author: FARIS, J. PER CURIAM:

text:
    PAULINE BRUNSWICK, Appellant, v. STANDARD ACCIDENT INSURANCE COMPANY.
    In Banc,
    May 16, 1919.
    1. THEORY OF TRIAL: Same on Appeal: Accident Insurance: Suicide. Appellant must try his case in the appellate court on the same theory on which he tried it below. Where insured came to his death by taking cyanide of potassium and the accident policy provided that, if he came to his death by suicide, while either sane or insane, the company would pay the benficiary one-tenth of the principal sum, and neither the pleadings upon either side, nor the instructions, nor the evidence except the policy, contain the word suicide, the plaintiff cannot-on appeal be heard to contend that a verdict for the company is not sustained by the evidence for that in any event the verdict should have been for at least one-tenth of the principal sum.
    2. ACCIDENT INSURANCE: Taking Foison While Insane: Recovery. If the insured took cyanide of potassium while insane, his death was caused by accident within the purview of a policy of insurance against death “resulting directly, exclusively and independently of all other causes from accidental bodily injuries, except when self-inflicted when insane,” for the last clause is expressly-rendered void by statute (Sec. 6945, R. S. 1909).
    3. -: Intentional Taking Foison While Sane. If the insured intentionally swallowed cyanide of potassium, .that is, if he committed suicide while sane, his death was not due to accident, and his beneficiary cannot recover under a policy which gives her the right to recover only for death resulting from accidental injuries. An act intentionally done by a sane man is not an accident.
    4. -: -: Contract: Presumption Against Suicide: Proof of Accident: Burden. Section 6945, Revised Statutes 1909' leaves the parties to an accident insurance policy free to contract that • there shall be no liability except for a death resulting from accidental injury, and where such is the contract and the insured was sane at the time of his death, the proof must show an accidental cause of death before there can be any recovery on the contract; and if the proof, even when aided by the presumption against suicide, shows suicide by the insured while sane, there can be no recovery by the beneficiary, for she has failed to meet the burden expressly assumed in the contract of proving insured’s death by accident.

      5. -: -: Sane or Insane:. Burden of Proof. If the insured commit Suicide while insane, his death, being unintentional, is held to be accidental, and though suicide be expressly excepted in the policy the statute (Sec. 6945, R. S. 1909) eliminates the excepting clause and the beneficiary may recover; but if the insured were sane at the time of his death, the burden is on the plaintiff to prove that the death resulted from accidental injuries, and though that burden may sometimes be aided by the presumption against suicide, it is not affected by the statute (Sec. 6945, R. S. 1909), for the burden still rests upon plaintiff to prove that, if insured took poison, which caused his death, he took it accidentally and not intentionally. [Distinguishing Logan v. Ins. Co., 146 Mo. 114, and Felter v. Ins. Co., 174 Mo. 1. c. 269.]
    '6. -: — : Inference From Taking Poison. When plaintiff in the suit on an accident policy has shown that the insured died from taking cyanide of potassium self-administered, the inevitable inference arises that his death was caused either by accident or suicide, and plaintiff cannot recover if the evidence (aided by the presumption against suicide) shows suicide, unless the evidence further shows that the insured at the time he committed suicide was insane.
    7. -: Presumption Against Suicide: Exclusion by Instruction. As an abstract proposition it is clearly improper to instruct the jury, in a suit on an accident insurance policy, that there is no presumption in law that the taking of poison by the insured was . accidental. But whether the giving of such an instruction is prejudicial error depends upon whether or not the facts do so conclusively show suicide that there is no room for such a presumption. If it cannot be said, by the court, as a matter of law, that the facts and circumstances proven show suicide and exclude any reasonable hypothesis of accident, then such. an instruction is not • only abstractly, but is concretely bad.
    8. -: -: Character and Force of Presumption. The presumption against suicide is a rule of law deduced from convenience and necessity; it is not evidentiary in character, but automatically arises when' there is no convincing evidence for or against suicide, and then, perforce of the presumption, a finding in favor of accidental death will be upheld. If there is evidence both for and against suicide* (unless the evidence is equally balanced) , the presumption has no place in the case. When it arises in the case as the result of the evidence adduced, it operates in only one of two ways: (a) it either forecloses the question, unless or until further evidence is offered by the other side, or (b) it shifts the burden of proof to the other side. But should this burden not be met, áhd should no other or countervailing evidence be adduced, the presumption will have the effect to con lude the question in favor óf the side upon which it operates.

      9. -: -: Character of Evidence of Suicide. The evidence for or against the fact of suicide may be either direct or circumstantial; and if the evidence in favor of suicide is wholly circumstantial, it ought to be such and of such weight as to negative every reasonable inference of death by accident.
    10. -: -: Sufficiency of Evidence. ■ Where defendant put in no evidence at all, and no affirmative facts to show suicide were adduced save and- except the proven facts that a few minutes before insured was found in a dying condition, due to his having taken cyanide of potassium, he was seen to fold up a handkerchief, that after his death a large quantity of this poison was found in a handkerchief in his pocket and that he had had this poison in his pocket for several days and knew what it was, the • court could not say as a matter of law that the evidence was sufficient to overcome the presumption against suicide.
    11. -:-: -: Practice: Demurrer. If the facts and circumstances proven are sufficient to exclude every reasonable hypothesis favoring accident, the court should sustain a demurrer to the evidence; but if the facts and circumstances are sufficient., on account of the presumption against suicide, to take the case to the jury, then it should go to them under proper instructions, and they should not be told that there is no presumption of law that the taking of poison by insured was accidental.
    Appeal from St. Louis City Circuit Court. — Hon. James E. Withrow, Judge.
    Reversed and remanded.

      Emerson E. Schnepp, Otto F. Karle and Taylor & Mayer for appellant.
    (1) The verdict was for the wrong party and was against the evidence and against the law under the evidence. The uncontroverted evidence is that William Brunswick died from the effect of taking cyanide of potassium, a deadly poison? There is no evidence which even tends to show otherwise. He therefore died from taking cyanide of potassium either (a) intentionally, whether sane or insane. Knights Templar v. Jarman, 187 U. S. 200, or (b) unintentionally, or, in other words, accidentally. If unintentionally (accidentally), then the defendant is absolutely liable under the policy. Lnintentionally, or accidentally, means without knowing that he was taking a deadly poison. ■ Accident Insurance Co. v. Crandal, 120 U. S. 527. (2) Under a provision of the policy itself the defendant recognized suicide as an event upon the happening of which it would be liable under the policy. It attempted to go further and reduce its liability, in the event of suicide, to one-tenth of the principal sum prescribed by the policy to be paid. Under the statute it could not do this. Its own construction of the policy showed it to be liable in the event of suicide and, being so liable, it could not, by any provision thereof, cut down or diminish that liability. Keller v. Travelers Ins. Co., 58 Mo. App. 557; "Whitfield v. Aetna Life Ins. Co., 205 U. S. 489. (3)- Furthermore, the verdict is such as to be absolutely and beyond question . against the evidence and the law under the evidence, and for the wrong party, because the evidence shows that William Brunswick’s death was caused by his taking cyanide of potassium, a deadly poison. Hence there are but two alternatives: (a) It was taken without knowledge on his part that he was taking the poison, which would constitute an accident within the meaning' of the policy; or (b) That he- took it knowingly, which would constitute suicide. If the first alternative be true, then the defendant was liable beyond question for the full amount of the policy. If the second alternative (suicide) be true then (even conceding that the defendant might limit or cut down its liability on account of suicide)' under the above-mentioned term of the policy, the defendant would be liable for $250. Hence, on the uncontroverted evidence, under the terms of the policy itself, there could be no general verdict for the defendant and the verdict should have been in favor of appellant either for the full principal sum (accident) or for $250 (suicide). (4) Instruction No. 2 given for respondent is erroneous in that there was no evidence to support it. G-regmoore Orchard Co. v. G-ilmour, 159 Mo". App. 218; Wann v. Scullin, 210 Mo. 486. The evidence showed conclusively that Brunswick died from taking-cyanide of potassium.. Under the statute this constituted an accident within the meaning- of the policy. Hence, there was no room for an instruction to the jury requiring it to find that Brunswick’s act constituted an accident. Applegate v.' Travelers Ins. Co., 153 Mo. App. 90; Harms v. Fidelity & Casualty Co., 172 Mo. App. 250; Whitfield v. Aetna Life Ins. Co., 205 U. S. 489; Logan v. Fidelity & Casualty Co., 146 Mo. 114. (b) Instruction No. 2 was erroneous, because said instruction is not the law. It told the jury that if deceased died because he took cyanide of potassium, yet there is no presumption in law that such act was accidental. This part of the instruction could have no effect other than to confuse and mislead the jury. (5) The presumption of law is against suicide, hence, that being the presumption, in the absence of evidence to the contrary, the question of suicide being excluded, there is but one alternative left and that is that the taking of poison was accidental. Richely v. Woodmen of the World, 163 Mo. App. 247; Newland v. Modern Woodmen, 169 Mo. App. 319; Norman v. Order of United Com. T., 163 Mo. App. 175; Voelker v. Hill-0’Meara Const. Co., 153 Mo. App. 1. (6) Even if it cquld 'be said that there was some evidence tending to show that Brunswick died because he intentionally took cyanide of potassium (suicide) yet, under the law, such intentional taking constituted an accident. .Applegate v. Travelers Ins. Co., 153 Mo. App. 90; Harms v. Fidelity & Casualty Co., 172 Mo. App. 250; Whitfield v. Aetna Life Ins. Co., 205 U. S. 489; Logan v. Fidelity & Casualty Co., 146 Mo. 114; Knights Templar & Masons Life Indemnity Co. v. Jarman, 187 U. S. 197.

