author: FOX, P. J.

text:
    THE STATE v. LOUIS ZORN, Appellant.
    Division Two,
    March 5, 1907.
    1. EXCLUSION OF EVIDENCE: Not Set Out: Infidelity of Declarant. Where it is insisted on appeal that the trial court committed error in excluding certain testimony tending to show that deceased was an infidel, it is necessary that the record disclose the testimony along that line appellant proposed to introduce. Where the testimony offered has no tendency to show that deceased was an infidel, it is not admissible as affecting the weight which should be given to his dying declaration.
    2. TURBULENCY OF DECEASED: Reputation: Admissible Evidence. Where a homicide occurs under such circumstances that it is doubtful whether the act was committed maliciously or from a well-grounded apprehension of danger, testimony tending to show that the deceased was a turbulent, violent or desperate man is always admissible, in order to determine whether defendant had reasonable cause to apprehend great personal danger to himself.
    3. -: -: -: When Defense of Self-Defense is Developed. Where the defense of self-defense is relied upon, and has been sufficiently developed to inform the court that that is the defense relied upon, it is proper to admit testimony tending to show that deceased was a turbulent, violent or desperate man. And where there is evidence tending to show that at the time the shot was fired deceased was in a threatening attitude, with a dangerous weapon in his hand and in the act of striking defendant, testimony as to deceased’s reputation for turbulency is admissible as soon as it develops that the defense of self-defense is relied upon — if not so developed when offered, then later when it is developed.
    4. DYING DECLARATION: Admissibility: Question for Court. It is the province of the jury to determine the credit or weight to which a dying declaration is entitled. But whether or not it is a dying declaration made by deceased, and whether or not it is admissible in evidence, are questions solely for the determination of the court. It is fundamental, in order for a dying declaration to be admissible in evidence, that declarant, at the time he made it, was conscious of impending death; and it is the exclusive province of the court to determine whether that condition did actually exist. An instruction which permits the jury to determine whether the declaration was made under such circumstances as constituted it a dying declaration, and to determine -whether or not it was admissible in evidence, as the instruction in this case does, is manifestly erroneous.
    5. -: -: -: Submitted to Jury: No Error Nevertheless. But nevertheless, if the court had already ruled it to be a dying declaration and admissible in evidence, the mere fact that the court thereafter erroneously submitted such preliminary question to the jury by an instruction would not of itself constitute reversible error. But that is not this case. Here the court first heard the State’s evidence in the absence of the jury, then announced that the court would then hear defendant’s evidence or “you can offer it before the jury if you wish.” The jury was brought in, and the State’s evidence again presented, and the declaration was admitted over defendant’s objection. Then defendant offered its evidence on the subject and the State its evidence in rebuttal, and then the court, along with the other instructions, gave one which authorized the jury to determine whether or not there was a dying declaration, and whether or not it was admissible in evidence. Held, that the court did not, either by giving this instruction or otherwise, determine whether or not there had been a dying declaration or whether or not it was admissible in evidence, and the error is reversible; for, there being no ruling by the trial court to the effect that the declaration was admissible, this court can make none.
    6. -: On State’s Testimony Alone. In determining the admissibility of the dying declaration, the court cannot consider alone the prima-facie case made by the State, and exclude all evidence offered by defendant.
    7. -: -: Ruling of Trial Court Doubtful. There should be no guessing or inferences indulged as to whether or not the trial court ruled that a proper foundation had been laid for the introduction of a dying declaration.
    8. MURDER IN SECOND DEGREE: Instruction: Manslaughter. Where defendant objected to the court giving an instruction on manslaughter in the fourth degree, he cannot complain that the instruction on murder in the second degree ignores the provocation which might have reduced the killing to manslaughter in the fourth degree.
    9. -: -: -: Murder or No Offense. Where, under the facts developed, defendant was either guilty of murder in the first or.second degree, or of no offense because the killing was justifiable in the proper defense of his person, there is no room for instructions on manslaughter in the fourth degree.

      10. IMPERFECT SELF-DEFENSE. The right of imperfect self-defense can only arise when the defendant at the commencement of the difficulty was the aggressor or wrongdoer.
    11. DYING DECLARATION: Evidence. Testimony offered at the preliminary inquiry as to the competency of a dying declaration is addressed to the court, and all testimony tending to show the condition of the deceased at the time the declarations were made should he admitted.

      12. REMARKS OF COUNSEL: Fair Trial. The Supreme Court will .reverse a judgment if the attorney for the State has injected a line of argument which makes it apparent that defendant did not get a fair and impartial trial. But timely objections and exceptions must he made to such remarks, and besides if the defendant’s counsel provoked them defendant can not complain.
    13. INFORMATION: Grammatical Errors. The information may sufficiently and fully inform defendant of the nature and cause of the accusation against him, though it may not strictly conform to proper grammatical construction.
    Appeal from Jackson Criminal Conrt.- — Hon. Howard Gray, Special Judge.
    Reversed and remanded.

      Heed, Yates, Mastín & Howell for appellant.
    (1) Tlie information is fatally defective, in this, that there is no direct charge that defendant did ‘ ‘ discharge and shoot off, upon and against the deceased” the revolver described in the information. State v. Gleason, 172 Mo. 259; State v. Wilson, 172 Mo. 420'; State v. Gray, 172 Mo. 430; State v. Gregory, 178 Mo. 48; State v. Reakey, 62 Mo. 401; State v. Fairlamb, 121 Mo. 137; State v. Hayes, 24 Mo. 358; State v. Hard-wick, 2 Mo. 226; Jane v. State, 3 Mo. 61; State v. Ferguson, 152 Mo. 92. (2) The court erred in submitting the question of the competency of the dying declaration of deceased to the jury. The admissibility of a dying declaration in evidence and its competency as evidence are questions with which the jury has nothing to do. State v. Burns, 33 Mo. 483; State v. Johnson, 118 Mo. 504; State v. Sexton, 147 Mo. 102; State v. McCanon, 51 Mo. 160; Wharton on Criminal Evidence (9 Ed.), see. 297; State v. Simon, 50 Mo. 370; State v. Johnson, 76 Mo. 124. (3) The court erred in giving instruction 4 of the first series of instructions, in improperly defining murder in the second degree. State v. Phelps, 76 Mo. 319; State v. Mitchell, 98 Mo. 657; State v. Elliott, 98 Mo. 150; State v. Evans, 124 Mo. 411; State v. Williamson, 16 Mo. 394; State v. Kotobsky, 74 Mo. 247. (4) The dying declaration should not have been admitted in evidence, as it does not appear that deceased thought that he was in extremis at the time he made the declaration, and it is shown by the testimony that he had not abandoned all hope of recovery. State v. Simon, 50 Mo. 370; State v. McCanon, 51 Mo. 160; State v. Draper, 65 Mo. 335; State v. Nelson, 101 Mo. 464; State v. Turlington, 102 Mo. 642; State v. Part-low, 90 Mo. 608; State v. Johnson, 118 Mo. 491. (5) The court erred in giving instruction 5 in the first series of instructions for the reason that there was no evidence in the case upon which to base such an instruction. Giving this instruction the court should have given the corollary thereof, that if deceased provoked and began the quarrel without a felonious intent, then he was not deprived of the right of self-defense. The defendant asked the court to instruct on all the law of the case. State v. Partlow, 90 Mo. 608; State v. Gilmore, 95 Mo. 554; State v. Forsythe, 89 Mo. 667; State v. Cable, 117 Mo. 384; State v. Lewis, 118 Mo. 84; State v. Evans, 128 Mo. 406; State v. Rapp, 142 Mo. 443; State v. Hopper, 142 Mo. 478. (6) The court erred in refusing to give defendant’s instructions 8 and 11; if they were improper in form, the court should have given proper ones on the points suggested. Authorities cited under point 5; State v. Matthews, 20 Mo. 55; State v. Stonum, 62 Mo. 596 ; State v. Patrick, 107 Mo. 147; State v. Lowe, 93 Mo. 547; State v. Luke, 104 Mo. 563. (7) The court erred in permitting the prosecuting attorney to use improper language in his closing argument to the jury over the objection of defendant. State v. Pagets, 92 Mo. 300; State v. Woolard, 111 Mo. 248; State v. Lee, 66 Mo. 165; State v. Mobly, 68 Mo. 315; State v.' Reed, 71 Mo. 200; State v. Ulrich, 110 Mo. 350; State v. Young, 991 Mo. 666; State v. Fisher, 124 Mo. 460; State v. Bobbst, 131 Mo. 328; State v. Jackson, 95 Mo. 623. (8) The separation of one of the jurors from his fellow jurors in the dining-room of the Ashland Hotel during the trial of the cause, and his conversation with a stranger in said dining-room, was sufficient cause for a new trial, and the court erred in overruling defendant’s motion for a new trial on that ground. State v. Gray, 100' Mo. 523; State v. Murray, 91 Mo. 95; State v. Witten, 100 Mo. 525; State v. Schaeffer, 172 Mo. 335; State v. Or-rick, 106 Mo. 111. (9) During the trial, defendant sought to make an objection to certain testimony then being offered by the State; the court refused to permit defendant in person to make any objections whatever. This was in direct violation of section 22, of the Bill of Rights of the Constitution, which guarantees to every person upon trial in a criminal case, the right to appear and defend both “in person and by counsel”— and also in violation of a like provision of the U. S. Constitution.

