text:
    THE STATE, v. WEST, Appellant.
    Division Two,
    March 5, 1907.
    1. INSTRUCTIONS: General Objection. Where defendant objects and excepts to the giving of the instructions on the ground that they do not cover all the facts of the case and are not sufficient under the law, and his counsel is thereupon requested by the court to state what questions are not fully covered by the instructions and makes no reply, he is in no position, on appeal, to urge objections to the instructions.
    ■ 2. MURDER: Instruction on Second Degree: Evidence of Firsts Degree: Rule Since 1879. While it was the law of this State prior to the revision of 1879, that it was reversible error to instruct on murder in the second degree where the evidence showed murder in the first degree alone, the Legislature enacted section 1654, R. S. 1879 (now sec. 2369, R. S. 1899), for the purpose of changing the rule; and since the enactment of that section a defendant convicted of murder in the second degree can not complain that the court instructed on murder in the second degree when the evidence showed him to be guilty, if at all, of murder in the first degree.
    3. -: Instruction: Defining “Deliberately.” A definition of the term “deliberately,” set out in the opinion, held proper.
    4. -: Second Degree: Instruction. An instruction on murder in the second degree, set out in the opinion, held to be in approved form.
    5. MANSLAUGHTER: Instruction: Admission by Counsel. Where defendant’s counsel contends in his brief in the appellate court that the crime was either murder in the first degree or nothing, he is in no position to insist that the court should have instructed on manslaughter in the fourth degree.
    6. -: -: No Evidence. Where, as in this case, there is no evidence of passion or of words of insult or reproach, but the evidence shows either murder or self-defense, no instruc- ‘ tion on manslaughter in the fourth degree should be given.
    7. MURDER: Sufficiency of Evidence. Evidence held sufficient to have justified the jury in convicting defendant of first degree murder, and, therefore, sufficient to support the verdict finding him guilty of murder in the second degree.
    Appeal from St. Louis City Circuit Court. — Eon. James E. Withroiv, Judge.
    Affirmed.

      John A. Gernes for appellant.
    (1) Where the evidence in the case shows that the crime is either murder in the first degree or nothing, no instructions for murder in the second degree or manslaughter in the fourth degree should be given. State v. Pollard, 139 Mo. 220'; State v. Cochran, 147 Mo. 518; State v. Brown, 119 Mo. 538; State v. Williams, 141 Mo. 316; State v. Hopper, 71 Mo. 425; State v. Sund, 91 Mo. 559. And if a defendant is guilty of murder in the first degree or no crime at all, it is reversible error to instruct on murder in the second degree, if he is found guilty of .that offense. State v. Stoeckli, 71 Mo. 559'; State v. Mahly, 68 Mo. 315 ; State v. Alexander, 66 Mo. 160; State v. Phillips, 24 Mo. 480; State v. Punshon, 124 Mo. 457. (2) The court erred in defining “deliberately” in relation to murder in the second degree. To constitute murder in the second degree there must exist on defendant’s part, at the time of homicide, a “heat of passion,” engendered by a. “just provocation,” that will negative the existence of “deliberation.” State v. Ellis, 74 Mo. 207; State v. Weakley, 178 Mo. 413. And when there is evidence of a just provocation, engendering passion, it is the duty of the . court to declare, as a matter of law, whether the provocation sought to be established is such as will mitigate the homicide, and if so to leave to the jury whether such provocation and passion did in fact exist. State v. Ellis, 74 Mo. 220; State v. Taylor, 171 Mo. 477; State v. Donnelly, 130 Mo. 647. (3) The court should have instructed on manslaughter in the fourth degree. 2 Bish., New C'rim. Law, sec. 699; 1 McClain’s Crim. Law, sec. 336; Wharton on Homicide, secs. 430, 431; State v. Reed, 154 Mo. 130; State v. Bowles, 146 Mo. 15; State ■ v. Garrison, 147 Mo. 566; State v. McKenzie, 102 Mo. 632; State v. Weakley, 178 Mo. 413.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) Defendant did not object to the instructions for any reason other than that they did' not fully instruct the jury on all of the law applicable to the case. This fact is further emphasized by the record recital that the court then asked defendant’s counsel upon what other points they desired to have the jury instructed. By restricting his objection to said instruction to1 one reason, and by assigning that one, the defendant cannot now complain of said instructions for any other reason. State v. McOarver, 194 Mo. 717. Again, if said instructions were not full and complete, it was defendant’s duty to state to the court wherein they were incomplete, and to give the court an opportunity to give additional instructions; a simple objection or exception on that subject was not sufficient. State v. Bond, 191 Mo. 563; 1 Bislmp’s New Crim. Proc., sec. 1061. (2) No error was committed in failing to' instruct the jury on the subject of manslaughter in the fourth degree. In the first place, defendant never asked any instruction on that subject, and did not specially save his exceptions to the failure of the court to instruct on that subject, at the time of such failure. In the second place, there was no evidence to warrant an instruction on the subject of manslaughter. State v. Bailey, 190 Mo. 257. (3) The State’s evidence was sufficient, if believed by the jury, to have justified the conviction of defendant of even murder in the first degree. As the jury convicted him of an offense less than he was really guilty, defendant cannot be heard to 'complain. State v. Todd, 194 Mo. 337; E. S. 1899, sec. 2369^
   GANTT, J.

On the second day of December, 1905, the grand jury of the city of St. Louis returned an indictment against the defendant, John West, and one Fred Jackson, charging them with murder in the first degree of one Ike Coleman on the 30th of July, 1905. The case was tried on the 25th of January, 1906, and resulted in an acquittal of Jackson and the conviction of the defendant, West, of murder in the second degree, and affixing his punishment for ten years in the penitentiary. Motion for a new trial was filed in due time and overruled, and the defendant appeals.

The evidence in the case on the part of the State tended to establish that the defendant, the deceased, Fred Jackson and most of the witnesses on both sides were negroes. • On Sunday morning, July 30, 1905, between twelve and one o ’clock, there was trouble between the deceased and one Wesley House on the one side, and the defendant and one Fletcher on theotherside. These four had been in a restaurant on 23d street, between Morgan and Franklin, and the defendant and Fletcher left first, the deceased and House leaving later on. As the deceased and House approached the defendant on the sidewalk, the defendant stooped in the gutter and picked up a stick and said, “What are you s— of a b— doing following us?” The defendant then hit at the deceased, drew a knife and tried to cut him, but was prevented. Witness Williams testified that after this difficulty lie saw the defendant in an alley in the rear of Morgan street, between Twenty-second and Twenty-third streets, and heard defendant say to Lonnie Bell, ‘ ‘ Give it to me, I will go around. ’ ’ And thereupon Bell handed the defendant a bright, shiny pistol, and the defendant and Jackson went around together out of the alley and on to Morgan street.

Thomas Ewing was standing on the comer of Morgan and Twenty-third and saw the defendant and Jack-' son walking together as they passed him, the defendant holding a pistol in his right hand. In a few minutes Ewing and officer Roach heard two pistol shots on the south side of Morgan street near Twenty-third street, and the officer immediately ran to the place of the shooting. There was an interval of about two or three seconds between the- two shots and the sound indicated that they were fired out of a pistol. The officer found the deceased lying flat on his back in the middle of the sidewalk, his left hand along side of him and his right hand across his breast; the right hand was clinched, but there was nothing in it; the left hand was open. A crowd soon gathered around, but the defendant was nest to the deceased and would allow no one to get near his body. When the officer inquired about the trouble, the defendant said, “I shot him; the man has got a revolver. ’ ’ The defendant then gave his pistol to the officer and surrendered himself. By the side of the deceased, and a little above the wound in his body, the officer found a large black pistol lying on the pavement. Another officer, Burke, arrested Wesley House, who was running away, and also arrested Fred Jackson, who was 'still in the crowd near the deceased’s body.

Wilson Davis testified that he was walking away from the defendant and Jackson when he heard the first shot fired; he had just seen the deceased Coleman walking east on the same, side of the street with himself and the defendants West and Jackson following behind him in the same direction. When the first shot was fired, he at once looked around and saw the defendant fire the second shot and heard Jackson say, “Don’t run, don’t run.” By that time the deceased reeled around and fell on the sidewalk. This witness further testified that after the deceased fell, Fred Jackson ran to him, raised up his coat and placed a pistol by the side of the deceased’s body. About this time the defendant West turned to the witness and said, “Damn you, don’t go to him.” Dr. Abeken, who held the post-mortem examination over the body of the deceased, testified that death resulted from a gun shot wound, which entered the front part of the deceased’s body and penetrated the heart. He gave it as his opinion that this wound produced instant death, or was sufficient, at least, to have prevented the deceased from doing anything Avith his arms or hands. James Lusk testified that, when the'second shot was fired, the deceased fell; this shot was fired by a man on the edge of the sidewalk.