      Anderson, Gilbert & Hayden and M. U. Hayden for respondent.
    (1) If the record discloses that the evidence offered. by appellant (plaintiff) wholly failed to establish that she is entitled, to recover or entitled to have her case submitted to the jury at all, then, the verdict of the jury having been in favor of respondent (defendant), there can be no error in any instructions given at the instance of the respondent which can be held to be reversible error. Wagner v. Electric Company, 177 Mo. 60; Bradley v. Forbes Tea Company, 213 Mo.-320; Trainer v. Mining Co., 243 Mo. 371. (2) It is elementary that the burden is upon the plaintiff, in any lawsuit, to prove the allegations of his petition. If he fails to prove those allegations or if he' prove another and different theory than that pleaded, he is not entitled to recover. Eeed v. Bott, 100 Mr. 62; Schneider v. Patton, 175 Mo. 723; Eoden v. Helm, 192 Mo. 94. (3) The appellant averred in her petition that “the insured, William Brunswick, died, his death resulting directly, exclusively and independently of all other causes, from accidental bodily ■injuries from and caused by the said William Brunswick taking, on said day, poison known as cyanide of potassium.” The burden was, therefore, imposed upon appellant to prove three facts: (a) that Brunswick did, in fact, take cyanide of potassium; (b) that he took it accidentally; and (c) that it caused his death. Laessig v. T. P. A., 169 Mo. 272; Norman v. Commercial Travelers, 163 Mo. App. 184; Bathe v. Insurance Co., 152 Mo. App. 94; Glover v. Henderson, 120 Mo. 367; Eanney v. Lewis, 182 Mo. App. 64; Berger v. Storage Co., 136 Mo. App. 42; O’Shea v. Lehr, 182 Mo. App. 693; Wright v. Commercial Travelers, 188 Mo. App. 463; Insurance Co. v. Yandecar, 86 Fed. 282; Taylor v. Insurance Co., 110' Iowa, 621; Carnes v. Traveling Men’s Association, 106 Iowa, 281,; Goodes v. Commercial Travelers, 174 Mo. App. 330; Vernon v. Traveling Men’s Assn., 158 Iowa, 602; Traveler’s Insurance Co. v. McConkey, 127 U. S. 666; Whitlatch v. Fidelity & Casualty Co., 149 N. T. 45. (4) Where a case is tried upon the theory that the insured committed suicide and where evidence is offered by the plaintiff tending to prove that he committed suicide, there can be no application of the presumption that the insured did not commit suicide. Laessig v. T. P. A., 169 Mo. 272; Sowders y. Railroad Co., 127 Mo. App. 124; Caldwell v. Traveling Men’s Association, 156 Iowa, 327; Supreme Tent v. King, 142 Fed. 678. (5) The instructions given to the jury, at the instance of respondent, correctly stated the law in view of the theory upon which appellant tried this case. Laessig v. T. P. A., 169 Mo. 272; Reynolds v. Casualty Co., 201 S. W. 1128; Lamport v. Aetna Life Ins. Co., 199 S. W. 1020.
   FARIS, J.

This is an action by plaintiff as beneficiary on a policy of insurance issued by defendant, insuring one William Brunswick, the husband of plaintiff, against death by accident. Upon a trial by a jury, the verdict was for the defendant. From the resulting judgment plaintiff appealed to the St. Louis Court of Appeals, wherein, upon a hearing, the case was reversed for error and ordered remanded for a new trial. [See Brunswick v. Standard Accident Ins. Co., 187 S. W. 802.] The Court of Appeals, however, being of the opinion that the views announced by them in this case were in conflict with the opinion of the Springfield Court of Appeals in the case of Scales v. National Ins. Co., 186 S. W. 948, made an order transferring the case to this court, pursuant to the mandate of the Constitution. Hence, our jurisdiction.

The petition seems to be conventional. After averring formally the issuance of the policy, the petition sets out substantially the conditions of the policy under which the liability of defendant for accidental death of the assured shall accrue. These conditions, as the petition and the policy recite them, are that liability accrues in the event of the death of assured “resulting directly, exclusively and independently of all other causes from accidental bodily injuries.” The policy contains, following the above-quoted conditions, as to the cause of death, an exception, to-wit: “Except when self-inflicted while insane,” which is not set out, or in any ivise re- /erred to in the petition. Continuing, the petition avers that assured died on the 22nd day of.April, 1913, and that his death resulted “directly, exclusively and independently of all other causes from accidental bodily injuries, from and caused by the said William Brunswick taldng on said day poison known as cyanide of potassium.” Other allegations are made as to additional increments to the principal sum of- $2500, arising, it is averred, from annual renewals of the policy, and as to damages and attorney’s' fees accruing from an alleged vexatious refusal to pay. But these have no pertinence to the points vexing us upon this appeal.

The answer of defendant, so far also as it is pertinent to the questions mooted here, was an admission of the issuance of the policy and of the several annual renewals thereof as pleaded, and a general denial of each and every allegation (sie) contained in the petition.

The facts immediately surrounding the death of assured are meagre, but as far as these facts are shown, and so far as they are pertinent to elucidate the questions mooted on this appeal, run substantially thus: Assured on the morning of his death seemed to be in' the best of health. He ate his breakfast just before eight o’clock in the morning, and apparently was preparing to go to his work. After breakfast he went into the bed-room of plaintiff, who seems to have been ill, and the latter tied his neck-tie for him. He then went into a bed-room adjoining that of plaintiff. Some five minutes afterward, hearing an unusual noise from this room, plaintiff entered it and found assured lying on the bed in a dying condition. His neck-tie and collar had been removed. There were burns on his mouth and cheek and hand — the latter seemingly from having wiped his mouth with his hand. A glass and spoon were found on the floor near the bed on which assured was lying. While in this bed-room and a few minutes before he was found dying, he was seen folding a handkerchief. In a handkerchief which was found in his pocket after Ms death were found some two or three ounces of cyanide of potassium. A can containing some two-thirds of a pound of cyanide of potassium was found in the bath-room.

The coroner, who was a physican, examined the body of assured some two hours after his death, and from the symptoms and the history of the case testified that assured came to his death from cyanide of potassium poisoning. The finding of the coroner’s inquest that assured came to his death by suicide, caused by swallowing cyanide of potassium, was’ offered, by plaintiff, but excluded by the trial court on defendant’s objection.

It will be necessary to state other and omitted facts in the course of the discussion of the points made by plaintiff. These will be set out in connection with the point to which they are apposite.

I. Plaintiff insists that the verdict is against the evidence. This contention is bottomed on the fact that the contract of insurance contained a provision substantially to the effect that, if assured came to his death by suicide, while either sane or insane, the com; 1 pany would pay the beneficiary one-tenth of the principal sum, that is to say $250. So, it is urged, since the death of the assured was unquestionably due either to accident or suicide, the verdict ought in any event to have been for at least the sum of $250.

It is enough to say upon this contention that the •case was not tried below upon any such theory. Neither the pleadings upon either side, nor the instructions, nor the evidence, except the policy, contain the word suicide, and the policy has it only in the clause whereon the alleged right is bottomed to recover the lesser sum above-mentioned. Even in these days when the leaven of reform is working in all the law and the strife is toward a legal millenium, whereat every man shall be his own lawyer, one may not yet sue and cause the jury to be instructed upon one cause of action and then, when east, urge error, for that he was not permitted to recover upon a wholly different theory and upon a wholly different cause of action which he did not see fit even to mention till he came up to the appellate court. The rule which forbids this practice is that which requires the appellant to try his case in the appellate forum on the same theory upon which he tried it below. [Paramore v. Campbell, 245 Mo. 287; Linn County Bank v. Clifton, 263 Mo. 200.]

II. Complaint is made by plaintiff of the following instruction given for the defendant, to-wit:

“You are instructed that, even though you may find from the evidence that William Brunswick took cyanide of potassium, on the day of his death, and even though you may further find that his death was caused thereby, there is still no presumption in ^aw that his act in taking said poison, if you find that he did take it, was accidental, or that his death resulted from accidental bodily injuries. On the contrary, the burden is upon plaintiff to.prove that the death of said William Brunswick resulted, independently of all other causes, from accidental bodily injuries, and, unless she has proved such fact, she cannot recover, and your verdict must be for the defendant.”

In condemnation of the above instruction plaintiff urges, (a) that it substantially tells the jury that death by suicide is not an accident; (b) that the burden was upon plaintiff to prove that the death of assured was caused by an accident, and (c) that if the jury should find that assured’s death was caused by poison no presumption exists that such poison was taken accidentally. Taking the converse of each of the above propositions, plaintiff strenuously urges that the above instruction was erroneous as to all of them.

In resolving these contentions it is necessary to re-examine the facts, cursorily at least. By these facts we think the cause of assured’s death is fairly well-settled. For, while the evidence is upon some vexing points utterly lacking, we are yet convinced that enough is shown to justify a finding by the triers of fact that assured came to his death from taking poison; whether accidentally or intentionally swallowed, is another question and one presently reserved. For in addition to his sudden death and. the burns upon his mouth, face and hand, which some of the witnesses say are characteristic effects of cyanide of potassium, crystals of this drug were found in a handkerchief in his pocket, and a can containing a large quantity thereof was found upon the premises. A few minutes before the death of assured he was seen to fold up a handkerchief, and, as stated, in a handkerchief after his death some two or three ounces of cyanide of potassium were found. A glass and spoon were found upon the floor near his body, which lay upon the bed, but whether containing evidences of recent use does not appear. The coroner, who is a physician, saw and examined the body of assured some two hours after his death, and as a result of that examination and the history of the case swore unequivocally that death was caused by cyanide of potassium poisoning. So, we think the postulates, of fact in the instruction was fully warranted by the evidence in the case, which clearly tended to prove that the death of deceased was caused by his swallowing cyanide, of potassium.