      Herbert S: Hadley, Attorney-General, and John 'Kennish, Assistant Attorney-General, for the State.
    (1) The information is sufficient. In an indictment charging the crime of murder by shooting, the use .of the word “with” in the clause descriptive of the weapon, to-wit, “and with a certain revolving pistol,” though unnecessary, does not render the indictment invalid. State v. Turlington, 102 Mo. 651; State v. Wilson, 172 Mo. 428; State v. Gregory, 178 Mo,. 56; E. S. 1899, sec. 2535. (2) Prejudicial error was not committed by tbe court in submitting to tbe jury in instruction 4 the question as to tbe competency of tbe dying declaration. When it is sought to offer in evidence a dying declaration in a case of homicide, it is tbe general practice to offer tbe preliminary proof as to tbe competency of such declaration to tbe court in tbe absence of tbe jury. However, tbe question as to whether or not tbe jury shall be excluded when tbe preliminary inquiry is made is “a matter resting in tbe sound discretion of tbe court.” 4 Eney. of Eivid., sec. 2, p. 951. In tbe case at bar, tbe court, in tbe absence of tbe jury, beard tbe evidence offered by tbe State as to tbe competency of tbe dying declaration. No evidence was offered by defendant on this preliminary inquiry, although informed by tbe court at tbe time that tbe court would permit him to introduce such evidence then or after tbe jury was returned into court. Tbe dying declaration was offered in evidence over tbe objection of defendant. Thereafter, defendant offered evidence tending to prove that deceased was not in extremis at .the time tbe dying declaration was made. In said instruction 4 tbe court declared tbe law upon tbe question of tbe dying declaration. This instruction not only declared tbe law as to tbe weight to be given to such testimony, but also required tbe jury to find the facts making such declaration competent in order that they might consider it as evidence in tbe case. 1. No objection was made by defendant at tbe time to tbe evidence offered by tbe State tending to prove tbe competency of tbe dying declaration, and, therefore, that question is not now before this court for review. 2. If said instruction 4 is subject to criticism, it is because it was too' favorable to defendant. After tbe court bad admitted tbe dying declaration in evidence, tbe State was entitled to have it considered as such by the jury (if the jury find it was in fact made by the deceased), without regard to the facts concerning the competency of such declaration. State v. Parker, 172 Mo. 203; State v. Yan Sant, 801 Mo. 67; State v. Hendricks, 172 Mo. 670; State v. McCanon, 51 Mo. 160. If error was contained in said instruction 4, it was in submitting to the jury the question of the competency of said dying declaration, and, as such, being error committed in favor of the defendant, is not reversible. R. S. 1899, sec. 2535. (3) The court did not err in admitting in evidence the dying declaration of deceased. The preliminary proof .clearly showed that deceased believed that he was in extremis when such declaration was made. State v. Craig, 190 Mo. 332; State v. Brown, 188 Mo. 451; State v. Nocton, 121 Mo. 527. Even though deceased may have 'entertained a hope of recovery after making the declaration, that fact would not render the declaration inadmissible in evidence. State v. Kilgore, 70' Mo. 553. (4) The court did not err in failing to instruct the jury on the defendant’s right of imperfect self-defense, nor in giving instruction 5 on behalf of the State. Defendant’s right to an instruction on the question of imperfect self-defense could only have been given upon the theory that he was guilty of manslaughter in the fourth degree, and as the defendant expressly objected to the giving of an instruction on that phase of the case, he cannot be heard to complain of an error committed at his instance. “Self-invited error cannot be made the basis for an assignment of error.” State v. Cushenberry, 157 Mo,. 182; State v. Keele, 105' Mo. 38; R. S. 1899, sec. 2535. (5) Error is assigned because of the action of the court in permitting the prosecuting attorney in his closing argument to argue to the jury as to the trespass of defendant on the premises occupied by deceased. While the entire closing argument of the prosecuting attorney is incorporated in the hill of exceptions, only such portions as were objected to at the .time, and proper exceptions saved, can be reviewed in this court. Setting out the language objected to for the first time in the motion for a new trial is not sufficient. And if defendant’s counsel went outside of the record in his argument, he cannot be heard to complain because the prosecuting attorney did likewise in replying thereto. State v. Hyland, 144 Mo. 302; State v. Summar, 143 Mo. 220; State v. Forsyth, 89 Mo. 667; State v. G-artrell, 171 Mo. 489; State v. Hibler, 149 Mo. 78j State v. Barrington, 198 Mo. 23.
   FOX, P. J.

“State of Missouri, County of Jackson, ss.

“In the Criminal Court of Jackson County, Missouri, at Kansas City, Missouri, September Term, A. D. 1903.

“Now comes Roland Hughes, Prosecuting Attorney for the State of Missouri in and for the body of the County of Jackson, and upon his oath informs the court that Louis Zorn whose Christian name in full is unknown to said prosecuting attorney, late of the county aforesaid, on the 23d day of June, 1902, at the County of Jackson, State of Missouri, in and upon one Albert Sechrest then and there being, feloniously, willfully, deliberately, premeditatedly, on purpose and of his malice aforethought did make an assault and with a certain revolving pistol, which was then and there loaded with gunpowder and leaden bullets, and by him the said Louis Zorn in his hands then and there had and held and which said pistol he the said Louis Zorn did then and there feloniously, willfully, deliberately, premeditatedly, on purpose and of his malice aforethought, discharge and shoot off at, upon and against him the said Albert Sechrest and he the said Louis Zorn with the leaden bullets aforesaid out of the pistol aforesaid then and there by force of the gunpowder aforesaid, by the said Louis Zorn so shot off and discharged as aforesaid, then and there feloniously, willfully, deliberately, premeditatedly, on purpose and of his malice aforethought did strike, penetrate and wound the said Albert Sechrest in and upon the body of him the said Albert Sechrest, thus and thereby, then and there feloniously, willfully, deliberately, premeditatedly, on purpose and of his malice aforethought, giving to him the said Albert Secrest with the leaden bullets aforesaid, so as aforesaid discharged and shot off out of the pistol aforesaid, by the said Louis Zorn one mortal wound, of which said mortal wound the said Albert Sechrest from the said 23d day of June in the year aforesaid until the 24th day of June in the year aforesaid, did languish and languishing did live, on which said 24th day of June in the year aforesaid the said Albert Sechrest at the County of Jackson and State of Missouri, of the mortal wound aforesaid, died; and so the prosecuting attorney aforesaid upon his official oath aforesaid, doth say that the said Louis Zorn him the said Albert Sechrest at the County and State aforesaid, in the manner and by the means aforesaid, feloniously, willfully, deliberately, premeditatedly, on purpose and of Ms malice aforethought did Mil and murder; against the peace and dignity of the State. Roland Hughes,

“Prosecuting Attorney.