On the part of the defendants, thetestimonytended to show that the defendant had had trouble with the deceased on the night of the homicide, and that the deceased was the aggressor; that the defendant was afterwards warned by one Allen Anderson that deceased was looking for him and ready for him. Lonnie Bell testified that he and the defendant after midnight were on the southwest .comer of Twenty-third and Morgan, near BroAvn’s saloon, and that he and the defendant and one Fletcher went up Morgan street to get some tobacco and then returned to the same corner; when they got there, he saw the deceased and Wesley House coming towards them. The deceased had a pistol in his hand and House had his hand up. This witness ran on east as soon as he saw the gun in the hands of the deceased and he reached the Chinese restaurant some five minutes before Fletcher, the other party that was with defendant, got there. While in this restaurant, he heard the two shots fired.

One Henry Revere testified that sometime after midnight on July 30, 1905, he was in Simon Brown’s pool-room playing pool with one Allen Anderson, when the deceased came into the pool-room alone, “The deceased had a big gun in his bosom, sized everybody up and walked out.” Shortly afterwards witness and Anderson left the pool-room a'nd sat down on the street; there they met the defendant West, with a man that the witness did not know; he left these parties and saw the deceased on the sidewalk going east on Morgan street, the deceased having his hand in his bosom. On cross-examination, however, he stated1 that the deceased had the weapon in his hand down by his side when he came in, but shoved it in his bosom when he went out. Allen Anderson testified to seeing the deceased, C'ole-'man, and House following the defendants John West and Fletcher, and when they got near to the corner of Twenty-third and Morgan streets, the deceased and House rushed after defendant and Fletcher with 'knives. Later on that night, while witness was seated on the street, the deceased stopped and looked in his face and went on. Ten minutes later, the defendant came along and witness told defendant to be careful, they were looking for him with guns. Fred Jackson, one of the defendants, testified, in his own behalf, that about three minutes to one o ’clock that night, he came out of 2305 Morgan street, he fixed the time by having looked at the clock, he went to the corner and meeting the defendant. John West he invited him to Brown’s club for a drink; they started towards the club east of Morgan street from Twenty-third; when they got about thirty-five yards from the corner, he saw the deceased, Ike Coleman, running down the street towards them; the deceased stuck his hand in his bosom and took out a pistol and shoved it into his pocket; the -defendant and Jackson continued their walk down the street, when Jackson says lie turned and looked and saw Coleman about six feet from tbe defendant "West; that the deceased had his pistol pointed at West and snapped it twice, and the defendant had his hand in his pocket when he pulled out his pistol and shot Coleman. ' Coleman fell flat on his back, and then raised up from the flat of his back and shot over his arm and then fell back again on his back and his right hand clinched over his breast and his left hand close over his side. This witness denied having placed the weapon by the body of the deceased and denied that he had been in the alley referred to by the witness Williams, earlier in the evening with the defendant, and denied seeing Bell give the defendant West a revolver. The defendant West testified in his own behalf that on the night of the 30th of July, 1905, about ten minutes after midnight, he first saw Ike Coleman, the deceased, and Wesley House at Harry Parker’s restaurant. The defendant and Fletcher had gone to the restaurant and were in there when Coleman and House came in. The deceased and House left the restaurant before defendant and Fletcher, and when defendant and Fletcher came out, the deceased and House were standing on the outside with drawn knives. Defendant and Fletcher, and a woman with them, went south on Twenty-third street and when, they got to Morgan street, House commenced cutting at the defendant West, and the defendant stepped into the street and got a broom-stick and ran House down the street, knocking the knife out of his hand; in the meantime, the deceased, Coleman, had run across the street after Fletcher, and the defendant thereupon ran him down the street. Later on, after the defendant and some others had1 gone west on Morgan street to get some tobacco, they were standing on the corner of Twenty-third street and Morgan street, near Brown’s saloon, when Coleman and House returned. The deceased, Coleman, had a big black pistol and House had his hand “as though it were a gun.” The defendant ran and he saw na more of them until after the shooting. He had seen Anderson a short time before the shooting and Anderson had told him “he had better look out, the fellows were after him with a big pistol.” Just then he met his co-defendant, Jackson, and asked him to go with him to Brown’s club' to- get a drink. They went down the south side of Morgan street towards the club, and as they were walking along, Jackson called his attention to' some one following them; he turned and saw the deceased behind him with a pistol. At first he did not pay much attention, but he looked again and the deceased snapped his pistol twice and it failed to fire; thereupon defendant drew Ms revolver and fired one shot. His revolver after its discharge had two empty chambers, but one had been discharged on the fourth of July, and had been empty ever since. Coleman, the deceased, fell and Jackson said to defendant, “I would not run, you could not help doing it.” After shooting Coleman, the defendant jumped into the street, and the deceased, after he fell, reached over and shot one shot at him. The defendant denied receiving the revolver from Bell.

The' foregoing is practically all the material evidence in the case.

I. The indictment is sufficient both in form and substance and is in all essentials identical with the indictments which were approved by this court in banc in State v. Wilson, 172. Mo. 420; State v. Gray, 172 Mo. 430; State v. Heinzman, 171 Mo. 629.

II. The defendant assails the instructions in this court, but when the instructions were given, the record shows that the only objection made to them was the following: “To the giving of which instructions by the court as aforesaid the defendants by their counsel then and there duly excepted on the ground that they did not entirely cover all the facts of the case under the law and as not being complete and sufficient under the law. ’ ’ When this objection was made in this form, the record further recites that thereupon “the court then requested defendant’s counsel to state which questions, if any, were not fully covered by the instructions given, to which he (the counsel) made no reply.” It will thus be observed that the defendant did not object to the instructions given for any error in them, but his sole complaint was that they did not go far enough to cover the law applicable to the case. In State v. McCarver, 194 Mo. 742, this court, speaking to this point, said of a similar objection: “The only construction which can be placed upon this objection is that the instructions did not cover all the points of law involved in the case, and not that they were in any respect erroneous. We have held that when the instructions of the court are read to the jury, and the defendant desires further instructions, it is his duty, in fairness to the court, to call its attention to any matter of law arising in the case upon which the court had failed to instruct, and which was deemed necessary by the defendant to be placed before the jury in order that they might arrive at a just verdict, and in the event of the failure of the court to so instruct, it becomes the duty of the defendant to except at the time. [State v. Bond, 191 Mo. 555.]” So that we might well dismiss the objections now urged to the giving of an instruction on murder in the second degree and to other supposed defects in the instructions on the ground that the defendant made no proper objections thereto in the circuit court. But conceding that the instructions were timely challenged in the circuit court, did the court err in instructing on murder in the second! degree? In its instruction on murder in the first degree, the court defined the word “deliberately” as follows: “Deliberately means done in a cool state of the blood, it does not mean brooded over or reflected upon for a week, a day or an hour, but it means an intent to kill executed by the defendant in a cool state of the blood in furtherance of a formed design to gratify a feeling of revenge or to accomplish, some other unlawful purpose and not under the influence of a violent passion suddenly aroused by some lawful or just cause or provocation. ’ ’ The court then defined murder in the second degree as follows: “Murder in the second degree is the killing of a human being wilfully, premeditatedly, and with malice aforethought, but without deliberation. Bearing in mind the definition heretofore given of the term ‘wilfully,’ ‘premeditatedly,’ and ‘with malice aforethought,’ if you find and believe from the evidence that at the city of St. Louis and State of Missouri, on or about the 30th day of July, 1905, or at any time before the finding of the indictment herein, the defendant wilfully, premeditatedly and with malice aforethought, but not deliberately, shot with a pistol one Ike Coleman, and further find from the evidence that within a year and a day after such shooting, to-wit, on or about the 30th of July, 1905, the said Ike Coleman died from the effects of such shooting and wounding done by the defendants or either of them aforesaid, you will find such defendant or defendants guilty of murder in the second degree, and unless you find the facts so to be, you will acquit him or them of murder in the second degree.” It is now objected that the court erred in giving this instruction on murder in the second degree for two reasons, the first being that if the defendant was guilty at all he was guilty of murder in the first degree and it was therefore reversible error to instruct on murder in the second degree. In support of this contention we are cited by the learned counsel for the defendant to State v. Mahly, 68 Mo. 315, in which it was held reversible error to instruct on murder in the second degree when the evidence tended to show that defendant was guilty of murder in the first degree alone and there was no evidence to support a charge of murder in the second degree.