The obvious inference arises, and in fact the testimony shows, that assured was fully cognizant of the deadly nature of cyanide of potassium. For the testimony is that only a few days before his death he had taken from his pocket crystals of some drug and in exhibiting these crystals to his partner in business had stated, in substance that it was cyanide of potassium and a deadly poison. No reason whatever for suicide is disclosed by the record; neither, on the other hand, are there any facts in evidence making for the theory of accidental taking of this poison. The assured is not shown to have been ill, or to have been intending to take medicine, or even to have been in the habit of taking medicine. There is, as forecast above, no hint in the record, in either pleadings or proof, that assured was insane, or non compos to' any degree. Therefore his sanity must be presumed.

Upon these meagre facts how' stands the case upon the question of the correctness of the above instruction, and incidentally upon the right of plaintiff; to recover at all on a contract of insurance against death “resulting directly, exclusively and independently of all other causes from accidental bodily injuries, except when self-inflicted when insane?’’

In the light of the presumption in favor of sanity and the utter lack of any proof of insanity in the record, we go afield, in preserving the thread of our argument, to say that j.f assured took cyanide of potassium while insane his death was caused by an accident within the purview of the policy herein (Accident Ins. Co. v. Crandal, 120 U. S. l. c. 531; Tuttle v. Iowa Association, 132 Iowa, 652; Grand Lodge v. Wieting, 168 Ill. 408; Blackstone v. Ins. Co., 74 Mich. 592; Berger v. Ins. Co., 88 Fed. 241) and the above-quoted clause of that policy which excepts liability for death self-inflicted while insáne is rendered void by the express provision of Section 6945, * Revised Statutes 1909, and ceteris paribus recovery could be had by the beneficiary (Logan v. Casualty Co., 146 Mo. 114; Whitfield v. Ins. Co., 205 U. S. 489).

If, on the other hand, assured intentionally .swallowed cyanide of potassium, that is, if he committed suicide while sane, his death was not due to accident and his beneficiary can not recover under this policy, which bottoms the right to recover only for a death resulting from accidental injuries. [Williams v. Accident Assn., 133 N. Y. 366; Aetna Life Ins. Co. v. Vandecar, 86 Fed. 282; Tuttle v. Iowa Assn., 132 Iowa, l. c. 654; Laessig v. Travelers’ Assn., 169 Mo. l. c. 280; Lamport v. Ins. Co., 199 S. W. l. c. 1024.]

For in such case neither sound sense nor logic will permit us to hold that an act intentionally done by a sane man is an accident. Such a view would stultify common sense. Neither does Section 6945, supra, upon which plaintiff so confidently relies, aid at all or apply to the situation. The above section has nothing to do with the manner or cause of death. It leaves the parties perfectly free to contract in an accident policy touching the cause of death. If they see fit to contract that there shall be no liability except for a death resulting ffom an accidental injury, then the proof must show such a cause of death, before any recovery can be had on the contract. In other words if the proof, even where aided, in a proper ease, by the presumption against suicide, yet shows suicide by assured while sane, the plaintiff has simply failed to meet the burden expressly assumed in the insurance contract of proving the death of assured by accident."

In case of insurance effected upon life by the usual life insurance policy, the fact of death, since such fact is the sole condition precedent to recovery, is alone pertinent, and Section 6945, supra, applies automatically to all cases of death by suicide, regardless of whether the assured was sane or insane at the time he killed himself, barring of course, the exception noted in the statute itself. But where the assured solemnly contracts in an accident policy that liability for his death accrues only when the cause of death shall be an accidental injury, nothing seems clearer than that Section 6945, supra, has no application; unless, as already stated, assured shall commit suicide while insane. In the latter event the death, being unintentional, is held to be accidental, and though suicide is expressly excepted by the policy, recovery can be had because of the saving provisions of said Section 6945.

Upon this phase, therefore, we conclude that the burden was .upon plaintiff to prove that the death -of assured resulted from accidental injuries, that is, that it was due to an accident. That such burden may sometimes be aided by a presumption against suicide (which, presumption we discuss below) does not in our view affect this phase of the situation. This is so for the reason, if for no other, so clearly set forth in the case of Laessig v. Travelers’ Assn., 169 Mo., at page 280, where it was said:

“In other words, the contract of accident insurance primarily casts the burden upon the plaintiff to show that the death was accidental. It must be so pleaded and proved. If the defendant wants to avoid liability for an accidental death it must prove that the- death was due to a cause excepted from the operation of the policy; that is, that it was a suicide. In such cases there is no presumption of law that because the death was not due to suicide it was accidental. For it might not be due either to suicidet or accident. It might be natural. In such case, the defendant would fail in its contention that it was Suicide, and plaintiff would fail in his case because the death was not due to accident, and the contract only insured against accidental death. In fact, if there was- no plea of suicide, the plaintiff would have to prove accidental death. There would be no presumption of accidental death. The jury must determine the fact as to what caused the de'ath. There need not necessarily be direct proof or evidence of the cause. The cause may be found by the jury from facts and circumstances. But the cause of death is a fact for the jury. There is no presumption of law in such cases, further than the presumption against suicide; but even this presumption does not carry with it, in accident insurance cases, the further presumption that the death was accidental.”

When examined in the light of the facts and the points mooted and respectively held in judgment therein, neither the case of Logan v. Ins. Co., 146 Mo. 114, nor the case of Whitfield v. Aetna Ins. Co., 205 U. S. 489, militates conclusively against this view. This is so, because in the Logan case the defense was “that the death of said assured was caused while either sane of insane, in either of which events defendant was not liable.” The precise concrete question up for judgment under this defense as that point was stated by the court in the Logan case was: “Is suicide in this State a valid defense to an action upon a policy of insurance issued by an accident insurance company, containing provisions such as the one in controversy, where it is not shown that the insured contemplated suicide at the time he made his application for the policy— and it being admitted that the assured afterwards came to his death from external, violent and accidental means?” Under these defenses and the above admission it was competent for this court to find and conclude that assured was insane when he committed suicide. If he was insane, his death, as we have already seen, was accidental and the right to recover unquestionable. In fact, the above admission concedes that his death was caused by accidental means; so if he died by suicide, such suicide in order to be in harmony with this solemn admission, must have occurred while assured was insane. Therefore, the Logan’ case is in no respect out of harmony with our views herein.

In the "Whitfield case the question whether the death was accidental and whether the burden of proving the cause of death to have been on this phase within the terms of the policy was not discussed. • The defendant in the Whitfield case specifically pleaded suicide as a defense. The Supreme Court of the United States held that there could no longer be such a defense made, because forbidden by Section 6945, Revised Statutes of Missouri of 1909. The burden resting upon the plaintiff to prove a cause of death falling within the contract of insurance, i. e., an accidental death was not ■adverted to by the court; it seems to have been tacitly assumed by the court that the death was accidental, although the reply of plaintiff in effect admitted that the assured therein was sane when he killed himself. It is regrettable that it was not pointed out wherein the language of said Section 6945 had the effect to create by its terms a cause of action, when none theretofore existed under the policy and upon the conceded facts. This section is short and fairly simple and reads thus: “In all suits upon policies of insurance upon life hereafter issued by any company doing business in this State to a citizen of this State, it shall be no defense that the assured committed suicide unless it shall be shown to the satisfaction of the court or jury trying the cause that the insured contemplated suicide at the time he made his application for the policy, and any stipulation in the policy to the contrary shall be void.” [Sec. 6945, R. S. 1909.]

While the above section makes absolutely void all stipulations exempting liability on account of suicide and all defenses bottomed on the fact of suicide, yet it nowhere relieves the plaintiff m an action upon a policy of accident insurance from making proof that the death of the assured was caused by an accident. In short, as forecast above, the section does not write into an accident policy a cause of action where none existed upon the facts. Granting for the sake of argument that the section (the applicability of which to accident policies, though now fairly well-settled, has been strenuously and ably combatted and denied) could have gone further and provided that “suicide by a sane person shall be deemed to be an accident;” it is enough to say that it does not so provide. If the Legislature desired to create a cause of action upon a policy of accident insurance where none existed within the obvious meaning of the plain language of such contracts it would have been easy to say so. Therefore, unless the courts are able to say that a death by suicide of a sane person is a death by accident, further legislation would seem to be called ¿or. There are no cases up to the present time so holding. Both the reason of the thing and the cases are the other way. [Williams v. Accident Assn., 133 N. Y. 366; Aetna Life Ins. Co. v. Vandecar, 86 Fed. 282; Tuttle v. Iowa Assn., 132 Iowa, l. c. 654; Laessig v. Assn., 169 Mo. l. c. 280; Lamport v. Ins. Co., 199 S. W. l. c. 1042.]

Neither does the view we here announce conflict with the rule in Fetter v. Ins. Co., 174 Mo. l. c. 269. The latter case at most merely deals with the burden of adducing evidence. When the plaintiff has shown that assured died from cyanide of potassium poisoning self-administered, then the inevitable inference arose that death was caused by either accident or suicide, and plaintiff could not recover if the evidence (aided by the presumption against suicide) yet showed suicide till there was further evidence adduced showing that such suicide was committed while assured was insane.

We have here referred to, but left out of discussion or consideration, the effect and nature of the presumption against suicide, elsewhere fully discussed in the expression of our views'. And so we conclude that under the rules defining and delimiting stare decisis a.s that rule is announced in the case of State ex rel. Bixby v. St. Louis, 241 Mo. 231, the instant case may be, to the extent stated, distinguished from the Whitfield, Logan and Fetter cases, supra. If under this rule it be impossible to distinguish the Whitfield case (there are no difficulties as to the others) then we may content ourselves with saying that it is not binding on us in any respect, but at most only persuasive as the utterance of a great court, unfamiliar however, with many of the intricacies of our local statutes and rulings thereon.

