author: FOX, J.

text:
    THE STATE v. SPIVEY, Appellant.
    Division Two,
    November 21, 1905.
    1. CHANGE OF VENUE: Notice to Prosecuting Attorney: Waiver. Conceding that reasonable notice of defendant’s application for a change of venue should be given the prosecuting attorney, which is not determined, yet when the prosecuting attorney appears at the presentation of the application, and resists it by the introduction of testimony, he will be held to have waived the failure to give notice.
    2. -: Prejudice of Judge: Statutes Imperative. The provisions of the statutes (secs. 2594 and 2595, R. S. 1899) rendering a judge incompetent to try a cause “when the defendant shall make and file an affidavit, supported by the affidavit of at least two reputable persons, not of kin or counsel for the defendant, that the judge of the- court in which said cause is pending will not afford him a fair trial,” are imperative. If the persons supporting defendant’s affidavit are competent witnesses, and the application is otherwise in conformity with the statutory requirements, the judge must disqualify himself, and a failure to do so constitutes reversible error.

      3. MURDER: First Degree: Information. The informattion set out in the statement in this case is held to properly charge the offense of murder in the first degree, though the charge of inflicting the mortal wound does not conform to’ the approved precedents.
    4. ——: Dying Declaration: Incompetent Statements. Statements of deceased’s wife, in detailing his dying declarations made to her, that deceased begged defendant not more than two weeks before the killing, not to run on him; that “he talked him out of running on him once before that; defendant run on him once before that with his knife, and wanted to kill him, and deceased talked him out of that”- — were incompetent and should have been promptly excluded when objection was made, without waiting to cure the error by directing its exclusion in an instruction to the jury.
    6. DEFENDANT AS WITNESS: Previous Offense: Improper Form of Question. While the State has the right to inquire of a defendant, testifying as a witness, as to whether he has ever been convicted of a- criminal offense, the question should be propounded in accordance with the statute, and defendant should not be asked, for the purpose of influencing the jury, “Now state if you have not been in the penitentiary for stealing cattle?”
    6. EVIDENCE: Elicited by Defendant. When statements of witnesses as to what deceased said to them, prior to the difficulty and in the absence of the defendant, are shown to be part of a conversation they had with deceased, which was drawn out by defendant’s counsel, no error is committed in the witnesses’ detailing what was said in the conversation.
    7. IMPROPER REMARKS OF ATTORNEY: Influence: Setting Aside Verdict. Improper remarks of attorneys during the progress of the trial or in the argument to the jury frequently go far towards influencing the verdict; and where the State’s attorney persists in getting out of the record and indulging in improper remarks, though often cautioned by the court, a verdict procured in that way should be set aside.
    Appeal from Pemiscot Circuit Court. — No». Henry G. Riley, Judge.
    Reversed and remanded.

      B. A. McKay and F. J. Higgs for appellant.
    (1) Appellant’s demurrer to the information herein should have been sustained. State v. Clayton, 100 Mo. 516; State v. Ferguson, 162 Mo. 673; State v. Williams, 83 S. W. 756. (2) The court erred in refusing to grant appellant a change of venue upon his application and affidavit. Appellant’s application for a change of venue was in strict conformity with the requirements of the statute (R. S. 1899, sec. 2594). State v. Shipman, 93 Mo. 156. The court erred in hearing testimony tending to show that the two compurgators to appellant’s application for a change of venue were not reputable, and that the petition and affidavits were not in conformity with the statute (R. S. 1899, sec. 2594). State v. Shipman, 93 Mo. 156. There can. be no doubt but that this statute is imperative, and upon the filing by the defendant of his petition and affidavits for a change of venue, the trial court is divested of all jurisdiction except to make an order granting the same. Preleigh v. State, 8 Mo. 610; State v. Shipman, 93 Mo. 156; State v. O’Rourke, 55 Mo. 440; State v. Green-wade, 72 Mo. 305. Even though notice to the prosecuting attorney had been required, he waived any exception to same, by being present and participating in the taking of testimony and other proceedings had upon the application for a change of venue. (3) The court erred in admitting the testimony of Mrs. John Martin as to declarations of deceased. State v. Wilson, 121 Mo. 434. (4) The court erred in permitting the State to show by witnesses Wildee and Taylor what deceased said to them prior to the difficulty and in the absence of defendant. State v. McCoy, 11 Mo. 517. (5) The court erred in permitting the prosecuting attorney to ask the following question and foréing the appellant to answer the same: “Now state if you have not been in the penitentiary for stealing cattle?” R. S. 1899, sec. 2637; State v. Graves, 95 Mo. 513; State v. Manning, 87 Mo. App. 82.

      Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) The information, which was properly verified, is sufficient in form and substance. State v. Privitt, 175 Mo. 223; State v. Williams, 184 Mo. 261. (2) No error was committed in denying defendant a change of venue on account of the alleged prejudice of the judge. R. S. 1899, sec. 2594; State v. Turlington, 102 Mo. 648. If such affidavits as the ones in this case, made by such persons, are to control the affairs of our courts, then our criminal laws are a farce and our criminal procedure a mockery. (3) No error was committed in allowing the prosecuting attorney to ask witnesses Wildee and Taylor, in redirect examination, all of the conversation that they had with deceased at a time prior to the difficulty. Defendant’s attorney had gone into that question, in cross-examination, and it was proper for the State to then question said witnesses concerning the same. In other words, defendant made the subject competent by first asking questions thereon. Nichols v. Nichols, 147 Mo. 403. (4) Neither was error committed in allowing the prosecuting attorney to ask the defendant, in cross-examination, if he had not served a term in the penitentiary. Defendant’s attorney objected but the court permitted the question to be answered. As defendant replied in the negative, no harm was done defendant; rather harm was done the State. State v. Heusack, 88 S. W. 21; Underhill on Evidence, sec. 340.
   FOX, J.

This cause is here upon appeal by defendant from a judgment of the circuit court of Pemiscot county, Missouri, convicting him of murder of the first degree. The prosecution of this cause is predicated upon an information filed by the prosecuting attorney of Pemiscot county, Missouri, on August 26, 1903, charging defendant with murder in the first degree. The name of the party charged to have been killed was John Martin, and the alleged date of the offense was the 15th day of May, 1903.

A suggestion of the diminution of the record is made by the Attorney-G-eneral in respect to the form of the indictment. Acting upon this suggestion, this court made a rule upon the clerk of the circuit court of Pemiscot county to transmit the original information as filed, which rule was complied with, and the information is now before us. As the correctness and validity of the information is challenged, it is well to reproduce it. It was as follows:

“In the Circuit Court of Pemiscot County, Missouri, to November Term, 1903.

“State of Missouri, County of Pemiscot, ss.

“State of Missouri v. Leo Spivey.

“ L. L. Collins, prosecuting attorney within and for the county of Pemiscot and State of Missouri, upon his official oath informs the court, that Leo Spivey, late of the county of Pemiscot and State aforesaid, on the 15th day of May, 1903, at the county of Pemiscot and State aforesaid, did then and there in and upon the body of one John Martin, then and there being, unlawfully, willfully, feloniously, deliberately, premeditatedly, on purpose and of his malice aforethought make an assault, and with a certain dangerous and deadly weapon, to-wit, a knife, which said knife was then and there of the length of eight inches, the blade of which said knife was of the length of three inches and of the breadth of one-half an inch, and which said knife he, the said Leo Spivey, in his hand then and there had and held, he, the said Leo Spivey, then and there unlawfully, willfully, feloniously, deliberately, premeditatedly, on purpose and of his malice aforethought did strike at and stab him, the said John Martin, in and upon the neck and throat of him, the said John Martin, with the deadly aid dangerous weapon aforesaid, to-wit, the knife aforesaid, thereby and thus inflicting on and giving to Mm, the said John Martin, in and upon the neck and throat of him, the said John Martin, one mortal wound, wMch said mortal wound was of the length of five inches and of the depth of two inches,' of which said mortal wound he, the said John Martin, at the county of Pemiscot and State of Missouri, then and there instantly died. And so L. L. Collins, prosecuting attorney aforesaid, upon his official oath as aforesaid, doth say that he, the said Leo Spivey, him, the said John Martin, in the manner and by the means aforesaid unlawfully, willfully, feloniously, deliberately, premeditatedly, on purpose and of his malice aforethought did kill and murder; against the peace and dignity of the State.

“L. L. Collins, Prosecuting Attorney.

“L. L. Collins, prosecuting attorney, makes oath and says that the facts stated in the above and foregoing information are true, according to his best knowledge, information and belief.

“L. L. Collins.

“ Subscribed and sworn to before me this the 26th day of August, 1903.

“(Seal) J. W. Green, Clerk of the Circuit Court.”

To this information defendant, by his counsel, on the 1st day of December, 1903, interposed a demurrer, which demurrer was by the court overruled. And upon the 15th day of February, 1904, it being at the February term, defendant filed his petition and affidavits for a change of venue from the Hon. H. C. Riley, the trial judge of the Pemiscot County Circuit Court, which said petition and affidavits are in words and figures as follows:

“In the Circuit Court of Pemiscot County, Missouri, February Term, 1904.

