author: WHITE, C. PER CURIAM.

text:
    ANNIE ATKINSON v. UNITED RAILWAYS COMPANY, Appellant.
    Division Two,
    March 7, 1921.
    1. ARGUMENT TO JURY: Belittling Case. A remark by plaintiff’s attorney in his argument to the jury in a personal injury case, characterizing the attitude of defendant as an attempt to “belittle” the plaintiff and to “minimize” her injuries, the only issue in the case over which there was a contest being as to the extent of plaintiff’s injuries, the plaintiff having introduced testimony to show that she was badly injured and defendant to show that she was not injured so much as she claimed, was not felicitous, but it was not error.
    2. -: Deduction: Rendered Unfit for Motherhood. A remark by plaintiff’s attorney in his argument to the jury that “whenever you shatter her nerves, you unfit that woman to ever become the wife of a man; you unfit her to ever become the mother of children,” not being a statement that there was evidence directly indicating such a result, but only an argument as a deduction from the evidence that plaintiff’s nerves were shattered, even if conoeded to be an unsound deduction, was not error.

      3. —■-: Failure to Call Witness: Physician. No unfavorable inference may be drawn and no unfavorable comment can be made, by counsel in bis argument to the jury, on account of the absence of a witness whose evidence is equally accessible to both parties; and it is reversible error to permit such inference or comment, where the testimony of the absent witness would ha^e borne on a vital issue in the case. And the rule applies where, on the application of defendant, the court had appointed three physicians, one of them a neurologist, to examine plaintiff as to the extent of her injuries, and plaintiff’s counsel, in his.argument to the jury, censured defendant for failure to call the neurologist, drew an unfavorable inference from his absence, and stated that if he were called he “would tell you that this woman has traumatic neurosis” just as two other physicians and a nurse had done. Whether plaintiff as a result of her injuries had traumatic neurosis which seriously affected her health and comfort being one of the vital issues in the case, the argument was prejudicial.
    4. EVIDENCE: Physical Examination of Plaintiff: Appointment of Physician. In an action for damages for personal injuries, the law invests the trial court with authority to appoint physicians to make physical examination of the plaintiff, and the appointment is made, not because defendant can demand it as a matter of right, but by the court in its discretion in furtherance of justice, and because the case calls for the opinion of disinterested and unbiased experts, who must not be friends of either party, but when appointed become, not the witnesses of either, but officers of the court, and no unfavorable comment shoitld be made or inference drawn by either because of the failure of the other to call such experts.
    Appeal from St. Louis City Circuit Court. — Hon. Franklin Ferriss, Judge.
    REVERSED AND REMANDED.

      T. E. Francis and G. T. Priest for appellant.
    (1) The court erred in failing to sustain defendant’s motion'for a new trial on the ground that the verdict was obtained through 'the prejudicial argument of counsel for plaintiff to the jury. Beck v. Railroad, 129 Mo. App. 23; Evans v. Trenton, 112 Mo. 390. (2) The court erred in permitting counsel for the plaintiff to argue and to comment upon tlie alleged failure of defendant to call to the witness stand Dr. M. A. Bliss, who had been appointed hy the court to make an examination of plaintiff. Perkins v. Silverman, 223 S. "W. 901; Coosa Portland Cement Co. v. Crankfield, 80 So. 451; Sears v. Duling, 79 Vt. 334. (3) The court permitted counsel in his closing argument to the jury to argue that plaintiff was unfit to become a mother and appealed to the jury to take that into consideration in estimating plaintiff’s damages. Haake v. Milling Co., 168 Mo. App. 177. (4) The court erred in permitting counsel for plaintiff in his argument to the jury to call upon the jury to return such a verdict in this case as they would give to their own mother or sister. Haake v. Milling Co., 168 Mo. App. 177; Gfungrich v. Anderson, 155 N. "W. 379; Hughes v. City of Detroit, 126 N. W. 214; Mortensen v. Bradshaw, 154 N. W. 46.

      W. E. Moser and Kelley & Starke for respondent.
    (1) The court committed no error in permitting counsel for plaintiff to argue and comment upon the failure of defendant to call Dr. M. A. Bliss as a witness in this case, because it was justified under the facts and circumstances shown in evidence. Willitts v. Ry. Co., 221 S. W. 66; City of Kennett v. Katz. Const. Co., 202 S. W. 562; Dawson v. Railroad, 193 S. W. '50; Sinclair v. Tel. Co., 195 S. W. 559; Brandt v. Schuchmann, 60 Mo. App. 72. (2) The trial court is in a much better position than an appellate court to determine whether improper influence was exerted hy the argument complained of, because the lower court heard and passed upon the objections made by defendant’s counsel to the argument alleged to have been prejudicial. These matters were again called to its attention in defendant’s motion for a new trial, and in oral argument in support of said motion, and, after considering the same, the court overruled defendant’s motion for a new trial., Norris v. Railroad, 239 Mo. 720; Wendler v. Furnishing Co., 165 Mo. 542; Lefever v. Stephens on, 193 S. W. 844. (3) If defendant’s counsel believed that the argument of plaintiff’s counsel was really prejudicial to defendant’s rights he should, at the time, have requested the trial court to administer a more pointed reprimand, or moved the court to discharge the jury, which he failed to do. State v. Harrison, 263 Mo. 662; Harriman v. Dunham, 196 S. W. 446; State v. Raftery, 252 Mo. 83; State v. Butler, 258 Mo. 437; Torreyson v. Rys. Co., 246 Mo. 706; Hein-bach v. Heinbach, 274 Mo. 324; McKinney v. Laundry Co., 198 Mo. App. 397; Hartley v. Werner, 196 S. W. 1074; Milliken v. Larrabee, 192 S. W. 106. Even though argument of counsel may be improper it does not constitute reversible error where liability is.not contested. Kinney v. Ry. Co., 2.61 Mo. 116. (4) The errors complained of in defendant’s brief herein do not materially affect the merits of the action, because, under the uncon-tradicted evidence, plaintiff was entitled to recover against the defendant, and the verdict is for the right party. For these reasons appellate courts will not disturb the verdict. Sec. 2082, R. S. 1909; Trainer v. Mining Co., 243 Mo. 374; Shinn v. Railroad, 248 Mo. 180; Lewis v. Barnes, 272 Mo. 412; Orthwein v. Ins. Co., 261 Mo. 663; Finnegan v. Railroad, 2:61 Mo. 511; Teabeau v. Ridge, 261 Mo. 560 ; Halasy v. Halasy, 256 Mo. 330; Cohron v. Polk, 252 Mo. 292.
   WHITE, C.

This is an action for personal injuries. The plaintiff, in the Circuit Court of St. Louis, recovered judgment in the sum of twelve thousand dollars, from which the defendant appealed.

On the morning of October 3, 1918, the plaintiff, Annie Atkinson, who had employment with the Paris Cloak Company in the City of St. Louis, boarded an eastbound car on Cass Avenue, to go to her work. When the car on which she was riding arrived at Marcus Avenue — which avenue runs north and south — a car on that street collided with the car on which she was riding. The Marcus Avenue car drove into the Cass Avenue car from the south with a violent crash, which did considerable damage to both cars. The plaintiff was thrown violently across the car from the seat on which she was riding; she received a number of bruises, contusions, and other injuries, which are fully described in the evidence. She suffered a great deal of pain, was incapacitated so that she could not work, and required medical treatment. The evidence was conflicting as to whether or not her 'injuries were permanent. The evidence for plaintiff tended to show that on account of the shock and the injuries, which were received in the collision, her hearing and her vision were impaired, and that she was suffering' from traumatic neurosis.

• It is a res'ipsa loquitur case. The principal issue on the trial was as to the extent of the plaintiff’s injuries. The errors assigned in this court, to which attention is chiefly directed, consist of remarks made by the attorney for' plaintiff in his argument to the jury. It was further complained that under the circumstances the verdict was excessive, and that there was error in the instruction on the measure of damages. It is unnecessary to review the evidence at any length.

I. It is contended that the argument of counsel for the plaintiff in his address to the jury was flagrantly improper, and requires a reversal. This argument and the colloquy interjected into it, with objections, are se't out some length in the abstract of the record. Several different aspects are presented:

(a) A number of statements made by Mr. Kelley, attorney for plaintiff, in the progress of his argument, when objected to, were held improper by the court. In each of such instances Mr. Kelley, so far as the record shows, refrained, and directed his argument to other lines; there is nothing to show that he transgressed any order of the court, and nothing more than often appears in cases where there is a heated argument, with interruption as it proceeds. We do not find there was any error in that respect.

(b) Mr. Kelley proceeded to characterize the attitude of the defendants in the case as an attempt to “belittle” the plaintiff and “minimize” her injuries. Appellant’s counsel objected, but the remarks of the plaintiff’s attorney were allowed to stand. The only issue in the case over which there was any contest was as to the extent of the plaintiff’s injuries — the plaintiff introducing testimony to show that she was greatly injured, and the defendant introducing testimony to show that she was not injured so much as she claimed. Perhaps the remarks of counsel were not as felicitous, nor as apt, .as they might have been when he used the words “belittle” and “minimize,” but there was no impropriety in the characterization of defendant’s efforts. The remarks did not carry with them any suggestion of an unfair attempt to discredit witnesses for the defendant.