“State of Missouri, County of Jackson, ss.

“Roland Hughes, prosecuting attorney of Jackson county, Missouri, being first duly sworn, on his oath says that the facts set forth in the above and foregoing information are true according to the best of his information and belief. Roland Hughes.

“Subscribed and sworn to before me this 12th day of December, 1903. Charles Y. Renick:,

“Clerk of the Criminal Court.

“By William L. MoClanahan, Deputy Clerk.”

The record discloses that there have been three trials of this cause. In the first two trials the jury failed to agree, and on the third trial, at which the Hon. Howard Gray presided as special judge, and which was begun on the 11th of July, 1905, the jury returned a verdict finding the defendant guilty of murder in the second degree and fixed his punishment at fifteen years in the State penitentiary.

We deem it unnecessary to burden this opinion with anything like a detailed statement of the testimony of all the witnesses testifying in this cause; to do so, would require quite a volume. We shall be content with a mere reference to the testimony and what facts it tended to establish. This will be sufficient to enable us to determine the legal propositions presented by the record.

The evidence on the part of the State tended to show that the defendant, Louis Zorn, lived in a large brick house on the west side of Prospect avenue, his yard extending from Eighth to Ninth street; that is, the house of the defendant faced east on Prospect avenue, and Ms yard occupied the east half o,f the block between Eighth and Ninth street. In the southwest corner of Zorn’s property there was located a small cottage, which, with the yard surrounding it, was fenced off from the rest of the Zorn property by a board fence five feet high. This house faced on Ninth street and was occupied by the deceased as a tenant of the defendant. In the rear and a little to1 the east of the cottage was situated a cistern, on which there was a pump, and a walk led down from the rear of the cottage to the fence at the back of the Sechrest premises, where there was a gate opening into the Zorn yard. The deceased had occupied the cottage as above spoken of for sometime as a tenant of the defendant, but had sometime previous to the 23d of June been notified to vacate. The testimony relied upon by the State consists of the testimony of Mrs. B. R. Bridge-ford and J. "W. Alexander, together with the dying declaration introduced in .evidence and marked ‘‘Exhibit’B” in the record. This testimony tended to show that on the 23d day of June the defendant, with one of Ms hired men by the name of Joe Orton, attempted to go upon the Sechrest premises, which was objected to by Mr. Sechrest. According to the dying declaration of the deceased, when the hired man and the defendant, Louis Zorn, came to the gate the deceased told the hired man not to come in; that the defendant Zorn then opened the gate, entered the Sechrest premises, drawing a pistol from his pocket, whereupon Sechrest jumped back and the defendant fired a shot at him which struck the deceased between the seventh and eighth rib, about three inches to the right of the median line, passed through the liver, both walls of the stomach and lodged in the lower part of the pelvic cavity. The deceased was assisted by his wife, who was present at the time, to the front p-orch of the house, where he remained until the police ambulance came for him and he was removed to St. Joseph’s Hospital, where he died about 2 o ’clock the next day. The shooting occurred a little after 5 o’clock on the afternoon of the 23d day of June. The dying declaration of the deceased, which was introduced in evidence, was as follows:

“I, Albert L. Sechrest, realizing that I am about-to die, and having given up all hope of recovery, make this statement about the trouble during which Dr. Zorn shot me this afternoon. The hired man came to the gate; I told him not to come in; Mr. Zorn opened the gate and stepped inside; he ran his hand in his pocket and drew a pistol; I jumped back and he pointed the pistol at me.and shot; I had no weapon of any kind in my hand; I did not attempt to strike him with any club, or other weapon; the hired man did not come inside; I make this statement realizing that I am mortally wounded and I have no hope of recovery.

“A. L. Sechkest.

“E. E. Gray,

“June 23, 1902.”

Mrs. B. R. Bridgeford, one of the witnesses for the State, substantially testified as follows: That she was the wife of B. R. Bridgeford, a livestock dealer at the Kansas City stock yards; that she was sitting at her upstairs window across- the street from which she could see the back yard of the Sechrest premises; that she could see the pump therein and a small portion of the rear fence; that her attention was attracted by a pistol shot, and she looked up and saw in the Sechrest back yard between the pump and the rear fence, nearer the pump than the fence, three forms, two men and a woman, and saw a puff of smoke rising as from the shot of a pistol; that she saw one of the men clasp his hands on his stomach, and that this man, as she afterwards learned, was Mr. Sechrest; that she did not see Mr. Sechrest have any hoe in his hand; that after the shot was fired she immediately ran downstairs and out on the front porch and then saw Mr. Sechrest being assisted by his wife to the front porch. Upon the question as to whether Mr. Sechrest had a hoe in his hand at the time of the shooting, this witness, Mrs. Bridge-ford, answered questions as follows: “Q. If Mr. Sechrest had a hoe in his hands at the time of the shooting and dropped it as soon as he was shot, you couldn’t have seen it? A; I don’t believe I could state whether I could judge whether he had a hoe and had dropped it or not. Q. You don’t undertake to tell this jury that Mr. Sechrest didn’t have a hoe in his hand when he was shot? A. I only say I didn’t see a hoe in his hand; that is all I can say.”

J. W. Alexander substantially stated in his testimony that he was engaged in- the grocery business and on the 23d day of June was employed by the Missouri Dairy Company as a driver of one of its wagons; that on the evening of that day he was driving south on 9th street and as he approached the watering trough at the northwest corner of Ninth and Prospect, his attention was attracted to the Sechrest premises by some loud talking on the west side of a clump of weeds that stood in the northwest corner of the Sechrest yard; that he arose in his wagon, stepped out upon the handlebar and looked in that direction; the wagon was moving at that time; that he could not understand what was being said by the parties who were talking, but they seemed to be quarreling; that when his attention was first attracted he could not see the parties but as his wagon advanced toward the south he saw three parties, two men and a woman, in the Sechrest yard between the pump and the rear fence, about twelve or fourteen feet to the rear of the house; that the taller of the two men was facing north and the other was facing south; that on account of the board fence on the east side of the Sechrest yard he could only see the head and shoulders of the defendant with whom he was personally acquainted; that he heard a shot and saw the smoke from the pistol; he says there was a gate in' the fence on the east side of the Sechrest yard, but that he didn’t see the parties through the gate, which was opened at the time, but did see them over the fence. He further stated that at the time the shot was fired, so far as he could see, it seemed that Mr. Sechrest’s arms were hanging at his side, and that he did not see him have any weapon raised above his shoulders; that after the shot was fired he saw Mrs. Sechrest assist her husband to the front porch, to which place the witness afterwards went.

