text:
    THE STATE v. WALTER LEWIS, Appellant.
    Division Two,
    March 30, 1915.
    1. DYING DECLARATION: Admissibility: Sense of Impending Death: Expressed Two Days Before Death. Where deceased soon after he was shot was examined, by a physician and told by him that the wounds were fatal and he was bound to die, whereupon he said he knew it and began to tell his friends goodbye, and asked his father-in-law who stood by if he would take care of his wife and children, his dying declaration detailing the facts of the difficulty thereafter made was admissible in evidence, though he did not die for two days later. The admissibility of the declaration is dependent upon the declarant’s belief of his impending dissolution at the time it is made, and not on the length of time which intervenes between its 'making and his death.
    2,--: -: -: Repeated to Each Witness. If the facts show that declarations of .declarant were made in a consciousness of the near approach of death,' it will be presumed that this state of mind continued until the contrary appears. Where the facts show that deceased at the time he made certain declarations to a physician and other witnesses was possessed of the belief that he was going to die, statements made by him a few minutes after they had withdrawn from his presence, to another witness to whom he did not express his belief that his death was or was not impending, are admissible as dying declarations, if otherwise competent.
    3. -: Competency: Detailing Facts. The testimony of witnesses who undertook to detail the things stated by declarant at a time when he believed his death to be impending, which is confined to matters and facts occurring at the time of the shooting and consisted of a continuous and connected statement of relevant facts, and in which are not included mere conclusions of declarant and which does not consist of a disconnected patchwork of relevant and irrelevant matters, is bbth competent and relevant.

      i. GENERAL OBJECTION: To Exclusion of Testimony. A general objection to the court’s ruling in excluding parts of the testimony of defendant’s witnesses, consisting simply of “I object,” no other reason being assigned at the time in opposition to the court’s ruling, is no such definite and specific objection as authorizes a. consideration of the ruling on appeal, even if erroneous.
    5. INSTRUCTIONS: Murder" in First Degree. Where defendant was convicted of murder in the second degree, he cannot complain of a given instruction on murder in the first degree, whether correct or incorrect.
    6. -:-: Submitting Lesser Offense. Where defendant was prosecuted for murder in the first degree and there was evidence tending to show murder in the second degree, he will not be heard to complain that the court gave an instruction authorizing a conviction of the lesser offense.
    7. -: Murder in Second Degree: No Deliberation. Where deceased struck defendant just a few minutes before the latter shot him, and deceased grappled with defendant just as the latter shot him, there was absent that deliberation necessary to constitute murder in the first degree, but sufficient evidence to authorize an instruction on murder in the second degree.
    8. -: Refusing Defendant’s: Comment on Evidence. It is not error to refuse instructions asked by defendant, if they comment on the evidence (singling out certain facts and directing the jury to consider them and not embracing other essential facts necessary for a proper consideration of the case) and if the instructions given cover every phase of the case under the evidence and are correct expressions of the law.
    9. ARGUMENT TO JURY: Comment on Defendant’s Failure to Deny Hurtful Statements Imputed to Him by Witnesses. It is not error for the State’s counsel to comment upon the fact that defendant while testifying had no;t denied certain damaging statements imputed. to him by other witnesses. [Following State v. Larkin, 250 Mo. 218.]
    Appeal from. Washington Circuit Court. — No». E. M. Bearing, Judge.

      Affirmed.

      Frank H. Farris, 8. G. Nipper and Byrns & Rhodes for appellant.
    (1) The admission of the statement of witness Foard, that on July 23, 1911, while they were discussing some trouble between two women, and a fight that some one had with Robert Edsell, that defendant said, “If he got in trouble with any of them, they would never have any trouble when he was through with them,” was prejudicial error. It was not a threat nor •any expression of malice or ill will. It was not a statement of any intention or desire to do anything toward the deceased. It was said with no reference to the deceased. It referred to no event that had happened, and did not forecast anything which was to happen. It was a mere nothing. Black’s Law Dictionary, p. 1171; 6 Ency. Evidence, pp. 710-711; State v. Crabtree, 111 Mo. 141. (2) Again, if it was admissible, it was not for the witness to say to whom it had reference, or what person it affected. It was for the jury to determine that. State v. Hopper, 142 Mo. 482. The statement of the witness in this case is not included within the rules declared in the following cases: State v. Guy, 69 Mo. 434; State v. Grant, 79 Mo. 137; State v. Brown, 188 Mo. 465; State v. Feeley, 194 Mo. 313. (3) The testimony of witness Foard as to dying declarations of deceased was also inadmissible. The preliminary condition of the deceased, that is, his knowledge and belief of impending dissolution, and certain death, at the time of making the statements, were not sufficiently established to make the statements of deceased dying declarations, and they were not a part of the res gestae, and therefore hearsay. 1 Greenleaf on Evidence (12 Ed.), secs. 158, 160; 21 Cyc. 973, 974, 976. It is always necessary to lay a foundation for the intro duc- ■ tion of dying declarations on the trial by first proving that they were made under a sense of impending death. 21 Cyc. 982; State v. Simon, '50 Mo. 373; State v. McCannon, 51 Mo. 161; State v. Johnson, 76 Mo. 125; State v. Partlow, 90 Mo. 629; State v. Mathes, 90 Mo. 573; State v. Elkins, 101 Mo. 350; State y. Johnson, 118 Mo. 501; State v. Nocton, 121 Mo. 549; State v. Zorn, 202 Mo. 31; State v. Horn, 204 Mo. 546. The testimony was not admissible for the further reason, that the witness used his own construction of deceased statements, instead of using* the language of deceased, and stated things which were conclusions, and did no.t refer to the acts and identity of the defendant, nor to the actual combat between him and defendant. State y. 'Horn, 204 Mo. 546; State v. Parker, 172 Mo. 202; State v. Kelleher, 224 Mo. 167; State v. Kelleher, 201 Mo. 636. (4) The testimony of witness Silas Baker was hearsay and inadmissible. It was not a part of the res gestae, was not shown to be a dying declaration, and was the mere repetition of the statements of deceased after the difficulty was over. No attempt was made to lay the foundation for its admission as a dying declaration, and the record shows that it was not the same conversation, and was not had at the same time as those admitted as dying declarations to other witnesses. State v. Simon, 501 Mo. 373; State v. McCannon, 51 Mo. 161; State v. Johnson, 76 Mo. 125; State v. Partlow, 90 Mo. 629; State v. Mathes, 90 Mo. 573; State v. Elkins, 101 Mo. 350; State v. Johnson, 118 Mo. 501; State v. Nocton, 121 Mo. 549; State v. Zorn, 202 Mo. 31; State v. Horn, 204 Mo. 546. The testimony of this witness was not admissible under any rule. State v. Parker, 172 Mo. 675. (5) The striking out of the answers of Homer Hopkins and of John Brown, witnesses for defendant, and the action of the court in the examination of John Brunk, witness for defendant, were error, and prejudicial to the defendant. The questions and answers in each of these instances were proper and admissible, and clearly within the rules.

      John T. Barker, Attorney-Oeneral, and Lee B. Ewing, Assistant Attorney-G-eneral, for the State.
    (!)• The defendant having been convicted of murder in the second degree cannot complain of instructions given upon murder in the first degree. However, said instruction number 1 on murder in the first degree was proper. State v. Lewis, 248 Mo. 498; State v. Little, 228 Mo. 293; State v. Heath, 221 Mo. 565; State v. Bobbitt, 215' Mo. 18. Instructions 2, 3; 4, 6, 7, 8, and 9 are verbatim copies of instructions given on the former trial of this case and were approved upon the former appeal. They are in form long recognized as correct by this court. State v. Lewis, 248 Mo. 509 ; State v. Todd, 194 Mo. 377; State v. Sebastian, 215 Mo. 58; State v. Fitzgerald, 130 Mo. 420. Instruction number 11 properly declared the law as to statements made by defendant, and presumptions arising therefrom. State v. "Wilson, 223 Mo. 173. Instruction number 14 is a correct declaration of law as to the weight to be given the dying declaration. State v. Parker, 172 Mo. 191; State v. Zorn, 202 Mo. 31. The court properly refused to give defendant’s instructions numbers 1, 2 and 3. They are not correct declarations of law and are comments upon the evidence. Number 1 was refused properly, because the matters therein had already been covered by instruction number 14, given on behalf of State. State v. Parker, 172 Mo. 191; State v. Mitchell, 229 Mo. 683 ; State v. Bobbitt, 215 Mo. 42. There is ample testimony upon which the jury might base a verdict of murder in the second degree. The court did not err in giving an instruction upon murder in the second degree. State v. Bobbitt, 215 Mo. 38; State v. West, 202 Mo. 138; State v. McMillen, 170 Mo. 630; State v. Scott, 172 Mo. 536; State v. Frazier, 13-7 Mo. 3401. Defendant having been tried upon an information charging him with murder in the first degree and there having been testimony to sustain that charge, cannot complain because an instruction was given on murder in the second degree and he was found guilty of the lesser crime. Secs. 4903, '5115, R. S. 1909; State v. Fields, 234 Mo. 624; State v. Whitsell, 232 Mo. 522; State v. Todd, 194 Mo. 377; State v. Edwards, 203 Mo. 528; State v. Darling, 199 Mo. 202; State v. Billings, 140 Mo. 205. (2) The dying declaration of deceased was properly admitted in evidence. It was made under sense of impending death, when hope of life was gone. State v. Finley, 245 Mo. 465; State v. Dipley, 242 Mo. 461; State v. Gow, 235 Mo. 326; State v. Colvin, 226 Mo. 446; State v. Kelleher, 201 Mo. 614; State v. Craig, 190 Mo. 332. (3) Other exceptions to the admission of testimony are not worthy of notice. The exceptions were general and therefore amounted to no exception. State v. Crone, 209 Mo. 330; State v. Priest, 215 Mo. 6; State v. Colvin, 226 Mo. 490; State v. McKenzie, 228 Mo. 598. (4) The argument of James Booth, counsel for State, in the closing address to the jury, was proper. He had the right to comment on defendant’s failure to deny certain statements sworn to have been made by him; defendant having taken the witness stand. State v. Larkin, 250 Mo. 218.
   WALKER, J.

