author: BROWN, J. — FARIS, J. —

text:
    THE STATE v. F. M. DOUGLAS, Appellant.
    Division Two,
    May 26, 1914.
    1. INSTRUCTIONS: Reasonable Doubt: Must Be Given. In the trial of a felony case, it is error to omit to give an instruction on the subject of reasonable doubt. The doctrine that a defendant is entitled to an instruction telling the jury that unless his guilt is proven beyond a reasonable doubt they shall give him the benefit of that doubt and acquit him, is so interwoven in our jurisprudence that it has become a necessary element of law in every criminal case. The defendant is just as much entitled to such an instruction as he is entitled to a trial by jury.
    2. -: -: Embraced in Instruction on Good Character. Where the subjects of good character and reasonable doubt are so blended in one instruction as to minimize the subject of reasonable doubt and that is the only instruction given on the subject, it will not be held that the court has sufficiently instructed on that subject. The court should unequivocally instruct the jury that the burden of proving defendant’s guilt beyond a reasonable doubt rests upon the State, etc.
    3. -: -: Failure to Give: Statute Applies Only to Trial Courts. The Supreme Court does not on appeal set aside verdicts and grant new trials, but can only require those things to be ^ done by trial courts. Therefore the words of Sec. 5231, R. S. 1909, saying that a failure to give such instructions as are necessary for the information of the jury .in giving their verdict “shall be good cause when the defendant is found guilty for setting aside the verdict of the jury and granting a new trial,” pertain and refer exclusively to the procedure of trial courts, and such failure is not a ground for reversing a judgment in the Supreme Court unless it is made a ground in the motion for a new trial.
    4. -: -: —-:-: No Ground for Motion. In order that the failure of the trial court to give an instruction on the subject of reasonable doubt or to properly instruct on that subject may be available to defendant on appeal, it is necessary that his motion for a new trial specifically call the trial court’s attention to its failure to so instruct. Sec. 5231, R. S. 1909, does not avail to relieve him of the duty of incorporating such failure in his motion for a new trial, and if it does not contain such ground the Supreme Court cannot reverse the judgment because of such failure.
    5. -: -: -: -: No Exception at Time Instructions are Given. But Sec. 5231, R. S. 1909, which says that “whether requested or not” the court shall instruct on the subject of good character and reasonable doubt “and a failure to so instruct in cases of felony shall be good cause, when defendant is found guilty, for setting aside the verdict of the jury and granting a new trial,” does not require the defendant, at the time the instructions are given, to except to its failure to instruct on the subjects mentioned in that statute. The .court’s failure so to instruct will be available to him on appeal if he specifically makes that failure a ground of his motion for a new trial. [Following State v. Conway, 241 Mo. 271, and overruling State v. McCarver, 194 Mo. 717; State v. Espenschied, 212 Mo. 1. c. 223; State v. Goldby, 215 Mo. 1. c. 57; State v. Wilson, 225 Mo. 1. c. 518;. State v. Tucker, 232 Mo. 1. c. 15.]

      Held, by FARIS, J.,- in a concurring opinion, but dissenting on this point, that the amendment of 1901 by which the words “whether requested or not” were added to section 5231, was designed to relieve the defendant of the duty to ask instructions on the subject of reasonable doubt and other essential matters, and to place the burden of preparing such instructions upon the court, but was not intended to reverse the law centuries-old requiring the defendant to save an exception, at the time the instructions are given, to the failure of the court to give such instructions; that the failure of the court to give such an instruction is a matter of exception, and exceptions can be preserved only in a bill of exceptions and saved at the time the error is committed, and that the defendant who stands by and makes no objection to the instructions when they are given, nor until his motion for a new trial is filed, should not be entitled to have the court’s failure to give instructions reviewed on appeal, and State v. Conway, 241 Mo. 271, should be overruled.
    Appeal from Oregon Circuit Court. — Row. W. N. Evans, Judge..
    Reversed and remanded.

      3. D. Green, S. M. Meeks and George M. Miley for appellant.
    There was no instruction given upon the subject of reasonable doubt and this was reversible error. State v. Gullett, 121 Mo. 447. The only place in all the instructions where the words “reasonable doubt” are used is in instruction nine in connection with the subject of defendant’s good character. In all the other instructions the subject of reasonable doubt is prejudicially omitted, notably in instruction three. There was no instruction upon the presumption of innocence, and this was particularly injurious in this case because of the fact that the jury were instructed in instruction number four as to a presumption against the defendant. While an instruction as to reasonable doubt need not be applied seriatim to each item, it is necessary to give a general instruction upon the subject of reasonable doubt, applicable to all the testimony. State v. Good, 132 Mo. 114; State v. Byscher, 179 Mo. 140. In a criminal prosecution it is the duty of the trial court to give all necessary instructions whether they are requested or not. State v. Branstetter, 65 Mo. 149 ; State v. Eufus, 149 Mo. 406. It was error for the court to fail to instruct the jury upon the subject of reasonable doubt, whether such instruction was requested or not. State v. Clark, 147 Mo. 20. The defendant is entitled to an instruction upon the presumption of innocence and the failure to give it in this case was error. State v. Moxley, 102 Mo. 374; Sec. 5231, E. S. 1909; State v. Fannon, 158 Mo. 156; State v. Conway, 241 Mo. 271.

      John T. Barker, Attorney-General, and William M. Fitch, Assistant Attorney-General, for the State.
    (1) It is the office of the bill of exceptions to"preserve the objections made to matters ruled upon by the court during the progress of the trial. If those objections are not made, or if made, are not excepted to by the party against whom made, then there is nothing preserved for the review of the appellate court. In such case a proper motion for a new trial may be filed, but the bill of exceptions proper, being the receptacle which preserves the matters sought to be brought to the appellate court for consideration, being silent as to such matters, the motion for a new trial cannot revive such matters. It is the office of the bill of exceptions to preserve the exceptions actually made and taken to the ruling of the court at the time such rulings were made during the progress of the trial. It is the office of the motion for a new trial to bring those exceptions together and present them in general or concrete form to the trial court; so that if an exception is properly taken to an adverse ruling of the court during the trial and that exception is. not kept alive and presented to the trial court by the motion for a new trial, then such question cannot be considered by the appellate court; and conversely, we might say, if no exception were taken to the action of the court during the trial of the case to an adverse ruling of the court, then, notwithstanding the fact that the motion for a new trial may set out such ruling as error, still if there is no exception preserved in the bill of exceptions to the alleged erroneous ruling of the. court, the motion for a new trial alone will not preserve the matter for the appellate court. It thus appears that it is necessary in order to preserve an exception for the consideration of the appellate court that, first, an objection must be made and exception saved to the ruling of the court at the time such ruling was made, all of which must be shown by, and preserved in, the bill of exceptions; and, secondly, these matters must be carried to the attention of the court by the motion for a new trial. If this, procedure is. not had, then it follows logically that the question assigned as error cannot be reviewed by the appellate court; and thirdly. the action of the court in overruling the motion for a new trial must be excepted to, and such exception be shown by the bill of exceptions. There is great harmony in the decisions of this court, on this question. The only case that is out of line with the reasoning above set out, as applied to the right, power, jurisdiction or authority of this court to review instructions in a case, is State v. Conway, 241 Mo. 271. We are convinced that the doctrine of that case, carried to its logical sequence, is at war with the fundamental rule of such procedure, as declared by this court since its organization. The main doctrine of the above case is so completely at variance with what we conceive to be the fundamental rule of law in such cases, that we beg leave to submit for the consideration of the court the authorities which establish, in an unbroken line, the true, logical and correct rule. Without beginning at the very earliest cases, we will pass to those cases which were decided after what is now section 5231, Revised Statutes 19091, was first enacted. State v. Bayne, 88 Mo. 610; State v. Reed, 89 Mo. 168; State v. Brannum, 95 Mo. 19; State v. Day, 100 Mo. 242; State v. Cantlin, 118 Mo. 100; State v. Kennade, 121 Mo. 405; State v. Paxton, 126 Mo. 500; State v. Efilsabeck, 132 Mo. 348; State v. Foster, 136 Mo. 653; State v. Woods, 137 Mo. 6; State v. Waters, 139 Mo. 539; State v. Cantlin, 118 Mo. 100; State v. Sacre, 141 Mo. 64; State v. Lamb, 141 Mo. 298; State v. Barton, 142 Mo. 450; State v. Meadows, 156 Mo. 110; State v. Armstrong, 167 Mo. 257; State v. Koplan, 167 Mo. 298; State v. Brown, 168 Mo. 449; State v. Riddle, 179 Mo. 287; State v. Sharp, 183 Mo. 715; State v. Eaton, 191 Mo. 151; State v. Welch, 191 Mo. 179; State v. Delcore, 199 Mo. 288; State v. King, 194 Mo. 474; State v. Mc-Carvei’, 194 Mo. 717; State v. Chenault, 212 Mo. 132; State v. Gordon, 196 Mo. 185; State v. Bond, 191 Mo. 555; State v. Weatherman, 202 Mo. 6; State v. West, 202 Mo. 128; State v. King, 203 Mo. 560; State v. Barnett, 203 Mo. 640; State v. Espenschied, 212 Mo. 222; State v. Wilson, 225 Mo. 503; State v. Goldsby, 215 Mo. 48; State v. Barker, 216 Mo. 532; State v. Nelson, 225 Mo. 551; State v. Tneker, 232 Mo. 1. (2) Sec. 1987, R. S. 1909, provides that the court may instruct in civil cases. ' This section goes much further than See. 5231, R. S. 1909, does in criminal eases. The section in civil cases (1987) expressly provides that the instruction given either at the request of the parties or by the court of its own motion, shall be taken to the jury room by the jury and returned by the jury into court with their verdict, and when returned:, such instructions shall be filed by the clerk and become a part of the record in the case. Yet notwithstanding this broad provision of the statute, the appellate courts of this State have uniformly held that no instruction given in a civil case shall be subject to review in an appellate court unless proper exception was made at the time it was given or refused and shown by the bill of exceptions, and, secondly, that this matter must be brought to the attention of the trial court in the motion for a new trial. Sickles v. Bullock, 86 Mo. App. 89; Berkbiegler v. Railroad, 164 Mo. App. 441; Montague C. A. Co. v. Fulton, 166 Mo. App. 11; Kolokas v. Railway, 223 Mo. 460; Bldg. Co. v. Hopkins, 204 Mo. 654; Randolph v. Alsey, 8 Mo. 656; Floersch v. Bank, 10 Mo. 515; Dozier v. Jerrnan, 30 Mo. 216; Thompson v. Russell, 30 Mo. 498'; Boyse v. Crickard, 31 Mo. 530; Walsh v. Allen, 50 Mo. 181; Shaw v. Potter, 50 Mo. 281; Van Cleve v. Gilstrap, 50 Mo. 412; Waller v. Railroad!, 83 Mo. 617. The fundamental distinction between the rule as to giving instructions in civil cases and in criminal cases is this: In civil cases the court is not required to give instructions except when requested. Sec. 1987, 'R. S. 1909 ; Coleman v. Drane, 116 Mo. 387; Brown v. Ptg. Co., 213 Mo. 611; Nolan v. Johns, 126 Mo. 159; Browning v. Railway, 124 Mo. 119; Marion v. Railway, 127 Mo. App. 129. In criminal cases the statute requires the court, whether requested or not, to instruct on all questions necessary for the information of the jury. Secs. 5231, 5244, R. S. 1909. We now examine the statutes concerning the saving of exceptions and the right to review proceedings in the trial court by the appellate court. Sec.' 5245, R. S. 19091, shows that exceptions in criminal cases shall be preserved in the manner and within the time as required for preserving same in civil cases. Sec. 2028, R. S. 1909, shows when and how bills of exceptions in criminal cases are taken. The rule as to the necessity of preserving, by timely exception, the action of the court in giving or refusing instructions is not changed. See also Sec. 2081. There is nothing in the statute which would relieve a defendant in a criminal case from the necessity of excepting to the action of the court in failing to give proper instructions in a criminal case. The only statutory rule on this question is found in section 52451 which refers for the authoritative rule in such cases to the practice in civil cases. Since the organization of this court, it has been an- unbending rule in civil practice that in order to confer the power on the appellate court to review instructions given in a civil case, there must, first, have been objections made and exceptions saved at the time the court gave or refused to give the instructions, and, secondly, these matters must have been called to the. attention of the trial court in the motion for a new trial; and, thirdly, we may add, the bill of exceptions must show that the action of the court in overruling the motion for a new trial was excepted to at the time. In the absence of these matters appearing in the bill of exceptions, this court has uniformly denied its right, power or authority to review the instructions. The same rule applies in criminal cases, except a defendant is not required to submit his request for instructions in writing to the court, but the court by force of the statute (5231) must instruct the jury on all questions of'law necessary for their information. If the court should fail to so instruct the jury, that in nowise relieves the defendant from the burden of excepting at the time to the action of the court. The statute in nowise changes this rule. Therefore, if any change is made it is not hy force of legislation, but we may add it is in the face of legislative enactment and most result hy judicial legislation. .
   BROWN, J. —