(c) Mr. Kelley then made this remark: “Whenever you shatter her nerves, you unfit that woman to become the wife of a man; you unfit her to ever become the mother of children.”

The court was asked to reprimand the plaintiff’s attorney on the ground there was no evidence that the plaintiff by her injuries had been made unfit to become a wife or a mother. It will be noticed that the statement of the attorney was not that there was evidence directly indicating such result. He was reasoning from the facts before the jury. The'evidence showed the plaintiff’s nerves were shattered and he was arguing as a deduction from that fact, thát the woman was made unfit for the office of motherhood. The most defendant could claim in that respect was that the argument was unsound ; that the facts did not warrant the deduction; but if this Court should reverse every case where,a lawyer made an unsound argument or drew an unwarranted conclusion from given premises, few cases would stand the test. There was no error in allowing the argument to stand.

(d) The argument as it proceeded took this turn:

“Mr. Kelley: They had this doctor in this case with the report — it is admitted in this record at Mr. Priest’s own request, that Dr. M. A. Bliss, a neurologist of note in this city, to make an examination, at their cost and expense, of the plaintiff in this case. . . . Why didn’t Dr. Bliss come on ys there is nothing the matter with her nervous system, and tell you? Why didn’t they put him on the stand? Why did they single out these men? Very funny! They put on Dr. Keller and Dr. Dames at the same time and left Dr. Bliss away from here and not let you hear him. Why? They knew he was a neurologist ; they knew that he had seen this woman and that he had made tests and that he had drawn conclusions and arrived at conclusions. I will tell you, gentlemen, you can’t draw hut one conclusion from it, and that is that Dr. Bliss would tell you that this woman has traumatic neurosis, just like Dr. Hoge told you that she has, like Dr. Kinder told you she has, that the' nurse said that she is suffering from now, and they don’t want it: that’s the reason they didn’t do it.”

On the application of the defendant the court had appointed three physicians, Dr. Dames, Dr. Keller and Dr. Bliss, to examine the plaintiff as to the extent of her injuries. Dr. Dames was an aurist, Dr. Keller an oculist, and Dr. Bliss a neurologist. Those three specialists were to examine the three special results of which plaintiff complained — her defective vision, her defective hearing, and her neurotic condition. Drs. Dames and Keller were called by the defendant, and testified. Dr. Bliss was not called and defendant asserts that the reference to that fact by Mr. Kelley was very prejudicial.

Where a party fails to call a witness under his control or with whose testimony he is particularly acquainted, and of which the other party is ignorant, it is not improper for counsel on the other side in the argument to comment on the failure to produce such witness. This is particularly true where a party fails to call his own physician. [Evans v. Town of Trenton, 112 Mo, 390. l. c. 403; Willits v. C. B. & Q. R. R. Co., 221 S. W. 65.] In such eases, of course, the other side could not produce such a witness, because the knowledge which the witness acquired by examination of the plaintiff was privileged — a privilege which could be waived by the plaintiff.

The rule seems to be general that no unfavorable inference may be drawn, and no unfavorable comment be made, by counsel in his arguments on account of the absence of a witness whose evidence is equally accessible to both parties. It is reversible error to permit an argument of that character. [38 Cyc. p. 1491; Sears v. Duling, 79 Vt. 334; Oreen v. LaClaire, 89 Vt. 346; Gulf, C. & S. F. Ry. Co. v. Sullivan, 178 S. W. (Texas) 615, l. c. 618.] The respondent seems to admit the rule, but claims that inasmuch as Dr. Bliss was appointed by the court on the application of the defendant, he is the defendant’s witness and the plaintiff had not equal access to what he knows. It becomes then necessary to inquire by what authority the court malíes such an appointment.

The law invests the trial court with authority to appoint physicians to make physical examination of the plaintiff in a physical injury suit. The defendant cannot demand it as a matter of right, but the court in its discretion may do it in the furtherance of justice. [Graham v. Sly, 177 Mo. App. l. c. 353;. Sidekum v. Ry. Co., 93 Mo. 400, l. c. 403; Norton v. Ry. Co., 40 Mo. App. l. c. 646.] When the court makes such an appointment he does so because he determines in his discretion that the case calls for the opinion of disinterested and unbiased physicians, not friends of either parties, whose testimony is likely to be biased. [Fullerton v. Fordyce, 121 Mo. l. c. 10; Owens v. Railroad, 95 Mo. l. c. 178; Shamp v. Lambert, 142 Mo. App. l. c. 576.] This court in case of State ex rel. v. Anderson, 194 S. W. 268, placed the authority of the court in such cases upon the same ground as the general power to compel a discovery. Wigmore on Evidence, vol. 3, sec. 2194, treats of the subject in the same manner and says:

“ Apart from specific privileges, then, a person is bound, if required, to furnish, evidence by exhibiting his corporal features, his chattels, and his premises, to the inspection of the tribunal or its duly delegated officers.”

Wigmore then quotes from a Federal Decision of Justice Brewer, as follows:

“A person who testifies to his physical condition may he compelled (there being no improper exposure of person) to uncover his body, that the jury may see whether .there be such a physical condition as he has testified to.”

The power to make such an appointment involves an order requiring the plaintiff to submit to examination. The court could not compel plaintiff to submit to such examination by the witnesses for the other side. The physicians appointed in such cases are the officers of the court. The order is made because an exhibition to the jury or the court, of the infirmities about which the injury is made, would not disclose the facts as fully and clearly as the examination of experts would reveal them. There is no ground for saying that Dr. Bliss was a witness of the defendant.

The Kansas City Court of Appeals held that it was improper for plaintiff’s counsel to argue to the jury that defendant had a right to have a physician appointed to examine the plaintiff’s injuries, and reversed a case because such argument was permitted. [Stubenhaver v. Kansas City Railways Co., 213 S. W. 144.] [See, also, Bergfeld v. Dunham, 201 S. W. 640, l. c. 641; Perkins v. Silverman, 284 Mo. 238, 223 S. W. l. c. 901.]

It is argued that the remarks of the attorney in this case, if not strictly proper, will not warrant a reversal,. unless it appears that prejudice to the other side results. A reading of the evidence shows that the injury of which principal complaint was made in this ease was the shock to plaintiff’s nervous system. The plaintiff had introduced her physicians who testified to the existence of traumatic neurosis of an aggravated character which very seriously affected her health and comfort. Dr. Bliss is characterized as a nerve specialist of note, more capable, perhaps, of giving a correct and complete diagnosis than plaintiff’s physicians. No one had been called by the defendant to testify upon that feature of the case; it had introduced -its ear specialist and its eye specialist.

The argument directed attention to the omission to call Dr. Bliss, as the one man who knew best about plaintiff’s neurotic condition, whose acquaintance was well known to the defendant, indicating that he was defendant’s own witness, and asked the jury to draw from the incident an inference most favorable to plaintiff’s story. It was prejudicial and the court erred in permitting it, so that a reversal is necessary.

II. Error is assigned to the instruction on the measure of damages on the ground that some elements of damage which the jury were required to consider are not justified by the evidence. Inasmuch as we cannot forecast what turn the evidence will take on another trial it is unnecessary to review the assignment. For the same reason it is unnecessary to consider whether the verdict is excessive.

The judgment is reversed and the cause remanded.

Railey, G., concurs; Mosley, C., not sitting.

PER CURIAM.

The foregoing opinion by White, C., is adopted as the opinion of the court.

All of the judges concur.


source: Caselaw Access Project

author: WALKER, J.

license: Public Domain

text:
    THE STATE v. EDWARD POOR, Appellant.
    Division Two,
    March 7, 1921.
    1. INFORMATION: Murder: Unknown Weapon. It is permissible to charge that defendant killed deceased “by some means, instrument and weapons to your informant unknown.” And this is permissible although the evidence presents different ways and means by which the deceased might have been killed.
    2. -: Affidavit: Knowledge Instead of Belief. An objection to the prosecuting attorney’s affidavit to an information that it is made according to his best “information and knowledge,” instead of “information and belief,” should be made by a motion to quash. But defendant’s rights were not prejudiced by the use of the word “knowledge” instead of the word “belief.” The-statutory form is not mandatory.
    3. JUROR: Opinion Formed from Newspaper Reports. The test of a juror’s disqualification based on an opinion of defendant’s guilt formed from reading newspaper reports is, whether or not. despite such opinion, he can render a fair and impartial verdict. A juror who, on his voir dire examination, said he had read an account of the murder in the county newspapers and had formed an opinion in regard thereto which it would' require evidence to remove before he would believe that the defendant was innocent of the charge; that if selected on the trial panel he would hear all the evidence and give defendant a fair and impartial trial; that his mind .was not made up either way, and that he w&uld require the State to prove the case to his satisfaction beyond a reasonable d'oubt, will not on appeal, in view of the discretion vested in the trial court to determine the qualification of a juror in the first instance on the same basis as other facts are decided, be held to have been disqualified.
    4. INSTRUCTIONS: Murder in First Degree: Convicted of Murder in Second Degree. A defendant who has been convicted of murder in the second degree will not be heard to complain of an instruction defining murder in the first degree.
    5. —-•: Comment on Evidence: Refusal. It is not error to refuse an'instruction asked by defendant which is clearly an improper comment on the evidence; and an instruction which segregates find them to be true, is an improper comment on the evidence and Should not be given.