On an amended information filed in the circuit court of Washington county charging appellant with murder in the first degree in having shot and killed one James Edsell, appellant was upon a trial in said circuit court at its August term, 1913, convicted of murder in the second degree and his punishment assessed at ten years’ imprisonment in the penitentiary. Upon the overruling of his motion for a new trial, an appeal was granted to this court, and the approval of a bail bond by the trial court authorized a stay of execution pending the determination of the case here. This is the second appeal in this case. After a conviction of murder in the second degree at the first trial upon the same information under -which appellant was tried in the instant case, he appealed to this court and the judgment of the trial court was reversed and the case remanded for a new trial for the errors set forth in the opinion. [248 Mo. 498.] The facts in each trial are substantially the same in all material matters, as admitted by counsel for appellant, except as to the admission at the second trial of evidence in regard to dying declarations. Por a statement of the facts, therefore, reference may be had to the court’s opinion on the first appeal, except as to matters not therein reviewed, which will be set forth at length.

The witnesses in regard to the dying declarations were Dr. David Foard, Silas Baker and Henry Tyrey. Dr. Foard, whose testimony is in the main that of the others, testified that he reached the scene of the shooting about 10:30 o ’clock p. m., August 6, 1911; that he was called there to attend James Edsell, who was alleged to have been shot by appellant. Upon his arrival the doctor found Edsell lying on the ground in front of the church; that he examined and determined the location of the wounds, and informed Edsell they were fatal and that he was bound to die. Edsell said he knew it, and began to tell his friends good-bye. One of them was his father-in-law, Mr. Tyrey. In telling them good-bye Edsell said he knew he was going to die, and, addressing his father-in-law, asked him if he would not take care of his (Edsell’s) wife and children. Edsell, in detailing the facts in regard to the difficulty to the witness after he had said he knew he was going to die, stated, in effect, that after he (Edsell) and some young men present had been quarreling appellant said to Edsell: “You have said enough to the boys;” that he (Edsell) then stepped down off of the porch before the church door and struck appellant and a shot was fired which struck and wounded a Miss Palmer, who fell to the ground; that he (Edsell) turned to where the girl had fallen and was stooping over her, and upon rising up saw appellant right at him with a gun drawn on him; that he (Edsell) grabbed or struck at the gun, but could not get it out of appellant’s hands, and that he and appellant then clinched and two shots were fired. Edsell died at his home August 8, 1911, two days after the difficulty, from the effects of the gunshot wounds.

Appellant assigns as error: (1) The improper admission of the testimony of certain witnesses as to the dying declarations of the deceased; (2) The exclusion of certain testimony of appellant’s witnesses named in the motion for a new trial; (3) The giving of all of the instructions on the court’s own motion; (4) the refusal of instructions numbered 1, 2 and 3 asked by the appellant; and (5) permitting special counsel for the State to refer to what appellant failed to say when he was a witness and subject to cross-examination.

I. Dying Declarations. — Appellant contends that error was committed in admitting statements of certain witnesses in regard to the dying declarations’ of the deceased. It is elementary that dying declarations are admissible when made under an impression of impending death. It will be recalled that the deceased was told by the witness, Dr. Foard, that his wounds were fatal and that he was bound to die from the effects of same. To this the deceased replied that he knew this to be a fact, and thereafter he bid friends who approached him good-bye and especially requested his father-in-law to take care of his wife and children. These parting adieus and his anxious solicitude as to the future care of his wife and children are confirmatory of his general realization expressed to the witness, Dr. Foard, that he was conscious of his impending dissolution, and renders Dr. Foard’s testimony clearly admissible. As was said in State v. Colvin, 226 Mo. l. c. 482: “It is enough, if it satisfactorily appears, in any mode, that they were made under that sanction; whether it be directly proved by the express language of the declarant, or be inferred from his evident danger, or the opinions of the medical or other attendants, stated to him, or from his conduct, or other circumstances in the case, all of which are resorted to, in order to ascertain the state of the declarant’s mind. ’ ’ In the same case, following the rule laid down in earlier cases, it is held that the length of time between the declarations and the death of the declarant ■furnishes no rule for the admission or rejection of the testimony. The admissibility of the testimony being, in its last analysis, dependent upon the declarant’s impression of impending dissolution and not the rapid succession of death. In the instant case, the declarations of deceased were made soon after he had been shot, but death did not ensue until two days later. In State v. Wilson, 121 Mo. l. c. 439, statements made by a deceased as to the circumstances under which he was shot were obtained from the deceased six days before he died. In Commonwealth v. Cooper, 5 Allen (Mass.), l. c. 497, where a person believed he could not recover, his declarations made to a witness as to the assault seventeen days before his death were held admissible. The court said in this case that the question as to the admissibility of testimony of this character “does not depend upon the length of interval between the death and declaration, but on the state of the man’s mind at the time of making the declaration, and his belief that he is in a dying state. ’ ’

The consciousness of the declarant in the instant case that his wounds were fatal renders admissible the testimony of the witnesses, other than Dr. Foard, to whom the deceased made relevant statements in regard to the difficulty after his declaration to Dr. Foard of a belief in Ms impending dissolution. No other tenable objection can be raised to the testimony of these witnesses, because it fills the full measure as to the competency and relevancy of evidence of this character, in being confined to matters occurring at the time of the shooting and in detailing facts and not mere conclusions of the declarant, and, if the rule required it, comprising a continuous and connected statement of facts and not a disconnected patchwork of relevant and irrelevant statements. We would not be understood as holding that a statement of facts in a dying declaration brought out by proper questions to which relevant answers were made would not be admissible as a dying declaration, as has been held in a number of well-considered authorities (Rex v. Fagent, 7 Car. & P. 238; Vass v. Commonwealth, 3 Leigh (Va.), 786; State v. Martin, 30 Wis. 216; People v. Sanchez, 24 Cal. 17), but to emphasize the fact that in the case at bar even this objection could not be urged against the declarations.

II. Exclusion of Testimony. — Appellant contends that the trial court erred in excluding parts of the testimony of certain of his witnesses, whose names are set forth in the motion for a new trial. After a careful examination of the entire testimony, especially that of the witnesses named, we find that no such definite and specific objections were made to the court’s ruling in this regard as to preserve the errors, if they existed, for our consideration. No reasons were assigned in opposition to the trial court’s rulings, counsel for the appellant simply contenting themselves with “I object.” This, we have repeatedly held, is not an objection sufficient to base an exception thereon which will authorize a review of the trial court’s action here. It is not a finical reason to exclude matters sought to be preserved for review by this class of objections, but the rule is based upon an effort on the part of the courts to promote a careful and correct administration of the law. The trial court is entitled to know the reasons which move counsel to action in the stress of a trial, and it is hut fair that they should he stated in order that intelligent rulings may he made upon the matter in controversy. More briefly stated, the reason being given by counsel for his contention, the trial court will he better enabled to rule rightly and the appellate court to determine whether there is ground for reversal on account of the alleged erroneous ruling. See State ex rel. v. Diemer, 255 Mo. l. c. 345, in which Judge Lamm learnedly and laboriously compiles and comments upon the Missouri authorities in which it has been ruled that general objections to the action of the trial court in regard to testimony are no objections. In State v. Crone, 209 Mo. l. c. 330, a like ruling confined to criminal cases appears supported by references to a number of earlier cases. There is, therefore, no merit in appellant’s contention that the trial court erred in ruling upon the evidence.

III. Instructions Given. — Appellant contends that the instructions, fourteen in number, given by the court on its own motion, were erroneous. Instruction numbered 1 correctly declared the law in regard to murder in the first degree. Appellant, however, was convicted of murder in the second degree, and if the instruction had been erroneous he would not be heard to complain. This was ruled as above stated upon the former appeal in this case. [State v. Lewis, 248 Mo. l. c. 504, following a like ruling in earlier cases.]