Defendant was convicted of murder in the second degree, and appeals from a judgment of the circuit court of Oregon county fixing his punishment at twelve years in the penitentiary.

For a consideration of such issues as are here presented it will only he necessary to give a very brief summary of the testimony.

The evidence on the part of the State tended to prove that defendant premeditatedly shot and killed one J. Gk Burnette, in Oregon county, Missouri, on August 29, 1909. The evidence of premeditation consisted mostly in the purchase hy defendant of a revolver and some cartridges loaded with steel bullets a few days prior to the tragedy. This revolver defendant carried on his person, and with it the alleged crime was committed.

On the part of defendant the evidence tended to prove that deceased had made several threats against the defendant. These threats did not extend to the taking of life, but only to a desire to whip or stamp defendant. According to the testimony of defendant and his wife, deceased frequently spoke to them of his ability to use the weapons with which nature had provided him; that on one occasion he knocked a man down and stamped the man thus assaulted so severely that one of his ears had to he sewed on and that he was confined to his bed for several.weeks.

There were no eye witnesses to the killing except defendant and his wife. They testified that deceased came to defendant’s home to settle an account growing out of a crop which deceased had cultivated on defendant’s land, a part of which crop had been sold. Defendant being absent, deceased sat down on a small box near defendant’s house and waited for him. When defendant returned the parties exchanged accounts, and, according to defendant’s evidence, when they began discussing the settlement, deceased became very angry, jumped up from the box and struck at defendant, saying as he did so: “I am going to stomp you into the ground. ’ ’ Defendant claimed that he dodged the blow so struck by deceased, and, believing that he was in imminent danger of great personal injury, sliot deceased in the breast five times, inflicting wounds from which he died in a few minutes.

The evidence on the part of defendant and his wife was somewhat weakened by the finding of blood near the box where deceased) had been sitting, and the further fact that some of the bullets fired into the breast of deceased ranged downward as though he was sitting and the defendant standing when such shots were fired.

There was enough evidence to support the verdict of conviction; while if the jury had believed the defendant and his wife, they would have been justified in returning a verdict of not guilty, on the theory that defendant was in imminent peril, or had good reason to believe that he was in imminent danger of great personal injury, when he shot deceased.

For reversal defendant relies upon the failure of the court to give instructions defining the law of presumption of innocence arid reasonable doubt.

OPINION.

I. The defendant did not, in writing or orally, request any instructions, but in his motion for new trial complains of the alleged failure of the trial court to instruct on the legal presumption of defendant’s innocence, and the law of reasonable doubt.

There were, in fact, no such instructions given by the court. The defendant introduced evidence tending to prove his previous good character, and on this evidence the court gave the following instruction:

“If defendant has proven to your reasonable satisfaction that prior to the alleged difficulty he sustained, a good reputation as a law-abiding citizen, then you should consider that fact in passing on the question of his guilt or innocence, as the law presumes that one whose character is good is less likely to commit a crime than one whose character is not good, but if you believe beyond a reasonable doubt from all the evidence in this case including that of good character that defendant is guilty on this charge, his good character will not justify or excuse him. ’ ’

The court gave an instruction on the presumption arising from the intentional use by defendant of a deadly weapon upon a Antal part of deceased. In fact,' its instructions are not objectionable, unless a specific instruction on reasonable doubt was necessary for the information of the jury in giving their verdict, as required by section 5231, Revised Statutes 1909.

The doctrine of presumption of innocence and reasonable doubt are so closely related that it has been held that it is not reversible error to omit to instruct on the Iuav of presumption of innocence if the court has fully instructed on the subject of reasonable doubt. [State v. Maupin, 196 Mo. 164, l. c. 175-6; State v. Dudley, 245 Mo. 177, l. c. 184.] The doctrine that a defendant is entitled to an instruction directing the jury that unless his guilt is proven. .beyond a reasonable doubt the jury shall give him the benefit of such doubt and acquit him, is so interwoven in our jurisprudence that it has become an essential element of law in every criminal case. The defendant is just as much entitled to this instruction as he is to a trial by jury; for if. the court may direct a jury to convict a defendant, then the constitutional right to a trial by jury would amount to little or nothing. In discussing this point in the' case of State v. Gonce, 79 Mo. 600, Ewing, C., said:

“That part of the instruction as to a reasonable doubt is usually asked and given on the part of the State. . . . Even though it may appear to the court there can be no.grounds for a reasonable doubt, yet the accused must have the opinion of the triers of the fact upon that question. This instruction should have been given for the defendant, and the court committed error in refusing it. ’ ’

On this point also see State v. Fannon, 158 Mo. 149, and State v. Gullette, 121 Mo. 447, l. c. 458.

When a defendant is entitled to an instruction limiting or modifying the effect of evidence which has been legally introduced he must prepare and request such instruction; otherwise, it will not constitute reversible error for the court to omit instructions on that point, because the issue thus raised, while it may be helpful to defendant, is one of a collateral nature and not indispensable in arriving at a correct verdict. [State v. Starr, 244 Mo. 161.]

In discussing the instructions which should ■ be given by the court on its own motion “whether requested or not,” KAnnish, J., in the late case of State v. Weinberg, 245 Mo. l. c. 575, said:

“Instructions presenting the facts constitutive of the offense charged or of any grade thereof shown by the testimony, the punishment authorized to be inflicted in case of a conviction, instructions upon the presumption of innocence andi reasonable doubt, and good character when put in issue by the testimony, and also instructions presenting the law, upon each defense interposed by the accused, are necessary for the information of the jury. ’ ’

We adhere to the views expressed by Judge Kennish, as above quoted, and unless the doctrine of reasonable doubt was sufficiently expressed in the instruction touching good character as hereinbefore quoted the cause must be reversed.

The Attorney-General insists that as the words “reasonable doubt” were used in the instruction before quoted], it was not necessary to give a separate instruction on that point — that the law really contemplates that only one instruction shall be given in a criminal case which shall cover all the rules of law necessary for the guidance of a jury. Without deciding whether this theory is correct or not, the law (Sec. 5231, R. S. 1909) speaks of instructions, and it is self-evident that the directions of the court can be more readily understood where the different subjects discussed are divided into separate instructions, or separate paragraphs of the same instruction.

The instruction now in judgment and before quoted blended the subjects of good character and reasonable doubt in such a manner as to minimize the effect of any doubt which might have existed in the minds of the jury regarding defendant’s guilt. The court should have unequivocally told the jury that the burdexx of proving defendant guilty beyond a reasonable doubt rested upoxi the State, and that if they entertained a reasonable doubt of defendant’s guilt they should give him the benefit of such doubt and acquit him. For the error of the court, in omitting to give a correct instruction on the doctrine of reasonable doubt its judgment must be reversed.