      6. MURDER: Corpus Delicti: Circumstantial Evidence. All tlie elements of the corpus delicti, including the fact of the death of the person alleged to have been murdered, the criminal agency of the accused and the identity of the deceased, may be proved by circumstantial or presumptive evidence when direct proof is not obtainable. The evidence must he sufficient to produce conviction in the minds of the jury beyond a reasonable doubt that the person alleged to have been murdered is dead and that defendant was the criminal agent who caused his death; but these two elements of corpus delicti being thus established, the fact that the body found had been almost entirely consumed by fire and . that what remained could not by positive evidence be identified as the body of deceased will not of itself exculpate defendant, but his criminal agency and the death of deceased may be made to rest upon the attendant circumstances and facts if sufficient to sustain a conviction beyond a reasonable doubt.
    7. PROVINCE OF JURY: Questions of Fact. Our system of jurisprudence contemplates that jurSrs are as much superior to the courts in determining matters of fact as the courts are superior to them in determining questions of law. When the guilt or innocence of an accused is the subject for determination by a jury, they are the only competent judges of the sufficiency of the competent evidence to sustain a verdict.
    8. INDIFFERENCE OF DEFENDANT: Unusual Occurrence: Corpus Delicti. Indifference of defendant, in the presence of unusual occurrences, to the burning of his brother’s barn, in the immediate neighborhood of his residence, on the next night after the person alleged to have been murdered disappeared with defendant, and in whose ashes the charred remains of a human being were found, is significant, especially in homicide cases, and manifests a condition of mind not in accord with normal conditions.
    9. MURDER: Verdict for Second Degree. Although the evidence shows that defendant, if guilty at all, was guilty of murder in the first degree, the jury is authorized by the statute to find him guilty of murder in the second degree, and there being substantial evidence to sustain their finding of guilty the courts will not concern themselves with the degree.
    Appeal from Madison Circuit Court. — Hon. Peter II. Huclt, Judge.
    Affirmed.

      Jos. F. Chilton and G. P. Damron for appellant.
    (1) A juror who on Ms voir dire says he has an opinion as to the g’uilt of the defendant based on reading a newspaper article containing a statement of all the evidence given on the preliminary trial of the defendant, is disqualified to sit as a juror in the case as a matter of law and as a matter of fact. Sec. 522!0, R. S. 1909; State v. Taylor, 334 Mo. 109; State v. Culler, 82 Mo. 623. (2) An instruction must be applicable to the pleadings and the testimony developed on the trial, and must be intelligible so as not to confuse the issues in-the minds of the jurors. Harrison v. L'akeman, 189 Mo. 608; State v. Riley, 100 Mo. 498; State v. Allen, 94 Mo. App. 508; State v. Williams, 184 Mo. 261; Moore v. Steigel, 50 Mo. App. 308; State v. Pettit, 119 Mo. 415. (3) Proof that a homicide has been committed and that the defendant on trial had made previous threats against the deceased, is not sufficient to warrant a verdict for murder; hence, instruction No. 9 offered by defendant should have been given. State v. Grlahn, 97 Mo. 679. (4) Before a witness can be impeached, it must he shown that his testimony in court is different from some statement made by him out of court, and a defendant cannot he bound by statements and acts of third parties out of his presence. State v. Brown, 247 Mo. 584; State v. Newcomb, 2:20 Mo. 63. (5) When a defendant is on trial for his life, counsel for the State should carefully refrain from any attempt to coerce the jury to convict, as by making an appeal to their passion and prejudice, or by reference to public sentiment regarding the case. The jury should convict on evidence that crime has been committed and not in order to satisfy the hopes of the relatives of the deceased, or to satisfy the demands of the people of the county in which the alleged offense was committed, although ’ said people may “ believe in the enforcement of law and order.” State v. ITess, 240 Mo. 147; State v. Brown, 247 Mo. 715; State v. Wigger, 196 Mo. 90; State v. Wellman, 253 Mo. 302; State v. Miller, 263 Mo. 326; State v. Jones, 249 Mo-. 80. And wliere the defendant’s gnilt is not clearly established, ranch less objectionable argument will he held reversible. State v. Evans, 267 Mo. 163; State v. Hilton, 255 Mo. 170. (6) A verdict which is not based on clear and convincing evidence of the guilt of defendant, but upon suspicion and conjecture, evidencing passion and prejudice on the part of the jury, cannot stand. State v. Hall, 141 Mo. App. 707; State v. Clain, 154 Mo. App. 686; State v. Baker, 144 Mo. 330; State v. Bass, 251 Mo. 107. (7) To establish the corpus delicti, there must he substantial proof that deceased died from a wound unlawfully inflicted by defendant. Both the criminal act and agency of defendant must be shown. State v. Bass, 251 Mo. 107; State v. Gordon, 199 Mo. 561; State v. Nesenhener, 164 Mo. 461;, State v. Crabtree, 170 Mo. 643; State v. Francis, 199 Mo. 671. (81 Accused is entitled to know the nature and cause of the accusation against him, and unless the information gives him this knowledge, it does not answer the end required by the constitution and law. Art. 2, sec. 22, Mo. Const.; State v. Nunley, 185 Mo. 102; State v. Gassard, 103 Mo. App. 143; State v. Birks, 199 Mo. 263. The information must charge a felonious striking or wounding. The homicide must be alleged to have been done feloniously. State v. Williams, Í84 Mo. 261; State v. Green, 111 Mo. 585; State v. Feaster, 25 Mo. 326;.State v. Herrell, 97 Mo. 105; State v. Woodward, 191 Mo. 617. The information must contain the allegation that the deceased came to his death as a result of the felonious act. Nothing can be supplied by intendment. State v. Hagan, 164 Mo. 654; State v. Brown, 168 Mo. 449. The information was not verified as required by law. Secs. 5057, 5059, R. S. 1909.

      Frank W. McAllister, Attorney-General, and G. P. Le Mire, Assistant Attorney-General, for respondent.
    (1) The information is sufficient. Kelley’s Crim. Prac. sec. 484, p. 430; State v. Woodward, 191: Mo.’629; State v. Williams, 184 Mo. 261; Commonwealth v. Webster, 5 Cush. (Mass.) 295; State v. Williams, 52 N. C. 446. (2) The evidence is sufficient, to support the verdict. State v. Concelia, 250 Mo. 424; State v. Underwood, 263 Mo. 685. (3) The corpus delicti may he established by circumstantial evidence. State v. Concelia, 250 Mo. 421; State v. Barrington, 198 Mo. 112; State v. Vinton, 220 Mo. 100. The corpus delicti was established by the testimony in the case. State v. Henderson, 186 Mo. 483. (4) Instruction No. 3 is on murder in the first degree. Appellant was convicted of murder in the second degree and cannot complain. Instruction No. 9 when analyzed amounts to a comment on the evidence. It was properly refused. State v. Lewis, 264 Mo. 432; State v. Shelton, 223 Mo. 139; State v. Mitchell, 229 Mo. 697; State v. Sebastian, 215 Mo. 87. (5) Remarks of counsel complained of are not saved for review. State v. DeWitt, 191 Mo. 58; State v. Humfeld, 182 Mo. App. 643. (6) Appellant’s assignment that the court erred in overruling defendant’s challenge for cause to the juror, D. E. Pridy should be overruled. Pridy did not serve on the trial jury of twelve. State v. Brooks, 92 Mo. 575; State v. Rasco, 239 Mo. 557; State v. Robinson, 117 Mo. 659; State v. Reed, 137 Mo. 131.
   WALKER, J.

Edward Poor was charged with murder in the first degree by information, in the Circuit-Court of Madison County, in February, 1920, in having killed one Cleveland King in October, 1919. Upon a trial he was convicted of murder in the second degree, and his punishment assessed at ten years’ imprisonment in the penitentiary. From this judgment he appeals.