Instructions numbered 2, 3, 4, 5, 6, 7, 8 and 9 covered murder in the second degree, presumptions arising from the use of a deadly weapon, credibility of witnesses, credibility of defendant as a witness, presumption of innocence, reasonable doubt, and that the information was a mere formal charge. These instructions were literal copies of instructions approved in the former review of this case by this court, are in the forms which have oftentimes received judicial sanction, and time and space will not be consumed in their further discussion, except to say that instruction numbered 2 for murder in the second degree was based upon sufficient evidence to authorize its being given. The deceased struck appellant just a few minutes before the latter shot him; deceased grappled with appellant just as the latter shot him. There was, from these facts, an absence of that deliberation necessary to constitute murder in the first degree, and hence the giving of the instruction was authorized. Furthermore, having been prosecuted for murder in the first degree, and there being evidence to submit that grade of homicide to the jury, the appellant will not be heard to complain because the court gave an instruction authorizing a conviction for a lesser offense. Upon an indictment for any offense consisting of different degrees, the jury may find the defendant not guilty of the offense charged, but guilty of a grade of the offense inferior to that charged. [Sec. 4903, R. S. 1909.] This power having been conferred upon juries, we are precluded by section 5115, Revised Statutes 190§, from arresting or setting aside the verdict because the accused was convicted of a less offense than that charged. [See State v. Bobbitt, 215 Mo. l. c. 38.]

Instruction numbered 10 is in regard to self-defense. Notwithstanding its great length, it correctly declares the law and follows approved precedents to be found in State v. Sebastian, 215 Mo. l. c. 76, and State v. Lewis, 248 Mo. l. c. 508.

Instruction numbered 11 relates to statements out of court. A similar instruction in all of its material features was approved by this court in State v. Wilson, 223 Mo. l. c. 192, and many previous cases.

Instructions numbered 12 and 13 were given at the request of appellant.

Instruction numbered 14 in regard to dying declarations followed approved precedents found in State v. Colvin, 226 Mo. l. c. 487; State v. Zorn, 202 Mo. l. c. 31; and State v. Parker, 172 Mo. l. c. 203.

IV. Instructions Refused. — Tbe trial court refused appellant’s instructions numbered 1, 2 and 3. Each of these instructions commented upon the evidence, singled out certain facts and directed the jury to consider them, without embracing’ other essential facts necessary to a proper consideration of the case; in addition, if instruction numbered 1 had been properly framed it was fully covered by instruction numbered 14 given by the court.

There was, therefore, no error committed in the refusal of these three instructions asked by appellant, especially in view of the fact that the instructions given covered every phase of the case under the evidence.

V. Remarks of Counsel for State, — -Counsel for the State in his argument stated that “three witnesses, ’’ naming them, “had testified that on the night after the shooting the appellant had visited Miss Palmer,, the girl who was wounded when the first shot was fired, and had said to her, ‘Laura, I shot, and killed you, ’ and that appellant had gone on the witness stand to testify and had not denied same. ’ ’ Miss Palmer had been escorted to the church by appellant the night of the shooting and was standing by his side when the first shot was fired which struck the girl. It was true, as stated by counsel, appellant did not when on the stand deny this declaration stated to have been made by him to Miss Palmer. Under our ruling in the recent case of State v. Larkin, 250 Mo. 218, in which Faris, J.,. lucidly and exhaustively reviewed the statute (section 5243) and overruled the cases construing this statute and holding that counsel for the State could not comment upon the failure of a defendant to testify, we hold that the remarks of counsel in the instant case were not error. The. reasoning on this point in the Larkin case is, to our mind, so conclusive that nothing need he added thereto, except to say that the conclusion there reached removes one more of the technical pretexts heretofore successfully interposed to prevent a wholesome administration of the criminal law without, in any manner, depriving a defendant of a substantial right.

We find no prejudicial error in this case; the judgment of the trial court should therefore be affirmed, and it is so ordered.

All concur.

PER CURIAM. — -Appellant in his motion for rehearing contends that we have overlooked, to his prejudice, his exception to the admission by the trial court of the testimony of Silas Baker, a witness for the State, who testified as to certain dying declarations of deceased. The burden of this contention is that at the time of the making of the declarations to this witness the deceased did not express a belief that he was in extremis. This belief had been expressed by the deceased to Doctor Foard, who was leaving just as the witness came into the presence of the deceased. The latter, after saying to the witness Baker, “I guess I got what was prepared for me,” proceeded to state the facts and circumstances connected with the difficulty. He made no statement to this witness as to his belief of his impending dissolution, nor did he then, or thereafter, indicate a belief that he would recover.

It is not a prerequisite to the admission of dying declarations that the declarant should state to each one to whom he makes the declarations that he believes he cannot recover, or words of similar import.

Dying declarations are admitted, first, on account of public necessity, and, second, because it is presumed that the declarant, believing himself to be in the presence of death, will speak truly. The state of mind of the declarant, therefore, is of prime importance in determining whether dying declarations are admissible or not. If, therefore, the declarations of the declarant find expression in a consciousness of the near approach of death it will be presumed that this state of mind continues until the contrary appears. The application of this rule to the admission of dying declarations has been expressly approved by this court in the recent case of State v. Finley, 245 Mo. l. c. 473, in which Brown, J., speaking* for the court, says in effect: that although the declarant did not state that he was about to die, yet if he had stated to others than the witness whose statements were sought to be admitted that '“he was mighty bad and bound to die,” what he said to the witness, if otherwise competent, is admissible in evidence as a dying declaration.

There was no absence of preliminary proof necessary to authorize the admission of the statements made by the deceased to the witness Baker. The belief of the deceased that he could not recover, expressed to Doctor Foard a few minutes before the statements were made to the witness Biaker, constituted sufficient proof to entitle these statements to admission as dying declarations. We, therefore, hold that appellant’s contention as to the inadmissibility of the statements made by Baker is without merit, and we overrule the motion for rehearing.


source: Caselaw Access Project

author: BOY, C.

license: Public Domain

text:
    THE STATE v. ISAAC COLEMAN, Appellant.
    Division Two,
    March 30, 1915.
    1. REFUSED INSTRUCTIONS: Objected to by Defendant: Attorneys: Criminal Law. A defendant in a criminal trial cannot take advantage of the court’s failure to give instructions to which his counsel objected, and this is true despite the facts that counsel after he objected said, “If you don’t instruct on all the law, I will take advantage of it,” and that another of his counsel, who was not present at the time, afterward tried to disclaim his colleague’s action.
    2. NEW TRIAL: Discretion of Court: Misconduct of Jurors: Presumptions. The law presumes that jurors have obeyed their oaths; and accordingly the trial court did not abuse its discretion by refusing a new trial, although an affidavit was filed stating that the jurors in their deliberations had been guilty of misconduct, especially when the affiant stated when questioned by the State that he obtained his information by listening at the door to the jury room.
    Appeal from Washington Circuit Court.- — Hon. E. M. Bearing, Judge.
    Affirmed.

      Irwin £ Nipper for appellant.
    The court erred in failing to instruct on manslaughter, for it was the duty of the court to instruct on all the law in the case whether requested to do so or not, and the fact that one of the counsel for -the defense said that it should not be given could not -be invoked when the counsel who conducted the trial was not present and knew nothing about the transaction or conversation between the court and the counsel referred to. The facts in the Philpot case, reported in 242 Mo. 504, are not like those in the present case, and we think the defendant was entitled to have instructions on all the law submitted to the jury in the trial of this case, which we think was improperly denied. It was clearly error for the court to refuse defendant a new trial after the affidavit of Steve Cole was filed in this case. We know of no case where such misconduct was shown and the court allowed the verdict to stand. State v. Branstretter, 65 Mo. 149; State v. Bobinson, 117 Mo. 649.

      John T. Barker, Attorney-G-eneral, and Lee B. Ewing, Assistant Attorney-General, for the State.
    (1) The State did not err in failing to instruct on manslaughter in the fourth degree. State v. Phil-pot, 242 Mo. 511. (2) The court did not err in overruling plaintiff’s motion for a new trial on the ground of misconduct of the jury. 12 Oyc. 675, 727; State v. Sprague, 149 Mo.-409; State v. Noland, 111 Mo. 473.
   BOY, C.

Defendant was convicted of murder in the second degree, and his punishment assessed by the jury at ten years in the penitentiary.

On the night of November 12, 1913, there was a dance given by one P'ashia near the village of Old Mines, at which there was considerable drinking of liquor and several fights. The evidence shows very clearly that Kennett Boss was struck in the left temple by a rock, and his skull thereby broken, resulting in his death two days afterward. The evidence was uncertain as to whether the stone was thrown by some one or held in the hands while the blow was struck. There was a conflict in the evidence as to the person who wielded the stone by which Boss was killed. Some of the witnesses testified that the defendant was the person who wielded the stone which did the injury, and several testified to statements made by defendant admitting that he struck Boss. Those statements were denied by defendant on the stand.

The defendant’s version of the affair, given on the stand, is as follows: “I got down there near Mr. Boss,. and lie had my father by the throat, and had his knife like this (indicating), and my brother rnn np and caught his arm that had the knife in it, and asked him to put his knife away, and he wouldn’t do it, and I came up there within about seven or eight feet, I guess, and then my father shoved him away and my brother turned him loose, and he’ started toward him with his knife like this (indicating), and I walked in and caught him like this, and I asked him again to put up his knife, and he backed me np against a fence, and he was still coming at me, and I stooped down to pick np something and just when I stooped down, some one hit him and he fell.”