. II. The learned Attorney-General insists that even if the instructions as given do not properly declare the law on the subject of reasonable doubt, the error was not properly preserved by defendant, as he did not, at the trial, specifically except to the failure of the court to instruct on that point. He makes an earnest appeal for the overruling of the decision of this court in the case of State v. Conway, 241 Mo. 271. The only proposition of law announced in the Conway case about which the writer has any misgivings is expressed in the following language (l. c. 292):

“If satisfied from the record that there has been a failure to instruct the jury upon a question which goes to the fundamental rights of the defendant, and that by such failure injustice may have been done or a verdict returned different than if such failure had not occurred, this court, in the interest of justice, will not hesitate to grant a new trial, though the question should be presented here for the first time.”

My reason for doubting the correctness of the foregoing pronouncement is that section 5231, Revised Statutes 1909, says that a failure to give such instructions as are necessary for the information of juries in giving their verdict in felony eases “shall be good cause, token the defendant is found guilty, for setting aside the verdict of the jury and granting a neiv trial.” This court does not set aside verdicts and grant new trials on appeal, except as an incident to reversing judgments upon which such verdicts are predicated. Therefore, in my opinion, the words from said section 5231, supra, which we have italicized, pertain and refer exclusively to the procedure in trial courts, and as the law requires motions for new trial to be specific (See. 5285, R. S. 1909) it becomes the duty of a defendant convicted of a felony to call the trial court’s attention to the specific points upon which it has neglected to give proper instructions.

III. Regarding the further contention of the learned Attorney-General that the Conway case, supra, is erroneous in that it enables a defendailq review in this court the failure of the trial court to give necessary instructions, notwithstanding such defendant has not excepted to such failure at the time other instructions were given, and has raised the point for the first time in his motion for new trial, we will say that this very issue received a most thorough consideration when the opinion in the Conway case was prepared. While section 2081, Revised Statutes 1909, was not mentioned in that opinion, it was in fact considered, as were also the statutes of other states similar in form to our own, as well as the constructions that have been placed upon such foreign statutes. The opinion in the Conway case was held up for some weeks and the whole subject was exhaustively investigated by each member of this Division of the court. The opinion prepared by Judge Kennish who, on account of his wide experience, pre-eminent ability and judicial acumen, was fully equipped to weigh the matter from every conceivable point of view, is entitled to great weight.

We quite agree with the Attorney-General that errors occurring in the trial of criminal cases should be preserved in the same manner as in civil cases. This is the general law as prescribed by section 5245, supra, and applies to the saving of exceptions to all errors where some other rule of law is not specifically applicable.

It is axiomatic that where there is a statute which deals only with one phase of a subject, and that subject is also governed by a general law, the provisions of the statute which deals only with one phase of the subject will prevail over the general law, in so far as there is conflict between such statutes. [1 Lewis’s Sutherland, Statutory Construction (2 Ed.), p. 532; State v. Railroad, 239 Mo. l. c. 281; Folk v. St. Louis, 250 Mo. 116, l. c. 136.]

It is apparent that prior to 1901 it was the duty of a defendant to suggest to the court the giving of such instructions as it had not of its own motion given. It. is also equally apparent that the General Assembly, in its zeal to force the courts to accord a full and fair trial to persons accused of felonies, removed from tbe defendant the burden of aiding the court in preparing instructions, and permits Mm to remain silent on the subject of instructions-, if the evidence raises no collateral issue.

The contention of the Attorney-General that a defendánt must at the trial, and before the cause is submitted to the jury, make or save specific exceptions to the action of the court in failing to instruct on the points which have by the court been omitted, would be equivalent to placing upon the defendant the duty of informing the trial court of the point of law upon which it had failed to instruct. This the law does not contemplate.

Laws relating to crimes and criminal procedure are liberally construed in favor of the defendant, and strictly construed against the State; and I cannot bring myself to believe that the lawmakers would intentionally relieve a defendant of the duty of requesting certain instructions, and at the same time leave him under obligation to specifically except to the omission of the very instructions which he is not-under obligation to request. Putting it in a little plainer language, section 5231, supra, having specifically relieved defendant of the duty to request certain necessary instructions, by the same token relieves him of the duty of suggesting the giving of such instructions. The position assumed by the Attorney-General calls for a reversal of this- rule of construction, and requires a defendant to speak when the instructions are-given, notwithstanding the statute clearly contemplates that he may remain silent at that important moment, and yet reserve his right to secure a new trial if any necessary declarations of law are omitted by the court.

The Attorney-General calls our attention to section 2081, of the- Civil Code, Revised Statutes 1909, which says that “no exceptions shall be taken in an appeal or writ of error to any proceedings in the circuit court, except such as shall have been expressly decided by such court.”

This is a part of the g’eneral law applicable to all appeals, but it would not be seriously contended that said last quoted section would prevent a defendant from objecting for the first time in this court to an indictment which does not charg’e the defendant with any crime, even though the trial court had made no ruling on the sufficiency of such indictment. [State v. Levy, 119 Mo. 434, l. c. 437; State v. Meysenburg, 171 Mo. 1, l. c. 27 and 51.] Section 5231, supra, having made it the duty of the trial court to give to the jury all necessary instructions without suggestion or request from defendant, and having further cast upon said court in felony cases the duty to grant a new trial when such necessary instructions are omitted, said section completely supersedes the general law prescribing how errors of that kind shall be preserved and considered.

Our General Assembly may throw around the life and liberty of the citizen whatever safeguards it deems proper, even though such safeguards are inconvenient and render it more difficult for the State to enforce the criminal laws. By enacting section 5231, Revised Statutes 1909', the Legislature has made it necessary, before the life or liberty of a citizen is taken away by judicial process, that the jury to which the case is submitted shall be correctly instructed on all essential “questions of law arising in the case.” Therefore, it is just as necessary to so charge the jury as it is to present a valid indictment or information against the defendant. The only difference, so far as the defendant is concerned, is that when the indictment or information is fatally defective he can secure a reversal of the judgment without calling attention to the insufficiency of such indictment or information in his motion for new trial, while if there he a failure to instruct on some essential question of law arising in the case, he must give the court an opportunity to correct such error by a motion for new trial, in which such error is specifically pointed out.

It was well understood when the opinion in the Conway case was. written that it conflicted with the views expressed in many other prior decisions of this court, particularly the cases of State v. McCarver, 194 Mo. 717; State v. Espenschied, 212 Mo. 215, l. c. 223; State v. Goldsby, 215 Mo. 48, l. c. 57; State v. Wilson, 225 Mo. 503, l. c. 518-9; and State v. Tucker, 232 Mo. 1, l. c. 15. In so far as the opinion in the case at bar conflicts with the conclusions reached in the cases last cited they are expressly overruled.

For the failure of the trial court to properly instruct the jury on the question of reasonable doubt its judgment is reversed, and the cause remanded for new trial.

Walker, P. J., concurs; Paris, J., concurs in opinion filed.

CONCURRING OPINION.

FARIS, J. —

I fully concur in the result reached in the opinion of my learned brother Brown in this ease, but I cannot agree with the views; expressed in paragraph 3 of his opinion so far as said paragraph and the inference contained in paragraph 2 of said opinion hold that either the amendment of 18819 or that of 1901 to section 5231, Revised Statutes 1909, has relieved the defendant from the necessity of interposing any exceptions to instructions given by the court, or to the failure of the court to instruct upon all questions of law arising in the case, or upon any one of such questions.

Prior to 1901 the clause of said section 5231 pertinent to this discussion, read thus:

“Fourth: The court must instruct the jury in writing upon all questions of law arising in the case which are necessary for their information in giving their verdict; which instructions shall include, whenever necessary, the subjects of good character and reasonable doubt; and a failure to so instruct in cases of felony shall be good cause, when the defendant is found guilty, for setting aside the verdict of the jury and granting a new trial.” [R. S. 1899, sec. 2627.]

In 1901 the Legislature prefixed to this clause the words “whether requested or not;” so that in my view the necessity, as a condition precedent to review, no longer existed, requiring defendant to either prepare and offer an instruction, or to specifically request the court to instruct, upon such issues in the case as were bottomed upon questions of law arising in the case which are necessary for the information of the jury in giving their verdict, or upon the questions of reasonable doubt and good character, whenever necessary.

Prior to 1901, when the amendment above mentioned was made, it was- the law in this State and in .every other state where the common law prevailed, that exceptions to instructions had to be taken at the time the court gave them or neglected, or refused to. give them, as the case might be, in order to preserve for review objections thereto in criminal cases, just' as in civil cases. [State v. DeMosse, 98 Mo. l. c. 344; State v. Foster, 115 Mo. l. c. 451.] I shall not burden these views with long citations of authorities, but the cases upholding the above statement as to the absolute necessity of preserving by exceptions taken an objection to instructions refused or given, or neglected to be given, as a condition precedent to review, will be found collated in 12 Cyc. 666 and 667, and 12 Cyc. 815 and 820. Unless the addition of the four words .above quoted has served to change the rule, this is still the law. ' In what wise is impossible for so slight a change of verbiage to have so far-reaching an effect?