Cleveland King, frequently designated in the record as “Cleve,” had, with his wife Nora, formerly lived in the immediate neighborhood of the defendant. Gossip as to an improper intimacy between the latter and Mrs. King hid occupied the ever-busy tongue of scandal for some time before the separation of King and his wife, which occurred, in August, 1919. Upon this separation, provoked, as admitted by counsel for appellant, by tbe scandal, sbe went to reside with ber mother and stepfather, who lived in the same neighborhood. On Saturday, October 25, 1919, she was in Fredericktown with her parents. As they went home that evening they met the defendant, who said he had heard that Cleve King had been telling some tales on him that he had to straighten np. The next day Cleve came to where his wife was staying. After a general conversation he and his wife went to the Trace Creek Church building in the vicinity (there being no services there at the time),.to discuss their differences. A half an hour or more after their arrival there they agreed to a reconciliation and a renewal of their marital relations, when the defendant appeared, carrying a gun. He demanded that Cleve accompany him to Charley Hawkins’s, who lived about two miles away, to straighten up certain tales he said Cleve had been telling on him. The wife testified that her husband denied the charges and went reluctantly; that the last time she saw him he was going down the road with the defendant toward the home of Andy Hale in the direction of Charley Hawkins’s. Soon after they left, two men, corresponding in size and general appearance with the defendant and Cleve King, were -seen by Andy Hale about one hundred yards or more distant, going down the public road which ran in the direction of Charley Hawkins’s place. Hale did not at the time observe them with particularity sufficient to identify them as King and the defendant, but did notice that one was a small man and the other a large one, and that the latter carried a gun. It was shown that King was a small man, while the defendant was a large one. It was a little later than three o’clock when defendant and King left the church. The latter has never been seen since that time. Andy Hale heard four gunshots that afternoon — three of them a short time after the men had passed his place, and the fourth about a half hour later. The location of the person firing the fourth shot seemed from the report to be a mile or more distant in tlie direction of Charley Poor’s house, who was a brother of the defendant, and in which direction the two men were going when they passed Andy Hale’s. The other shots were in the same general direction, hut a little further north and west. Nora King, upon her return to her step-father’s house a half an hour or less from the time the defendant and her husband left the church together, told the members of her family of the defendant’s coming to the church and demanding that Cleve accompany him and of the latter’s reluctant compliance. The unaccounted absence of King under the circumstances occasioned neighborhood comment, and on Mon-dajr evening the defendant and a fourteen-year-old son of his came to the house of Creen Stacy. The latter’s wife, who was the grandmother of Nora King, told defendant what Nora had said, and asked him if he knew where Cleve was. Defendant said he did not'; that he had not seen him since the Saturday preceding at Mill Creek; that he (defendant) was not at the church on Sunday and if Nora said so she was “fibbing.” Green Stacy, his wife, defendant and a fourteen-year-old son of the"latter then went up the creek to Andy Hawkins’s, where Nora King was then staying. What occurred upon their arrival we give in the language of the record, Nora King testifying:

After stating that the- defendant came to the church building where she and her husband were and that defendant demanded that King accompany him and that they went away together, she was asked: “When did you next see Ed Poor, the defendant?” She answered: ‘ ‘ On Monday night at Uncle Andy Hawkins’s; ” that he came there a little after dark with her grandmother and grandfather Stacy and defendant’s boy. In reply to the inquiry as to what was said or done, she testified: “He (defendant) came in and sat down near the door; he appeared — his voice was very weak or something — he seemed like something was the matter with him. I did not know what was the matter. He came in and sat down close to the door, and then he got up and stepped to the door and said, ‘Nora, I want to speak to you,’ and we stepped out on the porch and he says, 'I want yon to deny my being at the head of Trace Creek.’ I says, ‘What for.’ He says, ‘What for? It will cause people to talk about us.’ I says, ‘Ed, I can’t do it; I have told Mama and Papa and Sister Grace yon were there.’ And he says, ‘If you have ever done anything in your life, do it for me now.’ And I says, ‘I can’t do it.’ Grandma called me then and says, ‘Nora!’ I then called him into the kitchen and I says, ‘Ed, I want you to tell me where you left Cleve.’ He says, ‘He is over yonder.’ That’s what he first told me about him. I says, ‘Is it possible you have killed him?’ And he never said nothing. He never said he did nor fie didn’t.”

In answer to the inquiry as to what defendant said, if anything’, with reference to it being somebody else at the church on Trace Creek on Sunday afternoon, she testified: “Well, he says, ‘You tell it was Ed Smith instead of Ed Poor.’ I told him I couldn’t do it.” “What was said, if anything, that you didn’t tell?” “Well, I says, ‘Ed, Ma thinks you have killed Cleve: she is going to have a crowd hunt for him tomorrow.’ He says, ‘They can hunt, but they will never find him. He is gone and he will never come back. ’ I asked him where he had left Cleve and he says, ‘He is over yonder,’ and that’s the last talk I ever had with him.”

On Monday, October 27, 1919, at about midnight, the barn of Charley Poor, a brother of the defendant, was burned. On the Friday following, the sheriff of the county, with a number of others who had been searching for Cleve King, found among the ashes of the barn what was identified as the remains of a human being. The body had been reduced to ashes, except a part of the right hip and of the thigh. Prom the size of the bones and the length of the entire body, as outlined in the ashes before being disturbed, the remains indicated that they were those of a small man; an adult, say the experts. Remnants of clothing and what appeared to have been buttons, which crumbled upon being touched, and a metal belt buckle were found in the ashes with the remains. This belt huclde was identified by a number of persons as having been similar in every respect to one worn by Cleve King the day of bis disappearance.

A neighbor- of defendant’s named Berry, accompanied by a school teacher named Sample, went to defendant’s bouse to confer with him in regard to a neighborhood school on the Sunday afternoon that Cleve King was last seen; they did not find the defendant at home, nor could they find him in the neighborhood, until about seven o’clock that evening when, upon their return, they found him at his home.

Testimony on behalf of the defendant as to his meeting Nora King and her parents 'in Fredericktown and as to what was said, differs in no' material particular from the testimony in that regard for the State. Testifying in his own behalf, he details his whereabouts from that time until Monday evening, October 27th, when he admits he saw Nora King at Andy Hawkins’s, but denies that he attempted to persuade her to contradict her former statement as to his coming to the church and leaving there with her husband; that on the contrary he remonstrated with her against the making of such a statement, because, he says, it was not true. He states that on Monday night he was at home sick, and about midnight saw a light in the direction of his brother’s, Charley Poor’s, which was afterwards found to have been the latter’s burning barn; that he apprised his father and boys of the fire and they together looked at it for a time and then retired; that, in company with his two boys, he went to the scene of the fire Tuesday morning; that it was still burning and there was considerable heat, and he could not approach nearer than thirty feet; that he saw no remains of a human being and did not look for any. His fourteen-year-old boy and his father corroborated his statements as to his whereabouts during the afternoon of October 26th, stating that at that time he was at home.

He is shown by several witnesses to have sustained a good reputation in the neighborhood prior to this charge; and he states that his relations with Clove King were at all times friendly.

It was attempted to he shown that the shots heard by witnesses for the State were made by persons who stated that they had fired a gun two or three times that afternoon in the direction from which the reports came. The testimony of the defense in this behalf does not attempt to account for the last shot testified to by the State’s witnesses. Testimony wholly irrelevant, in view of all the other facts in the case, was given as to certain threatening remarks which were stated to have been made by the wife of Cleve King in regard to him several months prior to his disappearance. In fact, the record is replete with irrelevant testimony.

The information was in three counts and charged murder in the first degree. At the close of all the testimony the State elected to stand on the third count, which, omitting the formal preliminary parts and the signature and affidavit of the prosecuting attorney, is as follows:

“For third count to this information, the said David M. Tesreau, Prosecuting Attorney within and for Madison County, in the State of Missouri upon his oath, further informs the court and present and charge that the defendant, Edward Poor, on the 26th day of October, 1919, at and in Madison County, in the State of Missouri, with force and arms, in and upon the said Cleveland King aforesaid,' feloniously, willfully, deliberately, pre-meditatedly, on purpose and of his malice aforethought, did make an assault and the said Cleveland King, in some way and manner and by some means, instruments and weapons to your informant unknown, inflict upon the body, head, neck and limbs of the said Cleveland King, divers and sundry wounds and injuries, and did then and there feloniously, willfully, deliberately, pre-meditatedly, on purpose and of his malice aforethought deprive of life, so that said Cleveland King, then and there instantly died on the 26th day of October, 1919, at and in the Comity of Madison and State of Missouri, and so the said David M. Tesreau, Prosecuting Attorney within and for Madison County, in the State of Missouri, aforesaid, upon his oath aforesaid, does say that the said Edward Poor, him the said Cleveland King, in the manner and by the means aforesaid, unknown, then and there feloniously, willfully, deliberately, premeditatedly, on purpose and of his malice aforethought did kill and murder against the peace and dignity of the State.”

I. A piecemeal criticism of the information is made. Read as a whole it clearly and succinctly charges the crime of murder in the first degree. While , . ... ,. . , , ,. not describing the weapon used to ettect the

death, it does, as is permissible, allege that the means employed by the defendant whereby he deprived the deceased of his life were unknown; in addition, it alleges that the homicidal act was done feloniously, and in this respect, as well as in others, it meets the objections that were made to a charge of murder in the first degree in the somewhat diffuse opinion of this court in State v. Woodward, 191 Mo. 617, and cases there discussed. Further than this, if a precedent were needed to sustain the correctness of our conclusion in regard to this information, it is, aside from names and dates, identical with the indictment approved by the Supreme Court of Massachusetts in the famous Parkman-Webster case (Comm. v. Webster, 5 Cush. 295, 52 Am. Dec. 711), in which the opinion, written by that able jurist, Chief Justice Shaw, discusses with much learning the sufficiency of the charge there made, in which the facts were, in leading particulars, not unlike those at bar. Likewise, in the well considered case of State v. Williams, 52 N. C. 446, 78 Am. Dec. 248, it is held that where the indictment charges that the murder was committed “in some way and manner and by some means, instruments and weapons to the jury unknown, ’ ’ that it is sufficient. Like phraseology was employed and approved by the Supreme Court of North Carolina in an indictment charging murder in the first degree in State v. Parker, 65 N. C. 453. This ruling' was made although the evidence presented different ways and means by which the deceased might have been killed.