■ But having shown that assured came to his death from swallowing cyanide of potassium, the inference, naught else appearing, that the act of swallowing this poison was either accidental or intentional, i. e., suicidal, inevitably arose. In such case and after such showing was it proper to instruct the jury that “there is still no presumption in law that his (assured’s) act in taking said poison was accidental?” It was clearly improper as an abstract proposition. Whether it was reversible error here, upon the concrete case made, depends upon whether there is upon the facts any room for the presumption, i. e., whether suicide was not so conclusively shown as to eliminate any presumption.

Discussing this presumption and its effect, a majority of this court in the late case of Reynolds v. Casualty Co., 274 Mo. l. c. 96, said: “No legal proposition is more firmly established than that where the act which caused the death may be either accidental or suicidal the burden is upon the insurer to establish the. fact of suicide by a preponderance of the evidence, for the presumption arising from the love of life, which is created for its preservation, is, like every natural law, always within the contemplation of the courts. It follows, as is stated by Mr. Bacon in his work on Life and Accident Insurance (4 Ed.), sec. 438, that: ‘When circumstantial evidence, only, is relied on, the defense fails unless the circumstances exclude with reasonable certainty any hypothesis'of death by accident, or by the act of another.’ [Boynton v. Assurance Society, 105 La. 202; Shotliff v. Modern Woodmen, 100 Mo. App. 138; Norman v. United Commercial Travelers, 163 Mo. App. 175; Almond v. Modern Woodmen, 133 Mo. App. 382; Claver v. Woodmen of the World, 152 Mo. App. 155; Hunt v. Ancient Order of Pyramids, 105 Mo. App. 41; Home Benefit Assn. v. Sargent, 142 U. S. 691; South Atlantic Life Ins. Co. v. Hurt’s Admx., 79 S. E. (Va.) 401; Life Ins. Co. v. Koegel, 104 Va. 619; Pagel v. Casualty Co., 158 Wis. 278; Huestis v. Ins. Co., 155 N. W. (Minn.) 643; Kornig v. Indemnity Co., 102 Miss. 31; Jenkin v. Life Ins. Co., 131 Cal. 121; Insurance Co. v. Nitterhouse, 11 Ind. App. 155; Insurance Co. v. Milward, 68 L. R. A. 285.]

“These cases, and many others to which our attention has been directed, amply sustain the doctrine stated in the proposition we have quoted from Mr. Bacon’s excellent book. In the Kornig case, supra, the court states it more fully as follows: ‘Where the defense of suicide is asserted against an action by a beneficiary on an insurance policy (a) the burden of proving that the deceased committed suicide is upon the defendant; (b) the presumption is against suicide; (c) if the known facts are consistent with the theory of natural or accidental death, the presumption which the law raises from the ordinary motives and principles of human conduct requires a finding against suicide; (d) when circumstantial evidence is relied on, the defendant must establish facts which exclude any reasonable hypothesis of natural or accidental death.’

“It is a doctrine that appeals to every just and reasonable mind. It does not relieve the plaintiff from the burden of proving’ accidental death by a preponderance of evidence as a condition of recovery but requires that when he has put in evidence circumstances which prove that the _ death was either accidental or suicidal, the unreasonableness of the theory of suicide must receive due consideration in weighing it against the more reasonable and natural theory of accident.”

While the writer sharply disagreed with the judgment and with much that was said in the Reynolds case, yet since a majority of this court en bdnc ruled contrary to his views he is constrained by the view which he entertains of his duty under the Constitution to adopt as the law and follow the opinion of the majority.

The presumption against suicide is a rule of law deduced from convenience and necessity; it is based on the well-nigh universal human characteristic of love of life and fear of death, and it arises in a case whenever the cause of death is in issue and the evidence discloses a state of facts consistent with either accident or suicide. While the doctrine is a veritable presumption of law, it is sometimes and in some of the cases loosely spoken of as a presumption or inference of fact, and is put in the category of evidence. While a few authorities assert the converse, by far the better view is that it is not evidentiary in character; yet when invoked in the trial of a case, in a way as a constituent of evidence, it undoubtedly accomplishes a function of evidence, pro hao vice. It is to be invoked, or automatically rises, to be exact, when there is no convincing evidence for or against suicide, and in such case, perforce this presumption alone, a finding in favor of accidental death will be upheld. [Fitzgerald v. Barker, 85 Mo. l. c. 22.] The evidence for or against the fact may be either directJ or circumstantial. If the evidence in favor of suicide is wholly circumstantial, then it ought to be. such and of such weight as to negative every reasonable inference of death by accident. [Prudential Ins. Co. v. Dolan, 46 Ind. App. 40; Agen v. Ins. Co., 105 Wis. 217; Richey v. Ins. Co., 163 Mo. App. 235.] In the case of Agen v. Ins. Co., supra, at page 218, in a syllabus by the writer of the opinion, the Supreme Court of Wisconsin sets out the converse of the rule we announce and thus negatively endorses the correctness of that rule, thus: “Where the reasonable probabilities from the evidence all point to suicide as the cause of death, so as to establish it in the light of reason and common sense with such certainty as to leave no room for reasonable controversy on the subject, a jury should not be permitted to find to the contrary, and have such finding stand as a verity in the case, but the question should be decided by the trial court as one of law.”

If there is evidence both for and against suicide the presumption (unless, as some of the cases hold, and the reason. of the thing makes plausible, the evidence be equally balanced) has no place in the reasoning, as its very nature indicates; if therefore invoked,-, or present, it vanishes and the question is to be thereupon resolved upon the evidence. [9 Encyc. Ev. 885, and cases cited.] Obviously, the presumption against suicide cannot continue to exist in the face of evidence showing suicide, for such a view would be utterly subversive of the well-settled doctrine, figuratively but strikingly announced by Lamm, J., substantially, to-wit, that presumptions are the bats of the law which the light of evidence frightens and causes to fly away. [Mockowik v.Railroad, 196 Mo. . 1. c. 571.] Not only do the cases and the textbooks sustain this view (Erhart v. Dietrich, 118 Mo. 418; State v. Swearingen, 269 Mo. 186; Mockowik v. Railroad, supra; Galpin v. Page, 85 U. S. 350; Diefenthaler v. Hall, 96 Ill. App. 639; Largen v. State, 76 Tex. 323; Conway v. Supreme Council, 337 Cal. 384; Jones v. Bond, 40 Fed. 281; Cunningham v. State, 56 Miss. 269; Keller v. Over, 136 Pa. St. 1; Adams v. Slate, 87 Ind. 573; Myers v. Kansas City, 108 Mo. 480; 2 Chamberlayne’s Mod. Law of Ev. 1085; Lawson on Presump. Ev. 242; 9 Encyc. of Ev. 885; Bates v. Pricket, 5 Ind. 22; 4 Wigmore on Evidence, 2495-2511; Winter v. Supreme Lodge, 96 Mo. App. 1); but the very legal nature.of the rule of law, which we call a presumption, demonstrates it. For in the very last analysis this rule of law which we call a presumption, operates, when it arises in the case as the result of evidence adduced, only in two ways: (a) It either forecloses the question, unless and until further evidence is offered by the other side; or (b) it shifts the burden of’ the evidence to the adverse side; that is all it does in the case. [In re Banbury Peerage, 1 Sim. & S. 153; Pickup v. Thames etc. Ins. Co., 3 Q. B. D. 594; Davis v. United States, 160 U. S. 469; State v. Hoyt, 47 Conn. 518; Dacey v. People, 116 Ill. 555; Jones v. Ins. Co., 90 Me. 40; Holmes v. Hunt, 122 Mass. 505; People v. Garbutt, 17 Mich. 9; Marshall Livery Co. v. McKelvey, 55 Mo. App. 240; Blodgett v. Cummings, 60 N. H. 115; Brotherton v. People, 75 N. Y. 159; Clark v. Hills, 67 Tex. 141; Thayer, Prelim. Treat, on Ev. 336.] Should this burden not be met, and should no other and countervailing evidence be adduced, the presumption will have the effect to conclude the question in favor of the side upon which the presumption operates. [State v. Jones, 64 Iowa, 349; Lisbon v. Lyman, 49 N. H. 563; Succession of Tighlman, 7 Rob. 387; Kidder v. Stevens, 60 Cal. 414; Cunningham v. State, 56 Miss. 269; Fitzgerald v. Barker, 85 Mo. 13; 2 Chamberlayne’s Mod. Law of Ev. 1085.]

Therefore, it obviously follows that such a presumption is not evidence, but that it is a mere term in legal nomenclature, employed to designate the imperative duty, or burden upon the side against which the presumption operates, of producing evidence to rebut the finality of the legal conclusion which arises, in the course of a trial of a. case, from the proof of other facts therein. [9 Encyc. of Ev. 885; 4 Wigmore on Ev. 2490-2511; Allen v. United States, 164 U. S. l. c. 500; 2 Chamberlayne’s Mod. Law of Ev. 1175a; Thayer, Prelim. Treatise on Ev. 314-339; Lisbon v. Lyman, 49 N. H. 563; State v. Jones, 64 Iowa, 349; Wooten v. State, 24 Fla. 335; State v. Hudspeth, 159 Mo. 178; State v. Pike, 49 N. H. 399; Moore v. Renick, 95 Mo. App. 202; Rousseau v. American Yeomen, 186 Mich. l. c. 195; Lincoln v. French, 105 U. S. 614; 1 Elliott on Evidence, 94; Prudential Ins. Co. v. Dolan, 46 Ind. App. 40; Board Commrs. v. Robbins, 82 Conn. 623; Warner v. Warner, 235 Ill. 448; Jenkins v. Railroad Co., 105 Minn. 504; Peters v. Lohr, 24 S. D. 605; First Nat. Bk. v. Adams, 82 Neb. 801; Atchison, etc., Railroad v. State, 23 Okla. 210; Ryan v. Railroad, 151 Pac. 71; Purdy v. State, 86 Neb. 638; Savage v. Rhode Island Co., 28 R. I. 391; Agnew v. United States, 165 U. S. 36; State v. Kennedy, 154 Mo. 268; McDuffee v. State, 55 Fla. 125.]

