before the homicide, in which the defendant was angry and used vile and profane language and threatened to tear down deceased’s place of business if he did not comply with her demands. This testimony was competent as tending to show that the fatal shot was fired with felonious intent, and not by accident, as contended by the defendant. [State v. McNamara, 212 Mo. 150; State v. Cummings, 189 Mo. 626; State v. Callaway, 154 Mo. 91.]

II. Appellant complains that the court permitted the State to prove that a man named Klepper, .who was in charge of defendant’s house after her arrest, was seen near her house with a pistol on the morning after the homicide. This, testimony in no manner connected the defendant with Klepper’s possession of the weapon, and while it is not apparent upon what principle of law this testimony was admitted, yet in view of the conceded facts that the defendant did have a pistol at the time of the homicide and did fire the fatal shot, we cannot understand how such testimony could possibly have prejudiced the defendant upon the issues tendered.

III. Witnesses for the State testified to statements made by the defendant in the county jail on the night of the homicide to the effect that she hoped she had killed him and that she shot to kill him. The defendant testified in her own behalf, and when first upon the witness stand did not deny making said statements. She was afterward recalled and asked as to whom she referred in the conversation at the jail as testified to by the witnesses for the State. She answered that she was talking about Bnd Chambers, the deputy sheriff, and about his conduct at her home soon after the shooting. She then proceeded to narrate other portions of the conversation at the jail, and the court sustained an objection interposed by the prosecuting attorney. Appellant contends that this ruling of the court was prejudicial error.

Neither the prosecuting attorney or the court gave any reason for excluding this conversation, a part of which had been given in evidence by the State. The general rule is well settled that when one party introduces in evidence, statements made out of court in a conversation by the adverse party the entire utterance thereby becomes admissible. The defendant, in testifying to what was said in the conversation at the jail, was clearly within this rule and was entitled to all that was said in relation to the person to whom she referred ■ in the said conversation, and we think it was error to exclude it.

Was the ruling of the court prejudicial error? We are of the opinion that it was not and for the following reasons: It is evident that the statements made at the jail by the defendant, as testified to by the witnesses for the State, did not tend to prove the guilt of the defendant unless she referred to the deceased. The defendant was permitted to testify and did testify that she did not refer to the deceased but to Bud Chambers, the deputy sheriff, when she said she hoped he would die. She therefore flatly contradicted the witnesses for the State as to the statements made by her at the jail, so far as it was sought to draw any inference of criminality therefrom. What more she conld have added if allowed to proceed without objection, is not apparent. Indeed, .if the defendant would put the court in the wrong as to this ruling she should have made an offer of proof so that the materiality of the testimony excluded would have appeared in the record. [State v. Arnold, 206 Mo. 589; State v. Hodges, 144 Mo. 50; State v. Martin, 124 Mo. 514.]

In addition to the foregoing it was in - evidence that the defendant had stated at her home, before being taken to the jail, that she shot the “s — :— of a b- to kill him,” and no attempt was made to deny that statement. For these reasons we are constrained to hold that there was not such error in the ruling of the court as tended “to the prejudice of the substantial rights of the defendant upon the merits.” [See. 5115; R. S. 1909.]

. IY. It is assigned as error that the court admitted in evidence the alleged dying declaration of the deceased.

In order that a dying declaration may be competent as evidence it is. essential to prove that the declarant made it under the belief that death was impending and that there was no hope of recovery. [State v. Kelleher, 201 Mo. 614; State v. Craig, 190 Mo. 332; State v. Nocton, 121 Mo. 537.]

It was shown in evidence that the deceased was fatally shot through the body and bladder. He suffered great pain and gradually grew worse until his death which was within forty-eight hours after the shooting. In the forenoon of the day he died and before he made the declaration, the physician, attending him informed him that he could not recover. The deceased then told his father that he was going to die. He had also said to his father a few hours after the shooting that he was “all in and could not get well.” He was suffering greatly from hemorrhage and shock and had to be supported in bed when he signed the declaration. This testimony leaves no doubt in our minds as to the correctness of the action of the court in admitting the dying declaration in evidence. [State v. Kelleher, 201 Mo. 614; State v. Craig, 190 Mo. 332; State v. Nocton, 121 Mo. 537.]

V. . There is no merit in the complaint that prejudicial error was committed because of the clause in the dying declaration that the firing of the shot was “without any cause.” No objection was made to the declaration at the trial upon that ground, and moreover, as the defense relied upon was that the shooting was accidental, the clause objected to cannot be considered otherwise than as favorable to the defendant.

VI. On account of the earnestness with which counsel for defendant, in their brief and at the bar of this court, have combatted the theory of a felonious homicide and have urged the defense of an accidental shooting for their client, we have read and considered carefully the facts and circumstances in evidence bearing upon that phase of the 'case, and we are convinced that the jury was fully warranted in finding the defendant guilty of murder in the second degree.

Finding no prejudicial error in the record, the judgment is affirmed.'

Ferriss and Brown, JJ., concur