The objection to the sufficiency of the information on account of the prosecuting attorney’s affidavit thereto, in that it is made according to his best “information and knowledge” instead of “information and belief,” should, if it had possessed any merit, have-been raised by a motion to quash. [State v. Green, 229 Mo. 642; State v. Montgomery, 181 Mo. 19.] However, there is no merit in the contention. Belief must he based upon knowledge, not positive, perhaps, but sufficient to create a mental conclusion. While the word “knowledge” is not synonymous with “belief,” used in the general sense in which it was employed in the affidavit, it might be well understood to indicate that the information was filed with such knowledge as the prosecuting attorney then possessed, which amounted, in his mind, to a belief in the matter stated in the charge. In any event the precise statutory form of the affidavit is not mandatory and the use of the word “knowledge” instead of that of “belief” could not, under any reasonable theory, have been prejudicial to the defendant.

II. Defendant assigns error in the refusal of the trial court to sustain his challenge to a juror named Pridy on the latter’s voir dire examination. Pridy, although not stricken from the array, was not ^' chosen as one of the trial panel. Questioned by counsel for the defendant, he said that he had read an account of the matter in the county newspapers and had formed an opinion in regard thereto which it would require evidence to remove before he would believe that the defendant was innocent of the charge; that if selected on the trial panel he would hear all of the evidence and give the defendant a fair and impartial trial; “that his mind was not made up either way; that he could sit there and it would require the State to prove the case to his satisfaction beyond a reasonable doubt.” The contention of defendant is that the array required by the statute from which to select the trial panel should have been shown to have no opinion as to the case, whether removable bjr evidence or not.

We might well pass lightly over defendant’s contention and sustain the trial court’s ruling on the ground clearly announced in State v. Mace, 262 Mo. l. c. 154, and cases cited, that there was no such specific challenge to the juror for cause as is required by the statute. However, that the defendant may be denied no right he may be entitled to under the most liberal interpretation of the statute in his behalf, we have considered the contention in the light of the facts disclosed by the juror’s examination.

The precise language of the statute is as follows: “It shall be a good cause of challenge to a juror that he has formed or delivered an opinion on the issue, or any material fact to be tried, but if it appears that such opinion is founded only on rumor and newspaper reports, and not such as to prejudice or bias the mind of the juror, he may be sworn.” [Sec. 4014, R. S. 1919; formerly Sec. 5220, R. S. 1909.]

The limitations expressed in this statute are unequivocal. While it shall be a good cause for challenge that the juror has formed or delivered an opinion upon any issue or material fact to be tried, such opinion will not disqualify if founded only upon rumor or newspaper reports and is shown to be such as to not prejudice or bias the mind of the juror after having heard the evidence. A somewhat prolix examination of this juror simply elicited the fact that having read an account of the matter in the county papers he had formed an opinion in regard thereto but, despite this fact, if selected on the trial panel he would be governed by the evidence adduced at the trial in the making up and rendition of the verdict. Therefore, if it had been shown, as it was not, as we ruled in State v. Taylor, 134 Mo. l. c. 141 that all of the facts in regard to the matter at issue had been .published and had been read by the juror, he would not have b.een disqualified, in Mew of tlie answers given by him upon Ms examination. Tbe test as to the qualification of a juror based upon the reading' of newspaper reports is, as we held in State v. Brooks, 92 Mo. l. c. 575, whether or not, despite the opinion formed from reading-such reports, the juror can render a fair and impartial verdict. If his examination discloses that he can, then this court will not interfere with the discretion exercised by the trial court in refusing to sustain a challenge to him. We said in the Brooks case, quoting from earlier rulings, that “the rule is well settled that it is the duty of the court to superintend the selection of the jury in order that it may be composed of fit persons. Large discretion must be confided to the trial court in the performance of this duty. Nor will the action of the court in this behalf be made the subject of review unless some violation of law is involved, or the exercise of a gross and injurious discretion is shown. . . . It is sufficient that the judge be satisfied, from his personal knowledge of the jurors; their answers to other questions; their reputation for integrity and intelligence; and his judgment in respect to such qualifications will not be reviewed. ... As to whether an opinion formed by a juror is of such character as necessarily to raise the presumption of partiality, is to be tried, so far as the fact is concerned, upon the evidence; and the finding of the trial court on that issue ought not to be set aside by a reviewing- court unless the error is manifest. No less stringent rules should be applied by the reviewing-court than those which govern in the consideration of motions for new trials because the verdict is against the evidence. In such cases the manner of the juror while' testifying is oftentimes more indicative of the character of the opinion than his words.' That is seen below, but cannot be on the record. ’ ’

The rule as above announced and the discretion of the trial court in the exercise of same, have received frequent subsequent approval by this court. [State v. Herring, 268 Mo. l. c. 529, 188 S. W. 172; State v. Schmulbach, 243 Mo. l. c. 538; State v. Rasco, 239 Mo. l. c. 557.] We therefore hold this contention to be without merit.

III. Instruction numbered 3 given by the court defined murder in the first degree. Error is assigned as to the giving of this instruction. Convicted of murder in the second degree, the defendant will not be , ,, ° , heard to complain of alleged errors m an in-

struction for murder in the first degree. [State v. Baugh, 217 S. W. l. c. 280 and cases; State v. Clinton, 278 Mo. l. c. 347, 213 S. W. l. c. 842; State v. Lewis, 264 Mo. l. c. 430; State v. Wilson, 250 Mo. l. c. 329.]

Instruction numbered 9 asked by-the defendant and refused was clearly an improper comment on the evidence and the trial court cannot be convicted of error in refusing to give it. The difference in verbiage and meaning between this instruction and that approved (No. 7) in State v. Glahn, 97 Mo. l. c. 690, cited by appellant, is evident upon even a casual comparison. The latter is general -in its terms and authorizes a finding of not guilty “upon a review and consideration of all of the evidence, ’ ’ while the former attempts to segregate certain facts which the jury are directed to take into consideration in their review of the entire evidence; in other words, they are instructed to review the entire evidence, subject to the limitations prescribed in the instruction. This is unauthorized and cannot, as we have stated, be construed other than as a comment on the evidence. [State v. Lewis, 264 Mo. l. c. 432; State v. Mitchell, 229 Mo. l. c. 697; State v. Shelton, 223 Mo. l. c. 139.]

IY. It is contended that there was an absence of proof of the corpus delicti — that the remains were so completely burned as to be impossible of identification. This contention is based not so much upon the question of á lack of testimony as upon the nature of same; the assumption being that there was no such evidence adduced as to the death of King as is required to constitute one of the component parts of proof of the corpus delicti. In short, that the death of King was not proved by direct and positive evidence. It is true that it was the rule at the common law, as well as in some other jurisdictions, with reference to proof of the corpus delicti in homicide cases, that the first component part of the crime, to-wit, the death of the person, must he established by direct evidence, while the criminal agency of the accused, or the second component part, might be shown by circumstances. [Reg. v. Hopkins, 8 Car. & P. 591; King v. Hindmarsh, 2 Leach C. L. 648; People v. Bennett, 49 N. Y. 137; Ruloff v. People, 18 N. Y. 179; State v. Flanagan, 26 W. Va. 116.] However, it has long been the rule in this jurisdiction that all of the elements of corpus delicti, including the fact of the death of the person alleged to have been murdered, as well as the criminal agency of the accused and the identity of the deceased, may be proved by circumstantial or presumptive evidence when direct proof is not obtainable. This court so held in State v. Dickson, 78 Mo. l. c. 446, where it is said, in effect, among other things, that it was not necessary upon questions of identity that witnesses swear pointedly; it is only necessary, and is of common occurrence, for them to swear that they believe the person to be the same, and the degree of credit to be given to their evidence is a question for the jury. Articles found upon the body are recognized in the Dickson case as constituting sources of proof of identification. In the Henderson case, 186 Mo. l. c. 493, we said that the two elements of corpus delicti in a murder case consist of the death of the person alleged to have been murdered and the criminal agency causing the death; that while both of these must be established to sustain a prosecution for murder, the fact of the death need not be established by direct and positive evidence, “but now by. the weight of authority in this country the fact of the death as well as the criminal agency may be shown by circumstantial evidence when that is the best evidence obtainable, and provided always that it is sufficient to produce conviction in the minds of the jury beyond a reasonable doubt.” The court concludes that to rule otherwise would be to place a premium upon atrocity and enable a murderer to escape punishment for his crime by so mutilating or burning the body of his victim as to prevent its identification or recognition. . The grave importance of the application of the rule as announced in the Henderson case is exemplified by the facts, which were, briefly stated, as follows: An old negro man, Joe Buckner, lived alone in a little cottage a few miles from Wentzville in St. Charles County. He was last seen at about five o’clock p. m., April 12,1903, when he left the house of one of his sons who lived in the neighborhood and started homewards. Late that night his cottage was discovered to be on fire. It was speedily consumed and the next morning the charred remains of a man were found in the ashes. With these remains was found the metal portion of a pocket knife of • peculiar shape, such as the old man was known to have carried. Prom that day until the date of the trial he had not been seen. No motive was suggested why he should have burned his house or have fled the country. All of his children lived in the immediate neighborhood, and if the cottage had been destroyed by another in his absence the natural and logical sequence, says the court, would have been that he would have first discovered the fire and have given the alarm. This reasoning in support of the conclusion that the body found in the ruins was that of the old man, and correlative facts as to the prior relation existing between him and the defendant are adduced to connect the latter with the crime. These correlative facts consisted, among other things, of evidence of an altercation between the old man and the defendant which engendered bad blood between them, threats of the defendant against the old man, the procuring of ammunition for a gun by the defendant, and the indifference of the latter when notified of the fire while it was in progress and his refusal to go to the scene or to attempt to offer any relief. While it is true that there was in this case a subsequent confession by the defendant, this does not affect the force of the court’s ruling as to the character of tlie testimony admitted or the quantum of the proof necessary to establish the corpus delicti.