As stated above, if there is among the facts in evidence in this case any room or place for the presumption, the instruction above set out was, on this phase erroneous. That is to say, if it cannot be said by us as a court, that as a matter of law the facts and circumstances proved show suicide and exclude any reasonable hypothesis of accident (Prudential Ins. Co. v. Dolan, 46 Ind. App. 40; Agen v. Ins. Co., 105 Wis. 217; Richey v. Ins. Co., 163 Mo. App. 235), then the instruction, which was, as we ha\Te already demonstrated, abstractly bad, was here, also concretely bad. Defendant put in no evidence whatever. Save and except the proved facts that a few minutes before assured was’ found in a dying condition due to his taking cyanide of potassium, he was seen to fold up a handkerchief; that after his death a large quantity of this poison was found in a handkerchief in his pocket; that he had.had this poison in his pocket for several days and knew what it was, and . nij knew its deadly nature, there are no affirmative facts in the record to show suicide. Was this evidence sufficient to overcome as-a matter of law the presumption against suicide, and enable the court to say as a matter of law that suicide and not accident was the cause of assured’s death? If it was sufficient to overcome this presumption, then the court below ought to have sustained the defendant’s demurrer to the evidence'and the bad instruction in such case would, of course, cut no figure; since in such event the only possible result under the law and the'evidence was reached by the jury.

While the point is close and difficult, we are yet constrained to say, perforce the ruling in the Reynolds Case, supra, that the facts proven and which tend to show suicide are not sufficient to exclude every reasonable hypothesis favoring accident, and there is left, on account of the presumption against suicide, an inference of accident sufficient to take the case to the jury. If it ought as a matter of law to have gone to the jury at all, then it is elementary that it ought to have gone to the jury under proper instructions. It results that the giving of Instruction Two constituted reversible error. Let the case be reversed and remanded for a retrial not inconsistent with what we have herein ruled.

All concur.

PER CURIAM:

The foregoing opinion by Fabis, J., in Division is adopted by the Court in Banc.

All concur, except Woodson, J., who dissents; Bond, C. J., not sitting.


source: Caselaw Access Project

author: WILLIAMS, P. J. WALKER, J.

license: Public Domain

text:
    THE STATE v. ROBERT STEWART, Appellant.
    Division Two,
    May 16, 1919.
    1. HOMICIDE: Instruction for All Grades of Crime. In cases of homicide instructions declaring the law on all grades of the crime to which the testimony is applicable should be given. If there is substantial evidence, though consisting of the testimony»of defendant alone, showing a state of facts which, if true, would reduce the crime from murder to a lower grade of homicide, it is the court’s duty to instruct upon that grade.
    2. -: -: Manslaughter. Voluntary manslaughter, at the common law is the unavoidable killing of another without malice or upon a sudden quarrel or in a heat of passion.
    3. -: -: -: In Eourth Degree: Heat of Passion: Self-Defense. Within the purview of the statute (Sec. 4468, R. S. (1909) providing that every killing of a human being by the act, procurement or culpable negligence of another, which would be' manslaughter at common law and which is not otherwise defined as manslaughter in some other degree, shall be deemed manslaughter in the fourth degree, the killing, if intentional and done in a heat of passion or upon reasonable provocation, without malice or premeditation, and under such circumstances as will not render the offense justifiable or excusable, is manslaughter in the fourth degree.
    4. -: -:-: -: Provocation. To constitute reasonable provocation adequate to reduce an offense from murder to manslaughter, such facts must be present as are calculated to excite the passions beyond control, and in the' mind of the average just and reasonable man stir up resentment likely to cause violence and danger to life, and such as would naturally tend to disturb and obscure the reason and lead to action from passion rather than judgment. One of the. essentials of such provocation is evidence of personal violence on the part of deceased towards the defendant.
    5. -:--: -: Malice. Malice is presumed from the use of a deadly weapon, such as a pistol, and the burden is on the accused to repel this presumption, unless the evidence of the killing shows its absence. Where the accused armed himself with a pistol with which he immediately thereafter shot and killed the deceased, it will be presumed that the malignant condition of the mind of the accused continued throughout the act to such an extent as to preclude an instruction for manslaughter.
    6. -: -: No Instruction for Manslaughter Authorized. The facts in this case disclose no evidence of that sudden comhat necessary to arouse the passions of defendant to the realm of reasonable provocation, but the evidence showing that he deliberately armed himself for a deadly encounter and sought the presence of his victim, no instruction for manslaughter in the fourth degree would have been justified.
    7. -: Instruction on Self-Defense: All Law of Case: No Proper Exception. A general allegation in the motion for a new trial that “the court gave illegal and improper instructions” is not sufficient to preserve for review a complaint that the court erred in not giving an instruction in regard to seeking or inviting a combat, or as to what would constitute the right of self-defense.
    8. -; — : Instruction: Singling Out Evidence: Attentions to Defendant’s Wife. It is not error to instruct the jury that improper attentions by deceased to defendant’s wife afford no excuse or justification for defendant shooting deceased. Such an instruction does not single out and give undue prominence to the testimony establishing such attentions. To aid the jury in reaching a correct conclusion the court may always direct their attention to particular facts in evidence.
    9. -: Evidence: Visiting Defendant’s Wife. Testimony that deceased had visited defendant’s wife in his absence from home, of which fact, if it existed, he had had knowledge several days before the homicide, should be excluded. Evidence of an adulterous relation is only admissible when discovery of the same,by defendant is so near the homicide as to afford no time for the passions inflamed thereby to cool.
    10. -: Dying Declaration: Competency. Deceased’s brother testified that two days before deceased died, he was sitting on his bed and asked him: “Walter, what do you think about having a dying statement taken?” to which deceased replied: “Do as you please, I have got to die,” and then directed another to take his statement. Held, that a statement then written out and signed by deceased was made in articulo mortis; and although deceased could not be excluded on the sole ground that deceased did not realize that death was impending.
    11. -:-: Subject-Matter: No Objection. Dying declarations are but forms of hearsay evidence, and objections to their subject-matter should be made when offered and proper exceptions saved to an adverse ruling, and if no objection is made except that they thereafter underwent a surgical operation, performed by two physicians in an effort to prolong his life, still the declaration are “illegal and improper evidence to go to the jury” a consideration of their subject-matter on appeal is precluded.
    12. PRACTICE: Reply Statement to Jury by Prosecuting Attorney. The statute (Sec. 5231, R. S. 1909) contains no provision authorizing the prosecuting attorney to make a statement to the jury in reply to the statement made by defendant’s counsel at the opening of the case, and such practice should be condemned; and ■ while every reply statement, without regard to its contents, is not reversible error, yet when it contains matters prejudicial to defendant’s rights, as in this case, it is reversible error.

      Held, by WALKER, J., dissenting, that the prosecuting attorney’s reply consisted of a statement of the testimony he proposed to offer in rebuttal to the evidence which defendant’s counsel had stated would be offered by him, and such material testimony was in fact offered and was proper rebuttal, and to its introduction appellant’s counsel does not complain; therefore, the reply was not prejudicial error.
    Appeal from Pike Circuit Court. — Hon. Edgar B. Wool-folk, Judge.
    Eeversed and remanded.

      Pearson & Pearson for appellant.
    (1) The court committed error in not giving an instruction to the jury on manslaughter in the fourth degree. The testimony of defendant himself, and that of his daughter, Buby Stewart, with reference to deceased picking up a rock, immediately upon defendant’s arrival at the mail box; the evidence of witness Lohse, who saw from a distance deceased’s raised arm in a position to hurl something; and the testimony of witness, Jarve Allison, that immediately upon defendant’s arrival at the mail box, the deceased stooped down, as he says, to pick up his gloves, hut defendant and. daughter testified that it was to pick up a rock, disclose a typical case wherein an instruction on manslaughter in the fourth degree should have been given to the jury. State v. Bates, 239 Mo. 513; State v. Wilson, 242 Mo. 501; State v. Crugin, 147 Mo. 48, 62; State v. McKenzie, 102 Mo. 632; State v. Conley, 255 Mo. 198. It made considerable difference, at the time, whether deceased was attempting to pick np a rock or a pair of gloves. That phase of the ease, and that difference should have been presented to the jury, for its consideration, under a proper instruction from the court. (2) The court erred in giving Instruction No. Ten. In so doing, it singled out the lack of evidence of undue intimacy between deceased and the defendant’s wife, and, unduly and improperly, made the impression on the jury that there was evidence from which they might find this to be a fact. This instruetion was not only prejudicial, but it was vicious. By this instruction the court accentuated, in the minds of the jury, the facts stated by the prosecuting attorney, in his reply statement.' From this instruction, in connection with the prosecuting attorney’s reply statement, the jury could readily infer, that the defendant had no right to go to the mail box with the view of protecting his home, and the honor of his family; and that by so doing, he voluntarily entered into the difficulty; and therefore his plea of self-defense was of no avail to him. State v. G-rugin, 147 Mo. 48, 62.- (3) The court committed error in allowing the prosecuting attorney to make a reply statement. The law does not recognize, or countenance, a reply statement on the part of the State’s attorney; and the subject matter of the reply statement in the instant case was vicious in the extreme. Sec. 5231, R. S. 1909; State v. Kennedy, 177 Mo. 116. (4) The court committed error in excluding evidence offered by the defendant of deceased’s visit, and attempts to visit his home and his wife in his absence. This evidence was competent, for the purpose of showing the motive, reason and animus for defendant’s going to the mail box, when he. saw deceased going there to talk to his wife. The jury had a right to know why defendant went to the mail box; it also had a right to know the relations existing between the deceased and plaintiff’s wife, or of such attentions as were shown and sought to be shown her on the part of the deceased. State v. Grugin, 147 Mo. 48, 62. (5) The dying declaration was a self-serving statement, made on ' the part of the deceased, at the suggestion of a third party, one of the deceased’s kinsmen. It was made at a time when all hope of life had not ceased on the part of the doctors attending deceased; nor his relatives; and at that time deceased had never heen advised that he was going to die. The dying statement also contained improper and illegal evidence which the court allowed to go to the jury.