Zedor Coleman, defendant’s father, testified that-Albert Coleman and George Partel were in a fight some distance from the house. Witness continued:' ^‘I turned around, and just as I turned around, this man Eoss and Coleman met right there with a knife in his hand, and that kind of scared me, you know, and this fellow, Joe Portell, was standing right by the side, and I shoved him back like, and when I shoved him hack like that, Isaac was standing there by the side of me, and I went over to Isaac, and I says, ‘Look at that fellow with a knife, ’ and Eoss, he cut at me, and Isaac kind of reached down like that (indicating) and hit at Eoss, and just as he did, Eoss fell and I didn’t see Isaac throw at all. He just looked down like that (indicating).”

After the evidence was all in, and while the instructions were.being discussed between the court and Mr. Irwin, one of defendant’s attorneys, the court asked Mr. Irwin what he thought of giving an instruction on manslaughter in the fourth degree. Mr. Irwin objected to such an instruction, saying that it -was purely a case of self-defense or nothing, saying at the same time, “If you don’t instruct on all the law, I will take advantage of it.” The instruction was not given.

On the hearing of the motion for a new trial, Mr. Nipper, the other attorney for the defendant, in regard to what occurred between court and counsel at the trial on the subject of giving that instruction, said:; “Well, while I seem to be leading attorney in the trial of this case, because I conducted the examination of the witnesses, I think it is nothing more than due that I should make a statement. I didn’t know what took place in this consultation room because I wasn’t there, and I don’t think this client of ours ought to suffer on account of remarks made, or of any conduct on the-part of my associates in the case, of which I have no-knowledge ; as to whether he was right or wrong, I do-not state, but I do hate to feel that my client and myself should be held responsible on account of the acts, of my associates in this matter.”

Two of the grounds set out in the motion for a new trial were as follows:

“16th. Because the jury in their deliberations after retiring to consider of their verdict took into consideration and discussed the habits of defendant as to-drinking, when there was no evidence in record as to-same, as shown by affidavit herewith filed and made a, part of this motion.

“17th. Because the jury discussed and took into-consideration the verdict in another murder case, rendered during this term of court, to-wit: State v. Rhyneer (as shown by affidavit herewith filed and made part, of this motion), when there was nothing in this record in regard to the Rhyneer case. ’ ’

In support of those points in that'motion defendant introduced the affidavit of Steve Cole in which he stated that while the jury were deliberating, he, the affiant, “heard the foreman of the Coleman jury using" as an argument why the defendant, Isaac Coleman, should be convicted, the fact that the other jury in the Rhyneer case had practically turned Rhyneer loose and it would not look well for this jury to do likewise ¿ that in substance the foreman of the jury said: ‘Gentlemen of the jury, the other jury turned this other fellow Rhyneer loose, and if we turn this man loose the people will criticize us and it won’t look well.’ Affiant further states that he heard the juror William Kelsey at about the same time discussing with the other members of the jury as to the defendant’s drinking and that he had promised to quit some time ago.”

The State did not introduce any affidavit of the jurors to deny such statement, but called Steve Cole as a witness, who testified that when he heard what occurred in the jury room he was standing by the door listening.

The instructions are regular and no objection has been made to any of them.

I. The failure to give an instruction on manslaughter in the fourth degree was not error. The defendant objected to such an instruction. The error, if error it was, was committed at the instance of the de-fendant, and he cannot be heard to complain. See our Statute of Jeofails, section 5115, Revised Statutes 1909.

no difference that defendant’s counsel-told the court at the time the instructions were being discussed, “If you don’t instruct on all the law, I will take advantage of it.” No advantage can be taken of the action of the court which was in accordance with the expressed desire of the defendant, neither will it avail the defendant that one of his own attorneys was not present and did not know of the action taken by his associate counsel. We know of no law which enables a party to a cause to try his case on as many different theories as he has lawyers representing him. There is no need to cite authorites on this point. It is too evident for discussion. It makes

II. The trial court passed upon the question of the misconduct of the jury, and ruled adversely to the defendant. There is nothing in the facts in this case to justify our interference with the trial court’s ruling. The State did not introduce the affidavit of the jurors to contradict the affidavit of Steve Cole, but the latter, being placed on the stand, stated that he was listening at the door of the jury room where he heard what passed therein. The trial court doubtless considered that Cole, inasmuch as he was an eavesdropper, was not a disinterested witness, and therefore did not consider his affidavit sufficient to overthrow the presumption in favor.of the right action of the jury

The Cyclopedia of Law and Procedure, vol. 12, p. 749, says: “The fact that defendant’s affidavit showing misconduct on. the part of the juror is uncontradicted does not compel the court to accept it as true, for against it the law raises .the presumption that the jurors had obeyed their oaths. The issue is one of fact upon ,all the circumstances for the trial court, and if, after weighing this presumption against the affidavit of the prisoner, it sustains the verdict, no abuse of discretion will be presumed. ’ ’

In Tracey v. State, 46 Neb. 361, the defendant made an affidavit as to the misconduct of the jury. The State furnished no affidavit in support of the jury. It was contended that in the absence of such showing, the motion for a new trial should have been sustained. It was held that the law presumed the right conduct of the jury, and that the court properly considered that presumption on one side as against the evidence on the other, and was justified in reaching the conclusion that the charge was not sustained.

In this case the affidavit was not made by the defendant, bnt by another person who was not disinterested.

The judgment is affirmed.

Williams, G., concurs.

PEE CUEIAM. — The foregoing opinion of Boy, 0., is adopted as the opinion of the, court.

All the judges concur except Walker, J., who dissents.


author: WALKER, J.

text:
    THE STATE v. ROBERT MILLER, Appellant.
    Division Two,
    March 30, 1915.
    STATEMENTS MADE AT CORONER’S INQUEST: Irrelevant Objection: Rule as to General Objection Applied. The rule that a general objection to proffered testimony will not authorize its consideration on appeal should be applied with equal force to an irrelevant objection. An objection that witnesses should not be permitted to testify to the statements made by defendant at the coroner’s inquest, for that his statements had not been reduced to writing as required by the statute, was an irrelevant objection, since the question for decision was not as to the irregularity of the inquest, but as to the admissibility of testimony as to defendant’s statements, and therefore the objection was the same as no objection.
    2. -: Voluntary. A statement made by defendant at the coroner’s inquest, if voluntarily made, is admissible in evidence at his trial; and where, before testifying at the coroner’s inquest, he was informed by the prosecuting attorney that any statements made by him in his examination could be, used against' him on his trial and that he was not required to incriminate himself, his statements then made were voluntary in a legal sense and are admissible in evidence.
    3. MURDER: Circumstantial Evidence. There is no hard-and-fast rule upon which to base a conclusion in cases dependent for their facts on circumstantial evidence, except there must not be a total failure of evidence showing guilt, nor such a chain of weak and disconnected circumstances as to justify an inference that the verdict is the result of passion, prejudice or partiality; but even in a murder case, where the evidence is circumstantial, if it is -sufficient to meet each element of the rule, namely, that the circumstances proved must be consistent with each other and with the hypothesis that the accused is guilty, and so inconsistent with every presumption of innocence as to exclude every conclusion except that of guilt, and if such substantial facts have been shown as authorize a conclusion of guilt, the Supreme Court on appeal will not interfere, whether the defense be ciMM or insufficiency of the evidence.
    4. JUROR: Test of Qualifications. The test as to the qualifications of a juror is his freedom-from prejudice and his consequent ability to give the accused a fair and impartial trial.
    5. APPEAL: Short Method. The filing of a short form of transcript in a criminal case is without any authority of law governing appeals and accomplishes nothing in behalf of an appellant. '
    Appeal from Reynolds Circuit Court. — Ro». E. M. Bearing, Judge.
    Affirmed.

      John R. Keith and 0. L. Munger for appellant.
    (1) Testimony, taken at a coroner’s inquest of one who is afterwards prosecuted for the homicide is inadmissible against him, where he acted without counsel and was at the time suspected of having committed the crime, and the examination was made to obtain criminating circumstances against him. State v. Young, 119 Mo. 495; People v. Mondon, 103 N. Y. 211; People v. McMahon, 15 N. Y. 384; State v. Thomas, 250 Mo. 212; State v. Thornton, 245 Mo. 436; Art. ' 2, sec. 23, Constitution; Josephine v. State, 39 Miss. 613; Counselman v. Hitchcock, 142 U. S. 547. (2) The burden is upon the State to prove defendant’s presence at the time and place of the crime beyond a reasonable doubt. And if the evidence of defendant’s alibi created in the minds of the jury a doubt as to his presence at the time of the commission of the crime, he should have been acquitted. State v. Shelton, 223 Mo. 118; State v. Glasscock, 232 Mo. 278; State v. Barton, 214 Mo. 216; State v. Lewis, 69 Mo. 92; State v. Taylor, 118 Mo. 153. (3) One who has talked to witnesses who detail what the evidence was at an inquest is not competent as a juror. State v. Hultz, 106 Mo. 41; State v. Bryant, 93 Mo. 273; State v. Culler, 82 Mo. ■625.