In State v. Barrington, 198 Mo. l. c. 113, the rule so clearly announced in the Henderson case is given emphatic approval. The similarity of the facts in this case to those at bar in that the defendant and the deceased left together and the latter was never seen alive thereafter, renders a brief statement of that case not in appropriate, as showing by analogy at least the probative force of the evidence here adduced. The defendant Bar-rington and one McCann left a hotel in the City of St. Louis kept by McCann, on the evening of June 18, 1903. The latter on his departure was in good health and spirits, and said to his wife that he would return in a short time. At about ten o’clock that night those parties were seen on a suburban car going towards Bonfils Station in St. Louis County. McCann was talkative and in a good humor and asked when the next car would return to the city, that he must get back on it. These parties alighted from the car at about 10:35 p. m. The last time that McCann was seen alive he and the defendant were walking along a pathway leading away from the car-track toward a quarry pond in the vicinity. A short time thereafter a pistol shot was heard, followed by an outcry, and another pistol shot, and then silence. Early the next morning the defendant was seen walking along the car-track towards the city, which was distant about twelve miles. He was thus walking, although it was shown that he had money on his person to pay carfare and did mount a car as soon as the corporate limits of the city were reached. While he was walking near the car line he was seen by different persons to turn about, evidently to prevent identification. Several days later articles of clothing were found concealed along the roiite that defendant had traveled on his return to the city. About a week later a naked human body was found in the quarry pond towards which defendant and McCann had gone the night of the latter’s disappearance. The body was finally identified to be that of McCann. There were other incriminatory facts not necessary to be repeated here. Enough has been stated to show that the introduction of circumstantial evidence was permitted not only to prove the death but the defendant’s agency - therein.

" Supported, therefore, by the precedents which sanction the admission of circumstantial evidence in cases of this character, there can be no reasonable question-as to the correctness of the rulings of the trial court in the admission of evidence of that character in the instant case. There remains, therefore, only the question as to the probative force of that evidence or the quantum of proof necessary to sustain a conviction.

It was long ago said b}1- this court, in State v. Lamb, 28 Mo. l. c. 232, that “when the guilt or innocence of a prisoner is the subject of determination for a jury, they are the only competent judges of the sufficiency of the evidence to sustain a verdict.” This rationally follows by reason of the jury’s relation to the administration of justice. “Our system of jurisprudence,” says Judge Scott, in the Lamb case, “contemplates that jurors are as much superior to the courts in the determining of matters of fact as the courts are superior to them in deciding questions of law. ’ ’ The line of demarcation thus defined between these two instrumentalities employed in the prosecution of criminals has been 'uniformly recognized throughout our entire judicial history; and it is only to be crossed, as we said in the recent case of State v. Underwood, 263 Mo. l. c. 685, “when there is a total failure of evidence or it is so weak as to justify the conclusion that the verdict was the result of passion or prejudice” (citing cases).

Briefly, but with that considerate care which should be given to a review of the testimony in a case involving the liberty or life of a defendant, what were the facts at bar? We enumerate them at the expense of repetition :

Animus amounting, without exaggeration of terms to animosity on the part of the defendant existed against •the deceased. Concrete support for this conclusion is found in the repeated statement of the defendant to different persons that the deceased must straighten up the tales he had been telling. That defendant persisted in this feeling, which must have grown more malicious, with time, is evident from his coming to the church building on the Sunday following his last expression of animus against the deceased and while armed demanding that the latter accompany him, as he said, to straighten up the tales. The reluctance manifested by the deceased in accompanying the defendant could only have arisen from fear of the defendant, based evidently upon the latter’s personal demeanor and his armed condition. Under these circumstances they left, and their leaving is corroborated by the testimony of Andy Hale. When they left his sight the deceased, so far as human testimony is concerned, passed beyond mortal ken. Soon thereafter, coming from the direction in which Hale had seen the men going, he heard in somewhat rapid succession three gunshots, and after an intermission, another. The three first shots were accounted for. The fourth was not. Some time during that Sunday afternoon a neighbor of the defendant and a country school teacher found it necessary to consult the defendant, who was one of the school directors, in regard to the employment of the teacher during the coming term. They went to his house and were informed by his father that he was not there. Their business evidently being urgent, they sought the defendant at different places in the neighborhood, but he was not to be found until about seven o’clock that evening, when, upon their return, they found him at home. The succeeding Monday night, being at the house of a man named Stacy, he was asked about Cleve King, and Mrs. Stacy repeated the statement that had been made to her by King’s wife as to her husband leaving with the defendant the day before. He denied this in toto, and they went to where Nora King was staying, evidently for the purpose of enabling him to confront her. Instead of confronting her, we find him calling her aside and pleading with her to deny her statements, and when asked by her where her husband was, he said in his agitation, pointing over towards Charley Poor’s, that “he was over there.” ITe made no response when she accused him of having killed her husband. Late that night Charley Poor’s, his brother’s, barn was found to be on fire and was entirely consumed. The human remains found in the ashes were in size and appearance corresponding to that of Cleve King when living. A belt buckle- found with the remains was similar in every material particular to one worn by him on the day of his disappearance. It is rather significant that the defendant, although he states he was indisposed, as was the plea of the defendant in the Tettaton case, 159 Mo. 354, did not manifest more interest in the burning of bis brother’s barn in the immediate vicinity than, to simply note the fact of the fire and retire. Indifference of this character in the presence of events of unusual occurrence is not infrequent in criminal annals, especially in homicide cases. Space need not be taken up in recounting instances, and it is only necessary to say that they manifest a condition of the mind on the part of defendants not in accord with normal conditions. With this evidence before them, the jury, more keenly sensitive on account of their immediate knowledge of the facts, derived from the living witnesses, than one who must obtain his information in regard thereto from the cold record, found the defendant guilty. We have no means of knowing, nor do we understand, in the face of these facts, why the jury tempered, their verdict by a finding of murder in the second degree. This, however, is authorized under our law (Secs. 3908, 36925, R. S. 1919), and there being substantial evidence to sustain their finding of guilty, we need not concern ourselves with the degree.

Other errors assigned were not properly preserved and hence have not been reviewed.

In view.of all of which the judgment should be affirmed, and it is so ordered.

All concur.


author: RAILEY, O. PER CURIAM:

text:
    THE STATE v. ERNEST BURNS, Appellant.
    Division Two,
    March 7, 1921.
    1. TBIAL: Bight of Accused. A defendant in a criminal case is presumed to be innocent until proven guilty, and is entitled to' such presumption throughout the case; and the duty devolves upon the trial court and prosecuting attorney to see to it that he is granted a fair and impartial trial upon the merits of the controversy.
    2. -: Improper Evidence: Unfairness of Prosecuting Attorney! A persistent attempt by the prosecuting attorney, in spite of adverse rulings by the judge, to get before the jury evidence which the Supreme Court on a former appeal in the same case had held improper, in order to create in the minds of the jury the unwarranted impression that defendant had maintained improper relations with the wife of deceased, when there was no evidence at all that such was the fact, is a denial to defendant of a fair and impartial trial; and the attempt to create this unwarranted impression being aggravated by an impassioned argument to the jury, wherein, without any evidence to support it, either as provocation or otherwise, defendant’s conduct in destroying the sanctity of deceased’s home was dwelt upon at great length, was reversible error.
    3. -: Unfair Argument. An argument to the jury by the hired counsel for the State, wherein he urges the jury to convict defendant on the ground that he had polluted the sanctity of deceased’s home, when there is no evidence to support the accusation, is an invasion of the presumption of innocence, and should be summarily stopped by the court; and if, upon objection, counsel is only feebly rebuked or not rebuked at all, there is no way to cure the wrong except to grant a new trial.
    4. EVIDENCE: Carrying Pistol: U. S. Mail Carrier. Where the evidence is not clear whether deceased or defendant was the aggressor, and there is evidence that, when deceased appeared on the porch of the postoffice with a pistol in his hand, defendant took a pistol from his automobile in which he carried the mail, defendant, being a mail carrier, should be permitted to show that he was carrying the pistol under the requiremennts of the Government.