That decision was based upon other decisions of this court prior thereto, all of which were decided before the revision of 1879, in which, for the first time, it was provided: “Upon indictment for any offense consisting of different degrees, as prescribed by this law, the jury may find the accused not guilty of the offense charged in the' indictment, and may find him guilty of any degree of such offense inferior to that charged in the indictment, or of an attempt to commit such an offense, or any degree thereof; and any person found guilty of murder in the second degree, or of any degree of manslaughter, shall be punished according totheverdict of the jury, although the evidence in the case shows him to be guilty of a higher degree of homicide.” [Sec. 1654, R. S. 1879.] Afterwards, in State v. Stoeckli, 71 Mo. 559, the rule announced in State v. Mahly was followed and approved, but it is interesting to note that this last case reached this court by appeal from the St. Louis Court of Appeals and in the 8th Mo. App. 597, it was said by the Court of Appeals: “Where the inevitable inference from the facts was that the crime was murder in the first degree, and that the only question was whether the defendant committed the act, it was, prior to the revision of 1879, error to instruct as to both degrees of murder.” So that it would appear from this report of the case that that cause was tried in the criminal courts prior to the taking effect of the revision of 1879. So that while it was the decided law of this State that it was reversible error for the court to instruct upon murder in the second degree where the evidence tended to show murder in the first degree only, prior to the enactment of section 1654 in the revision of 1879, it seems obvious that such section was enacted by the Legislature for the purpose of changing the rule announced in State v. Mahly, 68 Mo. 315, and other cases announcing that doctrine. Accordingly, as late as State v. Todd, 194 Mo. l. c. 394 and 395, it has been, ruled by this court that even if the testimony did not warrant an instruction for murder in the second degree, “the defendant is in no position to complain, for if the court erred in instructing for a lesser degree of murder than that with which the defendant is charged, it was an error in the defendant’s favor, of which he has no> cause to complain,” citing section 2369, Revised Statutes 1899, which is the same as section 1654, Revised Statutes 1879, and also section 2535, Revised Statutes 1899', which provides that no judgment shall be affected “. . . for any error committed at the instance or in favor of the defendant; nor because the evidence shows or tends to show him to be guilty of a higher degree of the offense than that of which he is convicted.” And the same rule was announced in State v. McMullin, 170 Mo. l. c. 630; State v. Frazier, 137 Mo. l. c. 340; State v. Scott, 172 Mo. 536. While there may be some cases since the enactment of section 1654, Revised Statutes 1879, now section 23691, Revised Statutes 1899', which hold it is reversible error to instruct on murder in the second degree if the evidence tends to prove murder in the first degree, or no crime at all, and the defendant is found guilty of murder in the second degree, it must be held that the statute just quoted is controlling, and the recent decisions of this court have given it full effect, and, therefore, the defendant in this case is in no position to complain that he was convicted of murder in the second degree when the evidence showed him guilty of murder in the first degree. And accordingly ■ this assignment of error must be ruled against the defendant.

' HI. The point advanced by the defendant that the court erred in defining “deliberately” in relation to murder in the second degree is without merit. It was entirely proper for the court to advise the jury, as to the elements which constituted each degree of murder. Its definition of murder in the second degree is one that has often met the approval of this court.

IV. It is next insisted that the court should have instructed on manslaughter in the fourth degree. A complete answer to this contention is found in the defendant’s own brief, wherein he states that the testimony shows that the crime was either murder in the first degree or nothing, and that no instruction for murder in the second degree or manslaughter in the fourth degree should have been given. But one of two theories could have been accepted by the jury, either that of murder or self-defense. There was no manslaughter in the case. There was not the slightest evidence of passion, no words of reproach or insult, and no evidence even from the defendant that he shot the deceased in the heat of passion.

As was said in State v. Rider, 95 Mo. l. c. 484, “It does not follow because the evidence may warrant an instruction on justifiable homicide, that there must necessarily be one given on murder in the second degree, or some lower degree of homicide1.” [State v. Bailey, 190 Mo. 257.] In this case the testimony of the defendant himself as to what occurred at the time of the fatal shooting, if believed by the jury, constituted a complete defense. While it is true that there are cases in which the facts will justify an instruction not only for self-defense, but for manslaughter in the fourth degree, we find no such evidence in this case; the defendant was either guilty of murder or he was entitled to go acquit. [State v. Sneed, 91 Mo. 552; State v. Wilson, 86 Mo. 520.] But in addition to the foregoing reason^, it is clear that the defendant is in no position to complain of the failure of the court to instruct on manslaughter, because when the court finished its instructions to the jury, the learned judge inquired of the defendant’s counsel if there were any other points of law upon which he desired to have the court instruct, and the counsel made no request for an instruction on manslaughter. Courts of justice are organized and maintained for the solemn business of administering justice and are entitled to be treated with fairness and proper consideration, and when, in this case, ah. opportunity was specially given to counsel to suggest to the court that an instruction on manslaughter should be given, he expressly declined to make such a request of the court. As we have already said, the defendant cannot now complain in this court that he was refused an instruction in the circuit court which he expressly refused to request.

• Y. The court gave an exceedingly liberal instruction on the law of self-defense, one that has often been approved by this court. There seemed to be little room, for doubt that the defendant fired both of the shots which were heard by the officers and other witnesses at the time of the homicide, and there was absolutely no' doubt that the defendant fired the shot that killed the deceased. There was ample evidence of a deliberate preparation on the part of the defendant to kill the deceased, and the jury might well have disregarded the story detailed by defendant and Jackson, to the effect that the deceased snapped his pistol at the defendant twice. Of course, the' evidence tending to show that, after the deceased had been shot through the heart, he then drew himself together and fired at the defendant, was so utterly unreasonable in the first place, and even if true, in no manner changed the legal complexion of the case, that the jury were fully warranted in disregarding all this evidence as unworthy of credence.

From full consideration of all the evidence, we are of the opinion that the jury would have been fully justified in convicting the defendant of murder in the first degree, and he has cause to congratulate himself that the jury found him guilty of murder in the second degree only. We are unable to discover' any reversible error in tbe record and the judgment must be and is' affirmed. ■

Fox, P. J., and Burgess, J., concur.


source: Caselaw Access Project

author: BURGEISS, J.

license: Public Domain

text:
    THE STATE v. MATHEWS, Appellant.
    Division Two,
    March 5, 1907.
    1. CARNAL KNOWLEDGE: Sufficiency of Evidence. Evidence held sufficient to support the verdict finding defendant .guilty of carnal knowledge of an unmarried female of previous chaste character, between fourteen and eighteen years of age.
    2. -: Threats by Defendant: After Crime. Over defendant’s objection the State was permitted to prove by prosecutrix that after the commission of the crime and while the prosecution against defendant was pending in court, he appeared at the hotel where she was staying, opened the door of her room, sprang in and grabbed her, and said, “If you holler, you will never holler again,” and then begged her not to go ahead with the case but to live with him as soon as he got a divorce; and that as he left the room he said, “If you ever tell this, you will die.” Held, that this evidence was properly admitted for the purpose of showing an attempt by defendant, by promises and threats, to dissuade or prevent the prosecuting witness from appearing against him.
    3. NEW TRIAL: Juror: Opinion: No Affidavit. In support of his motion for a new trial defendant introduced the affidavit of his brother to the effect that affiant had talked with a juror who expressed a desire to be left on the jury, saying he would do the defendant more good than anybody else, and that anyone, under the same circumstances, would have done what defendant had done. Held, that, conceding that defendant was prejudiced by leaving on the jury a man who had formed an opinion in his favor, the trial court properly overruled the motion because neither defendant nor his attorney made affidavit that they did not know of the 'conversation at the time, or prior to the time, defendant made his challenges.
    4. CARNAL KNOWLEDGE Statute Constitutional. The carnal knowledge statute (sec. 1838, R. S. 1899) is constitutional. [Following State v. Harney, 168 Mo. 167.]

      Appeal from Putnam Circuit Court. — Hon. Nat. M. Shelton, Judge.
    Affirmed.

      Tunnell S Hart for appellant.
    (1) The trial court erred in refusing the instruction in the nature of a demurrer to the evidence offered by the appellant at the close of the evidence. Taking all the evidence together, appellant insists that the verdict of the jury was the result of passion and prejudice on their part, and should not stand. (2) The court erred in permitting the prosecuting witness to testify to an alleged assault by appellant on her at the hotel, long after the time when the crime is alleged to have been committed. (3) A. 0. Porter was not a competent juror. (4) Section 1838, Revised Statutes 1899; upon which this action is founded, is unconstitutional, • as in conflict with section 28 of article 2 of the Constitution of 1875. State v. Bockstruck, 136 Mo. 385; Ice Co. v. Tamm, 138 Mo. 385.

      Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) No error was committed in allowing the State to prove by prosecutrix that defendant came to her room in the hotel, after the filing of the information and during a term of court prior to the trial; that he grabbed hold of prosecutrix, threatened her, told her not to holler, begged her to drop the case and come and live with him; and that he further said, “If you ever tell this, you will die.” Fulkerson v. Murdock, 53 Mo. App. 154; State v. Alexander, 1191 Mo. 461; Underhill on Crim. Evid., sec. 121; 1 Wigmore on Evidence, secs. 277, 278; 4 Elliott on Evidence, sec. 2712; 1 Greenl. on Evidence, secs. 37 and 195a; State v. "Ward, 61 Vt. 194; Allen v. United States, 164 U. S. 500. (2) It is difficult to see how defendant was prejudiced’ by having on the jury a man who had formed an opinion in his favor. But granting that defendant was prejudiced, there is no affidavit of defendant nor of the attorneys for defendant that they did not know of this conversation at the time of or prior to the time they made their challenges. The law requires the affidavit of defendant and also of his attorneys in regard to the absence of such knowledge. State v. Hunt, 141 Mo. 637; State v. Howard, 118 Mo. 127; State v. Burns, 85 Mo. 47; State v. Phillips, 117 Mo. 394. (3) The evidence was sufficient to warrant a conviction. State v. Day, 188 Mo. 359; State v. Kelley, 191 Mo. 680'; State v. McCoullough, 171 Mo. 574. (4) The carnal knowledge statute, section 1838, Revised Statutes 1899, has twice been held to be constitutional by this court. State v. Harney, 168 Mo. 167; State v. Eubanks, 199 Mo. 122.
   BURGEISS, J.

At the August term, 1905, of the circuit court of Putnam county, was filed an amended information by the prosecuting attorney of said county charging the defendant, John Mathews, with carnally knowing one Myrtle Husted, an unmarried female of previously chaste character, between the ages of fourteen and eighteen years; and at an adjourned term of said court, commencing October 10-, 1905', the trial resulted in the conviction of the defendant, his punishment being assessed at two years in the penitentiary. Within four days thereafter the defendant filed a motion to reduce the punishment upon the ground that it was excessive, which motion was overruled, and the defendant duly excepted. Defendant then filed a motion for a new trial, assigning twenty-five reasons therefor. This motion avbs also overruled, and defendant excepted. He then asked leave to file a supplemental motion for a new trial, which was denied by the court, and defendant duly excepted. His motion in arrest of judgment being overruled, defendant appealed.

The State’s evidence tended to prove that the defendant was a married man, and lived with his wife and two children less than a quarter of a mile from the home of Myrtle Husted, on land belonging to her father in Putnam county. According to her statement, which was corroborated by other witnesses, she attained to the age of eighteen years on the 23rd day of October, 1904. For some time prior to her reaching that age, the defendant had been making improper advances to the prosecutrix, and, about one month before she became of age, had sexual intercourse with her. The prosecuting witness further testified that defendant tried to have sexual intercourse with her three times prior thereto, bxit that there was no penetration. This first act of intercourse took place.at the home of defendant, while the prosecuting witness was sitting on the side of the bed, her hands being behind her and she leaning back on them. The defendant’s wife and children were at the' home of Myrtle Husted at this time, which she fixed as the 27th or 28th of September, 1904. Some time in February following, defendant persuaded her to go with him to Iowa, and from there to Kansas, and on to Oregon, promising to get a divorce from his wife and to marry her. In Iowa and at the other places where they visited, defendant and the girl registered at the hotels as husband and wife; she Avrote their names on tbe hotel register, as defendant said he could not write. After defendant had been arrested and brought back to Putnam county, he went to see Myrtle Husted at her room in a hotel, grabbed hold of her and tried to persuade her to drop the case, again promising to marry her. The, evidence also tended to prove that prosecutrix was au unmarried woman at the time of the commission of the crime charged; that she was of previously chaste character, and that the defendant was thirty-four years old. After the defendant had been arrested, in March, 1905, he stated to one James McGee and to Sheriff Crooks that he and Myrtle Hus-ted had been having illicit intercourse for more than] a year.

The defendant’s evidence tended to prove that, prior to this trouble, he enjoyed a good reputation for morality and as a truthful man. His evidence also tended to prove that the girl had made statements to' defendant’s relatives contrary to her testimony. Defendant’s wife testified to acts of familiarity and impropriety, in which she said prosecutrix indulged in the presence of her and defendant. Defendant introduced two physicians, who testified that, in their judgment, it would have been impossible for the girl and defendant to have had sexual intercourse if she was sitting upon the side of the bed in the manner described by her. Defendant denied having had sexual intercourse with her prior to October 23, 1904, and also denied making the statement in the presence of State’s witnesses, McGee and Crooks, to the effect that he had been “doing that” for one year past. Defendant’s evidence also tended to prove that prosecutrix was a week older than the age to' which she testified.

In rebuttal tbe State proved by the girl that she never made the statements to defendant’s relatives, and had not been guilty of the acts of impropriety, as testified to by them.

At the close of all the evidence defendant asked the court to instruct the jury that under the law and the evidence their finding must be for the defendant, which the court refused to do, and in so' doing, the defendant insists, the court committed error. This contention is predicated upon the fact, as defendant claims, that there was no evidence to take the case to the jury. But we are unable to' agree to this, for if the prosecuting witness was to be believed,'there was substantial evidence of defendant’s guilt, the weight of which evidence was for the consideration of the jury. It is only in case of the absence of substantial evidence to sustain the verdict that this court will interfere. In this case there was not only substantial evidence of defendant’s guilt, but the verdict of the jury was approved by the court, and under this state of facts the verdict must stand, unless set aside for some other cause.

Over the objection of defendant, the State was permitted to prove by the prosecuting witness that while the case was pending in court, and during the term next preceding the one at which it was tried, the defendant appeared at the hotel where she was stopping, opened the door of her room, sprang in and grabbed her, and said, “If you holler, you will never holler again,” and then begged her not to go ahead with the case, but to live with him as soon as he got a divorce, and that as he left the room he said, “If you ever tell this, you will die.” The defendant contends that this testimony was improperly admitted for the reason that it related solely to matters which transpired long after the commission of the alleged offense, and to another crime, that is to say, an assault upon the prosecuting witness. This evidence was, we think, properly admitted for the purpose of showing an attempt upon the part of the defendant, by promises and threats, to dissuade or prevent the prosecuting witness from appearing against him.

The defendant having resorted to unfair means to defeat the ends of justice, he must suffer the consequences. In Fulkerson v. Murdock, 53 Mo. App. l. c. 154, it is said: “Evidence of the fact of an attempted subornation is admissible as an admission by conduct that the party’s cause is an unrighteous one.”

In Underhill on Crim. Ev., sec. 121, it is said: Evidence to show that the accused has attempted to fabricate or procure false evidence, or destroy evidence against himself, .... is always admissible as showing a consciousness of guilt.” [State v. Alexander, 119 Mo. 461.]

The defendant contends that the court erred in not granting him a new trial upon the ground, as stated by defendant, that one of the jurors, A. 0. Porter, was not competent to sit as a juror in the case. In supiport of this contention, in the motion for a new trial, defendant introduced in evidence the affidavit of William Mathews, a brother of the defendant, to the effect that he, the affiant, had talked with said juror, whn expressed a desire to be left on the jury, saying he would do the defendant more good than anybody else, and that any one, under the same circumstances, would do what the defendant had done.

Conceding, for the sake of argument, that defendant was prejudiced by leaving on the jury a man who had formed an opinion in his favor, there is no affidavit of the defendant or of his attorneys that they did not know of this conversation at the time, or prior to the time, defendant made his challenges, which would be absolutely necessary in order to justify the court in sustaining the motion upon this ground. [State v. Hunt, 141 Mo. 626; State v. Howard, 118 Mo. 127; State v. Burns, 85 Mo. 47; State v. Richardson, 194 Mo. 326; State v. Barrington, 198 Mo. 23.]

Another contention is that section 1838, Revised Statutes 1899, upon which this prosecution is founded, is unconstitutional as in conflict with section 28, article 2 of the Constitution of this State. This identical question was before this court in the case of State v. Hamey, 168 Mo. 167, and,' in a well-considered opinion, said section was field to be constitutional. We see no good reason for departing from that opinion; upon the contrary, we approve of and adhere to it.

Finding no reversible error in the record, we affirm the judgment.