£ £ State of Missouri against Leo Spivey, defendant.

“Now comes Leo Spivey, defendant in the above-entitled cause, and by this application and petition for change of venue states that the Honorable H. C. Riley, judge of said court, will not afford him a fair and impartial trial in said cause on account of the bias and prejudice of said judge. Defendant further says that the information leading to the belief set out above has come to his knowledge since the last term of this court.

“Wherefore, defendant asks that the venue of said cause be changed to some court or judge where said prejudice does not exist.

“Leo L. Spivey.

“Leo Spivey, the above-named defendant, being duly sworn, upon his oath, says that the Honorable H. C. Riley, judge of the circuit court of Pemiscot county, in which the above-entitled cause is now pending, and in which this defendant stands charged by information with murder in the first degree, will not afford defendant a fair trial in said cause, for the reasons above set forth in the forégoing petition for a change of venue.

“Leo L. Spivey.

“Subscribed and sworn to before me, this the 15th day of Peb. 1904. “ J. W. Green,

‘ ‘ Cir.. Clk.

“State of Missouri, County of Pemiscot, ss.

“Geo. W. Dashman and D. R. Lee, having first been duly sworn, upon their respective oaths, state that they have seen and heard read the above and foregoing petition and affidavit of the defendant, Leo Spivey, for change of venue, and state .that the facts set out therein are true, and that the said judge of said court will not afford defendant a fair and impartial trial in said cause for the reasons alleged, and that they are not of kin or counsel for the defendant in said cause.

“Geo. W. Dashman,

“D. R. Lee.

“Subscribed and sworn to before me this the 15th day of Peb. 1904.

“ (L. S.) George S. Coppedege, Notary Public.

“Term ex: Mch. 9, 1905.”

The State, through her counsel, resisted this application and introduced a number of witnesses. It is unnecessary to burden this statement with a detailed statement of the testimony of the witnesses upon this application for a change of venue. It will suffice to say that the witnesses testified that the general reputation of G-eorge Dashman, one of the persons making the supporting affidavit for a change of venue, as an honorable, upright, law-abiding and moral citizen was bad; it was further shown that he was convicted of an offense in the circuit court of Pemiscot county and fined $50; however, it appears that this judgment of conviction was appealed from to the St. Louis Court of Appeals and was at the time of this trial pending in that court. This appeal, of course, suspended this judgment of conviction. There was also an offer of an entry in the justice of the peace docket of a conviction of another offense; however, this docket entry is not set out in the record, and it also appears that this judgment was appealed from and was pending at the time of this trial. The testimony as to the other affiant supporting the affidavit of the defendant for a change of venue, D. R. Lee, simply consisted of the statements of numerous witnesses that affiant was reputed not to be of sound mind; a number of witnesses used the expression that they considered him “nutty,” and upon inquiry by the court as to what they meant by that expression, said they thought he was using some sort of drug and “whiffing at coke.” At the close of the evidence upon this application the prosecuting attorney, Mr. Collins, thus addressed the court: “I ask the court to deny the application for a change of venue for the reason that the affidavit made in support of the application is not' sufficient in form; for the reason that the affidavit made in support of the application for a change of venue is not made by two reputable witnesses ; and for the reason that sufficient notice, in fact no notice at all, was given the prosecuting attorney that this application for a change of venue would be made." The court overruled this application and in doing so gave expression to its views upon that subject as follows: “I deferred action yesterday in order that I might have an opportunity to examine this question, as far as the means at hand permitted. I do not know that a case of this kind, exactly in point, has ever been passed on by the courts of this State. I am unable to find one. The courts do hold that it is the duty of the court, upon the presentation of an application, to hear the application and to order the change of venue. This is an application against the judge, and it is offered to disqualify this court, the judge of this court, from trying the case. The statute provides that the defendant shall make the necessary affidavit, or an affidavit setting forth that the judge will not give him a fair trial. These gentlemen have gone further and said that the judge was prejudiced, and for that reason would not give him a fair trial. The law says in addition to the affidavit of the defendant it must he supported by the affidavit of two ‘reputable’ witnesses who are not of kin or of counsel for defendant. Then I take it that the statute means what it says, and the court in the interpretation of that statute, if it means what it says, must hear this application, and this evidence. In the first place, I think it is the privilege of the court, and the court has a right to determine whether or not the supporting witnesses are of kin or of counsel to the defendant, and whether or not the witnesses are reputable witnesses, reputable persons. These are questions for the court to pass upon. Now the testimony here shows that one of the witnesses, Dashman, undertakes to criticize the court, the conduct of the court, on account of some previous action or case. The testimony shows that Dash-man is a man who has been indicted. That fact of itself is not evidence of guilt, especially in view of the fact that there is an appeal pending in that case; in other words, there is no guilt established against the defendant until final judgment, and there is no final judgment until the ease is disposed of by a higher court. In addition to that, we have the testimony of gentlemen who live here in town, and they say this man is a man of bad moral character. One I believe said he run a whorehouse in town. Is the court to conclude from that testimony that this man is a reputable citizen? If that is true, it would not be hard for any man in Pemiscot county to prove that he was a reputable citizen. So far for Mr. D ashman. Now the other man they say is weak-minded. Some of the witnesses used the expression that he was ‘nutty’ and ‘off his base,’ expressions of that kind, showing to the court that perhaps he is not in a condition to pass upon the importance and magnitude of matters of this kind, and not such a citizen as is considered reputable under the laws, of this State. The courts have also said that there must be notice given of this application for a change of venue. However delicate the task imposed on us by statute, especially since you gentlemen have assumed the position that we are not anxious to try this case, we are disposed to believe and will hold that this application is not such an application as in law would warrant the court in granting defendant a change of venue to a different circuit or to call in a different judge, and will overrule the application. ’ ’

The trial then proceeded. The testimony upon the part of the State tended to show that defendant and deceased both worked at a sawmill which was known as the Himmelberger-Friant mill, in the town of Pascóla, in Pemiscot county. Deceased Martin lived in a house a short distance away from the mill. There was an unfriendly feeling existing between the deceased and the defendant, and some two weeks prior to the final difficulty defendant threatened to one witness that he would give deceased “a beating,” to another witness threatened to give deceased a ‘ ‘ licking, ’ ’ and to another said he would ‘ ‘ do him up if he ever fooled with him again. ’ ’ Other witnesses testified to violent threats made by defendant on the day of the killing. Martin, the deceased, worked upstairs in the mill and defendant worked downstairs in the engine and boiler room. When the mill whistle blew for noon on the day of the killing, some of the witnesses testified that the defendant was standing in the mill at the foot of the stairway with an open knife in one hand and a club in the other; other witnesses testified that they did not see any knife. The deceased Martin when he reached the ground from his work upstairs in the mill, started and was going towards his home. Defendant, so some of the witnesses state, started rapidly towards him with a club in his hand; the witnesses were unable to state whether or not the defendant had the knife in his hand as he was going toward the defendant; none of them were close enough to see. Some of the witnesses for the State testified that defendant, as he was going towards deceased, called to deceased to “Halt there, you God damn son-of-a-biteh.” After catching up with Martin defendant struck him with a club and then the deceased picked up a club and several blows were exchanged between the two, and after the exchanging of such blows deceased started off again and defendant after him. During the difficulty deceased, so one or more of the witnesses state, was heard to say, “Stop Leo, quit, I’ve-got enough.” During this difficulty defendant used his knife and cut deceased three or four times on the neck and other portions of the body, from which wounds he died in from ten to twenty minutes. The dying declarations were testified to by Mrs. Martin, the wife of the deceased, as well as by witness Bert Floyd, which dying declaration will be treated of during the course of the opinion. There was also testimony introduced on the part of the State, showing flight on the part of the defendant and that he was captured in Fresno, California. It was also shown that, after being arrested in California, the defendant admitted that after he left the scene of the difficulty he carried two pistols and a gun. There was a knife taken from the defendant, and he admitted that it was-the knife with which he did the stabbing.