      Appeal from Pemiscot Circuit Court. — lion. Sterling II. McCarty, Judge.
    REVERSED AND REMANDED.

      McKap & Medling and Ward & Reeves for appellant.
    (1) The court erred in refusing to rebuke the prosecuting attorney for continuously asking questions that this court had held was reversible error in the former trial. State v. Burns, 213 S. W. 116.' (2) The court erred in refusing to rebuke J. S. Gossom, hired counsel for State, for an unwarranted attack upon defendant and statements out of the record in his closing argument to the jury. State v. Davis, 217 S. W. 91; State v. Dozier, 177 S. W. 360; State v. Spivey, 191 Mo. 112; State v. Reppley, 2.13 S. W. 480. (3) The court erred in refusing to permit the defendant to show why he had a pistol on the occasion in question.

      Frank W. McAllister, Attorney-General, and Henry B. Bunt, Assistant Attorney-General, for respondent.
    (1) Error cannot be predicated upon sustained objections. State v. Miles, 199 Mo. 560; State v. Grant, 144 Mo. 65; State v. Brown, 181 Mo. 213; State v. Burns, 278 Mo. 446. (2) The trial court properly excluded the evidence offered by appellant tending to show why he carried a pistol. State v. Ruck, 1.94 Mo. 434. (3) It is within the range of legitimate argument for counsel to state and discuss the evidence and all reasonable and legitimate inferences which may he drawn from the facts in evidence. 16 C. J. sec. 2240; State v. Dyer, 139 Mo. 212; State v. Musick, 101 Mo. 274; State v. Johns, 124 Mo. 386; State v. Harrison, 263 Mo. 659.
   RAILEY, O.

This ease was here upon a former appeal and was reversed and remanded on account of errors committed during the progress of the trial. It will be found reported in 278 Mo. 441, 213 S. W. 115. Tire facts relating to tlie homicide are not materially different from what they were in the former trial.

The evidence on behalf of the State, briefly stated, tends to show, in substance, that A. P. Bumpas lived at the town of Cooter, in Pemiscot' County, Missouri; that his wife was in charge of the post office in said town, and that, with his wife and two children, they lived in the building occupied as a post office; that defendant, on September 27, 3917, the day of the homicide, and prior thereto; was a mail carrier between the towns of Steele, Cooter and Tyler; that, on said date, defendant and deceased were not on friendly terms; that in the usual course of business in carrying the mail, defendant usually remained at Cooter about one hour; that, on said 27th day of September, 193.7, defendant had been at the post office about one hour waiting for the mail to be made up; that during that time, the deceased, A. P. Bumpas, had been out in his back yard, and came into the house about the time defendant was starting out to his Ford car, in which he carried the mail, with a mail sack in each hand; deceased followed him out on the porch, cursed him, told him to get out of there and quit hanging around his family, etc. Some evidence on the part of the State tended to show that, at this time, defendant also had a pistol in one hand with the mail sack. Defendant’s evidence tends to show that he had no pistol at that time, and that his pistol was in the car. At any rate, defendant went on the opposite side of said car from deceased, and was putting the mail sacks in the car. Defendant testified that deceased had a pistol when they came out on the porch, with deceased following behind. There is some evidence of the State contradicting this, and tending to show that deceased did not go into the house and get his pistol until the first shot had been fired by defendant, while behind his car, with a small pistol. The evidence is clear that defendant fired the first shot. He testified that in getting his pistol it went off accidentally, and that he did not shoot at deceased. Several witnesses for the State testified that defendant fired this shot, but they did not say he fired at deceased. The evidence tends to show that deceased then had a pistol in his hand, or ran in immediately after this first shot, got his pistol, returned to the door and shot at defendant. The latter then shot twice at deceased, one shot taking effect, from which he soon died.

The jury found defendant 'guilty, and assessed his punishment at ten years in the penitentiary. Defendant, in due time, filed motions for a new trial and.in arrest of judgment, both of which were overruled, and the cause was duly appealed by him to this court.

The defendant objected to all the instructions given by the court, and excepted to the action of the court in refusing to give those' ashed by him.

The instructions given and refused, -as wTell as the other matters complained of by defendant, will be considered, as far as necessary, in the opinion.

I. Appellant complains of the action of the trial court in refusing to rebuke the prosecuting attorney, for knowingly and intentionally bringing before the jury evidence which this court in the former appeal held was improper, for the purpose of creating, in the minds of the jurors trying the case, the impression that defendant had been too intimate with the wife of deceased and had broken up the home of the latter, when no such issue was presented in the case, nor wa's there any evidence in the cause which warranted any such insinuation.

In disposing of the case upon the former appeal (213 S. W. l. c. 116), we said:

“When the witnesses arrived, they found Rumpas on the floor. Mrs. Bumpas refused to allow him to be put on the bed. It was shown, over the objection and exception of the • defendant, that she said he should not be put on her bed; a man that would act like he had. If he would explain to the crowd why he had done that, and he was justified, she would let him be put on the bed; but she would not if he did not. . . .
“I. Error is assigned to the admission by the court of the statement of Mrs. Bumpas explaining; why she refused 'to let her wounded husband be put on her bed. This statement was clearly hearsay. While the matter of the statement tended to exculpate the defendant and put the blame of the encounter upon her husband, it further tended to show her partiality for the defendant, and would undoubtedly have a tendency to prejudice the jury against him. Mrs. Bumpas was not a witness, and it was not admissible for the purpose of showing her bias in the case. It was not res gestae, and incompetent on any theory. . . . The statements of Mi’s. Bumpas occurred several minutes after her husband was shot and after the neighbors had come in. It was her deliberate explanation of her attitude in the matter. It was, in fact, an argument showing why she did not want her wounded husband placed on her bed.”

The defendant was outside the building and was not present when the above conversation occurred. She was evidently smarting under the insinuation cast upon her character by the husband, when he said to defendant, as told by Travis: “Prom now on, you bring the mail and come and get your mail and go about your business, and don’t be hanging about my family.”

When the case came up for trial, after the former reversal, the .mandate and opinion of this court were on file in the circuit court. It is fair to assume that in the re-trial of the case the judge of the court, the prosecuting attorney and the counsel upon both sides must have been familiar with the language of this court, heretofore quoted, in respect to the above testimony. In utter disregard of our former ruling, the prosecuting attorney, examined Oscar Kearney, a witness for the State, and the following occurred:

“A. We carried Mr. Bumpas in the other room.
“Q. Then what did you do1? A. Well, I don’t know that we did anything; only tried to administer to him right then and get a doctor, and then I went back to the Supply Store.
44 Q. "WUere did yon put him? A. On the floor—
“Mr. Ward: I object, wholly immaterial and wouldn’t bind the defendant.
“The Court: Sustain the objection.
“Mr. Bragg: Right immediately after this was done, just showing their actions—
4 4 The Court : If you gentlemen want to reverse this case, let’s quit trying it right now.
“Q. Did you see his wife there? A,. Yes, sir.
“Q. Did you have any conversation with his wife?
“Mr. Ward: I object to that, wouldn’t bind the defendant, any conversation between this witness and the deceased’s wife.
44Ti-ie Court: Sustained.
“Q. Ask you whether or not his wife at the time refused to let you put him on a bed?
“Mr. Ward: I object, and ask that counsel for the State be rebuked for asking that kind of a question.
44The Court: I’ll sustain the objection.
44Q. How long was that after the shooting?
44Mr. Ward: We except to the Court refusing to rebuke counsel.
44The Court: The Court will permit you to go ahead and rebuke him right away; is there anything further?
“The Court: Mr. Bragg, the Court has told you and has said two or three times that isn’t competent and the Court now admonishes you not to take up my time in asking questions which the Supreme Court has expressly held as not being competent and — for two reasons, one is, we want to respect the ruling of the Supreme Court, which is the law in this case, and the other is we don’t want to waste our time by unnecessary questions where objections would be made and the Court would have to sustain them.”

Mrs. Bumpas was not a witness in the case. The question as to whether defendant had ever had any improper relations with the wife of deceased was not an issue in the case, and could not, on the record before us, Have been made an issue Herein. There is no evidence in the record tending to show any such relation. The defendant was presumed to be innocent of any crime, until proven guilty, and he was entitled to this presumtion throughout the trial of the case. He was entitled to a fair and impartial trial under the Constitution and laws of this State. The duty devolved upon the trial court, and prosecuting attorney, of seeing that he was granted a fair and impartial trial, upon the merits of the controversy. Hid they perform that duty as required by law?