The testimony on the part of the defendant tends to show that Dr. Zorn and a hired man named Orton went to the premises occupied by the deceased, Albert Sechrest, which were leased to the deceased by the appellant, but which were soon to be vacated; that the defendant Zorn and Orton went over to the premises occupied by the deceased for the purpose of planting some flowers. The defendant introduced witness Paul Begalke; this witness was in the employ of the defendant Zorn; he testified in part in substance. about as follows: “On the 23d day of June, 1902,1 was cleaning up in the house about 6:30 and I heard Doctor Zorn go into the kitchen, I don’t know exactly I was upstairs or downstairs; I was cleaning up the house, I had my bucket full of paper, so I just went up and picked up the bucket and started out to the ash pile to burn it up, when I got out on the back porch I seen Dr. Zorn and this hired man walked out into the back yard; it was ten or fifteen feet in front of me, maybe farther than that; when I got out there I looked around and I seen this big fellow, Albert Schrest, he was on the back of the house; Doctor and his hired man was walking down to the gate; when I got out to the ash pile I saw again Mr. Sechrest; he was standing on the fence when Dr. Zorn and the hired fellow got to the fence; Joe Orton opened the gate and this big fellow, Mr. Sechrest, he said something, I don’t know what he did say, he said something; Joe Orton opened the gate; as soon as Joe Orton opened the gate Sechrest jumped through and snatched the hoe out of Joe’s hand, then a couple or two and a half feet, he raised up the hoe to strike Doctor, then the shot was fired.” This witness stated that he did not hear any loud talking and that the only thing he heard said was the remark by Sechrest which was made in such a low tone of voice that he could not hear it. He further testified thataboutfour or six weeks before this killing happened the deceased told him, referring to Dr. Zorn, that he would like to get hold of this fat-bellied Dutchman.

Louis Dumball was another witness introduced on the part of the defendant. His testimony tended directly to contradict that of J. W. Alexander. He testified substantially that he was at the watering trough spoken of by witness Alexander and that heheardashot fired and that he inquired of Alexander as to what was the matter over there where the shot was fired; that Alexander replied that “he didn’t know;” he then, described the Sechrest premises and about the location in the yard where the difficulty occurred, all of which tended to show that Alexander, from the point he says he was, was unable to see what he testified he did see in respect to this difficulty.

There were other witnesses introduced on the part of the defendant tending to show that where this difficulty occurred in the Sechrest premises was not at the place or point as testified to by Alexander. There was other testimony introduced on the part of the defendant tending to affect the credibility and weight to be attached to the testimony of Alexander and Mrs. Bridgeford.

Witness Pike was introduced on the part of the defendant; he was a civil engineer by occupation; he made a survey of the premises and surroundings where this difficulty occurred. His testimony tended to show that witness Alexander on the part of the State, at the point where witness Alexander says he was standing on his wagon, could not have seen what he testified he did see in the Sechrest yard at the time of this difficulty.

There was also a controverted issue in this cause as to the proper foundation being laid for the introduction of the dying declarations of the deceased. It can serve no useful purpose to undertake to detail the testimony upon that issue. In laying' the foundation the State introduced Horace S. Kimbrell and I. B. Kimbrell. The appellant upon this issue introduced Steven A. Northup, W. H. Coffey and Sepha Edmunds. We will give the testimony of the witnesses upon that issue such attention as it merits during the course of the opinion.

This is a sufficient statement to indicate the nature and character of the testimony upon which this cause was submitted to the jury, and is amply sufficient to enable us to determine the legal propositions involved. At the close of the evidence the court instructed the jury upon murder in the first and second degrees, self-defense and reasonable doubt and other phases of the case to which the testimony was applicable. It can serve no good purpose to embrace the instructions in this statement, but they will be given such consideration as we deem necessary during the course of the opinion. The cause was submitted to the jury and they returned a verdict finding the defendant guilty of murder of the second degree, and fixing his punishment at imprisonment in the penitentiary for a term of fifteen years. Timely motions for new trial and in arrest of judgment were filed and by the court overruled. Judgment and sentence was entered of record in conformity to the verdict and from this judgment the defendant in proper form and in due time prosecuted his appeal to this court and the record is now before us for consideration.

OPINION.

The record in this canse discloses the assignment of numerous errors on the part of the trial court as a basis for the reversal of this judgment. We shall give to the complaints of appellant such attention as their importance merit and demand. The record before us discloses that counsel representing the defendant on this appeal did not represent him on the trial of the case in the lower court.

I.

It is insisted by appellant that the court erred in the exclusion of the testimony of witness Sepha Edmunds, the nurse at the hospital at the time it is said that the deceased made the dying declaration which was offered in evidence. The testimony of this witness, of which complaint is made, was as follows:

“Q. Do you remember when the Rev. Dr. Northrup came? A. Yes, sir. Q. Do you remember anything Mr. Sechrest said at that time with reference to getting well? A. He repeated the same things to Dr. Northup that he had to me that night and to others. Q. With reference to whether he wanted the doctor to pray for him?

“We object to that as immaterial.

“The Court. Anything that he said with reference to' his condition you may show.

“Wouldn’t it be competent to show that the declarant was an infidel?

“The Court. I have stated you can prove that if he said anything touching his condition. - I don’t want it unless it is in connection with some statement as to his hope of recovery.

“We offer that for the purpose of touching upon his infidelity.

“The Court. Objection sustained.

“Exception.”

It is sufficient to say of this complaint that the action of the court in excluding' this testimony does not, in' our opinion, constitute reversible error. It is insisted by appellant that this testimony was admissible as tending to show that deceased was an infidel and therefore should go to the jury as affecting the weight to be attached to his dying declaration. We are unable to give our assent to this insistence. The testimony as above indicated has no such tendency and the fact that he either wanted or did not want the minister to pray for him was immaterial and the court committed no error in excluding it. If it was competent to show that the deceased during his life was an infidel for the purpose of lessening the weight to be attached to his testimony, to properly preserve the action of the trial court in refusing to hear testimony upon that subject, it was essential that the appellant should have’ the record disclose the testimony along that line he proposed to introduce, and having failed to do this there is nothing before this court upon that subject for review. As was ruled by Burgess, J., in State v. Hodges, 144 Mo. l. c. 55, “The defendant should have stated what’ he proposed to prove so' that the court could determine whether or not it was material and admissible in evidence.” A similar rule was announced in case of State v. Martin, 124 Mo. 514.

II.

It is next insisted that the court erred in excluding the testimony of Mrs. Oliver H. Stanley, respecting the general reputation of the deceased for being a turbulent and quarrelsome man. The law upon this subject is so well settled by the uniform expressions of this court that it is hardly necessary to cite authorities touching the subject. Where a homicide occurs under such circumstances that it is doubtful whether the act was committed maliciously or from a well-grounded apprehension of danger, testimony tending to show that the deceased was of a turbulent, violent and desperate character is always admissible in order to determine whether defendant had reasonable cause to apprehend great personal injury to himself. [State v. Bryant, 55 Mo. 75; State v. Hicks, 27 Mo. 588; State v. Forsha, 190 Mo. l. c. 317; State v. Elkins, 63 Mo. 159.]

It is apparent from the record in this cause that the defense interposed and relied upon by defendant was that of self-defense. The testimony on the part of the defendant tended to show that the deceased at the time the fatal shot was fired was in a threatening attitude with a dangerous weapon in his hand and in the act of striking the defendant with such weapon. In addition to this there was also some testimony tending to show that the deceased had made some threats against the defendant. On the other hand, the evidence on the part of the State is in conflict with that introduced by the defendant and tends to show that the deceased and the defendant' were entirely in a different attitude to that as detailed by one of the witnesses for the defendant. If the court, at the time this testimony as to the reputation borne by the deceased as to being of a rash, turbulent disposition, was offered, was sufficiently advised as to the defense relied upon by the defendant, then it was manifestly error to exclude this testimony. On the other hand, if the defendant had not sufficiently developed his defense to this charge as to advise the court of its nature and character, then there could be no prejudicial error in delaying the introduction of that testimony until the defense upon which the defendant relied was suffiéiently developed to authorize its admission for the purposé of adding force to the defendant’s plea of self-defense. It is only when a showing of self-defense is made that the character and reputation of the deceased for rashness, viciousness and turbulency becomes material. As was said in State v. Harris, 59 Mo. l. c. 553-54: “A man may be a very bad man, rasb, vindictive and turbulent, still be is under the protection of the law, and whilst he behaves himself peaceably, is entitled to the same protection as any other individual, and no person may slay him with impunity. It is only when he assumes a threatening attitude that his character may be considered as justifying conduct that would not constitute an offense in the case of another person of a different character.”

in.