On the part of the defendant, the defendant himself was a witness, and testified that he did not intend to kill the deceased, but was simply acting in self-defense. He detailed minutely the entire difficulty and introduced a number of witnesses, and it is sufficient to state that the testimony on the part of the defense tended to prove that defendant worked downstairs in the engine and boiler room and piled wood for the fireman; and that deceased worked upstairs on the cut-off saw and cut off slabs to fire with. The distance between the two was about fourteen feet. That several times prior to the day of the difficulty deceased pushed slabs down the chute on defendant, and that defendant complained to him, told deceased it was dangerous and asked him to stop it. The deceased declined to comply with defendant’s request, and told defendant he would have to get out of there, and defendant then complained to the foreman, Emuel Snider. That a week before the final difficulty deceased came down into the boiler room where defendant, the engineer and fireman were at work, threatened to whip defendant, walked towards a pile of wood as if intending to pick up a stick or a piece of iron, and the fireman got in between them. That then the deceased cursed the defendant and’ threatened to kill him, if he ever made a break at him. Defendant’s evidence further tended to show that at another time deceased came down into the engine room and acted like he was going to throw a brick at defendant, or draw a pistol. That deceased continued to throw slabs down the chute, which fell on defendant. That deceased had sent defendant word to meet him at the steps at noon, and defendant was there and waited for a minute and a half, with the club in his hand. That defendant did not have his knife open at the steps, nor when he went out of the mill. That deceased was standing some distance away, perhaps forty feet from the mill, and he motioned for defendant to come to him. When defendant got to him, deceased said he was going to whip defendant, and made a move like he was going to draw a pistol. Defendant then picked up a club and struck deceased the first lick. Deceased picked up a larger club and struck-back. Deceased moved a few steps away and defendant followed him, fearing, as the defendant states it, that he would draw a pistol.. Defendant then cut deceased with a knife; the first cut was intentional, but the others were accidental. Defendant was very positive that deceased was facing him* all the time during the difficulty. Defendant then testified that he left the place of the difficulty, expecting to stay in the woods till he could hear whether there was any danger or not; but that some one shot at him and he concluded he had better leave the country.

This is a sufficient indication of the proof upon which this cause was submitted to the jury to enable us to determine the legal propositions disclosed by the record. At the close of the evidence the court instructed the jury and the cause was submitted to them and they returned a verdict of guilty of murder in the first degree as charged in the information. The instructions will be noticed in the course of the opinion. Motions for new trial and in arrest of judgment being overruled, judgment of sentence in accordance with the verdict was entered of record, and from this judgment the defendant, in proper form and due time, prosecuted his appeal to this court, and the record is now before us for consideration.

OPINION

The record in this cause discloses the assignment of numerous errors of the trial court as a basis for the reversal of this judgment. We will give the complaints of appellant such attention as they merit and demand, in the order in which they are suggested in the brief or learned counsel for appellant on file in this cause.

The first and most important proposition with which we are confronted in this cause, and which is disclosed by the record, is the complaint of appellant at the action of the trial court in denying his application for a change of venue. The correct solution of this question leads us to a consideration of the history of the legislation upon the subject of application for changes of venue in criminal causes as well as the interpretation by this court of the different provisions of the statute applicable to the subject. An examination of the provisions of law since 1835 in respect to changes of venue makes it manifest that the legislation on the subject has been fluctuating. In 1835 (sec. 17, p. 487, R. S. 1835), the order of removal could only be made upon the application of the defendant by petition setting forth the facts authorizing such order, verified by the affidavit of the defendant, and in addition the truth of such facts had to be supported by the affidavit of some credible disinterested person. Under an act of the General Assembly, approved February 27, 1843 (Laws 1842-43, p. 33), there was a slight change upon this subject, in this, that the truth of the facts alleged in the application of the defendant had to be supported by the affidavits of two respectable witnesses. We find by reference to the General Statutes of 1865, page 845, section 19, that it is provided that “the petition of the applicant for a change of venue shall set forth the facts, and the truth of the allegations shall be supported by the affidavit of the defendant, or some credible disinterested person; and reasonable previous notice of such application must be given to the prosecuting attorney." In the case of State v. O’Rourke, 55 Mo. 440, this court, after quoting section 15, chapter 212, of the General Statutes of 1865, which provided that the prejudice of the judge should be a good cause for removal, expressly ruled that the provisions of section 19 as herein quoted, were applicable to the cause set forth in section 15 as above indicated, and that an application for a change of venue, predicated upon section 19 herein referred to, on account of the prejudice of the judge, simply verified by the affidavit of the defendant or some credible disinterested person, was all that was required, and that the court, under the law in force at that time, for the cause embraced in the application in that case, which was the prejudice of the judge, had no discretion in the matter when the law was complied with. We have, then, under the law of 1865, according to the interpretation of the statutes then in force upon this subject, in State v. O’Rourke, supra, an entire absence of any requirement of affidavits of either credible, respectable or reputable witnesses in support of the application for the removal of the cause upon the ground of the prejudice of the judge.

In 1873, by an act of the General Assembly, approved March 19, 1873 (Laws 1873, p. 56), section 19, herein cited, was amended so as to read as follows: ‘ ‘ The petition of the applicant for a change of venue shall set forth the grounds upon which such change of venue may be sought, and the truth of the allegations thereof shall be proved to the satisfaction of the court by legal and competent evidence; and the prosecuting attorney may, in such case, offer evidence in rebuttal of that submitted in support of such application: provided, however, that reasonable previous notice of such application shall in all cases be given to the prosecuting attorney.” This section, as amended, was the only provision of the statute in force at that time authorizing the presentation of application for changes of venue; hence, it was held in the case of State v. O’Rourke, that an application for the removal of the cause, on the ground of the prejudice of the judge, was subject to the terms and provisions of that section, and in discussing the defendant’s application in the O ’Rourke case, which was predicated upon the ground of the prejudice of the judge, this court in the discussion of section 191 as amended by the Act of March, 1873, said: “It will be seen that this amended section 19 materially changes the manner of obtaining a change of venue in criminal cases. It is now required that the truth of the allegation set forth in the application, as the grounds upon which the change of venue is sought, shall be proved to the satisfaction of the court by legal and competent evidence. This certainly has the effect to submit that which was imperative on the court before the amendment to the discretion of the court, so that under this amended section,.the question as to whether the motion for the change of venue shall be allowed or refused is now submitted under the evidence to the sound discretion of the court. If the judge’s mind is satisfied from the evidence that the facts relied on are true, he should change the venue; otherwise not. There seems to have been no evidence offered to sustain the petition in this case, but the defendant wholly relied on the fact that the application was verified by his affidavit, as was required by section 19 before it was amended in 1873. We think that the Act of 1873 governs the case, and whether its requirements be reasonable or unreasonable, it must have the effect to submit the whole question to the discretion of the court, and as no evidence was offered to sustain'the application, we cannot say that the discretion of the court was improperly exercised.”

This brings us to the provisions of 1879 and 1889 upon this subject, which are substantially the same as section 2594, Revised Statutes 1899, upon which the application in this cause was predicated. This section provides: “When any indictment or criminal prosecution shall be pending in any circuit court or criminal court, the judge of said court shall be deemed incompetent to hear and try .said cause in either of the following cases: First, when the judge of the court in which said cause is pending is near of kin to the defendant by blood or marriage; or, second, when the offense charged is alleged to have been committed against the person or property of such judge, or some person near of kin to him by blood or marriage; or, third, when the judge is in anywise interested or prejudiced, or shall have been counsel in the cause; or, fourth, when the defendant shall make and file an affidavit, supported by the affidavit of at least two reputable persons, not of kin or counsel for the defendant, that the judge of the court in which said cause is pending will not afford him a fair trial.” Then follows section 2595, which provides: “Whenever, in any criminal cause, the defendant shall make application under oath, and supported by the affidavit of two or more reputable persons, not of kin or counsel for the defendant, to the truth of the allegations in such application for a change of venue, for any of the reasons stated in the next preceding section, it shall be lawful for the judge to hear and determine such application; or whenever it shall be within the knowledge of the court or judge that any of the causes enumerated which disqualify him in any case exist, the defendant and prosecuting attorney may by agreement in writing, with the concurrence and approval of the court, elect some attorney at law, who possesses all the qualifications of a judge of the circuit court, as special judge in said cause: Provided, nothing in this act shall be construed as to authorize the selection of any attorney as special judge who is near of kin to the defendant or judge of such court by blood or marriage, or when the offense is alleged to have been committed against the person or property of said attorney, or some person near of kin to him, or when said attorney is in anywise interested or prejudiced or shall have been of counsel in the case."

At the very inception of the consideration of this proposition it must be observed that there is an entire absence of any provision of the statute suggesting or indicating any method of proof as to the truth of the allegation in the petition of the defendant contemplated by sections 2594 and 2595, supra. When we consider the plain and unambiguous provisions of section 2576, that in any application for a change of venue on the ground of the prejudice of the inhabitants of the county, not only shall the petition be supported by the affidavit of the petitioner and at least two credible disinterested citizens of the county where such cause is pending, but the truth of the allegations of the petition shall be proved to the satisfaction of the court by legal and competent evidence, and the prosecuting attorney may in such case offer evidence in rebuttal of that submitted in support of such application, the absence of any provision of the statute suggesting or indicating any method of ascertaining the truth of the allegations in the application, under sections 2594 and 2595, supra, becomes very significant, and clearly indicates an intention on the part of the lawmakers to make a distinction in the procedure in the two classes of applications.