      John T. Barker, Attorney-General, and Thomas J. Higgs, Assistant Attorney-General, for the State.
    (1) Voluntary statements of the defendant, made when a witness at the coroner’s inquest, are properly •admitted in evidence. State v. Thomas, 250 Mo. 212; State v. Thornton, 245 Mo. 436; State v. Marion, 235 Mo. 359; State v. Young, 119 Mo. 495; State v. Wis■dom, 119 Mo. 551; State v. Mullins, 101 Mo. 518; People v. Kelley, 47 Cal. 125. (2) There was no reasonable •doubt of the defendant’s presence at the time of the ■commission of the crime. The jury were properly instructed as to the defense of alibi. State v. Glasscock, 232 Mo. 294; State v. Shelton, 223 Mo. 137; State v. Barton, 214 Mo. 316; State v. Cushenberry, 156 Mo. 168; State v. Bryant, 134 Mo. 252. (3) Where a jur- or on his voir dire examination declares that his opinion is not such as to bias or prejudice his mind, and that his opinion will readily yield to the evidence in the ease, he is a competent juror. State v. Schurneback, 243 Mo. 538; State v. Church, 199' Mo. 629; State v. Darling, 199 Mo. 188; State v. Sykes, 191 Mo. 75; State v. Brennan, 164 Mo. 507; State v. Bironstine, 147 Mo. 520; State v. McGinnis, 158 Mo. 105. The ground upon which a juror is challenged must be stated. Simply objecting to a juror as being disqualified is not sufficient. State v. Bobbitt, 215 Mo. 44; State v. Taylor, 134 Mo. 142; State v. Reed, T37 Mo. 132; State v. McGinnis, 158 Mo. 118; State v. Evans, 161 Mo. 108; State v. Myers, 198 Mo. 247; State v. Dipley, 242 Mo. 474. (3) Sufficiency of the evidence. State v. Con•celia, 250 Mo. 411; State v. Bass, 251 Mo. 107. .
   WALKER, J.

An information filed Tby the prosecuting attorney of Reynolds county charged the appellant, Robert Miller, with murder in the first degree in having shot and killed Richard Mallow. Upon a trial appellant was convicted as charged and his punishment assessed at imprisonment for life in the penitentiary. Prom that judgment he appeals to this court.

Richard Mallow, the deceased, was a single man between fifty and fifty-five years of age. He had no permanent home, but lived at times with his brother-in-law, John Gallahar, near the village of Black in Reynolds county, and at other times with other relatives or friends in the neighborhood. When the weather permitted he camped in the woods and hunted for several days at a time. He lived, as the witnesses state in homely but expressive phrase, “very poorly,” was exceedingly parsimonious, although his pecuniary condition would have enabled him to live differently, as it had been generally known in the neighborhood for years that he carried on his person a roll of paper money consisting of bills of large denominations aggregating not less than $800. On August 27, 1913, Mallow came to the blacksmith shop of his brother-in-law, John Gallahar, at about two o’clock in the afternoon, with a double-barreled shotgun which he carried when hunting, and asked for and was given some loaded shells or cartridges, and left, as he said, to go squirrel hunting. This was the last time he was seen alive. About an hour after he left, a daughter of Gallahar’s, hearing two shots fired in the direction in which Mallow had gone, remarked, “Uncle has killed a squirrel.” Two weeks elapsed, but Mallow did not return. His absence and no word having been received from him, did not occasion anxiety, because from his habits it. was reasonably concluded that he was either camping out or staying elsewhere in the neighborhood. On the 10th day of September, 1913, Hendrix, a son of John ■Gallahar, while hunting cattle discovered the dead body of a man in the woods about half a mile from his father’s home. He did not go nearer the body than twenty-five or thirty yards, but ran home and informed his father of his discovery. The father and son went immediately to the spot and discovered the body to be that of Richard Mallow. The neighbors were notified, and several men went at once and also identified Mallow’s body. His gun, not loaded, was standing five or six feet from the body, leaning against a tree. Physicians testified that Mallow had been dead from ten days to two weeks. Decomposition was somewhat advanced, but the body was in a sufficient state of preservation to enable it to be determined that there was a gunshot wound on the left side of the neck back of the lower lobe of the ear. This wound ranged forward to the right and upwards, and the shot or shots in their exit had torn and. lacerated the right side of the face. The doctors stated that the wound was sufficient to produce immediate death.

The appellant, Robert Miller, was a young married man, having a wife and two children, and living, in the town of Lesterville in Reynolds county, not many miles distant from the village of Black. Miller had no money or property and was dependent upon his daily labor for the support' of himself and his family. The total amount of property returned by him for taxation was $30. In the early part of August, 1913, he had been employed by the Hub Mill Company in the neighborhood to drive a team. For several weeks before August 27,1913, he was at work for a man named Brown, stacking lumber and railroad ties. "When employed it was his custom to draw his money in advance. About eight or nine o ’clock on the morning of August 27,1913, Miller came to a blacksmith shop in Lesterville, borrowed a double-barreled shotgun and some cartridges, and stated that he was “going up the creek hunting.” He was seen a short time thereafter about a mile northwest of Lesterville on the road leading to the village of Black going through the field of one of the witnesses with a gun on his shoulder. Pie asked a boy named Senceboy to accompany him. The latter declined, and he went on his way in the direction of the village of Black. The next time he was seen was on the 28th of August, 1913, in a barbershop at Lesterville. It was about nine o’clock in the morning. He said that he was not well and that he had had a chill and had gone up Camp Meeting Hollow the day before and had been there the most of the day. Nothing was said about where he was during’ the night of the 27th. Camp Meeting Hollow was about two and one-half miles from John Gallahar’s home. A witness named Rayfield, who lived next door to Miller in Lesterville, saw him at his home on the morning' of the 27th, but did not see him during the remainder of the day. Prior thereto Miller was never known to have any ready money. At a picnic held near Lesterville on the 29th day of August, 1913, he contracted to buy a pair of mules from a witness named Oarty, and paid him $10' to bind the bargain. The next morning, Saturday August 30th, Oarty brought the mules and delivered them to Miller, who paid $510 in cash for them. The money paid by Miller to Oarty consisted of one $100 bill, the balance being in twenties and tens. Oarty deposited this money in the Reynolds County B'ank at Centerville, and on the trial the $100' bill was exhibited to him and he testified that it was one of the bills that had been given him by Miller. A short time after Mallow’s body was found, a witness named Alcorn went with Miller to Ironton and from there to Piedmont. In a conversation with Miller, Alcorn said to him: “Where did you get the money you paid for those mules?” To which Miller replied, “Don’t you know I always have money?” Witness said, “Well, I didn’t know it;” and Miller said, “Why do you ask?”; and the witness said, “Because I need a hundred or two, and if you have been able to borrow money from the banks I would like to know how you got it. I need some money to buy a new wagon.” Whereupon Miller said, “I will loan it to you. I have had some money all the time. Don’t you know I worked in St. Louis for a street car company and drove team for the Huh- Mill Company and such like that?” Just before they started home from Piedmont and while in the depot waiting for a train, Miller said to Alcorn, “If you want that money I had just as well give it to you one time as another,” and thereupon he handed Alcorn $100-. Alcorn offered to give security, hut Miller said it was not necessary and did not take or ask for a note.

At the picnic where Miller contracted for the mules he paid one William George $6.50 in discharge of a debt. He had told George two weeks before that he could not pay him because he had no money. On the same day, while at the picnic, Miller paid Lincoln Shy $10 he owed him. Shy did not ask him for the money, as it was the general opinion that Miller had no money to amount to anything. In the month of June, 1913, while Miller was employed by the Hub Mill Company, he made inquiry of a witness named Eayfield concerning Mallow. Among other things, referring to Mallow, Miller said: “He is supposed to carry a right smart of money?” Eayfield replied, “I don’t know now; twenty-five years ago I counted it and he then had over $800.” Miller said, “Why don’t you kill him for it?” Eayfield replied, “I couldn’t kill a man for his money; I couldn’t kill that old man for his money; I don’t get my money that way.” To this Miller said, “By God, if this Hub mill goes to Clayton Creek I will do it, and if you don’t think so you are dajmn badly fooled.” Subsequently the Hub mill was moved to Clayton Creek, four or five mills from where John G'allahar resided, and Miller assisted in the removal and worked there afterwards. In going from Lester-ville, where he resided, to the mill after its removal, it was necessary for him to pass John Gallahar’s. In going to and from Ms work Miller stopped several times at Gallahar’s residence, and in conversation with a son of the latter said: “I have been told that old Richard Mallow has a lot of money, something like a thousand dollars.” Young Gallahar replied, “No, I don’t think he has that much, but he has some money.” Miller said, “Does he camp out very much?” to which young Gallahar replied, “SometMng like half the time.” This conversation occurred in the early part of the month in which Mallow is alleged to have been killed. At the time the autopsy was held on the body of Mallow, from the 9th to the 11th of September, 1913, the prosecuting attorney, after cautioning Miller that anything he said would be used against him on a trial, asked him where he got the money he had been spending. He stated that he had gotten $120 from a street railway company in St. Louis and that he had a pair of mules, and that he had sold the mules, harness and wagon for $150. That the balance had been earned by him while working for the Hub Mill Company. That the total amount of money he had at any one time was $520 and some pocket change. That he bought some mules for $510' with tMs money. He denied that he had loaned Mr. Alcorn $100; and stated that the total amount of money he had spent was $510 for the mules, $5 for a saddle, $5 or $7 paid William George and $10 paid on a grocery bill in Lester-ville. His testimony in regard to the amount of money he had was in no manner corroborated except in regard to $10 spent for groceries, which he claimed was paid him by Brown, for whom he last worked. He denied that he had ever threatened to kill old man Mallow, as stated by the witness Rayfield, or that he had made inquiry of young Gallahar in regard to Mallow’s money. Several witnesses testified that they saw Miller at his home in Lesterville between six and six tMrty o’clock p. m. on the 27th of August, and one witness stated that at one or two o’clock on August 28th he saw Miller at the blacksmith shop' where he borrowed the shotgun. On cross-examination these witnesses were not certain as to the exact date when they saw Miller. His testimony as to his whereabouts is that he was in Lesterville on the evening of 'the 27th of August and left the residence of one Albert Johnson about eight o’clock in the evening and went home. Arriving there he retired and was not away from home during the night. His testimony was corroborated by that of his wife. Miller on the trial did not testify as to where he obtained the money he had been spending in the purchase of the mules and the paying of other bills.