This brings us to the consideration of the most serious proposition disclosed by the record, that is, the complaint at the action of the trial court in submitting to the jury the question of the admissibility of the dying declaration of the deceased by instruction numbered 4 in the second series of instructions given by the court in this cause. The court in submitting this question to the jury said to them:

‘ ‘ And if you believe from the evidence that Albert Sechrest made such statements, that at the time of making the same his mind was clear and that he knew what he was doing and with such knowledge made it, and that at the time he made it he was suffering from a fatal wound inflicted by defendant upon him, and which wound afterwards caused his death, and that at the time of making such statement, he had given up all' hopes of life, and then believed that death was impending and near, then it is your duty to consider it as the dying declaration of said Albert Sechrest.”

It is manifest under this instruction that the jury were required in the first instance to determine before considering the instrument of writing purporting to be the dying declaration of the deceased, as to whether or not in fact it was a dying declaration and admissible in evidence. This instruction was manifestly erroneous. While it was the province of the jury to determine the credit or weight to which such dying decíaration was entitled, the question as to whether or not it was a dying declaration made by the deceased and admissible in evidence was a question solely for the consideration of the court and not for the jury. In State v. Simon, 50 Mo. 370, it was expressly ruled that it was the duty of the court to decide upon the admissibility of the dying declaration, and that the truth of the facts put in evidence, to show the declarations were made in view of speedy death, is- a matter exclusively for the court to determine. In State v. McCanon, 51 Mo. 160, a similar ruling was made in respect to a dying declaration, and it was held that the only province of the court was to determine the admissibility of such declaration and then leave the credit or weight which should be attached to it to the jury. To the same effect is the case of State v. Burns, 33 Mo. 483. In State v. Johnson, 118 Mo. 504, in discussing this proposition, the court said: “The propriety of the admission of dying declarations is a preliminary question for the determination of the court before they are allowed to go to the jury. [Wharton on Criminal Evidence (9 Ed.), sec. 297; State v. Simon, supra.] In the present case this course was not pursued, but the testimony was allowed to go directly to the jury without any preliminary determination by the court. But even if the evidence to establish such declarations is admitted in the usual way, still, if improperly permitted to go to the jury, this is an error which can be corrected on appeal. [State v. Simon, and Wharton on Criminal Evidence, supra.]”

It is fundamental that in order to authorize the admission of dying declarations in evidence it is essential that at the time they are made there must be a consciousness of impending death, and it is the exclusive province of the court to determine whether that condition exists before the declaration is admissible. [Wigmore on Evidence, sec. 1451.].

We have carefully analyzed the disclosures of the record upon this subject and we see no escape from the conclusion that so far as is disclosed by the record the trial court, after hearing all the testimony respecting the condition of mind of the deceased at the time the declaration was made, failed to determine, as it was its sole province to do, whether or not the instrument read in evidence was in fact to be considered as a dying declaration made by the deceased just prior to his death. In other words, the record before us fails to disclose that the trial court after hearing the testimony on the part of the State and on the part of the defendant touching the circumstances attending. the making of the dying declaration and the condition of mind of the deceased existing at the time such declaration was made, ruled that the declaration as contained in the purported instrument of writing was in fact a dying declaration and should be considered by the jury, and the court nowhere in °any of its declarations -of law tells the jury that the instrument of writing offered in evidence-was the dying declaration- of the 'deceased, and submitting to them for their consideration the question as to the weight to be attached to such declaration, but the court did what, in our opinion, was error, plainly submitted to the jury, first, the question as to whether or not the declaration was made under such conditions as to authorize its consideration in evidence. In other words, the jury were called upon to determine the admissibility of the instrument of writing offered in evidence purporting to contain the dying declaration of the deceased.

The rules of law which have been repeatedly , announced by this court applicable to the admission of dying declarations, may thus be briefly stated: It is the manifest duty of the trial court as' a basis for the admission of dying declarations to hear such testimony as may be offered by the State and the defendant respecting the existence of the essential conditions necessary to constitute them dying declarations. • "While this hearing may be either in the presence or absence of the jury, yet it is the sole province of the court after the hearing of such testimony to determine the admissibility of such declarations, and the jury have absolutely nothing to do with their admissibility.

It is insisted by the learned Attorney-General that no prejudicial error was committed by the court in submitting the question as to the admissibility of such dying declaration to the jury. We are unable to give our assent to this insistence. It may be conceded that had the court, after hearing all the testimony both for the State and the defendant upon the preliminary question as to the admissibility of the dying declaration, ruled that it was admissible and admitted it in evidence, the mere fact that the court erroneously again submitted such preliminary question by an instruction to the jury, would not have constituted such error as would authorize the reversal of the judgment, for in that instance the court would have properly exercised its province by passing upon the question, and the mere fact that it also required the jury to pass upon it could not be deemed as prejudicial error to the defendant. But that is not this case. The record discloses that the court first proceeded to determine this preliminary question in the absence of the jury. The State introduced its evidence and the defendant interposed an objection to the introduction of the so-called dying declaration, first, that the testimony as introduced by the State did not show the existence of such a condition of mind as would' authorize it to be considered a dying declaration, and for the further reason that the court has at this time refused the request of the defendant to require all the witnesses capable of bringing light on the subject to be brought before him. The record does not disclose that the court in the absence of the jury at that time passed on the admissibility of the dying declaration, and it is clear from the remarks of the learned trial judge that he did not intend to do so at that time, for he said to counsel: ‘ ‘ The court at this time will permit the defendant to introduce any witnesses touching the execution and circumstances attending the taking of the dying declaration, or you can offer it before the jury if you wish.” After this remark to counsel by the trial judge the jury were immediately called in; the State again proceeded to introduce its testimony, laying the foundation for the introduction of the dying declaration. The paper writing purporting to contain the dying declaration was identified and at the close of the State’s evidence offered in evidence to the jury. Counsel for defendant renewed their objections to the introduction of the dying declaration, which objections were overruled. The court had just previously, in the absence of the jury, informed counsel that he would hear them then or would hear them in the presence of the jury. While it is not error for the court to refuse to compel the State to introduce all the witnesses- present at the time the dying declaration was made, it was manifestly the duty of the court to hear the testimony offered, both for the State and the defendant, upon the preliminary question of laying the proper foundation for the introduction of the dying declaration before admitting it in evidence, and that is what the defendant was insisting upon from the very inception of the inquiry as to this preliminary question.

It is apparent from the record before us, and we see no escape from the conclusion, that the trial court did not undertáke, and did not intend, to pass upon the admissibility of the dying declaration as made by the deceased embraced in the instrument- offered in evidence. Certainly, if such was the purpose of the court it would have, as previously indicated, heard the witnesses for the defendant which were subsequently offered by the defendant upon this preliminary question. The correctness of this conclusion is emphasized from the fact that immediately after the conclusion of the State’s evidence, in which a prima-facie showing was made, and the offering of the instrument purporting to contain the dying declaration in evidence, the defendant then offered his testimony upon this preliminary question, and the State offered testimony in rebuttal of that offered by the defendant. Following this the court then by an instruction in plain and unambiguous terms, submits to the jury the question of the admissibility of such.declaration, and that the court did not intend to pass upon the question as to whether or not the jury should consider this instrument as a dying declaration, and simply intended to submit, that question to the jury, as evidence by the instruction, in our opinion is too plain for discussion.