The record discloses in this cause that the prosecuting attorney appeared to the presentation of defendant’s application based upon the section heretofore cited, and offered proof as to one of the persons supporting the defendant’s application by affidavit, tending to show that the affiant was not of good reputation; as to the other witness, he offered proof tending to show that the affiant was reputed to be of weak mind. It is insisted, upon this showing, that the court properly denied the application on the ground that one of the witnesses was not reputable and that the other was of unsound mind, and that no reasonable notice of the presentation of the application was given. Upon the question of notice of application, we are clearly of the opinion that the record discloses a waiver of any such notice. There is an entire absence in the record at the time this application was presented of any suggestion on the part of the prosecuting attorney that he had had no notice of this application, and the. fact of insufficient notice, so far as the record discloses, was never suggested until after the close of the testimony upon the application, in which numerous witnesses and records were introduced, upon the theory that the State had the right to show, under this statute, that the witnesses making affidavit in support of the application were not reputable. There are no express provisions in sections 2594 and 2595, upon which this application is based for the giving of any previous notice; however, conceding that a reasonable notice is required under the law, and there is no necessity for now undertaking to determine that question, as to whether a reasonable notice should be given under these sections of the presentation of the application, we are clearly of the opinion that, having appeared at the presentation of the application, and resisting it by the introduction of testimony, it was then entirely too late to suggest that there was no notice given.

This brings us to the consideration of the only remaining proposition upon this subject, that is, as to the inquiry upon this application and the introduction of witnesses as to the character of the persons making the affidavit supporting the application of the defendant. It will not be seriously contended that any of the testimony introduced established the fact that the parties making the affidavits were incompetent witnesses. Concede that George Dashman, one of the persons supporting the application by affidavit, was of bad repute, as an honorable, law-abiding and moral citizen, that by no means disqualified him as a witness. That the testimony in respect to the insanity of the other affiant, Lee, absolutely falls far short of establishing his insanity, so as to render him an incompetent witness, is too plain for discussion.

At a very early period in the history of this court the true spirit and meaning of a statute regulating criminal procedure, substantially embracing the same features as are embraced in the section of the statute now under discussion, was clearly interpreted in the case of Freleigh v. State, 8 Mo. 436. In that case the court had in judgment the Act of February 9, 1843, which required the truth of the allegations contained in the application of the defendant for a change of venue to be supported by the affidavit of two respectable witnesses. The present statuteupon which this application is based, requires the truth of the allegations to be supported by two or more reputable persons. In the one the term “respectable” and in the other the term “reputable” is used. We take it that it will not be seriously contended that there is any substantial difference in the meaning of these two terms as applicable to the subject now being discussed. As applied to witnesses they practically mean the same thing. Mr. Webster thus defines the term ‘£ respectable: ” “ Worthy of respect; fitted to awaken esteem; deserving regard; hence of good repute; not mean; as, a respectable citizen;” and the term “reputable:” “having or worthy of good repute; held in esteem; honorable; praiseworthy; as, a reputable man or character." In the Freleigh ease the trial court had denied the application for a change of venue on the ground that the affiants were not respectable witnesses as required by law. This court in discussing the proposition, speaking through the esteemed and learned Judge Napton, said: “The first error assigned is the refusal of the court to grant a change of venue. The affidavits of the defendant and his compurgators conform literally to the requisitions of the statute; but it appears, from the bill of exceptions, that the witnesses who swore to their belief of the facts relied on.by the defendant in his affidavit, were examined by the court, ‘touching their means of knowledge, and the grounds of their belief, ’ and though it does not appear that the action of the court was affected by anything elicited in this investigation, yet the court, it is stated, refused to change the venue, on the ground that it did not appear that the affiants were respectable, as required by law. If the term, ‘respectable’ is to be understood in its ordinary acceptation, it is obvious that the granting a change of venue must be in all cases to which the statute applies purely a matter of discretion of the court. The phrase is one unknown to the law, and it must be in the breast of every judge, who is called upon to give it a construction, to fix the criterion of respectability, by which his action will be governed. Nothing could be more uncertain and fluctuating than such a standard; and with this interpretation of the law, a change of venue could never be obtained, however exactly and literally the applicant might comply with the terms of the statute, unless the judge, in his discretion, should think proper to grant it. As the law stood in 1835, Rev. Code, p. 478, the truth of the allegations contained in the petition were required to be supported by the affidavit of some ‘credible disinterested person.' The act of February 9, 1843, requires ‘two respectable witnesses.’ The term ‘respectable,’ used in this last act, we understand to be equivalent to the phrase, ‘credible disinterested,’ as used in the act of 1835, and they are each synonymous with the word ‘competent.’ To this last epithet, the law has affixed a definite idea, and a respectable or disinterested witness, means a competent witness. Thus, the Statute of Frauds, 29 Chas. II, ch. 3, sec. 5, requires a devise to be attested, and subscribed by three or four credible witnesses; and it has been always held, that the word credible, as used in this statute, means competent. Lord Camden said, in Doe dem. Hindson v. Kersey, reported in 1 Day’s Cases in Error, 41: ‘I understand the word credible to mean worthy of credit; when applied to the person of a witness, it bespeaks him to be a person of capacity to deserve credit; I say, of capacity to deserve credit, because no man can be sure of obtaining credit, let him be ever so credible.’"

It is not contended in this case that the witnesses Dashman and Lee were incompetent; hence, we see no escape from the conclusion, if the rule of construction announced by Judge Napton is to be followed, that tbe term “reputable” must receive the same interpretation as that of “respectable” in tbe case just cited. It is apparent that tbe lawmakers, confronted with tbe interpretation of tbe term “respectable” by Judge Nap-ton, by tbe use of tbe term “reputable,” did not intend to make any cbange in tbe ebaracter of tbe witnesses wbo were required to make tbe supporting affidavit in applications for changes of venue. It is also apparent that in applications for cbange of venue based upon sections 2594 and 2595, provisions for tbe satisfactory proof of tbe allegations of tbe petition of tbe defendant were purposely omitted, and it was intended by tbe Legislature that tbe provisions of these sections should be imperative, thereby relieving tbe trial judge, wbo doubtless is often unjustly charged with prejudice, from determining tbe issue presented in applications of that ebaracter, between tbe judge on tbe one side and tbe defendant and bis supporting witnesses on the other.

The application presented by the defendant in this cause was in strict conformity with tbe requirements of sections 2594 and 2595. It embraces every essential requirement of tbe provisions of those sections, and while we recognize that almost intolerable abuses are practiced under tbe provisions of tbe law as it now stands, yet with tbe clear recognition by tbe Bench and Bar for so many years that tbe provisions of tbe statute applicable to changes of venue, on tbe ground of tbe prejudice of the trial judge, are imperative, we see no escape from tbe conclusion that tbe application in this case was in proper form and should have been granted. Emphasizing the correctness of this conclusion, we find tbe same learned judge wbo decided the Freleigh case, at a much later period, announcing that tbe provisions of tbe statute upon this subject in 1879, which is substantially tbe same as tbe present statute, were imperative. In State v. Greenwade, 72 Mo. l. c. 394, Napton, J., speaking for the court, in discussing this question, said: “There have been great fluctuations in our legislation on this subject. At one time, in 1873, the whole matter was left to the discretion of the judge, but subsequently the law, as it now stands, is quite imperative, and requires the election of a special judge." In State v. Shipman, 93 Mo. 147, in treating sections 1877 and 1878, Revised Statutes 1879, it was ruled that “when the affidavits and application made and filed by the defendant conform to the requirements of said sections of the statute, it becomes the duty of the presiding judge to hear such application, and immediately thereafter, by an order of record, to empower the members of the bar present, to the number of three or more, duly enrolled in said court and licensed attorneys of the State, and not of counsel in the case, to proceed to the election of a special judge for the trial of the particular cause pending, or to decide defendant’s application for a change of venue, etc., as provided by said section 1878,” etc. It was further announced in that case, emphasizing the views of this court, that the provisions of the statute were quite imperative. It was said: “Upon the making and filing of said affidavits and application, the presiding judge has no power or authority to act in the cause, except to make the order contemplated in section 1878. After that, his subsequent acts in the case were unauthorized, invalid, and without any binding force, as against this defendant.” It will be observed that the provisions of the present statute upon which this application is based are substantially the same as those treated in the Greenwade and Shipman cases, with the exception of some changes made in respect to the selection of special judge.

As this cause is to be retried it is proper that we now consider some of the remaining complaints of appellant.

The sufficiency of the information in this cause was challenged by appellant, and a demurrer was interposed. It is sufficient to say of this contention that while we are of the opinion that the demurrer was properly overruled, yet the charge of inflicting and giving the wound to the deceased does not conform to the approved precedents in the well-considered cases by this court. It would be much more in harmony with precedent and good pleading, instead of using the terms “thereby and thus inflicting the wound,” etc., etc., to have alleged, after the terms “to-wit, the knife aforesaid,” then and there willfully, feloniously, deliberately, premeditatedly, on purpose and of his malice aforethought, giving to him, the said John Martin, in and upon the neck and throat of him, the said John Martin, one mortal wound, etc., etc.