All concur.


author: BURGESS, J.

text:
    THE STATE v. SILAS DARLING, Appellant.
    Division Two,
    March 5, 1907.
    1. SELF-DEFENSE: Apprehended Danger: Appearances: Instruction. An instruction which., after telling the jury that it was not necessary that the danger to defendant’s associate who killed deceased should have been real and about to fall, also tells thern that all that was necessary was that such danger existed, is faulty. Whether the danger really existed or not, if he had good reason to believe it existed, he had the right to act upon appearances, although it might thereafter turn out that the appearances were false. He must have decided at his peril, under the circumstances as they appeared to him, but whether he had good reason to act as he did is for the consideration of the jury.
    2. -: -> -: -: Corrected By Other Words. The instruction said: “In such case it is not necessary that the danger should have been real and about to' fall, all that is necessary is that such danger existed; on the other hand, it is not enough that said Ernest Darling believed the existence of such danger, but he must have good cause for so believing.” Held, that the error in the first clause is not. cured by the last clause, because inconsistent therewith. All that was necessary to a complete defense by the said Ernest was that he had good ground to believe, and did believe, that such danger to his life - or limb existed, whether it really existed or not.
    3. INSTRUCTIONS: In Plain Language. - Instructions should always be couched in such plain and unequivocal language as to be readily understood and comprehended by the jury.
    4'. INTEREST OF WITNESS: Cross-Examination. Proof of the acts and statements of a witness tending to show his prejudice against the defendant, and his interest in the prosecution, is always admissible; and it is also competent for defendant, for the purpose of impeaching a witness, who denies upon cross-examination having made certain statements indicating prejudice towards defendant, to show by other witnesses that he had in fact made such statements. And in this case it is held that it was not only proper to permit defendant to ask a State’s witness if he had not stated to two of the panel that he desired to talk with them about the case and that he wanted to see them “stick” defendant, but it was error not to permit defendant to show by those veniremen that he had made those statements. ■
    5. SELF-DEFENSE: Provoking or Aiding a Fight: Particeps. If a person provokes a combat or brings on a difficulty, in order to have a pretext for killing his adversary, or doing him great bodily harm, the killing will be murder, and this without regard to the extremity to which such person may have been reduced in the combat. And if a person, intending an ordinary battery only, seeks out his adversary and provokes a combat or brings on a difficulty with the design to commit a battery only, and death is the result of such battery, he is guilty of manslaughter, without regard to the extremity to which he may have been put. And a defendant who accompanies such person, for the purpose of aiding or encouraging him, is alike guilty. And the instruction set out in the opinion is in substantial compliance with this last proposition, nor did such instruction trench upon the principal’s right of self-defense.
    6. INSTRUCTIONS: Refusing Defendant’s. Where the instructions given for the State cover every phase of the case, it is not error to refuse all instructions asked by defendant.
    7. EVIDENCE: Connection Not Shown. The State should not be permitted to show that the farmer for whom deceased was working, before defendants went to the place where deceased was plowing and assaulted him, on his way to town passed within a quarter of a mile of defendants’ home and in plain view thereof, unless it is also shown that some of them saw or were in a position to see him.
    Appeal from Cooper Circuit Court. — IIow. Won. H. Martin, Judge.
    Reversed and remanded.

      W. V. Draff en and C. D. Corum for appellant.
    (1) The court erred in failing to correctly announce the law of self-defense, (a) Defendant, under no view that can he taken, was guilty of any crime, if Ms brother, Ernest Darling, acted in self-defense. It was, therefore, incumbent upon the court to correctly instruct the jury upon this inestimable right. Instruction 9 is the only one pertaimng to the law of self-defense that was given in the case. That it is erroneous, confusing, and deprives defendant of his rights under the law, is plain. State v. Starr, 38 Mo. 270; State v. Slone, 47 Mo. 612; State v. Eaton, 75 Mo. 591; State v. Johnson, 76 Mo. 126; State v. TIarrod, 102 Mo. 612; State v. Smith, 125 Mo. 8; Nichols v. Winfrey, 79 Mo. 547; State v. Hollingsworth, 156 Mo. 187. (b) It is no answer to this contention of defendant’s to say that in one part of the instruction the jurors were told that it was not necessary for the danger to be real. The court did say that. But before the jury had time to grasp and digest the utterance, the court retracted and told them it was necessary for defendant to show that danger actually existed. (2) The court erred in-refusing to permit defendant to attack the credibility of William Spry. State v. Privitt, 144 Mo. 94; State v. Jones, 106 Mo. 311; State v. Elkins, 101 Mo. 352; People v. Anderson, 105 Cal. 32; 1 Greenleaf on Ev. (15 Ed.), sec. 450; 1 Wigmore on Ev., sec. 950; 30 Am. and Eng. Ency. Law, 1088, 1089. The hostility of the witness may be shown by independent testimony without even first examining the witness himself as to Ms hostility. People v. Moore, 15 Wend. 419; People v. Thompson, 41 N. T. 6; People v. Brooks, 30 N. E. 189. The bias of a witness is not a material matter. Hollingsworth v. State, 14 S. W. 41; 1 Greenleaf on Ev., sec. 450 ; Crumpton v. State, 12 Ark. 972; Wharton on Criminal Ev., sec. 485. Nor is it collateral. Bennet v. State, 13 S. W. 105; Gillett on Indirect & Collateral Ev., 139; 30- Am. and Eng. Ency. Law, 1102; UnderMll on Criminal Ev., 305. The same rule applies in civil cases. Hartpence v. Rodgers, 143 Mo. 623; Gale v. Railroad, 76 N Y, 594; Schultz v. Railroad, 89 N. Y. 242; Garnsey v. Rhodes, 138 N. Y. 461; Hedge v. Platt, 22 Conn. 262; Cask v. Brown, 34 N. H. 460; Starr v. Cragen, 24 Hun 177; Beck v. Hood, 39 Al. 842. (3) Instruction 8 absolutely deprived defendant of the right of self-defense. It was not necessary under this instruction for the jury to find that Ernest Barling commenced the difficulty by assaulting Jeffress or that he provoked the difficulty by opprobrious language addressed to him, or that he brought on the difficulty in any way. The language of the instruction is that if “during such difficulty;” it does not say “if during a difficulty caused and brought about by any wrongful act of Ernest Darling.” The difficulty may have been caused and brought on by deceased, and still defendants would have- been guilty of manslaughter. Under the instruction given, the jury must have found defendant guilty. And this notwithstanding they might have believed the evidence which was offered on behalf of defendant, to the effect that Ernest Darling was inoffensive and unoffending when he was assaulted by the deceased with a deadly weapon. State v. Gordon, 191 Mo. 121. No person can be guilty of manslaughter simply because he has formed an intention in his mind to whip another person. A man cannot be convicted of crime because he has an unlawful intent. He must have done some act to effectuate the intention. In the class of cases which we are considering, he must have provoked the combat or brought on the difficulty for the purpose of effectuating his intention to whip his adversary. The instruction at bar finds no support in reason or authority. State v. Evans, 124 Mo. 410; State v. Gordon, 191 Mo. 114; State v. Partlow, 90 Mo. 609; State v. Gilmore, 95 Mo. 554; State v. Patterson, 159 Mo. 560; State v. Garrett, 170 Mo. 395; Saunders v. State, 97 S. W. 1046. (4) The court permitted the State to prove by Charles Carroll that on his way to Blackwater on the afternoon of the tragedy he passed within a quarter of a mile of the Darling home and in plain view thereof. There was no evidence offered that defendant, or his co-defendants, either saw or were in a position to see Mr. Carroll as he passed, nor does the evidence show that Carroll saw defendant, or either of the defendants, on his way to Blackwater. The admission of this testimony was error. State v. Darling, 199' Mo. 168.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) Much stress is laid by appellant on the action of the court in giving the instruction on the subject of self-defense; but said instruction, when carefully examined, is not subject to said criticism. In reading said instruction and in considering the whole of it, it will be seen that it fully stated the law of self-defense to the jury, and an intelligent jury could not have been misled by reason thereof. State v. Smith, 125 Mo. 8. It is not necessary for the court to. use the same formula every time; and even though the instruction is awkwardly worded, yet if it fairly states the law to the jury on the subject of self-defense, the instruction is sufficient. In a case where the court instructed the jury that they must be satisfied of defendant’s guilt by the evidence in the case, or by the lack of evidence, this court held that the instruction, when considered as a whole, did not misdirect the jury, and the judgment was affirmed. State v. Kelley, 191 Mo. 680. (2) Spry, when questioned by defendant’s attorney, replied that he had not made statements to certain men on the panel of forty to the effect that the defendant was guilty, should .be punished, etc. Thereupon, defendant offered to prove by certain members of the panel of forty that Mr. Spry did make such statements to them prior to the selection of the twelve men to try this case. It will not require much argument to convince this court that the trial court ruled properly when it excluded said proffered evidence. The rule which all our courts have adopted is that the examination of a witness and the contradiction of a witness on such matters rests in the discretion of the trial court. 2 Wigmore on Ev., sec. 950; 1 Elliott on Evid., sec. 161; 1 Greenleaf on Evid., sec. 450; People v. Brooks, 131 N. Y. 326; Consaul v. Sheldon, 35 Neb: 254. And our authorities hold that the test of the admissibility of evidence in contradiction of the cross-examination of a witness is whether defendant would have the right, as an original proposition, to have introduced such contradictory evidence. Wharton’s Grim. Evid., sec. 485:
   BURGESS, J.

At the October term, 1905, of the circuit court of Cooper county, upon an information filed by the prosecuting attorney of said county on the 16th. day of May, 1905, charging the defendant and one Ernest Darling and one Dorvil Burris, with murder in the first degree for the killing of one Samuel Jeffress, at said county, on the 13th day of March, 1905, the defendant was convicted of manslaughter in the fourth degree and his punishment assessed at two years in the penitentiary. After filing unsuccessful motions for new trial and in arrest of judgment, defendant appealed.