To go back just a little ways and pick up the thread; of the argument, it may be said to be so well settled in our practice as to be fundamental that matters of exception can only be preserved in a bill of exceptions and kept alive for appellate review by a motion for a new trial. [State v. Libby, 203 Mo. 596.] Likewise it is well-settled, that instructions given or refused, or the failure or neglect to give proper instructions in a criminal case, are pure matters of exception and can be preserved for review only by exceptions and by incorporating them into a bill of exceptions. [State v. DeMosse, 98 Mo. l. c. 344; State v. Marshall, 36 Mo. 400; State v. Ray, 53 Mo. 345; State v. Pints, 64 Mo. 317; State v. Williams, 77 Mo. 310; State v. McDonald, 85 Mo. l. c. 543; State v. West, 157 Mo. 309; State v. Huff, 161 Mo. 459.] No one will contend that what we call for convenience the “record proper” embraces instructions given in a case, either criminal or civil. It seems to me ‘that it is utterly impossible to take the view that instructions preserve themselves in the record without exceptions made and saved thereto, unless we say that in a criminal case instructions are a part of the record proper. It is fundamental and manifest that they are not. Without a proper .bill of exceptions, kept alive by a sufficient motion for a new trial, neither this court nor any other appellate court, where the common law prevails, would ever for a moment consider error arising upon an instruction unless a plain statute so commanded. This court long prior to the amendment of 1901 and the addition of the provision that a req%\,est for instructions on the matters therein specified should no longer he necessary, had held that exceptions to instructions must be preserved in order to make objections touching them reviewable upon appeal, as an absolute condition precedent, without which no review here could be obtained. This court from 1901 until the case of State v. Conway, 241 Mo. 271, had uniformly so held. It had: also held likewise from the very beginning up to the date of the amendment of 1901. No well-founded doubt through all the years until the Conway case was decided, ever troubled this court upon this question, and we uniformly refused to take heed of objections in anywise affecting instructions when such objections were urged here unless they were preserved in a bill of exceptions with specific objections and exceptions urged thereto, which bill of exceptions and specific objections and exceptions to the instructions themselves were kept alive by a sufficient and timely motion for a new trial. [State v. Grimes, 101 Mo. 188; State v. Patrick, 107 Mo. 147; State v. Inks, 135 Mo. 678; State v. Nelson, 225 Mo. 551; State v. Kretschmar, 232 Mo. 29; State v. Tucker, 232 Mo. 1; State v. Urspruch, 191 Mo. 43; State v. Sykes, 248 Mo. 708; State v. Finley, 193 Mo. 202; State v. Harris, 199 Mo. 716; State v. Jones, 191 Mo. 653; State v. Morgan, 196 Mo. 177, and cases cited, supra; State v. Gordon, 196 Mo. 185.] Likewise we held, erroneously, I think, that no valid objection to the failure of the court to instruct “upon all of the law in the case,” would avail, unless defendant specifically embraced in his objection and exception, the precise point in which the instructions given by the court were lacking. [State v. Barnett, 203 Mo. l. c. 658; State v. Weatherman, 202 Mo. 6.]

It will be noted, therefore, upon an examination of the cases, that when the amendment of 1901 was made, this court was uniformly requiring timely exceptions touching instructions as a condition precedent to review. It cannot, I think, be successfully contended that the Legislature merely by the addition of the words “lufoether reqioested or nob” either specifically or impliedly abrogated the necessity for such exceptions. The Legislature had an opportunity of so saying in express words when they amended this statute in 1901. Since they failed to say it either expressly or by far-fetched implication, we ought not to say it for them. A careful reading of the clause under discussion will show that while the failure to instruct upon all questions of law arising in the case and necessary for the information of the jury, and upon the subjects of good character and reasonable doubt, whenever necessary, is a good cause for setting aside the verdict of the piry and for granting a new tiral, it is not said in that clause that it is good cau,se or any cause for our reversing the case and remanding it. This view is suggested in the learned opinion herein by Judge Brown. This court, in such a case as this, is but a court of errors, and as Judge Brown well says, we have neither the power of setting aside verdicts, nor of granting new trials. We can only order the trial court to do these things. This view still leaves us in a case like this a court of errors, and we have formulated by our decisions, or, the Legislature has formulated for us in statutes enacted by it, certain rules by which the errors urged before us are preserved for our review. I cannot read in the clause of section 5231 under discussion, any intent whatever on the part of the Legislature to change in anywise any of these general rules by which objections to instructions are preserved for review. The amendment of 1901 merely changed the law so as to render unnecessary any request for an instruction upon any and ‘ ‘ all questions of law arising in the case, which are necessary for their [the jury’s] information in giving their verdict,” including reasonable doubt, and when necessary good character. As to these matters the trial court had put upon him the duty of instructing sua sponte correctly upon the law. If he failed to do so, or if he erred in so doing, it was his duty to set aside the verdict and grant defendant a new trial. If he failed to so instruct, and likewise refused thereupon to set aside the verdict of the jury and grant defendant a new trial, it then upon appeal becomes onr duty (if according to other rules centuries old and not affected by the slight amendment by the words “whether requested! or not,” the matter was properly saved for our review), to order the court nisi to grant a new trial. At the time of the several amendments of the clause in question, the rule as to the necessity both for an exception taken at the time of giving the instructions and for a motion for a new trial preserving and keeping alive such exception, is well stated in the case of State v. Cantlin, 118 Mo. l. c. 111, where it is said: “The instructions given by the court seem fairly to cover the issue joined between the State and the defendants, and if they did not, there is no statement in the motion that the court failed to give all proper and needful instructions. So that, if the court did fail to instruct the jury upon all questions of law arising in the case which were necessary for the information of the jury in giving their verdict, exception should have been saved at the time such failure occurred, and the point should have been preserved in the motion for a new trial, and this for the reason that exceptions in criminal causes occupy the same footing- as do those in civil matters, and can only be preserved by the same methods of procedure. [State v. DeMosse, 98 Mo. l. c. 344; State v. Foster, 115 Mo. 448.]”

Por these reasons I cannot agree either that a defendant in a criminal case is entitled to a review here of an instruction given -or refused, or of the failure of the court to give an instruction, unless he lodged a timely exception with the trial court, and unless he preserved1 such exception in his motion for a new trial. I am not saying that he should request specific instructions upon such matters as are set out in section 5231, that -is to say, as to any “questions of law arising in the case which are necessary for the information of- the jury in giving their verdict, ’ ’ or as to the subjects of good character and reasonable doubt, when the latter issues are properly presented by the evidence. I also agree that the questions of reasonable doubt and presumption of innocence should always be given to the jury, but I am saying that the attention of the court at the time the instructions are given to the jury ought to be called to his alleged: failure or neglect to instruct upon any of the above matters; not necessarily specifically, nor by preparing or presenting a written instruction, but by a general exception — for example, for that “the instructions as given by the court are not the law of the case,”' or that “the instructions given do not 'embrace all of the law of the case,” or that “the court has not instructed upon all questions of law arising in the case and which are necessary for the information of the jury in giving their verdict;” or in such other apposite way as to call the attention of the trial court to his failure to comply with the statutory mandate herein discussed; and this exception should be kept alive by a proper motion for a new trial. The defendant ought not to be permitted (and in my view the clause under discussion does not in its present form permit, nor has it ever expressly, or, impliedly permitted, or invited the defendant) to lie in wait for the court. It might well be that instructions covering all the phases of the law involved, and upon good character and reasonable doubt, were actually prepared by the court, and yet not given for some physical reason, as for that they were lost or misplaced. An exception timely lodged would ordinarily remind: the court to remedy the inadvertent default or neglect, or enable him to 'supply an instruction prepared, but mayhap lost from the files, and thus avert a mistrial. I agree with what is said in State v. Weinberg, 245 Mo. l. c. 575, and quoted in the opinion of Judge Brown, defining what instructions are comprehended by the clause under discussion, and as to such no request either in writing or orally is necessary to be made, but when the court does not give such instruction, or gives them erroneously, the defendant is not relieved from the necessity of lodging a general exception to the court’s error. As to instructions upon what have been called “collateral matters,” that is, such matters as are not embraced in the definition above referred to, my views are that a specific request must be made; that the defendant should by his counsel either write them and offer them to the court with a request that they be given, or that he should specifically request the court to give the same and save a proper exception to the court’s refusal, and keep his exception alive by a proper motion for a new trial, before reversible error can be bottomed upon the alleged error of the trial court. Neither in my opinion does it avail to go back to the amendment of 1889, where it was first provided that the failure of the court to instruct “upon all questions of law arising in the case,” should in a felony case be good cause for setting aside a verdict of guilty. It may be conceded with all frankness that a departure as between the rule in misdemeanors and felonies, is logically inferable from the language of the amendment of 1889 and the rule as to non-direction in misdemeanor trials which has since been uniformly followed. But barring a legislative pronouncement to this effect (and there is none anywhere), does this obviate the rule requiring exceptions to be lodged in the trial court as a condition precedent to the review of any and all matters not of the record proper? [State v. Stevens, 242 Mo. 439.]

Strictly speaking, what place have instructions in a bill of exceptions unless they get into the- bill by virtue of the fact that exceptions are saved to them? ITow else do they legally and properly become parts of the bill of exceptions unless they be excepted to? In the instant ease, objections were made and general —very general — exceptions were timely interposed by defendant to the instructions given by the trial court. These objections and exceptions were kept alive in the motion for a new trial, where it was specifically urged that “the court erred in not instructing the jury as to the presumption of innocence of defendant and the law in relation thereto.”