Complaint is also made as to the testimony of Mrs. Martin, wife of the deceased, who testified to what purported to be the dying declarations of her husband. Upon this complaint we have consulted the record, and are of the opinion that the proper foundation was laid for the introduction of the dying declaration, and that the declarations of the deceased, made to his wife, in respect to the difficulty in which he was stabbed, were competent, but that part of her statement embraced in the following answer to a question, in which,' as disclosed by the record, she said: “He begged him not more than two weeks before it happened; begged, laughed and talked and pleaded with him not to run on him, and talked him out of running on him once before that; Spivey run on him once before that with his knife and wanted to kill' him and Martin talked him out of that;” was clearly incompetent and the court should have promptly excluded it when the objection was made, and not waited to cure this error by directing its exclusion in an instruction to the jury.

The prosecuting attorney, when the defendant was on the witness stand, propounded this question: “Now state if you have not been in the penitentiary for stealing cattle ? ” It is insisted by appellant that this was an improper question and constituted error. The only ohjection to that question is its form. The right to make the inquiry sought by the question is predicated upon section 4680, R. S. 1899, which provides: “Any person who has been convicted of a criminal offense is, notwithstanding, a competent witness; but the conviction may be proved to affect his credibility, either by the record or by his own cross-examination, upon which he must answer any question relevant to that inquiry, and the party cross-examining shall not be concluded by his answer.” The defendant, if he goes upon the stand as a witness, falls within the purview of that section. The purpose of that law was simply to avoid the necessity of introducing records of convictions, and we can see no harm that can be done a defendant. If he has never been convicted he can say so, and if he has been convicted of a criminal offense and testifies in a case, whether the question is propounded to him or not, as to whether or not he has ever been convicted, the State, for the purpose of discrediting his testimony, could introduce the record of his conviction. Hence, we are unable to see what harm this statute, under the rules of evidence, does a defendant. We are, however, of the opinion that the prosecuting attorney should propound this question in accordance with the statute, that is, to inquire of the witness if he was ever convicted in any court of a criminal offense, and not for the purpose of influencing the jury, ask him “if he wasn’t in the penitentiary of this State for stealing cattle or burglarizing some store.” Section 4680, supra, does not conflict with prior section 2637, Revised Statutes 1899, which undertakes to regulate and limit the cross-examination of a defendant. The effect of the enactment of section 4680, which is a later statute, is simply to add an exception to the provisions of section 2637, supra, in respect to the cross-examination of the defendant. That this inquiry may be made of the defendant when he has testified as a witness in his own behalf, was decided in State v. Blitz, 171 Mo. 530, and followed and approved in State v. Thornhill, 174 Mo. 364.

It is also insisted that the conrt erred in permitting-the State to show by witnesses "Wildee and Taylor what deceased said to them prior to the difficulty and in the absence of the defendant. An examination of the record discloses that the court permitted these witnesses to make such statements on the ground that they were part of a conversation they had with the deceased, which was drawn out by appellant’s counsel. Under these circumstances there was no error in these witnesses detailing what was said in a conversation, a part of which was drawn out by counsel for appellant in their cross-examination of the witnesses. Under the well-settled rules of evidence this was clearly permissible.

There are other complaints as to the admission of testimony which we deem of not sufficient importance to require a discussion, and as this case is to be retried, we are satisfied that the trial court mil confine the testimony to the issues joined between the State and the defendant.

This leads us to the consideration of numerous complaints as to the conduct and remarks of the prosecuting attorney representing the State in this cause. We shall not undertake to discuss at length these complaints; however, we will say that we have read in detail the entire disclosure of the record before us, and there is no escaping the conclusion that many of the things said by the prosecuting officer would have been better left unsaid. The record abounds in cautions from the learned trial judge to the representative of the State, yet they seem to have been practically unheeded. "While the zeal and earnestness of the successful and learned prosecuting attorney in this ease, in the prosecution of offenses, is to be commended, yet we must not overlook the fact that he represents the entire people, including the defendant, and that convictions can only be fully justified when secured'upon the facts developed in the case and not by improper remarks during the progress of the trial or in the argument to the jury, which frequently go far toward influencing the conclusions reached. While we, from experience, can make allowances for the many trials to which the circuit judge is subjected in the trial of an important case, and the record in this cause discloses that he made frequent efforts to keep the prosecuting attorney within the record, yet there is only one course for the trial court to pursue in cases of that character, and that is, if the prosecuting officer insists upon getting out of the record, to promptly set aside verdicts of convictions procured in that way. This is a serious case; in fact, all criminal causes are serious, but this one is particularly so because it involves the life of a human, being, and while the testimony, as disclosed by this record, is very damaging to the defendant, and is amply sufficient to support the finding of the jury, and if he is guilty as charged, he should suffer the penalty imposed, yet the infliction of the death penalty can only be justified upon an absolutely fair and impartial trial.

The court fully instructed the jury upon murder of the first and second degrees and manslaughter of the fourth degree, and we have fully considered them and find that they are such as have repeatedly met the approval of this court, with the exception of No. 12 wherein the term “shooting77 is used instead of stabbing. The instructions cover all the grades of crime to which the testimony was applicable, and while there should be an instruction for manslaughter in the fourth degree, yet upon a retrial of this cause we simply suggest that it might be necessary, upon a consideration of the evidence, to have this instruction cover that phase of manslaughter in the fourth degree arising from heat of passion, for which there are many precedents in the decisions of this court, and not upon the theory of culpable negligence.

We have thus given expression to our views upon the legal propositions involved in the record presented in this cause, which results in the conclusion that the judgment of the trial court should he reversed and the cause remanded, and it is so ordered.

All concur.


source: Caselaw Access Project

author: GANTT, J.

license: Public Domain

text:
    THE STATE v. FLEETWOOD GORDON, Appellant.
    Division Two,
    November 21, 1905.
    1. ASSAULT: Opprobious Epithets: No Justification. Mere words of reproach, or opprobrious epithets applied’ tó a party are not sufficient provocation to justify an assault upon the person using them, or to free a party killing from the guilt of murder.
    2. SELF-DEFENSE: Voluntarily Entering Into Difficulty: Resisting Assault: Evidence: Erroneous Instruction. Deceased declared, in his dying declaration, that defendant applied opprobrious epithets to him, and that thereupon he (deceased) struck defendant with his fist. The evidence showed that a fight ensued between the two, that deceased grabbed defendant with his left arm around his head, pressed defendant to 'his body, and began choking him, and that while in this position, defendant drew a knife from his pocket and stabbed the' deceased, inflicting the wounds from which he died. Defendant testified that he stabbed deceased in order to liberate himself, and prevent the deceased from inflicting great bodily harm upon him. The evidence further showed that deceased was a large, athletic and! powerful man, weighing from 165 to 175 pounds, and that defendant was physically small, and much under the average of strength and power. The court gave an instruction (set out in the statement) which, in effect, directed the jury that if defendant voluntarily entered into the difficulty, even though he had committed no assault or offered any personal violence to the deceased, but had only applied an insulting epithet or opprobrious language to the deceased, and the deceased, upon this provocation only, had assaulted him and the defendant had voluntarily resisted the assault thus made upon him, still he had no right of self-defense. Held, that this instruction was erroneous; that, since deceased was not justified in assaulting defendant because of the opprobrious epithets, therefore, defendant had the right to resist the assault, and it was not proper to apply to Mm tlie law applied to one wlio is wrong in the first instance; and that, considering the great disparity in weight and size, and the character of the assault, it should have been submitted to the jury whether defendant had not reasonable cause to apprehend that deceased was about to hill him or do him some great bodily harm. ,
    3. -: Apprehending Danger: Reasonable Cause: Instruction. In order to acquit, on the ground of telf-defense, it is only necessary that the jury believe that the defendant had reasonable cause to apprehend, from the conduct of the deceased, that there was immediate danger of a design to commit a felony or to do great bodily harm to the defendant. And the court should not so modify instructions as to impress the jury with the idea that the danger to defendant must have been in fact real or actual.
    4. NEW TRIAL: Incompetency of Jurors. Without determining whether, in this case, the court erred in refusing a new trial on the ground of the incompetency of jurors, it is held that it would require a flagrant abuse of the trial court’s discretion to justify interference by the appellate court on that ground.
    'Appeal from Boone Circuit Court. — Hon. Alex. H. Waller, Judge.
    Reversed and remanded.