Upon this appeal it is clearly the duty of this court to review the action of the trial court upon the subject of dying declarations, their admissibility, etc., and the very first question which confronts the court upon this appeal is as to the sufficiency of the basis of foundation laid upon the preliminary inquiry to authorize their admission in evidence. In reviewing the testimony which constitutes the basis for the admission of the dying declarations in this cause this court must consider the entire testimony. It certainly will not be seriously contended that the court might consider the prima-facie showing as made by the State and exclude that portion of the evidence offered by the defendant. This leads us to the inquiry, if this record is to be construed as disclosing that the court determined the admissibility of the dying declaration, as to how this court is to pass on and review the testimony offered by the defendant and the rebuttal testimony offered by the State, which, as disclosed by the record, was never passed on by the trial court in reaching its conclusion that the dying declaration was admissible. This court is not authorized in reviewing testimony before the trial court, which the record plainly discloses was never taken into consideration in reaching the conclusion that the State should be permitted to offer the instrument purporting to be the dying declaration in evidence. In the first place, it was the duty of the trial court to determine the preliminary question as to whether there was sufficient . basis for the admission of the dying declaration, and after a careful analysis of the entire disclosures of the record, we are unable to reach the conclusion that the court made any ruling upon that question. If on the other hand, the action of the court is to be construed as passing upon that question, then we confess, with the disclosures of the record confronting us, that we are unable to see how this court is to intelligently determine whether the action of the court in respect to the admission of the dying declaration was proper or not. We have here, as shown by the record, first, a preliminary inquiry in the absence of the jury; upon the suggestion of counsel for the defendant that all the witnesses had not been heard, the court informed counsel that he would either hear them then or any witnesses offered on the part of the defendant might be heard .before the jury. The jury were immediately called in, the State reintroduced its testimony, with the exception of that of Mr. Gray, and the instrument purporting to contain the dying declaration was identified and offered in evidence over the objections of the defendant; the defendant then proceeded to introduce its testimony rebutting the facts as alleged by the State and. the State finally concluded the inquiry by introducing other testimony in rebuttal of that offered by the defendant, whereupon at the conclusion of all the evidence the court expressly submitted the question to the jury as to whether or not the proper foundation had been laid for the introduction of the dying declaration. Thus we have presented a record that discloses that the court heard testimony as offered by the State and upon the prima-facie showing permitted the instrument purporting to contain the dying declaration to he offered in evidence. The jury then heard the testimony as offered by the defendant and the rebuttal testimony offered by the State and while it may be said that the court heard the testimony as offered by the State and upon the showing as made permitted the instrument of writing signed by the deceased to be read in evidence, it is clear that the court in passing upon that question did not take into consideration the testimony as offered by the defendant or the testimony by the State offered in rebuttal, for the reason such testimony at that time had not been introduced, and finally the court by its instruction numbered 4 submits the entire question to the jury to be determined by them, from the testimony as offered by the State and the .defendant and the testimony in rebuttal, as to whether or not at the time the deceased made the declaration there existed in his mind the essential conditions necessary to constitute it a dying declaration and admissible in evidence as such. This instruction was erroneous. It was the sole and exclusive province of the court to determine that question, and while it may be conceded for the purposes of this case that, if the court, upon the entire testimony both for the State and for the defendant, had expressly ruled that a sufficient foundation had been laid for the introduction of the dying declaration, this court would be inclined to defer to the judgment of the trial court in weighing such testimony, since it had the witnesses before it; however, until a record is presented that discloses that the trial court exercised its sole province of determining whether the essential conditions existed in the mind of the decedent at the time he made the declarations necessary to constitute it a dying declaration and admissible in evidence, there is no necessity for this court to express an opinion upon that question.

There should bé no guess work or inferences indulged in in respect to the question as to whether or not the court made a ruling that the proper foundation was laid for the introduction of dying declarations; the record should clearly indicate that fact. As was said by Turley, J., in Smith v. State, 9 Humph. 9, “Testimony of this character is only admitted from necessity, and an abuse of it is guarded against by the law with most minute particularity.” And as was announced by this court in State v. Johnson, 118 Mo. l. c. 502, quoting approvingly what was said by Byles, J. , “Dying declarations ought to be admitted with scrupulous, and, I had almost said, with superstitious care. They have not necessarily the sanction of an oath; they are made in the absence of the prisoner; the person making them is not subject to cross-examination, and is in no peril of prosecution for perjury.” Hence, we say that the record upon this subject should not be left in doubt as to whether or not the defendant had the benefit of the judgment of the trial court upon the preliminary question as to the admissibility of the dying declaration.

IV.

It is next contended by appellant that the court erroneously declared the law upon the facts developed in this case in its instructions to the jury numbered four and five, which are as follows:

“4. The court instructs the jury that if they find and believe from the evidence that the defendant, Louis Zorn, on the 23d day of June, 1903, intentionally shot Albert Sechrest with a pistol in a vital part of the body and that said pistol was, as used, a deadly weapon, and that said Albert Sechrest died from the effects of such shots within one year thereafter, the law presumes that the defendant intended the natural consequence of his act, and from the use of a deadly weapon the existence of malice may be inferred, and in the absence of proof or circumstances showing deliberation the defendant would be guilty of murder in the second degree, unless the jury believe from the evidence that the defendant killed the deceased in the necessary defense of Ms own person. Therefore, the court instructs the jury that if you find and believe from the evidence that the defendant, Louis Zorn, at the county of Jackson and State of Missouri, at any time before the 19th day of December, 1903, feloniously, willfully, premeditatedly and with malice aforethought, with a certain revolving pistol and the same was a dangerous and deadly weapon, shot and Hlled Albert Sechrest, you will find defendant guilty of murder in the second degree, and assess his punishment at imprisonment in the penitentiary for any time not less than ten years.

“5. The court instructs the jury that if you find and believe from the evidence that the defendant provoked or began the quarrel or a difficulty with the defendant with the purpose of taMng advantage of him and of taking his life or of doing him some great bodily harm, then there is no self-defense in the case however imminent the peril of the defendant may have become in consequence of an attack made upon him by the deceased.”

It is sufficient to say of instruction numbered 4, that, while in some particulars it varies from the precedents so often approved by this court, the first part of it fully recognized the principle of law that the intentional killing of a human being by the use of a deadly weapon upon a vital part of the body is presumed to be murder in the second degree, in the absence of proof to the contrary. [State v. Evans, 124 Mo. 397; State v. Fairlamb, 121 Mo. 137; State v. Young, 119 Mo. 495; State v. Foster, 61 Mo. 549; State v. Hudson, 59 Mo. 135.]

It is insisted by appellant that this instruction is erroneous for the reason that it iguores the provocation which might reduce the killing from murder in the «eeond to manslaughter in the fourth degree. It will suffice to say as to that question that appellant is in no position to urge it, for two reasons: First, because he strenuously objected to the court giving an instruction on manslaughter in the fourth degree and therefore cannot be heard to complain because such theory was not embraced in the instruction. Secondly, under the facts as developed at the trial of this cause the offense was either murder in the first or second degree, or it was no offense at all on the ground that the defendant was justified in the act of killing in the necessary self-defense of his person.

"We are unable to determine now what the evidence may develop upon the retrial of this cause, but it is sufficient to say that the law of murder in the first and second degrees as well as manslaughter in the fourth degree is well settled in this State, and should the evidence upon a retrial warrant the court in embracing and covering all those grades of the offense the presumption is that it will be done, and that the court will so modify instruction numbered 4 as to conform to the repeated rulings of this court.

Complaint is also made that the court ignored the theory which is now advanced by appellant of imperfect self-defense. We have carefully analyzed all the facts disclosed by the record and so far as is shown by the developments at the trial, the record of which is now before us, there was no imperfect self-defense in this case. He was either perfectly justified or he was not justified at all. The defendant in this cause interposed the plea of self-defense, and from the yery inception of the trial insisted that the deceased was the aggressor and wrongdoer and the right of imperfect self-defense can only arise when the defendant at the commencement of the difficulty is the aggressor or wrongdoer. The law of imperfect self-defense is very clearly stated in Reed v. State, 11 Tex. App. 509, which has been substantially adopted by this court. The law was thus stated: “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 attach 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.”