      Frank W. McAllister, Attorney-General, Henry B. Hunt and G. P. LcMire, Assistant Attorneys-General, for respondent.
    (1) Where there is no evidence of manslaughter in the fourth degree, failure or refusal to instruct théreon is not erroneous. State v. Weinhardt, 253 Mo. 637; State v. Tucker, 232 Mo. 1; State v. Wooley, 215 Mo. 620. Mere words or actions, not accompanied by an assault or some violence against the person, are insufficient to reduce the guilt of killing from murder to manslaughter in the fourth degree. State v. Barret, 240 Mo. 169; State v. Starr, 38 Mo. 277. (2) Under the facts in this case, Instruction 10, given by the court, states the law properly, and there is no error therein. State v. Vest, 254 Mo. 466; State v. Herrell, 97 Mo. 112; State v. Prance, 76 . Mo. 684; State v. Holme, 54 Mo. 164; Maher v. People, 10 Mich.'212; 21 Cvc. 751. (3) Although somewhat unusual to permit the prosecuting attorney to make a reply statement, yet there is nothing prejudicial to this defendant therein contained; therefore, said irregularity furnishes no basis for reversal. State v. Kennedy, 177 Mo. 116; State v. Brown, 247 Mo. 730 ; State v. Hess, 240 Mo. ‘160. (4) The trial court did not err in refusing to permit, defendant to, introduce evidence showing that deceased had visited the wife of defendant in her home on occasions when defendant was absent. State v. Vest, 254 Mo. 466; State v. G-rugin, 147 Mo. 48, 62; State v. Prance, 76 Mo. 684; Maher v. People, 10 Mich. 212. (5) Under the facts in this case, the written statement of "Walter Allison was admissible, as a dying declaration. State v. Kilgore, 70 Mo. 546; State v. Chambers, 87 Mo. 406; State v. Nelson, 101 Mo. 464; State v. Gibbs, 186 S. W. 986.
   WILLIAMS, P. J.

An opinion was originally prepared in this case by Walker, J. All of .that opinion was concurred in by the court with the exception of one paragraph thereof dealing with the question of the right of the prosecuting attorney to make a reply statement of facts to the jury at the beginning of the trial. It being therefore entirely unnecessary to redraft that portion of the opinion and the statement upon which all are agreed we will adopt that portion of the original opinion in this opinion. The portion thus adopted is as follows:

“Appellant was charged by information in the circuit court of Pike County with murder in the first degree. Upon a trial, he was convicted of murder in the second degree, and his punishment assessed at ten years in the Penitentiary. From this judgment he appeals.

“Walter Allison, the deceased, and the appellant were farmers living in the same neighborhood in Pike County. Allison was a single man, and the appellant was married, having a wife and children. For several months prior to the killing, deceased had been clandestinely meeting appellant’s wife. Appellant, upon being informed of this fact, on the day preceding the killing, requested the deceased to desist in his attention to ■his wife. This the deceased promised to do. On December 23, 1916, deceased, in company with Arvie Allison, his nephew, went to some mail boxes on a highway in the neighborhood, one of which belonged to the deceased and another to the appellant. They found the wife and daughter of the appellant at the mail boxes waiting for the arrival of the carrier. The testimony of the State is that upon their arrival, they were greeted by the two women, the wife paying that she was not supposed to speak to them. Looking across an adjoining field, she saw her husband coming rapidly towards them, and said: ‘Here comes Bob. There is going to be some trouble.’ Reaching the scene of the killing, he spoke roughly to the deceased. Just at this juncture, the deceased reached down to pick up his gloves, when the appellant, with an oath, began shooting at him. At the first shot, which took effect, the deceased attempted to straighten up, but at the second, he fell, saying, “Bob, you have killed me. ’ Appellant, at this juncture, turned and walked away, accompanied by his wife and daughter. The nephew of the deceased, assisted by others, conveyed the latter, who was not then dead, to his home, where he died.

“For the defendant, a witness named Lohse testified that from his home, one hundred feet, or more from the mail boxes, he saw the killing; that the deceased, when the appellant approached, had his left hand turned back, as though about to throw something. At this juncture, appellant fired the first shot; that the attitude of the appellant had not changed when the second shot was fired; that the pistol with which the shooting was done belonged to this witness, and immediately after the killing he went down and got it from the appellant, went to his house, and telephoned for help, and returned a few minutes later to where the deceased was lying in the road and assisted in conveying him to his home; that on one occasion prior to the shooting, he had discussed with the appellant the intimacy of the latter’s wife and the deceased.

‘ ‘ The fifteen-year-old daughter of the appellant stated that .when her father came ‘up and asked the deceased why he had not complied with his promise, the latter picked up a stone to throw it, saying, with an oath, ‘I will smash your brains out.’

“The appellant’s testimony, material to the matters at issue, is substantially as follows: Upon seeing the deceased, and his nephew leave the former’s home and go down to the mail boxes, he went to his house, put a pistol in his pocket, and went across the field to the mail boxes. Approaching them, he said to the deceased: ‘What did you promise me about my family yesterday?’ That the deceased replied with an oath: ‘I will smash your brains out,’ and picked up a stone lying in the road. In the meantime, the appellant drew his pistol, and before deceased could throw the stone, he shot him. At the first shot, the deceased threw the stone on the ground, and it rolled almost to the appellant’s feet; that the deceased then reached his hand towards his hip pocket, when the appellant fired the second shot and deceased fell to the ground; they were some ten or twelve feet apart when the shots were fired; that appellant then climbed over the fence, and with his wife and daughter, went down the road to the home of an uncle. The next morning he went back, and got the stone which he states deceased had tried to throw at him; and it was introduced in evidence as being the one in question.

“The instructions as to the grade of the crime were limited to murder in the first .and second degrees and self-defense.

“1. Error is assigned in the failure of the trial court to give an instruction for manslaughter in the fourth degree. The testimony, if this contention is sustained, must bring the case within the purview of Section 4468, Revised Statutes 1909, which, so far as pertains to the case at bar, provides that every killing of a human being by the act, procurement or culpable negligence of another, which would be manslaughter at the common law, and whieh is not otherwise defined to be manslaughter in some other degree, shall be deemed manslaughter in the fourth degree.

“Voluntary manslaughter at the common law is the unvoidable killing of another without malice or upon a sudden quarrel, or in a heat of passion. [Hale’s P. C. 449; 1 Bl. Com. 191.]

“Where the killing is intentional, as contemplated by the statute cited, manslaughter in the fourth degree, under our rulings, is defined to be the killing of a human being in a heat of passion on reasonable provocation, without malice or premeditation, and under such circumstances as will not render the offense justifiable or excusable. [State v. Sebastian, 215 Mo. l. c. 80 and cases.]

“It is elemental that in the giving of instructions in cases of homicide, it is the duty of the trial court to declare the law upon all grades of the crime to which the testimony is applicable. If, therefore, substantial evidence has been adduced in this case, although it may consist of the defendant’s testimony alone, showing a state of facts, which if tru'e, would reduce the grade of the crime, it was the duty of the court to instruct the jury upon the grade thus shown. [State v. Heath, 221 Mo. l. c. 581.]

“The testimony to support the appellant’s contention . as to his right to the instruction for manslaughter in the fourth degree is that the deceased, with an opprobrious oath, said he would smash, appellant’s brains out, and picking up a stone, attempted to throw it at appellant, whereuppn the latter drew a pistol and shot the deceased through one of his legs* who fell to the ground, letting the stone drop at appellant’s feet. Appellant followed this up''with another shot, inflicting the wound from which death resulted. Whatever may' be the variant facts, under which instructions for manslaughter have been given in the different cases, it must appear, to authorize same, that there was reasonable provocation for the act of the accused.

“As to what constitutes reasonable provocation adequate to reduce the offense from murder to manslaughter is defined in State v. Conley, 255 Mo. 185, as such a state of facts as is calculated to excite the passions beyond control, and in the mind of the average just and reasonable man stir up resentment likely to cause violence and danger to life, and such as would naturally tend to disturb and obscure the reason and lead to action from passion rather than judgment. This probably is as general a definition as can be well given. One of the essentials of such provocation is evidence of personal violence on the part of the deceased towards the defendant. Reasoning from analogous cases, while not wholly satisfactory, will enable a conclusion to be formed as to whether this essential is present in the case at bar to such an extent as to authorize the giving of the instruction for manslaughter.

“¥e held in State v. Barrett, 240 Mo. l. c. 169, where' the evidence showed that the deceased was advancing upon the defendant with a stick or club in his hand in a threatening manner at the time the shots were fired, that this1 did not constitute such an assault by the deceased as amounted to personal violence.

“In State v. Sharp, 233 Mo. l. c. 299, although there was much conflict in the testimony, it was shown that the shooting commenced, which resulted in the killing, upon an officer in citizen’s clothes drawing a pistol upon the defendant. In refusing the instruction for .manslaughter in the fourth degree, the court held that there was' no such personal violence offered to the defendant as to constitute such reasonable, provocation as would authorize an instruction for manslaughter in the fourth degree.