      0. Guitar, S. Turner, J. L. Stephens, J. G. Gillespy, E. W. Hinton and W. M. Williams for appellant.
    (1) Manifest error was committed by the court in giving instruction 10, upon behalf of the State. This instruction is palpably erroneous, and absolutely deprived the defendant of his right of self-defense. State v. Gilmore, 95 Mo. 554; State v. Rapp, 142 Mo. 448. One does not lose his right of self-defense by .beginning a quarrel unless he does so for the purpose of doing his adversary great bodily harm, or effecting his death. This instruction was incorrect in two particulars: first, it deprived the defendant of the right of self-defense, if he voluntarily defended himself, even though the deceased brought on the difficulty, and was the aggressor; and, second, it deprived the defendant of the right of self-defense, if he brought on the difficulty, without any design to wreak Ms malice, or without any design to inflict bodily harm. This is not the law. If the defendant had no felonious intent, he was still clothed with the right of self-defense, even though he brought on the difficulty. State v. Garrett, 170 Mo. 397; State v. Higgerson, 157 Mo. 401; State v. Rapp, supra; State v. Gilmore, supra; State v. Patterson, 159 Mo. 562. (2) Even had instruction 10 been correct as an abstract proposition of law, still it would have been error to give it in this case, for the good and sufficient reason that there is no evidence upon which to base it. (3) The court further deprived defendant of the right of self-defense in the modification of instructions 1 and 2, asked by defendant, by the insertion of the words, “if necessary.” It is not the law that the danger should have been real or actual, that is, necessary, in order to justify one in acting in self-defense. If the defendant had a reasonable cause to believe, and did believe, that it was necessary for him to do what he did, then he was entitled to an acquittal. (4) A new trial should have been granted1 because two of the jurors had formed and expressed an opinion adverse to defendant before they were summoned as jurors, and were prejudiced against him, and this fact was not disclosed on their voir dire, and was unknown to defendant. State v. Ross, 29 Mo. 51; State v. Burnside, 37 Mo. 343; State v. Wyatt, 50 Mo. 309.

      Herbert 8. Ha-dley, Attorney-General, and John Kennish, Assistant Attorney-General, for the State.
    (1) Instruction 10 is supported by the following authorities: State v. Partlow, 90 Mo. 608; State v. Pennington, 146 Mo. 27; State v. Gamble, 119 Mo. 427; State v. Patterson, 159 Mo. 560; State v. Parker, 106 Mo. 217; State v. Davidson, 95 Mo. 155. (2) When the facts and circumstances of this case are considered, the conduct of the defendant in Doellmg’s place of business, the time he went there, the language he used when requested to come later, the eagerness with which he entered the combat, the malignity with which he pursued, with open knife, his fleeing victim, there should he hut little question as to the sufficiency of the evidence on which to submit the question of bringing on the difficulty or voluntarily entering into the same. (3) Instructions 1 and 2, as modified, declared the law of self-defense in a more favorable form than defendant was entitled to. (4) The court did not err in refusing to grant a new trial to defendant on the ground that two jurors had prejudged his case. State v. Eoss, 74 Mo. 318; State v. Howell, 117 Mo. 342; State v. Cook, 84 Mo. 40.
   GANTT, J.

On the 18th day of October, 1902, the grand jury of Boone county, Missouri, at the October term of the circuit court, returned an indictment against the defendant, charging him with murder in the first degree of Hugo G. Doelling on the 8th day of July, 1902. The defendant was duly arraigned upon said indictment and entered his plea of not guilty thereto. At the February term, 1904, the defendant was put upon his trial before a jury, and was convicted of manslaughter in the fourth degree, and his punishment assessed at imprisonment in the State penitentiary for a term of two years. Motions for new trial and in arrest of judgment were filed in due time, heard and overruled and exceptions saved, and from the judgment and sentence, the defendant appealed to this court.

The evidence on behalf of the State tended to prove the following facts:

On the 8th day of July, 1902, Hugo G. Doelling was the proprietor of and conducted a restaurant in the city of Columbia, Boone county, Missouri. He was living with his wife and child in rooms immediately above the restaurant, and had lived in the city about one year. The defendant was an attorney at law,. residing and practicing at said city. An account against Doelling amounting to about forty dollars had been placed in the hands of the defendant for collection. It appears that the deceased had been slow in the payment of this bill, and the defendant in the discharge of his duty to his client had visited Doelling several times prior to the 8th of July, 1902, to collect the same. On the 8th of July, defendant’s client who owned the account had called at defendant’s office during his absence and requested defendant’s father to ask the defendant to call at his hotel at the noon hour to see him in regard to this account. When the defendant received this information, he took the account and started to the hotel; he went first to the restaurant of Doelling and went in to see Doelling about it. Several people were in the restaurant at the time eating dinner; Doelling was busy in the dining room, and when the defendant entered the front room of the restaurant, Doelling came from the dining room to meet the defendant in the front room. It appears that Mrs. Doelling was near where they met. According to the dying declaration of the deceased, when the deceased approached the defendant, the defendant presented him the account and said, “What are you going to do about this bill?” and the deceased said “Wait, come in after dinner,” and the defendant said, “You son-of-a-bitch, I won’t do it, I will not wait,” to which Doelling replied, "How dare you come into my house and call me such names ? ” To which defendant replied, “You son-of-a-bitch, I will kill you besides.” At this point the deceased in his dying declaration says when he said this, “I struck him with my fist, and he then pulled his knife and cut me. ’ ’ Mrs. Doelling did not remember seeing her husband strike him, but says that immediately after the hot words passed between them they were in a scuffle before she realized anything. The conversation between the deceased and the defendant was in such low tones that none o’f the persons who were taking their dinner at the time observed that any difficulty existed between the parties at all, until their attention was directed by the scuffle between the defendant and the deceased, and none of them testified as to who began the difficulty. After they had scuffled a few seconds, Doelling put his hand on his side and said, “He has stabbed me,” and ran out of the door crying “murder.” Doelling then ran to the corner of the block, and then out diagonally into the middle of the street. As Doelling and the defendant separated in the restaurant, the defendant was seen holding a knife in his hand. Sóme of the witnesses called it a dagger, some called it a “spring button” knife, one witness said the blade was about five inches long. As Doelling went up the street the defendant followed and when Doelling went out into the middle of the street the defendant continued straight ahead and went to his room. The evidence on behalf of the defendant tends to show that the deceased felt unkindly towards him because he had insisted on his paying tlie account. It was in evidence that the deceased upon one occasion, speaking of the defendant, said, “If that G — d -- red-headed Fleet. Gordon comes back here bothering me about that thing any more, I will break his neck and stamp him through the floor. ’ ’ The defendant testified that when he went into deceased’s place of business, the deceased approached him and in an angry voice asked him what he wanted there, and that defendant replied politely that he had come again to see about the payment of that account, and the deceased requested him to call later in the evening; that thereupon the defendant told him that he had held this account for quite awhile and had frequently been disappointed in the promises of the deceased, and was tired fooling with him, and that thereupon, without more, the deceased struck him a heavy blow in the temple; that”the blow dazed and staggered the defendant, and thereupon the deceased grabbed the defendant with his left arm around his head, pressed the defendant to his body and began choking him, and that while in this position, the defendant pulled his knife out of his pocket and cut the deceased in order to liberate himself and prevent the deceased from inflicting great bodily harm upon him. After going into the street Doelling was assisted upstairs to his rooms and the surgical examination revealed that he had received three stab wounds, one on the left shoulder, commencing at the spine and running toward the neck; a second one, about three inches from the spine between the ninth and tenth ribs, about an inch long; this second wound went straight in about two and a half inches, cutting the intercostal artery and penetrating the lung. The third wound was between the eighth and ninth ribs, about two and a half inches deep and cutting into the loop of the intestines. These wounds were fatal, and Doelling died that night about half past ten o’clock. The evidence also discloses that the deceased, Doelling, was a large, athletic and powerful man, weighing, according to -the different judgments of the witnesses, from 165 to 175 pounds, and that the defendant Gordon is physically small, much under the average of strength and power.

The court instructed the jury on murder in the first degree and second degree and manslaughter in the fourth degree. For the State the court gave instruction number ten in the following words:

“If the jury believe and find from the evidence that the defendant had an altercation with Hugo G. Doelling, which resulted in the death of said Doelling, and that the defendant commenced such difficulty or voluntarily entered into the same with the felonious intent to take advantage of the quarrel thus begun and to kill said Doelling or to do him some great bodily harm, then there is no self-defense in this case, and the jury will not acquit the defendant on that ground. And this is true, no matter how violent defendant’s passion became, or hard he was pressed, or how imminent his peril may have become during said difficulty. You are further instructed, however, that although you may believe from the evidence and beyond a reasonable doubt that defendant had an altercation with Hugo G. Doelling, which resulted in the death of said Doelling, and that said defendant brought on or voluntarily entered into said difficulty, during the progress of which difficulty defendant intentionally stabbed and killed said Doelling, yet if you further find from the evidence that he did not bring on or enter into said difficulty with the view to take advantage of the quarrel thus begun and to slay said Doelling or to do him some great bodily harm, then the defendant cannot be justified on the ground of self-defense, and the killing was manslaughter in the fourth degree, and the jury will so find, no matter how hard pressed defendant was or imminent his peril may have become during said difficulty. ’ ’

The court also modified instructions numbered one and two asked by the defendant by insertion of the words “if necessary,” so as to make said instructions read as follows:

“1. If the jury believe from the evidence that at the time of the killing of the deceased Doelling, as charged in the indictment, the defendant Gordon went to the business house of said Doelling, in Columbia, to collect a claim theretofore placed in his hands as an attorney, for collection, and that then and there an angry controversy suddenly arose between said parties, followed by blows inflicted with his, Doelling’s, fists on the head, face or body of said Gordon, and that said Doelling was a large, athletic and powerful man, and that Gordon was a physically small man, under the average of strength and power, and that he had then and there entertained a design to do him (Gordon) some great personal injury, with his fists, by reason of his (Doelling ’s) superior physical strength, and that there was then and there imminent danger of the accomplishment of such design, then the defendant Gordon was justified under the law in cutting or stabbing deceased and even to kill him (deceased) if necessary to prevent the accomplishment of snch design, even though the jury shall further believe from the evidence that said Doelling was unarmed at the time.