Prior to' the trial of this defendant, his co-indictee, Dorvil Burris, had entered a plea of guilty to manslaughter in the fourth degree, had been sentenced to two years in the penitentiary, .and been paroled.

The State’s evidence tended to show that the defendant and Etnest Darling were brothers, and lived with their parents on a farm in Cooper county, seven miles from Blackwater, and that Dorvil Burris lived with the Darlings and worked on the farm. Sam Jeffress, the deceased, prior to Saturday, March 11, 1905, lived with his mother in the village of Nelson, Saline county, and a few miles from Blackwater. On said Saturday the deceased went to work as a farm hand for one Charles Carroll, whose farm was situated about two miles from the Darling homestead. On Sunday afternoon Emmett Yeager visited at the Darling home, and told defendant and his brother that the deceased had gone to work for Charles Carroll. An unfriendly feeling had been existing between the deceased and both of the Darling boys, and as soon as Yeager had imparted this information to the brothers, Ernest Darling said he was going over to Carroll’s next morning to “get” the deceased. Afterwards, in another room of the house, Ernest Darling repeated his threat in the presence of the defendant, and later, the same evening, the defendant said to witness Burris, “Yes, I believe I will go down with Ern tomorrow; Sam might make a, knife play. ’ ’ On Monday the three young men worked about the Darling farm until noon, when the arrangements were made to go over to the Carroll farm. The defendant and his two companions went over to the barn of the Darling place and had a talk on the advisability of going after the deceased at that time, and Burris insisted that it would be best to wait and some day get deceased on the road. Ernest Darling answered, “No, if I don’t get him now I never will get him.” Defendant said, “No, Dorvil, I believe he ought to get him now. ’ ’ After the conversation at the barn, defendant and his brother went around on the side of the house where there was a pile of old iron. On the way to Carroll’s the defendant said to his brother, “You will have to watch him if he is working with a hoe or scythe, or something to* cut you with.” In the same conversation Ernest said to defendant, “It will be a hell of a joke if he has gone to town and would not be there.” When they neared the Carroll home, it was agreed, at the defendant’s suggestion, that he should do the talking, defendant saying, “I will see Mr. Carroll and tell him I want to borrow a lister. ’ ’ Defendant accordingly went up to the house and asked if Mr. Carroll was there, and Mrs. Carroll replied that he had gone to town. Defendant then said that they would go down the river and meet him on his return. The three then walked down to the com pens, when defendant told Burris to go back and find out where the deceased was working. Burris went back and ascertained from Mrs. Carroll that deceased was working in a certain field. This field lay in a direction contrary to that from which Mr. Carroll would come in returning fro.m Blackwater. The three young men crossed a wheat field, climbed over a wire fence, entered the field where the deceased was plowing and walked towards him. The deceased stopped plowing as they approached, leaned against the handles of the cultivator, with his arms folded and the lines around his neck. Defendant and Burris engaged the deceased in conversation, while Ernest Darling gradually and stealthily slipped around to the side or back of deceased and hit him on the back of the head with what appeared to witness Burris to be a piece of iron. The blow felled deceased to the ground, and Ernest Darling struck deceased several times with the bar of iron after he fell. While striking the deceased, Ernest Darling said, “I reckon I will get even with you; you remember how you done me at Blackwater.” After assaulting the deceased Ernest Darling put the piece of iron in his pocket, and shortly afterwards stated to Burris that he had put it in a safe place where nobody could find it. The deceased tried to ward off the blows with his hands, which had leather gloves on, and these gloves were offered in evidence and identified, there being blood on them.. The defendant, after the assault was committed by his brother, said, “I know what we will do, turn the team loose and make them think the team done it.” About that time William Spry was passing through the field, and one of the three young men called to him. When Spry arrived upon the scene of the trouble and saw the condition of deceased he asked what was the matter, and defendant said, ‘ ‘ They have had a little scrap here, Sam and Ern.” Witness Spry found deceased in a sitting posture, with blood all over his face and in his hair, the lines still around his body, and his leather gloves lying on the ground in front of him, one on top of and across the other. Ernest Darling, who> was standing some feet away from Spry, said, “He has been bullying around Blaekwater long enough; G-d d-n him, let 'him bleed.’,’ He also said to Spry, in the presence of defendant, that deceased had called him a vile name, that he couldn’t stand it, and that he hit deceased and “knocked him plumb over the cultivator handles, with the lines around his shoulders. ”

Defendant suggested that they take hold of the deceased and walk him to the house, but Spry discovered that deceased was not strong enough to walk. It was then suggested by defendant that they unhitch one of the mules and let deceased ride to the house, but Spry was of the opinion that deceased was not strong enough to do that. Then, at Mr. Spry’s suggestion, defendant unhitched the mules from the cultivator, drove them to the Carroll house, and procured a wagon in which deceased was placed and taken to the house, the defendant, however, declining to assist in lifting deceased and placing him in the wagon for fear that he might get blood on his hands. The deceased died about the time they arrived at the house. A monkey wrench was found in the left hand pants pocket of deceased, and it had been seen there by witness Spry when he first arrived upon the scene and looked at the deceased.

A number of witnesses testified that they visited’ the scene of the tragedy the day after it occurred, and saw under the handles of the cultivator two pools of blood and two depressions in the ground which were apparently made by a man’s head, and that blood and hair were found in said depressions. The State’s evidence also tended to prove that on the day of the difficulty there were no rocks near the cultivator, nor near the pools of blood, but that some days later several rocks were found there.

Dr. E. A. Wilson, who examined the body of the deceased, testified that he found one wound three inches long to the right of the superior bone, one on the right bone of the head, another one just a little below and a little bit forward, about one inch and a quarter long, and a fourth wound still further forward on the head; all of which wounds fractured the skull. A fifth wound was found just over the eye, a sixth below the eye and a seventh across the nose. Dr. Wilson further testified that these wounds produced the' death of Sam Jeffress, and that they were made by some kind of a triangular-shaped blunt instrument. The physician further testified that it was possible .that said wounds could have been made with a rock, a long, peculiarily shaped rock, provided it had a straight edge, as the wounds produced were clean cut to the bone, and the bone was fractured. He further testified that it would have been possible for said wounds to have been produced by a. bar of iron, a triangular-shaped piece of iron. The undertaker testified that he found seven wounds upon the head of the deceased; three in the back of the head, one in the forehead, one just below the edge of the hair, one on the right of the head and one across the nose.

Mr. Carroll testified for the State that on the morning of the day deceased was killed he- rode to Blackwater, passing within sight of the Darling house, which was about a quarter of a mile from the road. Witness stated, upon cross-examination, that he saw some men near the Darling house as he passed by, but that he didn’t know who they were, nor could he say the defendant was one of them.

After the young men had been arrested and were in jail witness Burris had a conversation with defendant in which the latter said, “We must all stick together.” Defendant also said, “You must not give us away;.I might get out of here some time, and you will know what I will do to you; you know what a devil I am.”

The evidence for the defendant tended to show that he never knew of any threats made by his brother against the deceased; had no arrangements whatever with his brother, nor with Burris, to go over and assault the deceased, but that he went down to Mr. Carroll’s house on the day of the killing for the purpose of getting a lister, and to aid Burris in getting employment. He admitted that he never got the lister from Mr. Carroll, but continued to plow corn for some days without the same, up until he was arrested. Defendant’s evidence further tended to show that after they learned from Mrs. Carroll that her husband was not at home the three started around the road in order to meet Mr. Carroll when he came home; that he did not know that the deceased was down in the field until they got into said field; that defendant and Burris-walked around and began talking to the deceased, when the deceased said to Ernest Darling, “What are you doing roving around through the country, you Gr— d— son of a b — ? ” At the same time deceased threw the lines off his shoulder and started at Ernest Darling with a monkey wrench, threatening to crack his head. Afterward deceased came toward Ernest two or three steps, Ernest reached down and picked up a rock and struck deceased several times on the head, first on the front part and then on the back of the head. The defendant’s evidence further tended to show that deceased struck Ernest Darling several times on the arm with the monkey wrench, which angered him and precipitated the fight. His evidence also tended to show that deceased got his head against the breast of Ernest Darling, and was pushing against him at the time the blows were struck with the rock. After striking the deceased several times, deceased said, “Enough,” and Ernest Darling never hit him any more. One witness for the defense testified that she found a rock near the scene of the difficulty upon which she saw blood; but the rock was not shown in evidence. No bloody garments were offered in evidence by defendant, and no proof was offered tending to show that his brother’s shirt or coat was bloody. Defendant denied that his brother had a piece of iron, and claimed that Ernest Darling struck deceased for 'the purpose of protecting his life. There was also evidence tending to show that the deceased made divers threats against the life of Ernest Darling .prior to this difficulty, none of which threats, however, were communicated to Ernest until after the death of deceased; and also some evidence tending to show that the deceased had the reputation of being a turbulent and quarrelsome boy.