“In State v. McKenzie, 228 Mo. l. c. 396, 404, the deceased rushed at the accused with a large butcher knife; whereupon, the accused backed up against a door, and failing to get it open, drew a revolver and shot the deceased. It was held that these facts did not authorize the giving’ of an instruction for manslaughter in the fourth degree.

“Tn State v. Gordon, 191 Mo. 120, 125, the deceased, who was a much larger man than the accused, caught the latter, and pressed him to his body and began to choke him. While in this position, the defendant pulled a knife out of his pocket and cut the deceased, in'order to liberate himself. The wounds inflicted proved fatal. It was held that these facts did not reduce the killing to the grade of manslaughter.

“In State v. Gartrell, 171 Mo. 1. c. 520, it was shown that the deceased, after the use of opprobrious and insulting epithets, advanced on the accused with an iron wrench, when the latter struck him with the pole of an ax and killed him. These facts were held not to authorize the giving of an instruction for manslaughter in the fourth degree.

“In State v. Sumpter, 153 Mo. 436, the accused testified that he went into the field where the deceased was plowing and rode up to him, when the deceased said: ‘Didn’t I tell you I was going to kill you?’ That the deceased thereupon stopped his team, wrapped his lines around the plow handles, and started towards the defendant with an ax, who shot him. The court held that an instruction for manslaughter in the fourth degree was unauthorized.

“In State v. Meadows, 156 Mo. 114, 116, a number of witnesses testified that the accused started away, when the deceased fired at him, and was in the act of firing a second time when the accused turned and shot him. The court held that an instruction for manslaughter in the fourth degree was not appropriate, in that the defendant was guilty of murder either in the first or second degree, or that the killing was done in the necessary defense of his person. Instructions as to the grade of the crime were given in each of the cases above cited, as in the Meadows case. Upon this theory, the trial court declared the law in the case at bar. The other attendant facts which must be considered as a part of and hence explanatory of the killing, lend support to the correctness of this conclusion.

“Bad blood existed between tbe parties, at least on the part of appellant against the deceased immediaely preceding the killing.

“Other than the sight of the deceased at the mail boxes with appellant’s wife and daughter, there existed no cause for that heat of passion suddenly aroused on the part of appellant which is a precedent condition to that reasonable provocation necessary to the existence of manslaughter in the fourth degree. On the contrary, the appellant, with that calculation characteristic of a more serious grade of homicide, went deliberately to the scene of the crime and began to upbraid the deceased, and the latter attempted the assult — to the testimony of which we give credence for no other reason than that appellant may have whatever benefit may arise from same in the giving of instructions. There is here no evidence of that sudden combat necessary to arouse the passions of the appellant to the realm of reaonable provocation. In its stead, we find him deliberately arming himself for deadly encounter, seeking the presence of his victim, and as the evidence justifies us in saying, baiting the latter with words, that some act of his may at least afford superficial excuse for the use of the weapon, conveniently at hand. The procuring of the weapon by the accused gives ground for the presumption that it was in preparation for. the commission of the crime. [State v. Sharp, 233 Mo. 269.] These facts afford no proof of the presence of any element sufficient to authorize the giving of the instruction asked. Furthermore, the appellant’s conduct immediately preceding the killing is clearly indicative of such a malign condition of mind as to preclude the giving of the instruction. There is no controversy as to the fact that the pistol used was a deadly weapon. That a weapon is deadly may be inferred from the fact that it produces death although there is no evidence of its quality or dimensions. [State v. Bowles, 146 Mo. 6.] The ordinary result of the use of such a weapon raises a presumption of malice and shifts the burden of proof to repel the inference of same to the accused, unless the evidence proving the killing shows its absence. There was no evidence of this character. [State v. Bauerle, 145 Mo. 1; State v. Evans, 124 Mo. 411; State v. McKinzie, 102 Mo. 620; State v. Fairlamb, 121 Mo. 137; State v. Elliott, 98 Mo. 150; State v. Crawford, 115 Mo. 620.]

“Actuated by malice in arming himself with the pistol, his immediate subsequent acts justify the presumption of the continuance of this state of mind. [Gunter v. State, 110 Ala. 24; Holland v. State, 12 Fla. 117; State v. Johnson, 23 N. C. 354.] In the presence of malice, there is no room for manslaughter. [People v. Borgetto, 99 Mich. 336; Jackson v. State, 74 Ala. 26; People v. Waysman, 81 Pac. (Cal.) 1087; State v. Tilly, 3 Ired. (N. C.) 424; State v. Johnson, 23 N. C. 354, 35 Am. Dec. 742.]

“The cases, therefore, of which that of Heath, supra, is a type, however definitely they may announce the doctrine that, upon the testimony of a defendant alone, an instruction for manslaughter is authorized, do not mean that where all the attendant facts show a higher grade of homicide or unqualified self-defense, that an instruction shall be given as is here insisted upon. [State v. Myers, 221 Mo. 598; State v. Barker, 216 Mo. 532.] In this connection it may be appropriately stated that even in the presence of that provocation claimed to have existed at the’ time of the killing this does not disprove malice. It only removes the presumption óf same which the law raises without proof. If, therefore, a deliberate purpose on the part of appellant to kill the deceased has been shown by his immediate antecedent acts, the provocation insisted upon as existing at the time of the fatal shot must be disregarded unless it has been shown that this purpose was abandoned before the killing. There was no such showing. The reason for the rule stated is, that where provocation intervenes between the manifestation of malice and the killing, the presumption is that the crime found its moving impulse in malice and not in the passion produced by the provocation. [Reg. v. Kirkham, 8 Car. & P. 115; State v. Johnson, 23 N. C. 354; State v. Ta-chana-tah, 64 N. C. 618.]

“II. The giving of an instruction in regard to one seeking or inviting a combat, and as to what would' constitute the right of self-defense, is complain-e(^ °f. This alleged error is attempted to be preserved by a general allegation in the motion for a new trial, ‘that the court gave illegal and improper instructions.’ This, as we have repeatedly held, is not such a preservation of the error as to entitle it to our consideration. [State v. Crofton, 271 Mo. l. c. 514; State v. Pfeifer, 267 Mo. l. c. 28.]

“III. Error is assigned in the giving of the following instruction: ‘The court instructs the jury that evmi though you may' find and believe from the evidence in the cause that deceased, Walter Allison, bad been paying defendant’s Avife improper attentions, still such facts if true would afford no excuse or justification for defendant shooting and killing the deceased, Walter Allison.’

“The reason urged in support of this contention, in the language of appellant’s counsel, is that the instruction complained of ‘improperly singled out the evidence or the lack of evidence of the undue intimacy between the deceased and defendant’s wife, and unduly and improperly brought this evidence of fact or the lack of it, to the attention of the jury by giving said instruction, and in particular referring to this evidence, to the prejudice of the defendant.’

“The language of the instruction does not sustain what is evidently meant by this condition, viz.: that the trial court erred in singling out or giving improper prominence to the testimony referred to. While it is true that a trial court cannot properly comment on the evidence or tell the jury what presumption or conclusion should be drawn from any particular fact, it may, to aid the jury in reaching a correct conclusion, direct their atténtion to particular facts in evidence. This was all that was done in this instance. There was evidence brought out principally by appellant, of the existence -of the alleged relation. The instruction correctly stated the law in regard to the same as constituting, under the facts, no defense to the crime. [State v. Privitt, 175 Mo. l. c. 218.] Unless it had been given, the jury would have been left without a guide in this respect. The instruction was, therefore, permissible as constituting a proper direction to the jury. Furthermore, the instruction does not assume the existence of the fact of which complaint is made, but being drawn hypothetically leaves the determination of the same to the jury to say whether or not it existed. As to its form, therefore, the instruction is not subject to' criticism, and the appellant has, in this regard, no ground of complaint.

“IV. There was no error in excluding testimony to show that deceased had visited the wife of appellant in the latter’s absence from home. The evident purpose of this testimony- was to cast the shadow of an adulterous relation having existed between the deceased and the appellant’s wife as affording a mitigating circumstance in the commission of the crime.

“Evidence of an adulterous relation, in a case of the character of that at bar, is only admissible when the discovery of the same by the aggrieved spouse is so near the homicide as to afford no time for the passions thus inflamed to cool. [State v. Privitt, 175 Mo. 207; State v. France, 76 Mo. l. c. 685; Biggs v. State, 29 Ga. 725.]

“The adulterous relation, if it existed, was in the past and appellant had knowledge of it at least several days before tbe homicide. His motive, therefore, whatever it may have been, in going to the mail boxes could afford no defense to his crime. Consequently, the claim that th;e evidence was competent for the purpose of showing motive, reason and animus is without merit. Under the facts in State v. Grugin, 147 Mo. l. c. 48, cited by appellant, it is not an authority for the contention here made, and we overrule the contention.

“V. It is insisted that error was committed in the admission in evidence of the dying declaration, which had been written out at the dictation of the deceased and signed by him.

Declaration “Dying declarations are - but a form of hearsay evidence. Our review of same is consequently subject to the same regulations applicable to other testimony concerning which the rulings of the trial court are assailed. If, therefore, we find that the objections to the declaration have not been properly made or preserved, so as to present a live record of same, they will not be entitled to our consideration.

“Preliminary thereto, it is not inappropriate to say that there is no merit in the objection to the declaration that it was not made in articulo mortis, with a full realization on the part of declarant of his impending dissolution.