It is contended that error was committed, (1) in the admission at the trial of testimony given by appellant at the coroner’s inquest; (2) in the refusal of appellant’s demurrer to the evidence at the close of the State’s case; and (3) in not sustaining appellant’s challenges to certain jurors.

I. Defendant’s Statements at Inquest. — Witnesses for the State were permitted to testify as to statements made by the defendant under oath at the coroner’s inquest. The objection to this testimony, as preserved in the record, was that defendant’s statements had not at the inquest been reduced to writing as required by section 2934, Revised Statutes 19091. The question involved was not as to the irregularity of the inquest, but the admissibility of the testimony as to defendant’s statements. Time and again it has been announced that specific and pertinent objections must be made to testimony, first, to enable the trial court to rule intelligently thereon, and, second, to authorize a review on appeal.

The rule as to a general objection may be applied with equal force to an irrelevant objection, in that it is no objection and hence not entitled to be considered. While not so preserved as to constitute an assignment of error, it is not inappropriate to say that the test as to the admissibility of this character of testimony is no longer whether it was made in a judicial proceeding under oath, but, was it voluntary? If so, then it is admissible, otherwise not. This rule is clearly announced in State v. Wisdom, 119 Mo. l. c. 551, in which earlier cases declaratory of the same doctrine are cited and discussed. Later cases than that of State v. Wisdom, supra, for example, State v. Thomas, 250 Mo. 189, and State v. Thornton, 245 Mo. 436, while seeming to announce in general terms a different doctrine, will be found upon examination to present facts which clearly show that the statements made therein were not voluntary.

The facts in the instant cause are that the defendant, before testifying at the inquest, was informed by the prosecuting attorney that any statements made by him in his examination could be used against him on the trial and that he was not required to incriminate himself. Armed with this information he made the statements objected to, which related mainly to an attempt to explain where he obtained the money he had recently theretofore been spending and not to the facts immediately concerning the crime. The charges made but not properly preserved for our consideration in regard to defendant’s statements, if prejudicial, were given under such circumstances as to not constitute error.

II. Alibi and Sufficiency of Evidence. — The jury heard all of the testimony and evidently did not believe the witnesses who testified as to the presence of the defendant in the town of Lesterville during the time when all of the circumstances pointed to the assassination of Bichard Mallow.

The evidence in this case was circumstantial. It was sufficient to meet the requirements of the rule that tlie circumstances proved must be consistent with each other and with the hypothesis that the accused was guilty, and so inconsistent with any reasonable presumption of innocence as to exclude every conclusion except that of guilt. While there is no hard-and-fast rule upon which to base a conclusion in cases dependent for their facts upon circumstantial evidence, yet where, as in this case, the defendant’s innocence can only be made to rest upon an unreasonable hypothesis, and such facts have been shown as to authorize a conclusion of guilt, we are not authorized in interfering with the finding of the jury, there not being a total failure of evidence or such a chain of weak and disconnected circumstances as to authorize an inference that the verdict was the result of passion, prejudice or partiality. We therefore decline to interfere with the verdict of the jury. [State v. Concelia, 250 Mo. 411; State v. Bass, 251 Mo. 107.]

III. Challenges of Jurors. — It is contended that the trial court erred in not sustaining challenges to jurors who, it was claimed, had talked with witnesses and had therefrom formed opinions as to the guilt or innocence of the defendant. The transcript of the record does not sustain this contention. None of the facts elicited upon the voir dire examination sustain defendant’s assignment that any juror had talked with a witness or was in any manner biased or prejudiced against the defendant so as to prevent the juror from giving him a fair trial under the evidence and in accordance with the law as declared by the court. The test as to the qualification of a juror is his freedom from prejudice and his consequent ability to give an accused a fair and impartial trial. There is nothing-in this case to indicate that any juror did not possess these necessary qualifications. Defendant’s contention, therefore, in this regard is held to be without merit.

IV. Short Transcript. — A short form of transcript was filed in this case; the filing of same is without any authority of law governing appeals in criminal cases and accomplishes nothing in behalf of an appellant. We have deemed it not inappropriate to say this much in regard to this procedure in an attempt to perfect an appeal in a criminal case, that our disapproval of same may be emphasized.

In the absence of prejudicial error, the judgment of the trial court is affirmed, and it is so ordered.

All concur.


author: EARTH, P. J.

text:
    LACLEDE LAND & IMPROVEMENT COMPANY, Appellant, v. OWEN CREASON et al.
    Division Two,
    March 30, 1915.
    1. TAX DEED: Prima-Facie Proof of Regularity. A tax deed which on its face appears fair and sufficient is only prima-facie proof of proper proceedings.
    2. CONVEYANCE: Names: Orvin Creason for Owen Creason: Ancient Deed. The original Government patent dated in 1859 granted the land to Owen Creason, and a deed signed Orvin Creason and dated in 1860 conveying the land to another was offered in evidence. Held, that, though seemingly a palpable error in the copyist in recording the instrument, in the absence of some showing beyond the bare record itself, no conveyance can be presumed from the mere single fact of the antiquity of the transaction, and the deed did not convey title out of Owen Creason.
    3. TAX DEED: Idem Sonans: Judgment Against Greason: Conveyance of Interest of Creason. A judgment against Owen Greason in the tax suit will not support a sheriff’s deed which purports to convey the interest of Owen Creason, although the Government patent showed a grant to Owen Creason and he owned the land when the judgment for taxes was rendered. “Greason” is not idem sonans with “Creason,” and the deed was void.
    4. DEFAULTING DEFENDANT: Subsequent Participation in Case: Affirmative Relief. A defendant who has been constructively served and who has neither pleaded nor appeared, is ordinarily not entitled, after judgment by default has been rendered against him, to take part in the subsequent proceedings in the case, until he has appeared and procured, upon a timely and proper showing, a vacation of the default against him; except that, in spite of the default and in spite of a failure to have it vacated, he may appear at the hearing, in an inquiry of damages, and show facts' in mitigation of damages, and, in any case, may appear on the question of the taxation of costs. But so long as such default judgment stands, he cannot have affirmative relief.
    5. -: -: -: Quieting Title in Defaulting Defendant. Where suit to quiet title was brought against Owen Creason and others, and Creason neither pleaded nor appeared, but the other defendants did appear and answer, and the proof shows that neither plaintiff nor said other defendants have the title, and that it is apparently in said Creason, a decree vesting the title in said Creason cannot stand. Having defaulted, he is not entitled to affirmative relief. The decree, in such case, should make a general finding against plaintiff, dismiss his petition and render costs for defendants, and go no further.
    Appeal from Reynolds Circuit Court. — Hon. E. M. Dearing, Judge.
    Reversed and .remanded (with directions).

      J. B. Daniel for appellant.
   EARTH, P. J.

This is an action brought hy plaintiff under section 2535, Revised Statutes 1909, to determine title to the east half of section 18, in township 32 north, of range 1 west, in Reynolds county.

The petition is conventional. The record nowhere shows who the defendants were other than the respondent Owen Creason; hut it does appear that O. A. Smith and “Sarah Hunt Pelton et al.” appeared and answered. The record does not disclose in any manner who the others were answering jointly with defendant Sarah Hunt Pelton. It appears in the record that defendant Owen Creason neither appeared nor pleaded, but that he made default. Said Creason was duly notified hy publication in a newspaper.