In my view the many safeguards provided by law and practice for a defendant’s safety considered; the fact that in every felony trial if defendant be too indigent to hire counsel, or too friendless to have counsel hired for him, it is the duty of the court to appoint counsel to represent him; and the fact that by divers provisions of our procedure he is allowed vast advantages over the State, render any other view dangerous, as calculated to provide holes for the escape of the guilty, rather than shields for the protection of the innocent. For this reason I concur in reversing this case, but I do not agree in what is said in paragraph III thereof, and so much of it as would obviate the necessity of saving exceptions to instructions given or refused, or neglected to be given, as a condition precedent to review. In so far as the case of State v. Conway, 241 Mo. 271, is in conflict with the views expressed herein, upon the questions of the necessity of saving exceptions to instructions- and of preserving such exceptions in the motion for a new trial, that case should be followed no longer.


source: Caselaw Access Project

author: WALKER, P. J. —

license: Public Domain

text:
    THE STATE v. JOHN SLOAN, Appellant.
    Division Two,
    May 26, 1914.
    1. CONSTITUTIONAL STATUTE: Title: Inclusion of One Class: Exclusion of Others. The title to an act may be general in its terms and omit reference to or an expression of matters .germane to the substantive purposes of the act, and if its general terms are broad enough to embrace those purposes, it will not be violative of the constitutional requirement that the subject of an act must be clearly expressed in its title. But if the title extends itself into particulars and specifies a certain class of persons or things as included within the provisions of the act, the body of the act, in so far as it includes others not so included and specified in the title, is invalid.
    2.--: -: -: Herding Cattle by Non-residents: Does Not Include Residents. The title to an act which is “Herding Cattle By Non-residents” is not broad enough to indicate that the body of the act includes a section making criminal the herding of cattle by residents, but as definitely as words can convey their meaning limits the application of the act to non-residents. Therefore Sec. 794, R. S. 1909 (and in consequence the amendment thereto in 1911, Laws 1911, p. 59), declaring that “it shall he unlawful for any person” to take or drive from one county to another, any neat or horned cattle, mules, horses or sheep, for the purpose of herding or grazing them upon any of the unimproved or uninclosed lands of this State, is, in so far as it includes residents, invalid, since the title of the act when first enacted in 1874 was, “An Act . to prevent non-residents from herding or grazing their cattle on certain lands in this State,” and thereafter the act was carried forward in the Revised Statutes with the title, “Herding Cattle by Non-residents,” and with that title was amended in 1889 by making it apply to residents as well as non-residents, and all attempts at amendment since then used the same-title..
    Appeal from Shannon Circuit Court — Ron. W. N. Evans, Judge.
    Reversed.

      John R. Chitwood and David M. Tesrecm for appellant.
    (1) The title to tlie act of which Sec. 794, R. S. 1909, is a part, deals definitely and exclusively with one class of individuals only, termed non-residents of the State, which constitutes one subject. Laws 1903, p. 57. Said section 794 goes further and embraces another and different class of individuals, to-wit, residents of this State. Sec. 794, R. S. 1909. We submit whether the said act of 1903 has. any title art all; by said act the original title was repealed, and1 none substituted in lien of it. Sec. 1, Laws 1903, p. 58. Piad the title to said act been general, for instance “Herding and Grazing Cattle,” it might have been sufficiently broad to have embraced all persons engaging in that business, whether residents or non-residents. But the title, if indeed there is any title, descended into details and nominated a certain class to which said section 794 is to apply, consequently it cannot affect or include a class or subject not designated in the title. State v. Eawlings, 232 Mo. 557. Does the title to the act of which said section 794 is a part, indicate the general contents of the bill and contain but one general subject, in compliance with the constitutional provision? We contend that it does not. Constitution, sec. 28, art. 4; State v. Eulks, 207 Mo. 34. The constitutional question was raised by appellant in his instructions after the testimony disclosed the fact that appellant was a resident of this State; the earliest moment at which he could raise the question, and he followed it up in his motion for new trial, and in his motion in arrest of judgment. State v. Gamma, 215’ Mo. 104.

      John T. Barker, Attorney-General, and S. P. Roioell for the State.
    (1) The presumption obtains that a legislative act is valid and the burden is east upon appellant to show beyond doubt that it is violative of some constitutional provision. It is not enough that there be a mere possibility that the act is unconstitutional, but the appellant must go further and show clearly that it infringes upon some constitutional provision. Ex parte Loving, 178 Mo. 203; State v. Cantrell, 179 Mo. 261; State ex rel. v. Aloe, 152 Mo. 477; State v. Thompson, 144 Mo. 322; Phillips v. Eailroad, 86 Mo. 471; State v. Price, 229 Mo. 678. '(2) Where there' is doubt as to the constitutionality of an act it will be resolved in favor of the validity of the act. State v. Cantrell, 179 Mo. 280; ■ Ex parte Loving, 178' Mo. 221; State v. Harney, 168 Mo. 197; State v. Able, 65 Mo. 362; Corinty v. Griswold, 58 Mo. 192; State ex rel. v. McIntosh, 205 Mo. 602; State v. Addington, 77 Mo. 117. (3) The expediency or inexpediency of an act is a question for the Legislature and not for the courts. In passing upon the constitutionality of a legislative act this court will not inquire into the motives or necessities that prompted its passage. State ex rel. v. Stratton, 134 Mo. 429; Brown v. Cape Girardeau, 90 Mo. 383; Hannibal v. Marion Co., 69 Mo. 576; State v. Swaggerty, 203 Mo. 527; State ex rel. v. Yandiver, 222 Mo. 217. Where the provisions of the act fairly relate to each other and are reasonably germane to the subject expressed in the title, that is sufficient. From reading the subject-matter of article 6 as it appears in the Revised Statutes of 1909', the title to which is correctly stated in the 1911 amendment, it is obvious that the purpose in the minds of the legislators in enacting this legislation was to prevent unauthorized grazing upon the unenclosed and unimproved lands within the State. The prevention of such unauthorized herding is the subject of the act. They recognized the evil and formulated a plan to correct it. The question as to the situation or character of the persons in whom ownership of the cattle rested was purely incidental to the primary purpose to be accomplished. Clearly the wrong perpetrated and the damage to the land, of the character indicated, would be equally as great whether the animals were owned by residents or non-residents of the State. The primary purpose and real object in view was to protect the fruit of the land from appropriation by persons without authority; and it would seem, therefore, that all classes of persons by whom this wrongful act might be committed would properly fall within the purview of that purpose. That being true, it would logically follow that all provisions of the act relating to the means used to make effective this purpose would be germane to the object expressed in the title. If germane to the object so expressed in the title that fully meets the constitutional requirement of the section and article on which the appellant bases his attack. In a long line of cases this court has held that all auxiliary provisions necessary for accomplishing the purpose of the act as indicated by the title may properly be embraced within the enactment. State v. Miller, 45 Mo. 498; Ewing v. Hoblitzelle, 85' Mo. 71; Lynch v. Murphy, 119 Mo. 167; State ex rel. v. Miller, 100 Mo. 444; State ex rel. v. ELeege, 135 Mo. 112; State v. Bixman, 162 Mo. 19; State v. Doerring, 194 Mo. 408.; State v. Brodnax, 228 Mo. 53; State v. Price, 229 Mo. 678; State v. Miner, 233 Mo. 334; Burge v. Railroad, 244 Mo. 86; Bishop on Stat. Crimes (3 Ed.), see. 36a; 1 Lewis’s Sutherland, Stat. Const., p. 249. The title to the article as it appears in the 1909 revision of the statutes is, “Herding by Non-residents,” and the appellant interprets that to mean non-residents of the State. There is perhaps no principle of interpretation more firmly imbedded in the decisions of this State than that the courts in passing upon the sufficiency of a title to a legislative enactment will give to the words used therein a broad and liberal rather than a narrow' and restrictive construction; and corollary to that principle is the rule that a title will be held sufficient if that result can be obtained without doing actual violence to the meaning of the words used therein. By construing the word non-resident to refer to a nonresident of a particular county or place within the State, is but giving to the term a broad and comprehensive interpretation. It is clear that the term when so construed necessarily includes non-residents of the State, and also all non-residents of a particular county, whether they reside in other counties or states. In view of the evil sought to be remedied, namely, the unauthorized grazing upon certain lands, it would seem reasonable to infer that the Legislature was fully cognizant that the act was intended to include all classes of offenders. It is unfair to assume that the lawmaking body was endeavoring to convict one class of persons and acquit another class for the commission of the same act; rather its attention was centered upon the unlawful use of the property in question by all classes, both non-residents of the State and non-residents of a county. Perry v. Harper, 42 Mo. 131; Bracket v. Bracket, 61 Mo. 221; Lankford v. Gibhart, 130 Mo. 641; Hope v. Flentze, 140 Mo. 398; State ex rel. v. Shepard1, 218 Mo. 666; Brewery v. Forgey, 140 Mo. App. 605; Norman v. Eastbum, 230 Mo. 186; Watson v. Coon, 247 111. 416; Railroad v. Perkins, 36 Neb. 459; Gardner v. Meeker, 169 111. 42.
   WALKER, P. J. —

Under an information filed by the prosecuting attorney of Shannon county, based upon section 794, Revised Statutes 1909, appellant was charged with driving cattle from Reynolds county into Shannon county for the purpose of herding same in the latter county. The offense charged is a misdemeanor, and is ajjpealed to this court upon a challenge, timely urged and properly preserved, to the constitutionality of the statute. Upon a trial appellant was convicted and fined.

Appellant resided in Reynolds county, a little more than a mile from the Shannon county line. The offense is alleged to have been committed in August, 1913. In the fall of 1912 appellant told a witness that he (appellant) “expected to run his cattle over in Shannon county on Powder Mill” (a creek in that county) “and salt them there and that certain persons” (naming them) “could not keep him from it.” Witnesses for the State and for the appellant testified that they had seen appellant’s cattle on the range in Shannon county within a year preceding the trial; during the summer of 1912 as many as thirty or forty head of such cattle were seen, and' at other times ten or fifteen head,

Appellant “admitted that in the spring of 1913 he once drove his cattle for water to a pond located in Shannon county, about three-quarters of a mile from the county line. Other witnesses testified that appellant stated that he had twice so driven his cattle; appellant denies this, or that he ever drove his cattle across the county line with any other intention than to enable them to procure water.