“This is the testimony of the latter’s brother in that regard: ‘Well, I just went to him, I was* sitting on the bed, and I went up to him and asked him, I said, “Walter, what do you think about having a dying statement taken?”, and he said, “Do as you please, I have got to die,” and told Mr. Hawkins to go ahead and take his statement, and that was all that was said. ’

“Declarant’s statement as to his realization of his condition was made on December 27th. On the 29th he died. No qualifying facts or modifying statements lessen the cogency of this statement. Its probative force is sufficient to authorize the admission of ,the decíaration on the ground that the deceased realized that death was impending. [State v. Thomas, 189 S. W. (Mo.) 886; State v. Lewis, 264 Mo. 420; State v. Vest, 254 Mo. 458; State v. Finley, 245 Mo. 465; State v. Dipley, 242 Mo. 461.]

“That the extent of the appellant’s objections to the admission of the declaration may be clearly shown, we set them out in full: ‘Mr. Ras Pearson, counsel for appellant: Well, wq object. Sufficient showing has not been made to render it [the declaration] competent. Several of the essentials necessary to render such a statement competent have not been shown.’

“After a statement by the court on its own motion, that it would exclude from the jury certain matter in the declaration, and admit same as modified, counsel for appellant further objected as follows: ‘Mr. Ras Pearson: We object to the declaration because a sufficient showing has not been made, and particularly they haven’t shown that the deceased, Walter Allison, was in a condition that his mind was such to comprehend what he was doing at the time; that he realized what he was doing; and that he had mentality enough to comprehend what he was doing; and that the mere statement of the witness doesn’t show that all hope was abandoned because he went on the operating table in two days after-wards, and I take it that a doctor would not have put a man on the table when there was no hope and no prospect of doing any good, or doing the patient any good, and we can at least indulge in the belief that these doctors — though perchance they might save this man’s life by taking him through an operation; at least, in this case we have their acts and deeds — by medical skill and medical science might prolong a life, and no one, save and except the deceased, who says there was no0show for him to live.’ After an inteiruption by the prosecuting attorney, counsel for appellant continued his objection as follows: ‘Mr. Ras Pearson: He goes on the operating table the next night or two days afterwards. It still shows they had some hope of prolonging Ms life. He doesn’t show that the deceased at the time he made that dying, declaration had abandoned all hope, and that he was going to die, the essentials of which are necessary to make that statement competent. ’

“Upon the ruling of the court that the declaration, as limited,. would be admitted, counsel for appellant continuing his objections, said: ‘Mr. Ras Pearson: I think the proof is too scant to put a layman on the witness stand and make the declaration. Now, this deceased had two doctors, and they were there daily, and if there is ground for a dying statement to be offered, it ought to be admitted with more solemnity, and this is not the best proof; not sufficient proof, and on that ground I object and save my exceptions.’ Whereupon, the declaration was admitted in evidence.

“The burden of appellant’s objections to the admissibility of the declaration is based on the ground that it was not sufficiently made to appear that the declarant realized that he was in articulo mortis. Neither from the express terms of these objections or by" reasonable implication can their meaning and purpose be extended beyond this. Under the well established and often repeated rule, therefore, that objections to. matters occurring during the trial should be made at the time of their occurrence and proper exceptions preseved, we are limited in the consideration of the admissibility of this declaration to the objections made thereto. Certainly if counsel for appellant had desired that other objections should be entertained, they would have been.preserved in a manner to entitle them to our consideration. That this was not their purpose is evident from the motion for a new trial, which simply states': ‘The court improperly admitted in evidence the dying declaration of the deceased, Walter Allison, and thereby permitted improper and illegal evidence to go to the jury.’ The meaning of this motion, although general in its terms, must be limited to the specific objections made in the record itself. Thus construed, it preserves nothing for onr review except that expressly authorized by the récord.'

“No question is involved here as to the general or specific nature of objections to the introduction of testimony, because there is no objection interposed other than that indicated. A consideration, therefore, of the subject-matter of the declaration is precluded, and we overrule this contention. ’ ’

VI. It is further contended by appellant that the court erred in permitting the prosecuting attorney to make a reply statement to the jury. At the beginning of the trial the State made its opening statement to the jury. The defendant likewise made a statement of the ease to the jury. After the defendant’s; counsel had made his statement of facts to the jury the prosecuting attorney, over the objection and exception of the appellant, was by the court permitted to make the following’ reply statement to-wit:

“In reply to Mr. Pearson’s statement with reference to the character that he says he will show that Walter Allison bore, I want to say there is but one incident of that; I think the evidence will show you that Walter Allison was not in conflict with the State law, nor did he bear any such turbulent reputation or any such aggressiveness as Mr. Pearson would have you understand. We will show you, gentlemen, in respect to the evidence that Mr. Pearson says he will introduce here showing you that Walter Allison invaded the home of this defendant, we will show you that this defendant’s wife was ursina- Walter Allison, and that he was not the aggressor in that, if his home was invaded, but we will show you by letters in her own handwriting that she sought to have Walter Allison come there and sought his company, and we expect to show and prove to you gentlemen, by the evidence in this case, that in the conversation Mr. Pearson told you that wherein this defendant told Walter Allison he didn’t want him to have anything more to do with his wife, Walter Allison said, ‘All right, Bob, I will let her alone, but I want you to make her let me alone.’ And we expect to show, gentlemen, following after Walter Allison was shot in the leg, that he was unable to movo from that time, to move from his tracks, and couldn’t have made the advance towards this defendant that Mr. Pearson told you that the evidence would show you. We expect to show you, gentlemen of the jury, that there was not a weapon upon Walter Allison’s person at the time, and we • expect to show you by evidence, good and strong, gentlemen of the jury, there was no rock in Walter Allison’s hand; upon the other hand, there may have been gloves that they seek to turn into a rock.”

Section 5231, Revised Statutes 1909, makes it niandatory upon the • part of the prosecuting attorney to first make a statement of the case to the jury. No authority is to be found authorizing the prosecuting attorney to make a statement in reply to the statement which the defendant is permitted to make.

In the case of State v. Kennedy, 177 Mo. 98, l. c. 166-117, a situation very analogous to ' the one now presented was discussed and the above statute construed. In that case it was held that the remarks made by the prosecuting attorney in a reply statement were prejudicial and that the same constituted reversible error.

We are of the opinion that the remarks of the prosecuting attorney in his reply statement in the case at bar were as prejudicial in their nature as were the remarks which were condemned in the Kennedy case, supra, and for the reason there given the same should be held to be reversible error.

We are not here saying that every reply statement of a prosecuting attorney without regard to its contents and without regard to whether the statement made contained or did not contain matters prejudicial to defendant’s rights, would constitute reversible error. The practice, however, should be condemned and not encouraged.

"What remarks, if any, a prosecuting attorney could make in a reply statement of the rase to the jury without committing reversible error, we are not here called upon to determine. It is sufficient for the purpose of this ease to say that the present statement was sufficiently prejudicial to cause a reversal of the case.

. The judgment is reversed and the cause is remanded.

PER CURIAM:

The foregoing opinion is adopted

as the opinion of Court in Banc.

Faris, J., concurs; Blair and Graves, JJ., concur in Paragraphs I, III, IV and YI, and the result; Walker, J., dissents in a separate.opinion; Bond, C. J., not sitting; Woodson, J., absent.

WALKER, J.

(dissenting.) — I do not concur-in the conclusion reached in the majority opinion as to the alleged error in' permitting the prosecuting attorney to make a reply statement to the jury, preliminary to the trial.

It appears from the record that the prosecuting attorney stated to the court that he understood that he would not be permitted to make a reply statement. Upon associate counsel insisting that the State should be permitted to reply to extraneous matter, counsel for appellant stated his grounds of objection thereto. Subsequently, upon a renewal of the request by the prosecuting attorney, the court permitted the reply statement to be made, to which timely objections were interposed.

That portion of the statute (Sec. 5231, R. S. 1909) defining the procedure in regard to the statement of counsel in criminal cases preliminary to the introduction of testimony, is as follows: “The jury .being impaneled and sworn, the trial may proceed in the following order: first, the prosecuting attorney must state the case and offer the evidence in support of the prosecution; second, the defendant or his counsel may then state his defense and offer evidence in support thereof.”. ...

The form qf the statute, so far as concerns the course to be pursued by the prosecuting attorney, is mandatory. Construed under the rule of expressio unius, therefore, his right was limited to an opening statement. That the law contemplates the enforcement of this limitation as a part of the regular order of procedure, there is but little question, and a failure to observe the requirement is not to be commended. However, appellant’s contention, to afford ground for reversal of the judgment, must take deeper root than is afforded by the form of the statute. It must not only, in reason, and in furtherance of a wholesome administration of the criminal law, appear, on account of the court’s ruling, that the appellant suffered some substantial injury. The prosecuting attorney’s reply consisted of a statement of the testimony he proposed to offer in rebuttal to the evidence which it had been stated would be introduced by the appellant, a portion of which was in regard to the relations, which had been sustained, between the latter’s wife and the deceased. While much of the testimony proposed to be introduced by counsel on each side, in' regard to these relations, was wholly irrelevant, and was subsequently excluded when offered, the main portion of the evidence proposed to be offered in the reply statement consisted of material facts which were actually introduced in evidence, and were proper in rebuttal. To the introduction of same, counsel for appellant does not complain. He should not be heard, therefore, to complain of the statement of its proposed introduction. The plea, therefore, as to the injury arising from the reply statement is specious rather than real. It will be found upon an examination of the facts in the case of State v. Kennedy, 177 Mo. l. c. 117, that the ruling there made as to the impropriety of the reply statement made by the prosecuting attorney was as to the prejudicial character of same, and not to the fact that it was unauthorized by the statute. No fault is to be found with that • ruling, the reason of which is in accord with the conclusion we have reached * herein and hence does not support appellant’s contention.

We are, therefore, of the opinion that no prejudicial error was committed in permitting the prosecuting attorney to make a reply statement, and that the judgment of the trial court should be affirmed. ,