“2. If the defendant had any reasonable cause to believe from the words, acts and conduct of the deceased that he had a design to do him some great personal injury, and that such design was about to be accomplished, then defendant had a right to act on appearances and to cut or stab deceased (if necessary) to prevent the accomplishment of such design, and in this connection the jury are further instructed that defendant was not required to nicely gauge the force used, but that he could use any means that appeared reasonably necessary under the circumstances. Neither is it necessary to this defense that his danger should have been real or actual, or that it should have been impending and about to fall, but if he had reasonable cause to believe, and did believe these facts, and cut the deceased to prevent such expected harm, then you must acquit on the ground of self-defense.”

The other instructions will be noted as far as necessary in the discussion of the case, together with the objections of the defendant to them.

I. One. of the principal contentions in this case, and one which requires consideration, is that the court erred in giving the tenth instruction on behalf of the: State. This instruction is set forth in full in the statement which accompanies this opinion. No criticism is made on the first clause of this instruction, which told the jury that if the defendant brought on the difficulty with a felonious intent to kill the deceased, or to do him some great bodily harm, then thé defendant could not be justified on the ground of self-defense, as a legal proposition, where the evidence warrants such an instruction, but it is earnestly insisted that the latter portion of the instruction in effect advised the jury that although the. defendant voluntarily entered into the diffieulty without any felonious intent and without any purpose to do great bodily harm and after the same had been brought on by the deceased, the jury were bound to ignore any evidence tending to show self-defense, and must at all events convict defendant of manslaughter. On the part of the State it is insisted that this is a misconstruction of the instruction, that this portion of the instruction was not attempting to deal with the question of self-defense, but its purpose was to declare the law as announced in State v. Partlow, 90 Mo. 608, in which the distinction was drawn between the perfect and imperfect right of self-defense. In that case this court accepted the doctrine announced in Reed v. State, 11 Tex. App. 509, as follows:

“It may be divided into two general classes, to-wit, perfect and imperfect right of self-defense. A perfect right of self-defense can only obtain and avail where the party pleading it acted from necessity, and was wholly free from wrong or blame in occasioning or producing the necessity which required his action. If, however, he was in the wrong — if he was himself violating or in the act of violating the law — and on account of his own wrong was placed in a situation wherein it became necessary for him to defend himself against an attack made upon himself which was superinduced or created by his own wrong, then the law justly limits his right of self-defense, and regulates it according to the magnitude of his own wrong. Such a state of case may be said to illustrate and determine what in law would be denominated the imperfect right of self-defense. "Whenever a party by his own wrongful act produces a condition of things wherein it becomes necessary for his own safety that he should take life or do serious bodily harm, then indeed the law wisely imputes to him his own wrong and its consequences to the extent that they may and should be considered in determining the grade of offense which but for such acts would never have been occasioned. . . . How far and to what extent he will be excused or excusable in law must depend on the nature and character of the act he was committing, and which produced the necessity that he should defend himself. When his own original act was in violation of law, then the law takes that fact into consideration in limiting his right of defense and resistance whilst in the perpetration of such unlawful act. If he was engaged in the commission of a felony and, to prevent its commission, the party seeing it or about to be injured thereby makes a violent assault upon him, calculated to produce death or serious bodily harm, and in resisting such attack he slay his assailant, the law would impute the original wrong to the homicide and make it murder. But if the original wrong was or would have been a misdemeanor, then the homicide growing out of or occasioned by it, though in self-defense from an assault made upon him, would be manslaughter under the law.”

Bishop in the 2nd volume of Criminal Law (8 Ed.), section 701, states the rule in these words: “A common case is where two persons, upon a sudden quarrel, engage in mutual combat; then if either one, in the heat of it, kills the other, though with a deadly weapon, the offence is in most circumstances only manslaughter. When the combat has become mutual, it ordinarily ceases to be of importance by which party the first blow was given. And, as we have seen, it makes no difference though the blow which proved fatal was, while prompted by the heat of the fight, inflicted with the intent to take life." Thus it will be observed that in Part-low’s case this court held that the right of perfect or imperfect self-defense depended upon the intent with which the assailant brought on the quarrel.

If he provoked the combat, or produced the occasion in order to have a pretext for killing his adversary, or doing him great bodily harm, the killing will be murder in the first degree, no matter to what extremity he may have been reduced in the combat. If, on the other hand, he had no felonious intent, intending merely an ordinary battery, and during the progress of the fight is compelled to take the life of his adversary in order to save his own, he is guilty of manslaughter; or if, having entered into a fight without felonious intent, he seeks in good faith to abandon it and withdraws as far as he can, and his adversary still pursues him, then if necessary to save his own life he slay his opponent, he will be justified.

At common law words of reproach, how grievous soever, were not provocation sufficient to free the party killing from the guilt of murder, nor were contemptuous or insulting actions or gestures without an assault upon the person, nor was any trespassing against lands or goods to have the effect to reduce the guilt of killing to a grade of manslaughter; the provocation must consist of personal violence. [1 East’s Pleas of the Crown, 233; 4 Blackstone, Com., 201; State v. Wieners, 66 Mo. 13.] And the common-law rule in this respect is firmly established in this State by a long line of decisions. [State v. Starr, 38 Mo. 271; State v. Branstetter, 65 Mo. 149; State v. Hill, 69 Mo. 451; State v. Elliott, 98 Mo. 150; State v. Gartrell, 171 Mo. 516-519.]

Recurring now to the latter -clause of instruction number ten given by the court, and measuring it by the foregoing established principles of criminal law in this State, and in the light of the testimony, was it a correct guide to the jury, or is it open to the objection urged by the defendant on this appeal? It is to be observed in the first place that it predicates the guilt of the defendant of manslaughter in the fourth degree upon one of two alternatives, either that the defendant brought on, or voluntarily entered into the said difficulty and stabbed and, killed Doelling, and in either case deprived him of the right of self-defense. It does not tell the jury that if the defendant brought on the difficulty by any wrongful or unlawful act of his with a design to commit a battery or an assault without any felonious intent to take advantage of the quarrel thus begun and to kill Doelling or do him some great bodily harm, then he was guilty of manslaughter only. But it, in effect, directs the jury that if he voluntarily entered into the difficulty, even though he had committed no assault or offered any personal violence to the deceased, but had only applied an insulting epithet or opprobrious language to the deceased, and the deceased, upon this provocation only, had assaulted him and the defendant had voluntarily resisted the assault thus made upon him by the deceased, still he had no right of self-defense.

It has been ruled in various cases by this court that self-defense is an affirmative, intentional act, and in that sense is voluntary, and while, perhaps, it was too strongly put in State v. Rapp, 142 Mo. l. c. 448, to say that, “Voluntarily entering into a difficulty is not an ingredient of any homicidal crime,” as was said in that case, still we think it is clear that when one is assaulted by another and he neither brought on nor voluntarily entered into such a difficulty with a view to take advantage of a quarrel begun between him and his opponent, he does not forfeit his right of self-defense by voluntarily resisting the assault made upon him, and if the circumstances are such that when thus assaulted he has reasonable cause to believe and does believe that his opponent then and there entertains a design to kill him or do him some great bodily harm, and there is imminent danger of the accomplishment of such design, then he may resist the accomplishment of such a purpose by killing his adversary to prevent the accomplishment of such a purpose. In the instruction we are considering, the court told the jury that although they might “findfromthe evidence that the defendant did not bring on or enter into said difficulty with a view to take advantage of the quarrel thus begun and to slay Doelling or to do him some great bodily harm, the defendant could not be justified on the ground of self-defense, and the killing was manslaughter in the fourth degree, no matter how hard pressed defendant was or how imminent his peril may have become during said difficulty.” In other words, although the jury might have found that the defendant did no more than apply words of abuse and opprobrious epithets to the deceased Doelling, and did not assault him, and that Doelling first assaulted the defendant by striking him with his fist, and was the aggressor in the difficulty, yet if the defendant voluntarily entered into the difficulty to the extent of defending himself, then the defendant forfeited his right of self-defense. While it may have been the intention of the court to have instructed the jury that if the defendant provoked the combat or produced the occasion intending merely an ordinary battery, and during the progress of the fight was compelled to take the life of Doelling in order to save his own, he was guilty of manslaughter, we think the instruction failed to declare the law in such circumstances, but entirely deprived the defendant of the right of self-defense if he voluntarily entered into such difficulty though his only purpose was to defend himself against the unlawful assault of Doelling upon him. It is insisted by the Attorney-General that this instruction in no manner attempts to deal with the question of self-defense save to eliminate it under the facts predicated, and that the doctrine of self-defense was fully presented in another instruction on that subject. We agree with the Attorney-General that the instruction eliminates the right of self-defense from the case if the jury should find that the defendant voluntarily entered into the combat even to defend himself against the assault first made upon him by the deceased, Doelling, an opponent greatly his superior in weight and strength, and even though in the combat thus commenced by Doelling there was reasonable cause to apprehend he was about to slay defendant or do him some great bodily harm. We concede that there has been much indefinite language used in defining the rights and duties of parties in these homicide cases, and that this court has in some cases approved instructions much like the one under consideration, but since the decision in the Part-low case, the circuit courts and this court have discarded the doctrine that the mere voluntarily entering into a difficulty in defense of one’s life or limb deprives him of his right of self-defense.