Instruction numbered 9 given by the court is challenged upon the ground that it does not correctly announce the law of self-defense. It is as follows:

“9. If you find from the evidence that Ernest ■ Darling struck Samuel Jeffress with some instrument or weapon, which resulted in the death of said Jeffress, and a/t the time said Darling struck the deceased he had good reason to believe and did believe, from the conduct or appearance of deceased, that the deceased was about to inflict upon him some great bodily harm, and the said Ernest Darling struck him for the purpose of averting such apprehended danger, then said Ernest Darling killed said Samuel Jeffress in self-defense, within the meaning of these instructions, and if you. so find, then you must find the defendant in this case not guilty. In such case, it is not necessary that the danger should have been real and about to fall, all that is necessary is that such danger existed; on the other hand, it is not enough that said Ernest Darling believed in the existence of such danger, but he must have had good cause for so believing.

“If, however, you find from the evidence, beyond a reasonable doubt, that said Ernest Darling, prior to the killing of Samuel Jeffress, had formed a design to kill said Jeffress, or to do him some great bodily injury, and that the defendant, Silas Darling, had knowledge of such purpose or design on the part of said Ernest Darling, and to carry out such design the said Ernest Darling armed himself with a deadly weapon, and sought the said Jeffress, and provoked, brought on or entered into a difficulty with the said Jeffress, which resulted in his death, then such killing was not done in self-defense, however imminent the peril of said Ernest Darling may have become in. consequence of an attack made upon him by the deceased. And if you find that the defendant, Silas Darling, with knowledge of such purpose on the part of his brother, Ernest Darling, and with Imowledge that the said Earnest Darling intended to use a deadly weapon upon the said •Samuel Jeffress, and at the time, or prior thereto, by his presence, words or acts, encouraged, aided or abetted the said Ernest Darling in carrying out such purpose, or was then and there present for1 the purpose and with the intent to aid and assist, if necessary, his brother, Ernest Darling, in such difficulty, and if under such circumstances you find that the said Ernest Darling killed the said Jeffress, then such killing was murder in the first degree, and the defendant in this case is just as guilty as if he struck the blow himself. ’ ’

This was the only instruction given upon that feature of the case, and it is claimed that it is erroneous and -confusing, and deprives defendant of his rights under the law. Especially does defendant object to that part of the instruction which says: “In such cases it is not necessary that the danger should have been real and about to fall, all that is necessary is that such danger existed.; on the other hand, it is not enough that said Ernest Darling believed in the existence of such danger, but he must have had good cause for so believing.”

Under this instruction, it is insisted by defendant, that it was incumbent upon him to show, first, that Ernest Darling must have been in actual and positive danger before he was justified in striking the deceased; second, that he believed in the existence of such danger; third, that he must have had good cause for believing in the existence thereof.

In the case of State v. Sloan, 47 Mo. 604, it was held by this court that when a person apprehends that-some person is about to do him great bodily harm, and there is reasonable grounds for believing that there is imminent danger of such design being accomplished, he may safely act upon appearances, and even kill his assailant if that be necessary to avoid the apprehended danger; and the killing will be justifiable, although it may afterwards turn out that the appearances were false, and there was, in fact, neither design to do him serious injury nor danger that it would be done. The same rule is announced in State v. Starr, 38 Mo. 270; State v. Eaton, 75 Mo. 586; State v. Smith, 125 Mo. 2; State v. Hollingsworth, 156 Mo. 178. The instruction is faulty, in that, after telling the jury that it was not necessary that the danger to Ernest Darling should .have been real and about to fall, it says all that was necessary was that such danger existed, when the law is that, whether the danger really existed or not, if he had good reason to believe and did believe it to exist, he had the right to act upon appearances, although it might thereafter have turned out that the appearances were false. He must, of course-, have decided at his peril, under the circumstances as they appeared to him, hut whether he had good reason for acting as he did was for the consideration of the jury. [State v. Harrod, 102 Mo. 590.]

In State v. Hollingsworth, supra, the trial court gave an instruction upon self-defense as follows: “The court instructs the jury that to justify a killing on the ground of self-defense, it must appear that the party killing was apprehensive, in consequence of the acts and conduct of the party killed, that some great bodily injury to himself was impending and about to fall on him, and that such killing was necessary to prevent such injury, either apparent or actual; therefore, if you believe from the evidence that in consequence of the acts and conduct of Schwab, either alone or acting with another at the time the fatal shot was fired, the defendant had reasonable cause to believe and did believe that Schwab was about to kill him or do him some great bodily harm, and that defendant shot to prevent such design being consummated, then your verdict should be for defendant. But you must' say from the evidence under all the facts and circumstances before you, whether the defendant did have reasonable cause for such apprehension. If he did not have reasonable cause for such apprehension, even though he belived he had, you .cannot acquit him on the ground of self-defense.” The defendant in that case prayed an instruction substantially like the above, with this modification: “It is not, however, necessary that the danger should have been actual or real, or that the danger should have been about to fall upon him. All that is necessary is that the defendant should have had reasonable cause to believe that state of facts and did so believe, and shot and killed Schwab to prevent the consummation of such design on the part of Schwab. ’ The trial court refused this modification, and this court said: c‘ The court erred in refusing this qualification of its instruction on self-defense. This has been approved by this court since the case of State v. Starr, 38 Mo. 270. The judgment in State v. Eaton, 75 Mo. 586, was reversed on this identical ground. As said then by this court: ‘We do not mean to say that a mere supposititious or conjectural danger — a danger existing only in the imagination of the accused — will excuse or justify a homicide. There must be apparent danger affording a reasonable ground for apprehension on the part of the slayer, that unless he kill or disable his adversary, his own life or limbs are in imminent peril. Whether the appearances of danger to the accused were such as to afford such reasonable ground of apprehension, is a question for the jury.’ ”

The words, ‘‘ on the other hand it is not enough that said Ernest Darling believed in the existence of such danger, but he must have good cause for so believing,” did not correct the preceding part of the sentence alluded to and quoted, because inconsistent therewith, in that, in the first instance, the jury were told that all that was necessary was that such danger existed, while in the part last quoted they were told that it was not enough that said Ernest Darling believed in the existence of such danger, but he must have had good cause for so believing. All that was necessary to a complete defense by Ernest Darling was that he had good ground to believe, and did believe, that such danger existed, whether it really existed or not.

'While it is conceded by the State that the instruction is awkwardly worded, it is insisted that it fully stated the law of self-defense, and that an intelligent jury could not have been misled by reason thereof. Instructions are given upon the theory that all jurymen are, at least, of ordinary intelligence; but instructions should always be couched in such plain and unequivocal language as to be readily understood and comprehended by the jury; and we do not, for the reasons indicated, think that this instruction is of that character.

The next error assigned is with respect to the action of the court in refusing to permit defendant to attack the credibility of one William Spry, who testified as a witness on the part of the State. Spry testified to what he saw and heard immediately after the fatal blow; and upon cross-examination by defendant, the following occurred:

“Q. You are anxious to see them convicted! A. Why, no; no, sir.

“Q. You are not! A. No, sir.

“Q. You know-Mr. J. Copass! A. No, sir.

“Q. Do you know Mr. Steve Smith! A. No, sir.

‘ ‘ Q. Were you down in Mr. Walterscheid’s saloon on yesterday morning just before coming to this court! A. I don’t know whether I was or not; I was in several places.

“Q. Do you remember having seen two gentlemen there on the panel of forty — there were forty jurors from whom this jury was selected — do you remember seeing two of these men that composed that forty down there in the saloon on yesterday morning! A. I don’t remember; no, sir, I don’t.

‘ ‘ Q. Did you see two men down there ! First, this question: Didn’t you go to talk to a gentleman about this case, and didn’t he tell you that he was one of the forty; that he might be selected on this jury and that you must not talk to him about this case! A. Well, I don’t remember whether I did or not.

“Q. And then didn’t you insist on talking to. him, and didn’t you tell him that you knew a lot about it, and you wanted to tell him about it because he might be one of the twelve! A. I don’t remember anything about that.

“Q. Did that occur or hot! A. No, sir; I don’t think it did, no, sir.

“Q. It didn’t occur! Now, then, after he went away and declined to talk to you about it, didn’t you see another man, named Joe Copass, and didn’t you tell him that you wanted to talk to him about the case, and he also told you that he could not talk to you about it and that you ought not to talk to him, and then didn’t you say that you could give this juror a full history, and, ‘By God, I want you to stick it to him?’ A. No, sir.

“Q. That didn’t occur? A. No, sir.