Appellant contends that .the act upon whch the information herein is based, is unconstitutional in that its title is imperfect and misleading in filing’ to sufficiently indicate the purport of the act. An epitome of its history is pertinent. It was first eim cted in 1874 (Laws 1874, p. 47) under the following title: “An act to prevent nonresidents of the State from herding or grazing their cattle on certain lands in this State.” In the genera] revision of 1879- the act was carried forward as chapter 87, without revision, under the title of ‘ ‘ Herding Cattle by Non-residents.” In 1887 (Laws 1887, p. 27), the act was amended, the changes then made not. being material here except as to the title, which was as follows: “An act to amend section 4350, chapter 87, article 1 of the Revised Statutes of the State of Missouri, relating to herding cattle by non-residents.” At the succeeding decennial revision in 1889, section 4350, supra, became section 945', and was amended so as to apply to residents as well as non-residents; the title, however, was not changed, but remained as before, “Herding Cattle by Non-residents.” In the regular revision of 1899, the entire chapter in regard to cattle was revised, but the title was not changed, being identical with that of 1889. In 1903 (Laws 1903, p. 57) article one of the chapter in regard to cattle was repealed, and a new article enacted in lieu thereof, the title being as follows: “An act to repeal sections [naming all of the sections of article 1], Chapter 88, Revised Statutes of the State of Missouri of 1899, entitled ‘Herding Cattle by Non-residents’,’ and enacting seven new sections in lieu thereof to be known as sections [naming the new sections] with emergency clause.” It is not necessary to set forth at length the provisions of this act except to say that they' applied to residents as well as non-residents.

In the revision of 1909’ an effort was made to compile under appropriate chapters all statutes of a kindred nature. Much of this compilation was mechanical, and was. the work of the1 commission appointed by the General Assembly. There was no revision of the chapter entitled ‘ ‘ Animals, ’ ’ and the act of 1903, supra, was simply carried forward and inserted' as article 6 of said chapter under the title of “Herding by Nonresidents.” [Chap: 6’, art. 6, R. S. 1909.] In 1911 (Laws 1911, p. 89), the initial section (794) of said article 6, supra, was amended by adding certain words thereto. This prosecution is based upon the section thus amended — the title to the amendatory act of 1911 is as follows: “An Act to amend section 794 of article 6’, of chapter 6«, of the Revised Statutes of 1909 of Missouri, entitled ‘Herding by Non-residents’ by adding certain words thereto.” The body of the act is as follows: “It shall be unlawful for any person to take or drive from any one county to another in this State, or from one range to another in the same county, any neat or horned cattle, mules, horses or sheep, for the purpose of herding or grazing, or causing- the same to be herded or grazed, upon any of the unimproved or uninelosed lands or premises in this State. Any person violating any of the provisions of this section shall, upon conviction thereof, be punished by a fine not exceeding two hundred dollars ;■ and each day that any such neat or horned cattle, mules, horses, or sheep shall be allowed to remain in said county, or on said range after having been unlawfully driven into said county or on said' range, shall constitute a separate offense.” [Section 794 as amended Laws 1911, p. 89.]

From the foregoing it will be seen that the title of, the statute under consideration from its initial enactment down to and including the amendment of 1911 (Laws 1911, p. 89) upon which this prosecution is based, has-been confined by express terms to “Herding by Non-residents.”

Emphasis may properly be placed upon the limitations of this title from 'the fact that it was retained in the same words in the revision of the statutes of 1889 in which the entire chapter in regard to cattle was revised, although the body of the act applied to residents as well as non-residents. More than this, in 1903 (Laws 1903, p. 57) the entire article in which the statute in question appears was repealed and a new article enacted in lieu thereof, which, although applicable, as was the statute of 1889', to residents as well as non-residents, bore the title of “Herding Cattle by Non-residents.” As we have shown, by this same insignia the act was designated in the revision of 1909 and in the amendatory act of 1911, supra.

The purpose of a title is to serve as a clear and comprehensive indicator of the purport of the act. While it may be so general in its terms as to omit reference to or the expression of matters germane to the principal features- of the statute, if it sufficiently indicates the substantial purpose of the law, it will not be violative of the Constitution; but where a title descends to particulars and specifies a certain class included within the provisions of the act, to the exclusion of others, it does not sufficiently indicate the purport of the law, and is to that extent violative of the constitutional provision.

We find, therefore, in the case at bar that the body of the act contains provisions applying to residents as well as non-residents of the State, while its title, as definitely as words can convey their meaning limits its application to non-residents; under this state of facts, much as the court may be disinclined to declare üie act invalid, it cannot in the face of the plain provisions of the Constitution (Sec. 28, art. 4) do otherwise in so far as it is attempted to apply the act to residents of this State. The following authorities are apposite: In State v. Rawlings, 232 Mo. l. c. 557, it is held that where the title of an act descends into details and attempts to point out a particular class of persons to which the law" is intended to apply, it will not support a law leveled against a wholly different class of persons not mentioned in such title; and in State v. Great Western Coffee and Tea Co., 171 Mo. 634, it was held that a title leveled only against manufacturers of certain baking powders would not support a statute prohibiting persons from selling such baking powders; and in St. Louis v. Wortman, 213 Mo. 131, the title purported to “create the office of dairy commissioner and define his term, duties and powers” and it was held this would not give validity to a section which sought to prohibit individuals from selling impure dairy products; so in State v. Fulks, 207 Mo. 26, it was held that the title which referred only to the sale of intoxicants was not broad enough to authorize a provision in the body of the act prohibiting the giving away of intoxicants.

Holding, as we do, the title of the act misleading and insufficient to indicate that residents are included within its provisions, we declare the law invalid so far as it is- attempted to apply it to this class.

From the foregoing it follows that the judgment of the trial court should be reversed. It is so ordered.

Brown and Faris, JJ-, concur.


author: BROWN, J. —

text:
    THE STATE v. JOE PRINCE, Appellant.
    Division Two,
    May 26, 1914.
    1. EVIDENCE: Cross-Examination: Proving Statements Contradictory of Answers: Made Out of Defendant’s Presence. When the cross-examination is about a matter which the party conducting it has a right to prove as a part of his cause of action or defense, the answers thereby elicited are material, and may be impeached or discredited by showing that the witness had made statements which conflict with his answers as given in his cross-examination; and the fact that .the conflicting statements amount to an accusation of defendant, who was not present when they were made, does not alter the rule. A witness for defendant, who had very recently associated with defendant and notified Mm of an alleged threat against him made by deceased, on cross-examination was asked if, prior to the killing, he had heard defendant say anything about shooting deceased, or if he had any knowledge that defendant intended to shoot deceased, which questions he answered in the negative. Thereupon he was asked if he did not visit the home of deceased the evening he was killed, and there, in the presence of two others, state it was too bad that deceased was shot, and that he and defendant’s father had tried hard all evening to keep defendant from killing deceased, but could not keep it down. Held, that the subject of the inquiry was material, and the questions proper, and were not rendered improper on the ground that defendant was not present when the witness made the statements.
    2. REMARKS OF COUNSEL: Reference to Other Murders. Where counsel for the State in a murder trial, stated, in his argument to the jury, that “this county has been stained by the blood of forty-three murders,” and upon objection the court said, “That is improper argument and should not be made to the jury; we are now trying this one case,” and no request was made for a more pointed reprimand and the remark was not repeated, the remark, though improper, was not sufficiently prejudicial to warrant a reversal, since what the court said was sufficient to cause the jury to confine their consideration to the one case then on trial.
    3. JURY: Separation. The taking, by the officer having the jury in charge, of certain jurors from the room where they had been locked up, down stairs to a toilet room to answer a call of nature, and then promptly returning them to the jury room, was not such a separation of the jury as constitutes reversible error.
    4. MURDER: Instruction for Manslaughter in Third Degree. Where there is no evidence tending to prove the killing was involuntary, an instruction on the law of manslaughter in the third degree is properly refused.
    5. BILL OF EXCEPTIONS: Filed in Vacation: No Order to Make Part of Record. Since the amendment of 1911 to Sec. 2029, R. S. 1909 (Laws 1911, p. 140), the clerk in vacation .may file a bill of exceptions without any previous order of the court, except the order of the trial judge in vacation, appended to the bill of exceptions, approving the bill and ordering it filed. It is not necessary that there be a special order of the court made in term time ordering the bill filed and made a part of the record.
    Appeal from. Laclede Circuit Court. — Him. L. B. Woodside, Judge.
    Affirmed.

      Don 0. Vernon, ,7. T. Moore'and I. W. Mayfield $ Son for appellant.
    (1) The statements attributed to the witness, Parrick, were at most only the opinion of the witness, without any acts, statements, or declarations made by the defendant — a conversation in which he is not present and takes no part and could not possibly have heard the accusations — -and the question being repeated three times in the presence of the jury, was extremely damaging and prejudicial, besides it was wholly incompetent and only calculated to damage the defendant, and was not admissible for the purpose of impeachment. State v. Taylor, 134 Mo. 154; McPadin v. Catron, 120 Mo. 263; Schloemer v. Transfer Co., 204 Mo. 116; Hamburger v. Binkel, 164 Mo. 407; State v. Murphy, 201 Mo. 691; State v. Hyde, 136' S. W. (Mo.) 332. (2) The court erred in not giving the instruction offered by the defense for a lower degree of murder. The evidence conclusively shows that the defendant did not enter into the difficulty with a design to take the life of deceased. 'All his acts and: statements, as testified to by the State’s witnesses, show that he intended to fight Jordon fair, and that he, if anything, intended only a common battery. If this is true, it was error on the part of the court to not give the instruction for manslaughter in the third degree. State v. Eastman, 240 Mo. 241; State v. Turner, 152 S. W. (Mo.) 313; State v. Eobertson, 160 S. W. (Ark.) 214. (3) The court erred in not giving the defendant a new trial by reason of the argument of L. C. Mayfield, which was the closing argument on the part of the State. This argument was entirely out of the record and was highly inflammatory and prejudicial to the defendant. The extreme verdict, under the evidence and on a boy of the age of the defendant, shows passion and prejudice. This language was equivalent to saying, “There have been forty-three murders'committed in Laclede county, and it is now time to stop it and that there should be a conviction in this case and an example made of this defendí nt.” By the remarks of the attorney the die was cast, the poison was there, and an apology, if one was given, could not stop tV force of the statement. The evidence offered on motion for new trial shows that no apology was made. The court does not say that an apology was made. State v. Wellman, 161 S. W. (Mo.) 795 ; State v. Perrill, 136 S. W. (Mo.) 709; State v. Dietz, 138 S. W. (Mo.) 532; State v. Spivey, 191 Mo. 112. (4) The <¿ourt erred in not granting the defendant a new trial by reason of the separation of the jury after they had received the instructions and while deliberating on the verdict. Secs. 5232, 5233, E. S. 1909; State v. G-ray, 100 Mo. 523; State v. Murray, 91 Mo. 95; State v. Jeffries, 210 Mo. 332; State v. Witten, 100 Mo. 531.