That we may not be misunderstood, we hold there is a radical and well-defined distinction between the right of one who brings on or provokes a difficulty with another with the felonious purpose of wreaking his vengeance by killing him, to avail himself of the right of self-defense even though in the attempt to perpetrate his crime he finds himself in imminent peril, and the right of one who neither seeks nor brings on a difficulty, but who finding himself assaulted exercises his right of self-defense. Likewise, we think it is equally clear that if one wrongfully commences a difficulty by assaulting another and only intends to commit a misdemeanor or ordinary battery, and in the course of the combat finds it necessary, in order to save his own life, to slay his adversary, he still has the imperfect right of self-defense, and a homicide committed by one under such circumstances, even though he was at fault in the beginning, is only manslaughter, because he had no felonious purpose in bringing on or provoking the difficulty, and yet such a case is different from that which is disclosed in the record before us. Doelling, the deceased, in his dying declaration, and the defendant, the only two witnesses who speak of the commencement of the combat in which defendant stabbed Doelling, both agree in saying that the deceased assaulted the defendant by striking him a blow with his fist on the side of the temple. Deceased says he did this because defendant applied a foul epithet to him, and the defendant drew his knife after he was struck by deceased and stabbed deceased. On the other hand, defendant testified he did not use the foul language attributed to him, but said to deceased that he, defendant, “was d — n tired of fooling with him and the account too,” and thereupon deceased struck him with all his might in the temple, and a fight then ensued in which deceased got the defendant around the neck with his left hand and pounded him with his right fist and while in this situation defendant drew his knife and stabbed deceased. Now upon the conceded facts what was the right of the defendant? Conceding that deceased was right and defendant wrong as to the use of the insulting epithet, and that defendant did apply the opprobrious terms to deceased, clearly this was not a provocation which would justify deceased in making a felonious assault upon defendant, and if he had killed' defendant upon such a provocation his offense would have been murder, not manslaughter.

In Boatwright v. State, 89 Ga. 140, it appeared that the deceased, under provocation of opprobrious words, attacked the defendant with a stick, and it was held that “where a battery with a weapon likely to produce death was being committed by the deceased upon the slayer when the mortal blow was given, the fact that he provoked the battery by the use of opprobrious words would not put the slayer in the wrong for resisting it so far as was necessary to his defense; and a seeming necessity, if acted upon in good faith, would be equivalent to a real necessity."

In Butler v. State, 92 Ga. 601, it was ruled that if the assault upon the accused was made with a weapon likely to produce death and in a manner apparently dangerous to life, the fact that the accused provoked the assault by opprobrious words would not put him in the wrong for resisting it so far as necessary to his defense. And this mnst be true in this State. Either the law is that mere words of reproach or opprobrious epithets are not a sufficient provocation to justify an assault upon the person using them, or they are. If they are not, as this court has always declared, then the deceased was not justified in law in assaulting and striking defendant, even though, we accept deceased’s account of the beginning of the difficulty; and this being true, defendant was not in the wrong when resisting the assault thus made upon him, and it was not correct to apply to him the law as to one who was in the wrong in the first instance, either in provoking a difficulty with a design and intent to slay his adversary, or even the case of one who sought or provoked a difficulty by a wrongful act but intended to commit only a misdemeanor or battery. In this case, if the evidence of the deceased and defendant, who alone testify as to the commencement of the difficulty, is to be credited, defendant did not give the deceased any provocation which the law recognizes which would have justified the assault made by the deceased upon defendant, and hence, the defendant had a light to defend himself against that assault and to do so voluntarily, and considering the great disparity in weight and size and the character of the assault, it should have been submitted to the jury whether defendant had not reasonable cause to apprehend that deceased was about to kill him or do him some great bodily harm. Our conclusion is that in the light of the more recent decisions of this court since the Partlow case, notwithstanding there are cases which seemingly conflict with the view, it is error to instruct that a defendant in a personal altercation forfeits the right of self-defense merely because he voluntarily engages in a difficulty. The occasions on which this right is forfeited have beenpointed out in the foregoing excerpts from the decision in State v. Partlow, 90 Mo. 608, and in eases cited. The tenth instruction as applied to the facts in this record was, in our opinion, misleading and erroneous. It was not made applicable to the state of the testimony and should not have been given even when modified by omitting the clause as to “voluntarily entering into the difficulty,” without fully advising the jury as to what constitutes provocation that will justify an assault and as to what is meant by “provoking a difficulty” or “being free from fault.” Mere words of reproach or opprobrious epithets do not constitute such provocation as would put the defendant in any degree in the wrong if it became necessary to kill Doelling in his own defense.

II. The criticism of instructions 3 and 6, on the ground that they assume that the knife with which defendant stabbed deceased was a deadly weapon, is without merit. Both instructions submit the question as one of fact to the jury. [State v. Weeden, 133 Mo. 83.]

III. As to the alleged failure to submit to the jury whether the dying declaration was in fact made, we think there was no just ground of complaint. Defendant asked and obtained an instruction (No. 12) which assumed a dying declaration had been made and was exceedingly favorable to defendant. Besides, such omission can readily be supplied on another trial.

IV. The instruction on reasonable doubt was substantially correct, but we again approve the formula expressed on this subject in State v. Nueslein, 25 Mo. 111.

V. The defendant prayed the court to declare the law to be as follows:

“1. If the jury believe from the evidence that at the time of the killing of the deceased Doelling, as charged in the indictment, the defendant Gordon went to the business house of said Doelling, in Columbia, to collect a claim theretofore placed in his hands as an attorney, for collection, and that then and there an angry controversy suddenly arose between said parties, followedby blows inflicted with his, Doelling’s, fists, on the head, face or body of said Gordon, and that said Doelling was a large, athletic and powerful man, and that Gordon was physically a small man, under the average of strength and power, and that he had reasonable cause to believe that deceased then and there entertained a design to do him (Gordon) some great personal injury, with his fists, by reason of his (Doelling’s) superior physical strength, and that there was then and there imminent danger of the accomplishment of such design, then the defendant Cordon was justified, under the law, in cutting or stabbing the deceased and even to hill him (deceased) to prevent the accomplishment of such design, even though the jury shall further believe from the evidence that said Doelling was unarmed at that time.

“2. If the defendant had reasonable cause to believe from the words, acts and conduct of the deceased that he had a design to do him some great personal injury, and that such design was about to be accomplished, then defendant had a right to act on appearances, and to cut or stab deceased to prevent the accomplishment of such design, and-in this connection the jury are further instructed that defendant was not required to nicely gauge the force used, but that he could use any means that appeared reasonably necessary under the circumstances. Neither is it necessary to this defense that his danger should have been real or actual or that it should have been impending and about to fall, but if he had reasonable cause to believe, and did believe these facts, and cut the defendant to prevent such expected harm, then you must acquit on the ground of self-defense.”

The circuit court modified these two instructions by adding the words "if necessary." In the first, those words were inserted in the third line from its conclusion after the words, “And even to kill him, deceased, if necessary.”

In the second of said instructions, the words “if necessary” were inserted after the words in the fifth line, “then defendant had a right to act on appearances and to cut or stab deceased, if necessary." The words “if necessary” add-nothing to the clearness of the legal propositions asserted in these instructions. The instructions were correct without them,and while the legal mind might reconcile them with the remainder' of the instructions, they were calculated to impress the jury with the idea that the danger to defendant must have been in fact real or actual, or that he must use exactly the amount of force necessary to defend himself and no more, whereas it is the settled law of this State that it is not necessary, in order to acquit on the ground of self-defense, that the danger should have been real or actual or that such danger should have been then impending and about 'to fall on defendant. It is only necessary that the jury shall believe that the accused had reasonable cause to apprehend that there was immediate danger of a design to commit a felony or to do great bodily harm to the defendant about to be accomplished.

VI. As a reversal of the judgment results from the errors already noted, it is unnecessary to consider whether the court erred in refusing a new trial on the ground of the incompetency of two jurors, further than to say it was a question of fact which the circuit court determined, and it would require an exceptionally flagrant abuse of discretion to justify our interference on such a ground. For the reasons assigned the judgment must be reversed and the cause remanded for a new trial in accordance with the views herein expressed and it is accordingly so ordered.

Burgess, P. Jand Fox, J., concur.