A tax deed was offered hy plaintiff purporting to convey the land to one J. B. White, under whom plaintiff claims. This tax deed recites a joint judgment against Owen Creason, 0. A. Smith and Anson Hunt. In the description of the land therein it is recited as but one tract and that is designated “tract 1” and is described as the east half of section 18, township 32, range 1 west. In the description of the tracts of land and of the years for which taxes thereon were found to be due, there likewise appears but one tract, which is designated as “tract 1” and refers back to the “tract 1” above mentioned and in said deed described, as we have already set out. The said sheriff’s deed seems to be in all respects fair and sufficient upon its face, and no attack was made thereon in the court below, except an objection for matters not appearing upon the face thereof and matters for which proof was necessary in order to destroy the prima facie sufficiency of the deed.

Defendants Sarah Hunt Pelton and 0. A. Smith offered upon their part the record of a warranty deed from Orvin Creason to Lyman Earleigh, dated November 6, I860', purporting to convey the whole of said land to said Parleigh. Said defendants also offered the original patent from the United States to Owen Creason, dated September 1, 1859. Such other conveyances were offered as showed that the title to the northeast quarter and the west half of the southeast quarter of said section 18 was in one Anson Hunt, and the title to the east half of the southeast quarter of said section 18 was in defendant 0. A. Smith; conditioned of course upon the sufficiency of the deed of Orvin Creason to convey the interest of Owen Creason. It was further shown that said Anson Hunt died in 1898 intestate, and that defendant Sarah Hunt Pelton was one of his heirs and that divers of the deeds offered were found among the papers of said Anson Hunt.

It is admitted in the brief of appellant, but nowhere shown in the abstract (which is otherwise incomplete), that the judgment for taxes upon which the sheriff’s deed was bottomed, was against “Owen Greason

The court rendered judgment against plaintiff and in favor of Owen Creason, affirmatively finding that Owen Creason was the owner of said land and forever quieting in him the title thereto, and adjudging that neither plaintiff nor defendants, other than said Creason, had any interest therein. The said judgment does not note a default against Creason, but it fails to note his appearance to any of the proceedings, and the record before us shows that he neither appeared nor pleaded.

Such further facts as are necessary will be found in the opinion.

OPINION.

The common source of title is Owen Creason, to whom the United States conveyed this land by patent *n 1^59. Plaintiff’s title is bottomed upon a sheriff’s deed for taxes, which upon its face appears fair and sufficient. But such a deed is only prima-facie proof of proper proceedings. Subsequently it appears proof came in from defendant’s side of the case which showed (a) that the judgment for taxes was against Owen Greason and not against Owen Creason, and (b) that the suit for taxes was against owners of separate tracts, each of such owners having no mutual interest in the other tract, -and that there was no separation of these tracts in the proceedings; nor in the sheriff’s deed. This last objection can neither aid nor injure plaintiff here unless we hold that the conveyance from Orvin Creason to Lyman Farleigh conveyed the title in said lands of Owen Creason. However strongly we may suspect a fairly palpable error of the copyist in recording this conveyance, it is patent that absent showing beyond the bare record itself, it did not convey title out of Owen Creason. And on a record as bare as this is of any other fact or act of those in interest, no conveyance can be presumed from the single fact of the antiquity of the transaction. [Brown v. Oldham, 123 Mo. 621; Manning v. Coal Co., 181 Mo. l. c. 372.]

The judgment against' Owen Greason cannot of itself support a sheriff’s deed for taxes which purports to convey the interest of Owen Creason. The sheriff’s deed was absolutely void, even if said Creason owned the land when the judgment for taxes was rendered against him, unless Greason is idem sonans with Creason, and we hold it is not. [Myers v. DeLisle, 259 Mo. 506 (Myer and Myers); State v. Griffie, 118 Mo. 188 (Griffin and Griffie); Graton v. Land and Lumber Co., 189 Mo. 322 (Graton and Grafton); State v. Curran, 18 Mo. 320 (Melvin and Melville); Robson v. Thomas, 55 Mo. 581 (Mathews and Mather); State v. Brown, 119 Mo. 527 (Gratz and Grolts); Simonson v. Dolan, 114 Mo. 176 (Siemson and Simonson); People v. Fick, 89 Cal. 114 (Toy Fong and Choy Fong); 29 Cyc. 276.]

The view graphically expressed by Lamm, J., in the case of Dixon v. Hunter, 204 Mo. l. c. 391, is apposite:

“In the first place, defendant was alone concerned with that part of the decree affecting him. He was not concerned with settling the title as between the two groups of complaining heirs. If he lost, the subsequent proceedings interested him no more. It is fundamental that an appellant cannot complain of error unless materially affecting the merits as against him.”

Either of the above views effectually puts the plaintiff out of the case, but we are confronted with a serious dilemma as to the proper disposition to make of it here. Owen Creason for whom the court found and in whom the court vested the title to this land, and in whom the court quieted same, while duly notified by publication, yet failed to appear or plead in any wise; in short, he made absolute default. In spite of this, judgment was rendered in his favor adjudging him to be the owner of the land and quieting the title thereof in him. Since neither the heirs of Anson Hunt nor O. A. Smith appealed, the concrete effect of this judgment is to put the title in said Owen Creason, whether he wants it or not, and arguendo whether he be alive or dead. We do not think this was warranted upon the facts and the law.

When Creason failed to plead within the time allowed to him by statute (saving to him of course his rights as one constructively served to appear later and have the judgment set aside upon a timely and proper showing), it was the duty of the court to enter against him an interlocutory judgment by default. [Sec. 2093, R. S. 1909.] This statutory provision we think absolutely precluded the court from granting to him, as the judgment rendered does, affirmative relief for which he had not asked, and which in fact, he may not desire. [Senter v. Wisconsin Lumber Co., 255 Mo. 590.] The rule is, ordinarily, that after making default a defendant is not entitled to take part further in the subsequent proceedings in the case (except as to the taxation of the costs and to show facts in mitigation of damages, upon an inquiry as to damages), unless to take steps to vacate the default, until he has procured the vacation of such default. [Phillips v. Bachelder, 47 Mo. App. 52; Davis v. Wimberly, 86 Ga. 46; 23 Cyc. 754.] Granting that upon the proof, the finding and judgment should have been against the plaintiff, and that in so holding the learned trial court was right upon any view which may be taken of it; yét we do not think that affirmative relief, which decrees and quiets title to land, may be given by the trial court to a defendant who neither appears nor pleads in a case, out being duly served constructively, makes absolute default. This view may not, we apprehend it will not, unsnarl the tangle tere, but it may serve to prevent the law from falling into a tangle.

It follows that the judgment herein should be reversed and the case remanded with directions to make a general finding against plaintiff, dismissing its petition and in favor of defendants for costs, but to refrain from affording affirmative relief to defendant Creason, who made default. Let this be done.

Walker and Brown, JJ., concur.


author: BROWN, J.

text:
    SOPHIE POLSKI, by Her Next Friend, v. CITY OF ST. LOUIS, ALEXANDER L. ROHLFING and JOHN SCHMIEDEBERG; CITY OF ST. LOUIS, Appellant.
    Division Two,
    March 30, 1915.
    1. APPEAL: Motion for New Trial: No Assignment of Point Relied on. Where plaintiff sued the city, a landlord and his tenant for damages for personal injuries due to the falling upon her of a rotten fence as she walked along the sidewalk, the city on appeal will not he heard to contend that the verdict in favor of the tenant released the city from liability, unless said point was made a specific ground of its motion for a new trial; and a ground stated in the motion that “the verdict is against the law and against the law under the evidence,” or that “the verdict in favor of the tenant is against the law and the law under the evidence,” is not sufficient to raise the point that the verdict in favor of the tenant released the city from liability. Besides, the proper practice in such case was for the city to file a motion in the trial court for judgment non obstante veredicto.

    2. -: -: Statute. Section 1841, B. S. 1909, governs motions for a new trial, and requires them to he specific. Section 2022 does not undertake to designate what the motion for a new trial shall contain, but merely designates some of the grounds for which a new trial may he granted, leaving to the ■appellate court to determine by section 1841 whether or not the motion is sufficiently specific to call to the attention of the trial court the errors it has committed.

      Appeal from St. Louis City Circuit Court. — Hon. James E. Withrow, Judge.
    Affirmed.

      William E. Baird and Robert Burkham for appellant.

      Taylor R. Young for respondent.
   BROWN, J.

While walking along Wash street in St. Louis City plaintiff was injured by an iron fence falling upon her. This fence stood on the front end of a lot owned by defendant Rohlfing. At the time of the injury the lot was occupied by defendant Schmiedeberg as a tenant.

It is alleged in plaintiff’s petition that the defendants negligently permitted this fence to become loose’ upon the posts by which it was supported; that it was insecurely fastened to said posts with rusted wires; that, by reason of said condition, said fence was dangerous to pedestrians passing along said Wash street; and that such' dangerous condition of said fence was known to defendants in time to have enabled1 them to repair the same and place it in a safe condition before it fell and injured plaintiff.

The tenant, Schmiedeberg, was not a party to ■ the action when it was originally instituted, hut, upon the motion of defendant city, he was made a party defendant under the provisions of section 9801, Revised Statutes 1909.