      John 'T. Barker, Attorney-Gfeneral, for the State; Button ds Huston of counsel.
    (1) It is a serious question whether the bill of exceptions has been properly made a part of the record in this cause. It is well established that the record proper must show the filing of the bill, but the decisions indicate that_ the record proper must also show that the bill was by the court allowed and ordered filed and made a part of the record in the cause. Alt v. Dines, 227- Mo. 422; Sheppard v. Wagner, 240 Mo. 431; Bank v. Hutton, 224 Mo. 52; Novinger v. Eailroad, 131 Mo. App. 338; Webster v. Berry, 140 Mó. App'. 386 ; Fulkerson v. Houts, 55 Mo. App. 302; Thorp v. Eailroad, 157 Mo. App. 501. As we construe the authorities, there must be made and signed by the judge and1 entered of record an order, separate and apart from the bill of exceptions, allowing the bill and directing it to be filed and made a part of the record. (2) The evidence was elicited for the purpose of impeaching the witnesss, Parrick, and it was clearly admissible for that purpose. The witness had testified that he did not know the defendant contemplated shooting Jordan, and had not heard defendant say anything about it. The statement' made by Parrick to Hough, as testified to by him, was a direct contradiction of Parrick’s testimony upon a material matter in issue, and no error was committed in receiving the testimony. State v. Talbott, 73 Mo. 360; State v. Taylor, 136 Mo. 72. (3) Instruction number 1 requested by defendant and refused by the court, upon manslaughter in the third degree, was properly refused. It has been repeatedly held that there can be no manslaughter in the third degree where the killing is wilful and intentional. State v.. Watson, 95 Mo. 415; State v. Edwards, 70 Mo. 480; State v. Curtis, 70 Mo. 600; State v. Dunn, 80 Mo. 689; State v. Groldsby, 215 Mo. 54; Sec. 4462, E. S. 1909. All of the evidence in the case tends to show that the killing was intentional. Moreover, if one inflict a mortal wound, with a deadly weapon, upon a vital part, as in this ease, he must be presumed to have designed the natural consequences of his act. State v. Dunn, 80 Mo. 689. (4) Defendant complains of the following language used by counsel representing the State: “The history of Laclede county has been stained by the blood of forty-three murders.” The court immediately admonished counsel, and counsel immediately withdrew the statement and apologized to the court for having made the remark. Considering the corrective action of the court and counsel, the language cannot be regarded as prejudicial to the substantial rights of defendant. State v. Dipley, 242 Mo. 480 -, State v. Fenton, 248 Mo. 491; State v. Miles, 199 Mo. 553. There was, however, no exception taken by defendant to the ruling of the court, and no request was made for a rebuke from the court to counsel. The only exception taken was directly to the remark of counsel and not to the ruling of the court, but this cannot avail. State v. Wana, 245 Mo. 562. (5) There was no separation of the jury within the meaning of the statute: Secs. 5232, 5233, 5284, R. S. 19091; State v. Washburn, 91 Mo. 574; State v. Gregory, 158 Mo. 148; State v. Shipley, 171 Mo. 549; State v. Dyer, 139 Mo. 211; State v. Payton, 90 Mo. 228; State v. Spaugh, 200' Mo. 608.
   BROWN, J. —

From a conviction of the crime of murder in the first degree and the imposition of a life sentence, defendant appeals.

The information charges defendant, Joe Prince, as principal, and Arthur Prince and William Prince as accessories before the fact, with the murder of one Charles Jordan in Laclede county .on May 31, 1913. A severance was granted and defendant was tried separately.

Alleged errors urged here for reversal are: (1) admission of incompetent evidence; (2) improper argument; (3) separation of the jury after the cause was submitted to them; and (4) the refusal of an instruction on manslaughter in the third degree.

The family of defendant consisted of his father, Arthur Prince, and several brothers who resided on a farm near the village of Pease in Laclede county. The deceased resided on an adjoining farm about seventy-five yards distant from defendant. There is a lane leading from the village of-Pease to the farms occupied by defendant and deceased, whiph lane they used in common for a distance of about one hundred and fifty yards, where a gate opened into the field of deceased. The lane extended beyond said gate to the home of defendant.

There is only slight evidence of ill-will between defendant and deceased prior to the evening of May 30,1913, at which time they engaged in a quarrel about a hog belonging* to defendant which had gotten into the field of deceased. According to the State’s witnesses defendant cursed and threatened to kill deceased on that occasion; while according to defendant’s witnesses. deceased, during* that quarrel, called defendant vile names and threatened to kill him. The wife of deceased testified that the quarrel and the accompanying threats made by defendant so alarmed her that she carried! a shotgun to deceased to enable him to protect himself. However*, neither the gun nor any other weapon was then used, and the quarrel ended without any physical violence to. either party.

On the following morning deceased attended a sale several miles from home, going and returning on horseback through the lane hereinbefore mentioned. About one o’clock that day the defendant, with his father, one of his brothers and two of his brothers-in-law, Tom Parriek and Walter Green, went to Pease on foot and remained there until about five p. m. At that hour deceased rode into the village and stopped a few moments to get his mail. At or about the same time the deceased arrived at Pease, the defendant, his father and two brothers-in-law, started home along the lane before mentioned. The brothers-in-law, Parriek and Green, had passed the gate which connected the premises of deceased with the lane, a distance variously estimated at from ten to thirty steps, while defendant and his father were opposite said gate when the deceased overtook them. Deceased dismounted and was shot and killed by defendant with a revolver. There is a sharp conflict in the .evidence as to who was the aggressor, the testimony of the State tending to show that deceased merely alighted from his horse to open the gate and did not wish any trouble with defendant; while the evidence on behalf of defendant is to the effect that deceased was advancing upon and threatening defendant with an open knife when killed.

Five witnesses for the State testified that they watched defendant, his father and brothers-in-law as they started home; that they stopped' until deceased started to ride into the lane; that they then went on to the gate, which opened into the premises of deceased, where defendant and his father stopped again and remained until deceased arrived, alighted from his horse and walked up to the gate, when defendant, who was standing about eight feet away, shot deceased twice with a revolver without any provocation, so far as they could observe. The witnesses last named testified that they were about one. hundred and fifty yards distant, and that the lane was straight and the view unobstructed, so that they could see the shooting plainly. The father of defendant was standing some six feet away when the shooting occurred.

The only witness introduced by the State who was close enough to hear the words which passed between defendant and deceased immediately preceding the killing was Walter Green, one of the brothers-in-law of defendant, who states that when deceased came in sight of the village of Pease defendant and his father went np the lane about half way to the gate of deceased and stopped. Green gave the following additional, evidence :

“Q. Then what did they do ? A. Well, they just stopped there.
“ Q. Did you go up the road? A. Yes, sir.
“Q. Did you overtake them? A. Yes, sir.
“Q. Well, now just state to the jury what you ■heard, if anything, and the movements of these parties ? A. Well, they was standing around there talking to one another a right smart that evening, and when they saw Charley coming Arthur motioned— . . . Arthur motioned for the boys to come on he said, ‘ Come on and let’s go.’
“Q. Whp do you mean by the boys ? A. I guess he meant Joe.
“Q. Who did you mean? A. Arthur and Bud and Joe.
“Q. Did he motion to the defendant here? A. Joe was standing with him, and he motioned, I guess for Bud, and he said, ‘Come on boys, let’s go.’
“Q. Go ahead and state. A. They went on about half way between the mill and the corner of the fence and stopped and. waited until Charley went into the store and got his mail and come out and rode into the lane before they started on.
‘ ‘ Q. Then where did they go ? A. They went on up to the corner, I suppose.
“This last statement was objected to by the defendant; which objection was, by the court, sustained.
“Q. You was there and saw them, didn’t you? A. Yes, sir.
“Q. Where did they go? A. Up the road.
“Q. Where abouts? A. At the gate.
“Q. What did they do? A. I wouldn’t say whether they stopped or not, because I was walking on ahead.
“Q. How far was you ahead of them? A. Well, I was about — when they got to the corner?
“Q. Yes? A. About like thirty yards, I guess.
“Q. Who was with you? A. Tom Parrick.
“Q. Did you stop? A. Yes, sir, I stopped when Charley rode up.
“Q. Now state to the jury what was done and said there? A. Well, Joe just kinder stepped out towards Charley and said, ‘Charley, I guess we had better settle our little trouble we had yesterday evening,’ and Charley said, ‘Don’t you guess you had better go on and let me alone?’ and Joe says, ‘I don’t know,’ and Charley says, ‘I think so,’ and Charley got down on the opposite side of his horse, next to the gate with his knife in his hand and got around about the horse’s head and Joe shot him.
“Q. Well, how were they standing, how was Charley standing with reference to facing Joe? A. He was standing with his left shoulder to him, with the side of his head.
“Q. What position was he in? A. Well, he was standing with his left shoulder to him, kinder looking down, I think.
“Q. Looking down at what part of the gate? A. He was looking- down; just looking down.
“Q. Did that end of the gate open or was it the other end of the gate that opened? A. The end where he was at opened. . . .
‘ ‘ Q. How close was Joe Prince to Charley Jordan when he fired? A. He was about four or five feet.
‘ ‘ Q. How close was Arthur Prince to Joe Prince ? A. About six feet of him. ...
“Q. Now, Mr. Green, where did you.pass Joe Prince and Arthur Prince? A. About half way between the mill and the corner at the gate.
“Q. Did you hear any conversation between Arthur Prince and Joe Prince, his son? A. No, sir; not particular.
“Q. Well, did you hear anything? A. I heard Arthur say to Joe to let him have the gun, is about all. . . .
“Q. Arthur said to Joe, ‘Give me the gun,’ did he? A. Yes, sir.
‘ ‘ Q. How far was you from them when you heard1 that? A. I just walked up to them.”