“Q. ‘Stick it to him’ or ‘stick him;’ that conversation or words of that nature didn’t occur? A. No, sir. ’ ’

The defendant, in order to show the animus of the witness and his ill-feeling towards the defendant, and to impeach his credibility, produced the juror Joe Co-pass, and the following occurred:

“Q. Mr. Copass, where do you live? A. South Moniteau.

“Q. How long have you lived there? A. How long? I have lived in South Moniteau, well, about thirty-five years.

“Q. Did you see William Spry, who is a witness in this case on behalf of the State, who was here in attendance on yesterday morning? A. Well, as to the gentleman’s name, I didn’t know anything about it at that time, but I have learned since then that that is his name; yes, sir; I saw him.

“Q. Is that the gentleman? A. Yes, sir; that is the gentleman.

“Q. Where did you see him? A. Back of Mr. Walterscheid’s saloon.

“The State objected and the objection was sustained, to which ruling on the part of the court the defendant, by counsel, then and there duly excepted at the time.

“Mr. Corum: We offer to prove by the witness, Joseph D. Copass, that he was one of the panel of forty from which the jury in this case was selected; that after the panel of forty had been selected and sworn as the law provides, and before the challenges had been made, "William Spry, witness on behalf of the State, approached the said Joseph D. Copass and inquired of him if he were not one of the forty from whom the jury were to be selected to try. the defendant, Silas Darling; that witness, Joseph D. Copass, told the said William Spry that he was a member of the panel of forty and that he might be selected as one of the twelve jurymen to try the case and that he, Spry, must not talk to him about the case, and that thereupon the said William Spry told the said Joseph D. Oopass that that was the very reason that he wished to talk to him about the case, and that the said Spry said that he was acquainted with the full history of the case and wished to tell the said juror, Copass, about it, and he {Copass) might be one of the twelve to try the ease, and that the said Spry further said, ‘By God, I want you to stick him if you are on the jury.’

“The State objected, and the objection was sustained; to which ruling on the part of the court the defendant, by counsel, then and there duly excepted at the time.

‘ ‘ Mr. Corum: We also* offer to prove that Stephen A. Smith, who was a member of the panel of forty, was also approached by witness Spry, after the panel of forty had been selected, and before the challenges had-been made and that the said Spry made the same statement in substantially the same language to juror Stephen A. Smith that he made to juror Joseph D. Copass. The court held that the evidence was incompetent and excluded it; to which ruling and action of the court the defendant then and there excepted at the time.”

In 1 Greenleaf on Ev. (16 Ed.), sec. 450; it is said: “The partiality of a witness for one party or side, or his prejudice against the other side, is always regarded as bearing on the trustworthiness of his testimony. One way of showing the existence of such bias is his prior expression of sncli feelings. Thus it is always allowable to inquire of the witness for the prosecution, in cross-examination, whether he has not expressed feelings of hostility towards the prisoner. The like inquiry may be made in a civil action; and if the witness denies the fact, he may be contradicted by other witnesses.”

While the court permitted the defendant to cross-examine this witness as to certain statements made by him indicating bias and prejudice against the defendant, all of which he denied, yet the court refused1 to permit the defendant, with the view of impeaching the witness, to introduce evidence tending to show that he had in fact made such statements. It is claimed by the State that this ruling was in the discretion of the court, and that unless there was an abuse of discretion the judgment should not be reversed on account of such ruling. There are authorities which sustain this position; but the general rule seems to be as announced by Mr. G-reenleaf, that, “if the witness denies the facts showing bias, the cross-examining party may call other witnesses to contradict him.” [30 Am. and Eng. Ency. of Law (2 Ed.), 1088-89.] In Schuster v. State, 80 Wis. l. c. 116, it is said that “it is legitimate cross-examination to interrogate an opposing witness as to his relations to the parties and the litigation, his motives, interests, inclinations, and prejudices, .his means of obtaining correct and certain knowledge of the facts to which he testifies, and the manner in which he has used those means. Such testimony is not collateral and irrelevant to the issue, and the party calling it out, if it be adverse to him, may contradict it by other testimony for the purpose of discrediting the witness. All of this is quite rudimentary in the law of evidence.”

In the case of State v. Jones, 106 Mo. l. c. 311, it is said: “The defendant rightfully complains of the action of the court in excluding the evidence of Armstrong to the effect that the prosecuting witness, Robertson, had threatened to break up old man Jones, the father of the defendant, and his family. The witness Robertson had denied using such language. It was competent for the purpose of impeaching him, and to show his animus in the prosecution. ’ ’

So, in State v. Pruett, 144 Mo. 92, one Hugh Chris-man was a witness for the State. He was asked by counsel for defendant if he had not “threatened to kill defendant or run him off the place.” The trial court held that the evidence was incompetent, and excluded it. In passing upon the action of the court in that regard, this court said: “This question was clearly competent, since it is always competent to show by such an interrogatory that the witness has a bias against or hostile feeling towards a party litigant, and if the witness deny such feeling, etc., he may be contradicted, because it is always, important and all-important to show that the witness does not stand indifferent between the contending parties.”

Proof of the acts and statements of a witness tending to show his prejudice against the defendant, and his interest in the prosecution, is always admissible; and this being true, it was competent for the defendant in this case, for the purpose of impeaching witness Spry, who denied upon cross-examination having made certain statements indicating prejudice toward the defend- . ant, to show by other witnesses that he had in fact made such statements.

Instruction numbered 8, given on the part of the ' State, is complained of upon the ground that it deprived Ernest Darling of the right of self-defense. The instruction is as follows:

“If you find from the evidence that prior to the killing of Samuel Jeffress, Ernest Darling sought the deceased, Samuel Jeffress, for the purpose of assaulting and whipping him, but without any felonious intent to use upon him a deadly weapon, or to inflict upon him great bodily harm, and the defendant, Silas Darling, with knowledge of the intention of his brother, Ernest, to so whip said Sam’l Jeffress, accompanied his brother Ernest Darling to the scene of the tragedy for the purpose and with the intention of aiding, encouraging or assisting his brother, Ernest, if necessary, in making said assault, and was then and there present at the time of such assault, for the purpose and with the intention of aiding, encouraging or abetting his brother, Ernest Darling, therein, if necessary, and that during such difficulty it became necessary for the said Eimest Darling to kill and he did kill said Jeffress, in order to save his own life, then the defendant, Silas Darling, is guilty of manslaughter in the fourth degree, and you will so find. ’ ’

Counsel for defendant, in endeavoring to interpret this instruction, says: “If he, Ernest Darling, went to where the deceased was for the purpose of whipping him, without any felonious intent to use upon him a deadly weapon or to inflict great bodily harm, and without a deadly weapon, and thereupon Jeffress, without provocation or excuse, willfully assaulted him with a monkey wrench, as testified by Ernest Darling and the defendant, and it became necessary for the said Ernest Darling to kill and he did kill said Jeffress in order to save his own life, then the defendant (or Ernest Darling) is guilty of manslaughter in the fourth degree.”

"We do not think this a fair interpretation of the instruction, for it does not contemplate that Jeffress provoked or made the assault, but it does say that if the defendant “was then and there present at the time of such assault, ’ ’ meaning the assault made by his brother Ernest upon the deceased. It is true the instruction does say 11 during such difficulty; ’ ’ that is, the difficulty which was the result of Ernest Darling seeking the deceased for the purpose of assaulting him, and not any difficulty caused or brought on by Jeffress.

We quite agree with defendant’s counsel in this-particular, that if a person provokes a combat, or brings on a difficulty, in order to have a pretext for killing his adversary, or doing him great bodily harm, the killing will be murder, and this without regard to the extremity to which the defendant may have been reduced in the combat; and that if a person, intending an ordinary battery only, seeks his adversary and provokes a combat or brings on a difficulty with a design to commit a battery, and death is the result of such battery, he is guilty of manslaughter, without regard to the extremity to which he may have been put.

The instruction is, we think, in substantial compliance with the last proposition. [State v. Partlow, 90 Mo. 608; State v. Gilmore, 95 Mo. 554.]

It does not seem to us that the instruction in any way trenched upon the right of self-defense of Ernest Darling, and when construed, as it should be, with reference to the assault by him upon deceased, is not of such a character as would justify a reversal of the judgment.

Defendant asked a number of instructions which the court refused to give, and in so doing it is claimed the court committed error. Eighteen instructions were given by the court, which covered every phase of the case, and which, with the exception of the ninth instruction, are free from substantial error. There was, therefore, no occasion for giving any of the instructions asked by the defendant.

The court should not have permitted the State to prove by witness Charles Carroll that, on his way to Blackwater on the day of the homicide, he passed within a quarter of a mile of the Darling home and in plain view thereof, in the absence of evidence that the defendant or his co-indictees either saw or were in a position to see Mm, or that Le saw one or more of them as he passed. [State v. Darling, 199 Mo. 168.]

For the reasons stated, the judgment is reversed and the cause remanded for further trial.

Fox, P. J., and Gantt, J., concur.