The complaint urged against instruction numbered 5 is that there was no evidence upon which to predicate it. All that is necessary to say concerning this instruction is that it is substantially in proper form and if upon the retrial of this cause there is any substantial testimony tending to show that the defendant sought or provoked the difficulty, with the felonious intent of wreaking his vengeance by killing the deceased or doing him some great personal injury, then the instruction is a very appropriate one and should be given, otherwise unless there is some substantial testimony tending to show that the defendant sought or provoked the difficulty with such intent, then it should not be given.

Y.

Appellant complains of errors committed by the court in the exclusion of testimony offered upon the preliminary inquiry in laying the proper basis or foundation for the admission of the dying' declarations of the deceased. It is insisted that the court erred in excluding evidence which tended to prove that the deceased objected to sending for n minister or his relatives. It is only necessary to say of this complaint that this testimony is mainly addressed to the court, and while- the court should admit all testimony tending to show the condition of the deceased at the time the declarations were made, yet we are of the opinion that the exclusion of this testimony' was not reversible error; furthermore, it appears that the substance of this testimony was introduced without objections through another witness.

VI.

Appellant insists that the court committed error in refusing to give instructions numbered 8 and 11 ashed by the defendant. These instructions sought to pi’esent to the jury the law regulating the relations of landlord and tenant and announcing the principle of law that a mere trespass would not justify a felonious assault upon the trespasser, and if a felonious assault was made upon such trespasser he would have the right to prevent the same even to the extent of killing his adversary.

The record discloses that the court gave the defendant the full benefit of an instruction fully setting forth the law of self-defense, and in no way limited the defendant’s right of self-defense by reason of the fact that the homicide occurred upon the premises occupied by the deceased. The instruction on self-defense given by the court clearly accorded to the defendant all the rights he would have possessed on premises not in the possession of the deceased. With this view we are unable to see how the defendant was prejudiced by the refusal of the instructions requested; however, we will say that notwithstanding this' instruction, the representative of the State in his argument to the jury does in certain parts of it undertake to discuss the rights of landlord and tenant. In view of the instructions given by the court this argument should not have been permitted. It is sufficient to say upon this proposition that the law upon the rights of landlord and tenant is well settled in this State, and if upon the retrial of-this canse there is any substantial evidence which renders it necessary to define those rights to the jury, the court should by a proper instruction define such rights. If the facts do not warrant any such declaration of law then the court should not permit counsel on either side to indulge in an argument as to what the law is upon that subject.

VII.

Finally, it is earnestly insisted that an analysis of the entire record discloses that the defendant did not have a fair and impartial trial, and numerous complaints are directed to the remarks of the prosecuting attorney in his argument to the jury. We will not undertake to discuss the error complained of respecting such argument, for the reason that many of the complaints now insisted upon were not properly preserved in the bill of exceptions by timely objections and exceptions to the remarks made. The law is well settled in this State upon this subject, and as demonstrated by repeated rulings, this court will not hesitate to reverse a judgment where the representative of the State has indulged in a line of argument which makes it apparent that a fair and impartial trial has been endangered. We have read very carefully the argument as preserved in the record of the prosecuting attorney, and with all due respect to his ability, energy and zeal, we must say that many things were said in the discussion of this ease which would have been better left unsaid. Our observation as to trials of criminal causes is that the State as well as the defendant is best represented by counsel who confine themselves to a discussion of the facts and questions clearly within the record. While we will not undertake to pass upon the remarks of the prosecuting attorney, for the reason before stated that the points are not properly preserved by the bill of exceptions, it is not perhaps inapp-ropriate to say that the record before us discloses that many of the objectionable features of the argument made by the representative of the State were provoked by statements and arguments made by the counsel for the defendant and they therefore are in no position to complain on that score.

The information upon which this prosecution is based is sufficient. While it may not strictly and technically conform to the rules of grammar and rhetoric, in our opinion it fully and sufficiently informs the defendant of the nature and cause of the accusation. [State v. Turlington, 102 Mo. l. c. 651; State v. Wilson, 172 Mo. l. c. 428; State v. Gregory, 178 Mo. l. c. 56; State v. Gray, 172 Mo. 435; State v. Long, 201 Mo. 664.]

The record in this cause is quite voluminous and embraces many other complaints of error committed by the trial court to which we have made no special reference; however, we will say that we have considered them and find that they are not of that character as would constitute reversible error, therefore, we deemed it only necessary to indicate our views upon the vital propositions disclosed by the record. We have given expression to such views and indicated our conclusions, and for the error pointed out the judgment of the trial court should be 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. FOISTER, Appellant.
    Division Two,
    March 5, 1907.
    1. EVIDENCE: Excluded: No Offer of Proof. Where evidence offered by defendant is excluded and he merely saves his objections and makes no offer of proof or statement of what he expects to prove, the exclusion of the evidence is not before the appellate court for review.
    2. INSTRUCTIONS: On All the Law: Objection. An objection to the failure of the court to instruct on all the law of the case is not an objection to the instructions given hut only to the failure to instruct on other matters not covered by the instructions.
    3. FELONIOUS ASSAULT: Sufficiency of Evidence. Evidence held sufficient to justify a verdict of guilty of felonious assault.
    Appeal from Stone Circuit Court. — Hon. John T. Moore, Judge.
    Affirmed.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) All of the defendant’s evidence was admitted, except in one or two instances, where the State’s objections to defendant’s questions were sustained. Without making any offer of proof, or stating what he expected to prove, defendant simply saved his exceptions. State v. Hodges, 144 Mo. 50; State v. Martin, 124 Mo. 514. (2) The State’s instructions were full and fair, and properly declared the law in the case; but it is insisted that the defendant is in no position to complain of them, as he made no objections and saved no exceptions to them at the time they were given. State v. Eaton, 191 Mo. 157; State v. King, 194 Mo'. 474; State v. Reed, 89 Mo. 171; State v. Morgan, 95 S. W. 402. (3) There being not only substantial evidence, but strong evidence of defendant’s guilt, this court will not attempt to weigh the evidence, nor pass upon the credibilty of the witness. State v. Smith, 190 Mo. 706; State v. Payne, 194 Mo. 442; State v. Groves, 194 Mo. 452; State v. Williams, 186 Mo. 128; State v. Williams, 149 Mo. 496; State v. Swisher, 186 Mo. 8.
   GANTT, J.

On the 30th of July, 1905, the prosecuting attorney of Stone county filed an information, duly verified, wherein he charged the defendant Ike Foister and Sid Foister with having, on said date, feloniously, on purpose and of their malice aforethought, made an assault upon one George Clines, and on purpose and of their malice aforethought, assaulted, beat and wounded the said Clines with a rock which was then and there a dangerous and deadly weapon likely to produce death and great bodily harm, against the peace and dignity of the State.

At the October term, 1905, defendant was tried and convicted and his punishment assessed at two years in the penitentiary. The record shows that the defendant was duly arraigned and no irregularity appears in the record proper. The State’s evidence tended to prove that on the date of the alleged assault, George Clines lived in the town of Bradfield, in Stone county, and was conducting a blacksmith shop in said town; that during that day Sid Foister went to the blacksmith shop of Clines to see him in regard to mending a buggy, and appeared to be friendly. A short time after-wards, the rural mail wag'on drove up and Clines went out to get his newspaper. Thereupon, the defendant walked up and asked Clines if their chickens had been bothering him any more, to which Clines replied that-they had not. Sid Foister then came up and said, “We understand that you have been killing our mother’s chickens.” Clines denied the charge, and the defendant immediately said, “We are going to give you a whipping.” Defendant then struck Clines on the head with a rock and Sid struck at him, hut the blow was warded off. Defendant, still holding the rock in his hand, struck Clines two or three more licks, each time on the head. Sid thereupon threw a rock and struck Clines on the shoulder, knocking him down. The wounds on Clines’ head were quite severe, and kept him confined to his room about two weeks. The physician testified that the large wound was a very serious one.