Thomas Parrick, the other brother-in-law of defendant, testifying on behalf of defendant, said that he (witness) was at the home of deceased the night before the tragedy, and that deceased told him if they ever had any more trouble he would kill defendant, and that he (witness) communicated that threat to defendant.

Regarding what occurred at the time the killing took place Parrick testified as follows:

“Q. Now were you down at Pease Mill the day the shooting occurred? A. Yes, sir; I was down to Pease Mill.
“Q. Now just tell the jury what occurred down there? A. Well, we had started home and Charley overtook us at the corner where we go up to the Prince house, and he said, ‘Here is where I have got you, Joe.’
“Q. Who .said that? A. Charley Jordan, and he got off his mare on the opposite side and come around under the mare’s neck with his knife in his hand, and he had his knife up. at Joe and Joe shot him; he shot two shots, right straight along and Charley reeled back the first shot.
“ Q. I will ask you to state how far he got, Charley Jordan got before he was shot? A. Prom Joe he was about three or four feet. . . .
Q. You all walked together until you got up by the gate? A. Yes, sir.
“Q. I will ask you to state if you stopped and waited for Charley Jordan there? A. No, sir; we didn’t stop at all, Charley Jordan rod'e up.
“Q. Did you hear Joe say anything there when the shooting occurred, or just before it? A. No, sir; I didn’t.
“Q. Now, I will ask you to state what was said that called your attention to the fact that he had ridden up there? A. Well, he says, ‘Here is where I have got you,’ to Joe, and I looked around and Mr. Jordan was getting off his horse.
“Q. Well, I will have you to state about what is your distance from Joe and1 Charley Jordan at the time you looked around? A. Well, I was about ten or fifteen steps on up the road.
“Q. Up the lane? A. Yes, sir."
“Q. Was Mr. Creen with you at the time; you say that Mr. Creen and Joe Prince walked up to the gate, did you? A. Yes, sir.
“Q. Now explain to the jury how Mr. Creen was ten or fifteen steps south of the gate, if Joe didn’t stop at the gate? (No answer.)”

The evidence of all the witnesses was to the effect that defendant’s open pocket-knife was seen lying at his feet after he was shot.

The State to establish malice and deliberation on the part of defendant introduced witnesses Elmer Hough and Earl Simpson, who visited the Prince home the night before the tragedy. Those witnesses testified that during their visit defendant expressed intense anger because deceased had cursed him and called bim a vile name the evening before; that defendant said he would “get Jordan (deceased) if he (defendant) had to go under the bed after him;” that he was willing to fight fair, but would not let deceased use a knife on him.

Everett Calton testified to having seen defendant at Pease the afternoon of the tragedy, and that the defendant inquired if he had seen deceased. On being informed that witness had not, defendant stated that he wanted to see deceased about the quarrel they had had the evening before, and further stated that he (defendant) came down there to catch deceased off of his own premises. That he intended to ask deceased to fight fair, and if deceased would not do so he (defendant) would use his gun, showing witness his revolver at the time.

OPINION.

I. After defendant’s witness Parrick had given his evidence, as before recited, he was asked on cross-examination if, prior to the killing, he had heard defendant say anything about shooting deceased, or if he- had any knowledge that defendant intended to shoot deceased, which questions he answered in the negative. Parrick was then asked if he did not visit the home of Charley Jordan, the deceased, the evening he was killed, and there, in the presence of Burrell Hough and Pete Everett, state that “it was too bad that Charley was shot; that witness and Arthur Prince had tried hard all evening to keep Joe from killing Charley, but could not keep it down.” This question was objected to on the ground that defendant was not present and could not be bound by the alleged statement made by witness Parrick; and on the further ground that it was an attempt to impeach the witness on an immaterial matter. These objections were overruled, and defendant excepted. Defendant then replied to the question as- follows: “If I said it, I did not say it that way. ’ ’

Witnésses Hough and Everett were then called, and, over defendant’s objections and exceptions, testified that witness Parrick did make the statement attributed to him in the interrogatory above quoted.

The admission of this evidence is assigned as error prejudicial to defendant. We find, however, that this evidence was not improper. The witness Parrick had very recently'associated with defendant, and had notified defendant of the alleged threat made against him by deceased; and if defendant had also made any threats against deceased or preparation to shoot him the witness would have been as likely to know of that fact as anyone else; and when he stated that he did not Imow of any intention on the part of defendant to shoot deceased that evidence was very material. The rule is that when the cross-examination is about a matter which the party conducting the examination has a right to prove as a part of his cause of action or defense, then the answers elicited1 by such cross-examination are material, and may be impeached or discredited by showing that the witness has made statements which conflict with his answers as given in his cross-examination. The fact that the conflicting statements amount to an accusation against defendant, who was not present when they were made, does not alter the situation. [Paris v. Waddell, 139 Mo. App. 288, l. c. 291.] In Underhill on Criminal Evidence (2 Ed.), sec/222, the rule is announced as follows:

“It is never permissible to cross-examine upon matters wholly irrelevant and collateral to the crime merely for the purpose of contradicting the witness on those points by other evidence. And1 if the cross-examiner shall happen to bring out irrelevant facts he is concluded thereby, and cannot contradict them. It is proper, however, to ask the witness if he did not at a particular time and place, which must be mentioned, give a different account of relevant facts to that which he gave on his direct examination. If he denies that he has- done so, a sufficient foundation is laid for his impeachment, which may then be accomplished by the testimony of a witness who was present and heard the contradictory statement. ’ ’

The conclusion we have reached on this point is also supported1 by the rulings of this court in State v. Cooper, 83 Mo. l. c. 701-2; State v. Mulhall, 199 Mo. 202, l. c. 212; and 1 Greenleaf on Evidence (16' Ed.), p. 590. Defendant’s first assignment will therefore be overruled.

II. It is insisted that reversible error was committed by L. C. Mayfield, special counsel for the State, in saying to the jury in his closing argument that “the history of Laclede county has been stained by the blood of forty-three murders.” Upon objection the trial court admonished the attorney as follows: “That is improper argument and should not be made to the jury. We are now trying this one case.” Defendant excepted to the remarks of the special counsel, but did not ask for a more pointed reprimand. While the remarks were improper, we do not think they were sufficiently prejudicial to defendant to warrant a reversal. No request was made for a more pointed reprimand, and, upon a careful review of the whole case, we find that what the court said was sufficient to cause the jury to confine their consideration to the one case then on trial. If the improper argument had been repeated, as it was in many cases that have come before us, or if the improper argument had been sanctioned by the trial court, the result might be different. [State v. Ferrell, 233 Mo. 452; State v. Hess, 240 Mo. 147, l. c. 159-60.]

III. Regarding the alleged misconduct of the sheriff in permitting the jury to separate, we will say that the separation is shown by affidavits, which prove that certain of the jurors were taken by the officer having them in charge from the room where they had been locked up to a toilet-room down stairs to answer a call of nature, and then promptly returned to their room. Such a separation does not constitute reversible error. . [State v. Spaugh, 200 Mo. l. c. 608, and cases there cited.]

IY. Defendant also complains of the refusal of the court to instruct the jury on the law of manslaughter in the third degree. The Missouri cases cited by defendant (State v. Eastham, 240 Mo. 241, and State v. Turner, 246 Mo. 598) are not in point, because what was said in those cases related to manslaughter in the fourth degree.

There is no part of the evidence which tends to prove that the killing was involuntary. Therefore the instruction for manslaughter in the third degree was properly refused. [State v. Watson, 95 Mo. 411; State v. Goldsby, 215 Mo. l. c. 54; Sec. 4462, R. S. 1909.]

Y.- The Attorney-General insists that we ought not to consider the alleged errors noted in defendant’s bill of exceptions, because the transcript of record proper does not show that the trial court ordered the bill of exceptions filed and made a part of the record proper. In support of this insistence the following cases are cited: Alt v. Dines, 227 Mo. l. c. 422; Sheppard v. Wagner, 240 Mo. l. c. 431-432; Bank v. Hutton, 224 Mo. l. c. 52; Novinger v. Railroad, 131 Mo. App. l. c. 338; Webster v. Berry, 140 Mo. App. l. c. 386; Fulkerson v. Houts, 55 Mo. 301; and Thorp v. Railroad, 157 Mo. App. l. c. 501.

The only entry in the record proper showing that the bill of exceptions was filed is as follows:

“On December 8, 1913, in vacation, the defendant filed his bill of exceptions.”

The certificate of the trial judge appended to the bill of exceptions (a copy of which we find m the transcript) recites that he approved said bill and ordered it filed and made a part of the record in the cause. The mere act of the clerk in filing the bill pursuant to the order of the judge (as recited in his certificate), together with the notation by the clerk on the record proper of the fact that the bill was filed, and the date of such filing, is all that is necessary to make the bill part of the record. There was no judicial duty resting upon the clerk to declare and adjudge the bill to be a part of the record proper.

Under section 2029, Revised! Statutes 1909, as amended by Laws 1911, p. 139', a trial judge may now approve, sign and order a bill of exceptions filed after the expiration of the time granted for filing same, and the clerk may file such bill in vacation without any previous order of the court, except the order of the judge in vacation embraced in his certificate showing that the bill has been approved and signed by him.

Since the amendment of 1911, above noted, the cases cited by the Attorney-G-eneral are no longer authority, and1 his contention must be disregarded;

Finding no error in the record by which the rights of defendant were prejudiced, the judgment will be affirmed. It is so ordered.

Walker, P. J., and Faris, J., concur.