At the trial the court instructed the jury that it could not find a verdict against defendant Rohlfing unless it also found that said Rohlfing at the time he rented the premises to defendant Schmiedeberg agreed to make all outside repairs thereon. The evidence on this point was conflicting*.

The trial resulted in a judgment against the city ind the landlord Rohlfing for $1500', and in favor of ihe defendant Schmiedeberg.

The city alone appeals and in its brief relies solely upon the defense that the verdict in favor of defendant Schmiedeberg released the city from liability, citing: 1 Cooley on Torts (3 Ed.), p. 254; 4 Dillon on Municipal Corporations (5 Ed.), sec. 1728; Shearman & Redfield on Negligence (6 Ed.), sec. 384; Robbins v. Chicago City, 71 U. S. 657; Independence v. Ry. Co., 86 Mo. App. 585; and McGinnis v. Railroad, 200 Mo. 347.

Respondent in her brief merely calls attention to the fact that the alleged error now urged by appellant for reversal was not preserved in its mo-tion for new trial; also that appellant’s ’ -rx contentions are unsound under the rule of law announced in the following cases: Badgley v. St. Louis, 149 Mo. 122; and Noble v. Kansas City, 95 Mo. App. 167.

Before considering the alleged error relied upon by appellant we will ascertain if said error was called to the attention of the trial judge by motion for new trial. Appellant’s motion for new trial is as follows:

“That the verdict of the jury herein is against the evidence and against the weight of the evidence;

‘ ‘ That said verdict is against the law and against the law under the evidence;

“That the verdict of the jury, in favor of the defendant John Schmiedeberg is against the evidence and against the weight of the evidence;

“That the verdict of the jury, in favor of the defendant John Schmiedeberg is against the law and the law under the evidence;

‘‘ That said verdict is excessive under the law and the evidence;

“That the court erred in admitting incompetent, irrelevant and imjmaterial evidence, offered by the plaintiff, over the objections of this defendant;

“That the court erred in excluding relevant, material and competent evidence offered by this defendant;

“That the court erred in its instructions to the jury, given at the request of the plaintiff, against the objections of this defendant;

“That the court erred in refusing instructions to the jury as requested by this defendant;

‘ ‘ That the court erred in its instructions, given of the court’s own motion, and against the objections of this defendant.”

Under the law of this State (Sec. 1841, R. S. 1909), all motions must be specific. [Carver v. Thornhill, 53 Mo. 283, l. c. 286; Sweet v. Maupin, 65 Mo. l. c. 68.]

The provisions of section 1841, supra, govern motions for new trial. Section 2022, Revised Statutes Í909, does not undertake to designate what the motion for new trial shall contain. Said last-named section merely designates some of the grounds for which a new trial may be granted, leaving us to determine by another section of the Code (section 1841, supra) whether or not the motion for new trial is sufficiently specific to call to the attention of the trial court the errors which it committed.

In harmony with this view it was ruled by this court in Bridge & Iron Co. v. Brewing Association, 129 Mo. 343, l. c. 353, that an assignment of error in a motion for new trial that “the court erred in granting improper instructions asked for by defendant,” and also “erred in refusing proper instructions asked for by plaintiff” did not embrace an instruction given by the court of its own motion.

In Sweet v. Maupin, 65 Mo. 65, l. c. 68, it was held that a motion for new trial which specified that “the verdict of the jury is not warranted by the issues in the case and is incorrect and informal” was not sufficient to call attention to the fact that the jury had returned a general verdict when they should have found a verdict on each count in the petition.

In State v. James, alias Jim, Scott, 214 Mo. 257, l. c. 261, it was held that a motion for new trial which merely recited that£ £ the verdict of the jury is against the law” was too indefinite to indicate “wherein the verdict infringes upon the law,” and therefore insufficient to warrant the granting of a new trial. .

In the recent case of Maplegreen Oo. v. Trust Co., 237 Mo. 350, l. c. 363, in speaking for this court In Banc, Lamm, C. J., said:

£ The office of a motion for a new trial is to gather together those rulings complained of as erroneous and solemnly and formally present them, one by one, in black and white, to the judge, in order that he have a last chance to correct his own errors without the delay, expense or other hardships of an appeal. This, on the theory that even a judge is entitled to a last chance — a locus poenitentiae.”

In State v. Sydnor and Foster, 253 Mo. 375, l. c. 380, it was ruled that a motion for new trial which contained the averment that “the court failed to instruct the jury on all the law of the case” was insufficient to call attention to any point of law upon which the court had omitted to instruct.

The same construction seems to have been placed upon the law by the St. Louis Court of Appeals in Huppert v. Weisgerber, 25 Mo. App. 95, l. c. 101; and by the Kansas City Court of Appeals in Vanstone v. Goodwin, 42 Mo. App. 39, l. c. 49, and in Alexander v. Grand Ave. Ry. Co., 54 Mo. App. 66, l. c. 70.

It will be seen that the motion for new trial contains no specification that the verdict in favor of defendant Schmiedeberg released the defendant city from liability (the only point upon which said city relies for reversal).

It would seem that if the position which the appellant city asserts in this court is correct it became the duty of the circuit court to enter a judgment in favor of appellant non obstante veredicto, but it failed to move the court to enter any such judgment, and failed to inform the trial court in its motion for new trial of the only contention which it represents on this appeal.

Under the statute we are expressly forbidden to review errors which were not passed upon by the trial court. [Sec. 2081, R. S. 1909.] It is apparent, under the statutes and adjudicated cases hereinbefore cited, that when a litigant is unable within four days after the trial to locate errors of which he complains so as to designate them in his motion for new trial, he should not appeal. Going outside the issues determined by the trial court for an excuse to demand the reversal of a judgment would seem to be prima-facie evidence that the appeal is so frivolous as tó justify the taxation of the penalty provided by section 2084, Revised Statutes 1909. However, we do not decide whether it should be taxed in this case.

It is unnecessary to consider the issue upon which the appellant now relies for reversal, because no such issue was sufficiently presented to the trial court. The judgment is affirmed.

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


author: WILLIAMS,. C.

text:
    SAMUEL J. CASE et al. v. ELLA CARLAND, Appellant.
    Division Two,
    March 30, 1915.
    1. ABSTRACT: Record Proper: No Showing of Motion for New Trial: Appellate Review. If the abstract of the record proper fails to show the filing of a motion for a new trial, appellate review must be limited to the record proper, and that is true even though what purports to be the abstract of.the bill of exceptions does show that a motion for a new trial was filed.

      2. -: -: -: -: Rule 32. Rule 32 of the Supreme Court, providing that an appellant who files a certified copy of the order granting an appéal need not abstract the record entries showing the steps taken below to perfect his appeal, does not make it unnecessary to show in the abstract of the record proper that a motion for a new trial was filed. The filing of a motion for a new trial is not a necessary step to perfect an appeal.
    Appeal from Buchanan Circuit Court. — Hon. W. H. Haynes, Judge.
    Affirmed-.
    P. G. Breit and Booher do Williams for appellant.

      Edwin L; Moore for respondents.
   WILLIAMS,. C.

This is a suit in ejectment to-recover the possession of lot 3 in block 30 in the city of Savannah, Missouri. Judgment below was in favor of some of the plaintiffs and defendant has appealed.

Respondents contend that the appellate review must be limited to the record proper. Upon examination, we find that the abstract of the record proper-fails to show that a motion for a new trial was filed within four days after the 'trial. In fact the abstract. of the record proper fails to state that a motion for a new trial was filed at any time. That portion of the abstract known as the, bill of exceptions, does state that a motion for a new trial was filed. But it has been held by a long-line of cases in this State that such a showing is insufficient. Discussing this identical point in the recent case-of Dalton v. Register & Co., 248 Mo. 150, Graves, J., speaking for the court, said: ‘ ‘ These cases are of such long standing and so numerous that the lawyers of the State must abide by them; and so consistent is the ruling that we shall not further restate the rule, other than, to state that under these we have held that the abstract of the record proper, as distinguished from the abstract of the bill of exceptions, must show the filing and overruling of a motion for new trial. And if it does not so show, then we have only the record proper before us for consideration.”

Appellant contends that the abstract is sufficient under Eule 32 of this court. But appellant cannot in-vote the aid of the above rule in the present case for two reasons, viz.: (1) Eule 32 has to do only with record entries showing the necessary steps in perfecting the appeal, such as the filing of an affidavit for an appeal, order granting an appeal, and the record entries concerning the leave to file and the filing of bills of exceptions. It cannot be said that the filing of a motion for a new trial is a necessary step to perfect an appeal, because an appeal may be taken even when a motion for new trial has not been filed. And when a motion for new trial is filed “the steps to perfect an appeal” are not taken until the motion is-passed upon and is out of the way. (2) Even though it should be conceded, arguendo, that Eule 32 applied to the situation here, it would be of no avail in the present case, this because the present abstract does not even undertake to comply and does not comply with that rule.

It therefore follows that our consideration of the case must be limited to a review of the record proper. Upon examination, we find the record proper to be free from error. The judgment is affirmed.

Boy, G., concurs.

PEE CUEIAM. — The foregoing opinion of Williams, C., is adopted as the opinion of the court.

All the judges concur.