The evidence on the part of the defendant tended to show that the prosecuting witness had the reputation of being a little overbearing and fussy. The evidence tended further to show that Sid Foister accused Clines of killing his mother’s chickens and Clines admitted doing so. That defendant then knocked Clines down with his fist and that Clines got up with a rock in his hand when Sid threw and hit him with a rock.

The defendant is not represented in this court by counsel and hence we have been compelled to look to the motion for new trial and in arrest of judgment. No error is assigned in the motion for new trial on account of the admission of illegal evidence and only in one or two instances was any of the defendant’s evidence excluded, and the rejection of that testimony "is not before us for review for the reason that defendant when the evidence was excluded made no offer of proof and made no statement as to what he expected to prove, but simply saved his objections. [State v. Martin, 124 Mo. 514; State v. Hodges, 144 Mo. 50.] The only objection made by the defendant to the instructions was that the court had failed to instruct upon all the law of the case, and we have on different occasions ruled that this was not an objection to the instructions given, but simply to the failure to instruct on other matters not covered by the instructions. We have examined the instructions, however, and they fully cover all the propositions of law raised by the evidence. The issue was one of fact, and if the jury believed the State’s testimony, as they evidently did, the defendant was guilty of a brutal and unprovoked assault upon Clines. As the jury were properly instructed and there was no error in the admission ,or rejection of. testimony, at least none which is before us for review, and as there was substantial evidence upon which to base their verdict, the judgment of the circuit court must be and is affirmed.

Fox, P, J., and Bu-rgess, J., concur.


author: BURGESS, J.

text:
    THE STATE v. NANCY PRUITT and HENRY PRUITT, Appellants.
    Division Two,
    March 5, 1907.
    1. INCEST: Several Acts: One Count in Information: Election. Where, in a prosecution for incest, the information contains but one count, and the evidence tends strongly to show more than one act of intercourse between the defendants, the court should require the State at the close of its case, on motion of defendants, to elect upon which act it will rely for a conviction, and should by its instructions restrict the jury to a consideration of the act relied upon.
    2. -: Evidence of Prior Acts. It is proper to admit evidence of acts of intercourse committed by defendants prior to the commission of the act charged in the information or upon which the State relies for a conviction, as well as acts of lascivious familiarity not amounting to actual intercourse, since such acts tend-to render it probable that defendants committed the specific offense charged.
    Appeal from Texas Circuit Court. — Now. L. B. Wood-side, Judge.
    Reversed and remanded.

      W. E. Barton and N. B. Wilkenson for appellants.
    The court should have required the State to elect on which act of intercourse it would depend for conviction, as evidence of other acts as substantive offenses is not admissible. Smith v. Com., 60 S. W. 531; 16 Am. and Eng. Ency. Law, 139; 7 Ency. Ev., 256; 4 Elliott on Ev., 3168; 22 Cyc. 53; State v. Palmberg, 199 Mo. 233,

      ■ Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    No error was committed in overruling defendant’s motion asking that the State elect upon which act it would ask for a conviction. The case at bar is distinguishable from those cited by counsel for appellants, and especially the Palmberg case, 190' Mo. 233.
   BURGESS, J.

Under an information theretofore filed by the prosecuting attorney of Texas county, the defendants were, at the May term, 1906, of the circuit court of said county, convicted of the crime of incest, the punishment of each being assessed at imprisonment in the penitentiary for a term of two years. After motions for a new trial and in arrest of judgment had been filed and overruled, defendants appealed.

The State’s evidence tended to prove that Nancy Pruitt was the mother of said Henry Pruitt; that Henry Pruitt was a single man and lived with his mother on the same farm in Texas county; that the husband of Nancy Pruitt was alive, but not living with her. Annie Lewis testified that in August, 1905, she saw the defendants in a certain hollow on the Pruitt farm, lying down on the ground, and having sexual intercourse. Other witnesses for the State testified to various acts, and disgraceful suspicious conduct, on the part of the defendants from which criminal intimacy might well he inferred.

Both defendants denied on the witness stand ever having had sexual intercourse with each other.

At the close of the evidence on the part of the State, and again at the close of all the evidence, the defendants moved the court to require the State to elect upon which acts of intercourse testified to by the witnesses for the State it would rely for a conviction. These motions were by the court overruled, and defendants saved exceptions.

In cases of this character, where more than one act of intercourse has been proven to have occurred within three years next preceding the time of the filing of the information or the presentation of the indictment, it is the duty of the court, at the close of the State’s case, on motion of defendant for that purpose, to require the State to elect upon which act it will rely for conviction. [State v. Palmberg, 199 Mo. 233.] The information was filed on the 13th day of September, 1905, and alleges that the offense was committed on the — day of June, 1905. The evidence tended strongly to show that the defendants had sexual intercourse with each other on the 10th day of June, 1905, and again on the 10th day of August, 1905. The statute (sec. 2172, R. S. 1899), provides, that all persons named therein, “who shall commit adultery or fornication with each other, or who shall lewdly and lasciviously cohabit with each other, shall be guilty of incest;” so that, if the defendants had sexual intercourse with each other, they were guilty of incest as defined by said statute. And as each act of intercourse was an act of fornication and incest, the court should have required the State to elect upon which act it would rely for conviction.

Defendants complain of the action of the court in giving instruction numbered one on the part of the State, and in refusing instruction numbered one asked by tbe defendants. Said instruction given for the State is as follows:

“1. The court instructs the jury that if you find from the evidence that the defendants, Nancy Pruitt and Henry Pruitt, in Texas county, Missouri, in the year 1905, did wilfully and voluntarily have sexual intercourse with each other, and if, then and there, the said Nancy Pruitt was the mother of said Henry Pruitt, and if said Henry Pruitt was the son of said Nancy Pruitt, and if at said time and place said Nancy Pruitt was a married woman and said Henry Pruitt was a single man, you will find them guilty of incest and assess their punishment at imprisonment in the State penitentiary for a term of not less than two nor more than seven years.” ' •

This instruction is criticised upon the ground that it authorized the conviction of defendants if part of the jury believed the defendants guilty of one act of intercourse and not guilty of another, while another part of the jury believed defendants not guilty of that act but guilty of a different one. . What has been said with reference to the action of the court in overruling the defendant’s motion to require the State to elect upon which of the acts of criminal intercourse proven it would stand for conviction is emphasized by this instruction, in that it failed to direct the attention of the jury to any one particular act. Under this instruction the jury might return a verdict of guilty, although only part of the jury might believe the defendants guilty of one offense, and part of another offense, and be unanimous as to neither.

The information contains but one count, and charges but one offense, that committed on the.— day of June, .1905. Under the law, in order, to a conviction of the defendants it was not necessary for the State to prove that the offense was committed upon any particular day, so that it was within three years next before the filing of the information; hut the defendants conld only have been convicted of one offense, and as the evidence tended to show the commission of two different offenses, the court should have required the State to elect, and have by its instructions restricted the jury in its consideration of the case to one of such offenses in accordance with such election. In passing upon the guilt or innocence of the defendants, however, it was proper for the jury to consider any acts of intercourse which might have been committed by defendants prior to the commission of the act alleged in the information or upon which the State relied for conviction, as well also as any acts of “lascivious familiarity between the parties, not amounting to actual intercourse, .....since such evidence is of such a character as tends to make it probable that the parties did commit the specific offense charged; they constitute the foundation of an antecedent probability. ’ ’ [16 Am. and Eng. Ency. of Law (2 Ed.), 139; State v. Markins, 95 Ind. 464; People v. Skutt, 96 Mich. 449.]

Instruction 1, asked by defendants, and refused by the court, is as follows: “The court instructs the jury that it is not sufficient for part of the jury to believe defendants guilty of one act of sexual intercourse and another part believe another act of sexual intercourse, but you must all believe that they were guilty of one specific act.” For the reasons above stated this instruction should have been given.

Our conclusion is that the judgment should be reversed and the cause remanded.- It is so ordered.

All concur.