We - are driven to the inevitable conclusion, from reading the record herein, that the prosecuting attorney proceeded, in respect to the above matter, in utter disregard and contempt of our former ruling; that he deliberately and intentionally sought to get before the jury the improper evidence aforesaid, in order to create in the minds of the jurors the unwarranted impression that defendant had sustained improper relations with the wife of deceased, and that he had desecrated the home of the latter, etc. It is true, that the prosecuting attorney did not receive any answer to the questions propounded. It is manifest that he did not expect the court to permit the witness to answer these questions. He knew, however, that such an inquiry was improper, and condemned by this court. He evidently knew, regardless of the mild rulings of the court, the questions prepounded would indicate to the jury that defendant and the wife-of deceased sustained some sort of improper relation-with each other, even if overruled. This conclusion is irresistible, when we come to consider the astounding speech, afterwards delivered along the same line, by Judge G-ossom, in the closing argument for the State, where he dwelt at great length upon the alleged conduct of defendant in destroying the sanctity of deceased’s home, without ony evidence to support said contention, and without any such issue being lodged in the case. The trial court has a good deal of latitude in dealing with this subject, but in eases like the onp before us, where the attorneys for the Stafte deliberately overstep the rules of propriety, ignore the positive rulings of this court, and attempt to get before the jury matters which they know are improper, for the undoubted purpose of creating in the minds of the jurors an unwarranted prejudice against defendant, in a close case like this, the ends of justice require, that a new trial should he granted defendant, although the court below may have formally sustained an objection to the proffered evidence. [Levels v. Railroad Co., 196 Mo. l. c. 623-4; Wojtylak v. Coal Company, 188 Mo. l. c. 286-7; State v. Jackson, 95 Mo. l. c. 652-3 Ephland v. Ry. Co., 57 Mo. App. l. c. 162-3; Beck v. Railroad, 129 Mo. App. 7; Gore v. Brockman, 138 Mo. App. l. c. 235, and cases cited; Trent v. Printing Co., 141 Mo. App. 437; Moore v. Doerr, 199 Mo. App. 428, 203 S. W. l. c. 673; Jackman v. Ry. Co., 206 S. W. l. c. 246-7; Collier v. City of Shelbyville, 219 S. W. l. c. 714; Rudiger v. Ry. Co., 77 N. W. (Wis.) l. c. 171-2; Stratton v. Nye, 63 N. W. l. c. 929; Martin v. State, 63 Miss. l. c. 507; Cross v. State, 68 Ala. 476; State v. Smith, 75 N. C. l. c. 307-8; Rudolph v. Landwerlen, 92 Ind. 34-5; Magoon v. Ry. Co., 31 Atl. (Vt.) 156; Tucker v. Henniker, 41 N. H. l. c. 322.]

The defendant was not charged in the informa uon with having destroyed the sanctity of deceased’s home, and an allegation of that character should have Leen stricken out if inserted therein, because it had no place in the case. Appellant was charged with murder, and he defended upon the ground of self-defense. We have had before us c,ases where the husband killed the alleged destroyer of his home, and evidence of the relationship between the wife and deceased was sometimes admitted in evidence to show the great provocation and mental strain which was operating upon the mind of defendant when the killing occurred, etc. No such question, however, is presented in the record of this case. There is not the slightest evidence before us, which indicates that Mrs. Bumpas was not a virtuous woman nor that defendant had ever sustained any improper relation's with her.. The evidence of defendant is clear and explicit that.no such relation existed.

In a close case of this character, where it is hard to determine from the record who was the aggressor, the poison injected into the minds of the jurors by the grossly improper conduct of the State’s attorneys, in attempting to have the defendant tried for polluting the home of deceased, instead of trying him for murder, must to some extent, have operated upon the minds of the jurors to the prejudice of defendant. We are of the opinion that no conviction ought to he permitted to stand based upon such conduct as that which characterized the unfair trial of defendant in this cause.

II. Appellant contends that “The court erred in refusing to rebuke J. S. Gossom, hired counsel for State, for his unwarranted attack upon defendant and statements out of the record in his .closing argument to the jury.”

We have carefully read four or five pages of Mr. Gossom’s alleged closing argument to the jury, and find hut little said therein with respect to the merits of the case as presented in the pleadings, hut practically his entire stump speech, as far as reported, is an attack upon defendant’s character — which was shown to have been good — and an appeal to the jury to convict defendant on the ground that he had polluted the sanctity of deceased’s home, etc. Among other things, the following occurred:

“Mu. Gossom: . . . hut just as long as men invade the homes of men, just so long you will be brought into the court room to try cases like this—
“Mb. Wabd : I object to him saying ‘as long as men invade the homes of men,’ because there isn’t any testimony to that effect in this case. . . .
“The Cottbt: Proceed with the argument of the evidence and the law.
“Mb. Wabd: Note exception.”

Tlie court was then asked to ■ rebuke counsel for above statement, because there was no evidence on which to base it.

“The Coubt: Wait a moment, I suppose, gentlemen, you don’t know much more about hell than I do, do you, that’s just his argument, he can argue about Heaven and hell, or around all he wants to.
“Mr. Ward: Exception.”'

Again, Mr. Gossom, in dramatically describing what occurred at the tim$ of the shooting, said:

“Aut (Bumpas) ran back in the house after his gun to protect that woman and his sweet babies, those little babies that he shall never see again, those little children he was trying to raise up in purity and sanctity and educate them — "
“Mb. Wabd: Your Honor, I am going to object here; no evidence that he was trying to raise his children up in purity and saiictity and educate them—
“The Court: You must confine yourself to the testimony.
“Mr. Ward: I except to the Court in not rebuking him. ’ ’

In continuing this alleged argument, the following occurred:

“Mr. Gossom: I have to uphold the strong arm of the law, who is going to protect your home — my sweet little woman, I will not turn him loose on the community but to the contrary I have upheld the law, I have brought in a verdict of guilty; what are you going to do about it, men? Why, this is the Commonwealth that you are a part of. This is the State of Missouri prosecuting a man for killing one peaceable citizen and without the juries standing up in these matters, the whole thing falls to the ground like a leafless bud — mere chaff. When these facts that might some time come home to yorf, in your home, how long would it be, do you know? Are you men of children, are you men of families, have you a wife? I appeal to you in the name of Sweet Love, Oh, I beg you gentlemen to uphold the law in this case and let’s stop this, you, who are daddies, you men who have wives and children, go into the jury box and by your verdict uphold the laws of sanctity and purity of the home of every member of this Commonwealth of ours, including your own—
“Me. Ward: I object, and ash the Court to rebuhe him for mating this remark: ‘to uphold the sanctity and purity of the home.’
“The Court: Argue just the testimony adduced, the jury knows what it was.
“Mr. Ward: I except to the Court in not rebuking him. ’ ’

Such a speech, in the closing argument before a jury, in respect to matters not in evidence, or within the issues of the case, was a travesty upon the law. Instead of the trial judge rebuking counsel for going outside the record to appeal to the prejudices of the jury, and stopping him-summarily from pursuing said course, he practically acquiesced, in most of what was said, and nowhere in the record do we find that he even made a feeble attempt to rebuke counsel, for such an uncalled for tirade of abuse and appeal to the jury on matters outside the case. The constitutional right of defendant, to a fair and impartial trial before the jury, was ruthlessly striken down, by an advocate ¿purporting to represent the great State of Missouri. The presumption of innocence that should follow defendant until found guilty was completely ignored by both counsel and court. The latter permitted said counsel, in the closing argument of the case to try defendant, without evidence to support it, on the theory that he had invaded the sanctity of deceased’s home and had sustained improper relations with his wife, instead of confining himself to the charge of homicide, as alleged in the information. Under the law, as declared in numerous decisions of this State, defendant, by reason of the foregoing, is entitled to a new trial in this cause. [State v. Young, 99 Mo. 682-3; Haynes v. Town of Trenton, 108 Mo. l. c. 133-4; Evans v. Trenton, 112 Mo. l. c. 405, and cases cited; Williams v. Ry. Co., 123 Mo. l. c. 586; State v. Fischer, 124 Mo. 464-5; State v. Harvey, 131 Mo. 339, and cases cited; Wojtylak v. Coal Co., 188 Mo. l. c. 285-6; State v. Spivey, 191 Mo. 87-8; Levels v. Railroad, 196 Mo. l. c. 623-4; State v. McGrath, 228 Mo. 413; State v. Dozier, 177 S. W. l. c. 361; State v. Reppley, 213 S. W. l. c. 480-1; State v. Davis, 217 S. W. l. c. 91-2; Collier v. City of Shelbyville, 219 S. W. 714; Jackman v. Railroad, 206 S. W. l. c. 246; Moore v. Doerr, 199 Mo. App. 428, 203 S. W. l. c. 673; O’Hara v. Lamb Const. Co., 197 S. W. 163; Trent v. Printing Co., 141 Mo, App. 437; Tuck v. Traction Co., 140 Mo App. 342; Beck v. Railroad, 129 Mo. App. 7, and following; Massengale v. Rice, 94 Mo. App. 430; Thompson v. Bernays, 85 Mo. App. 575; Killoren v. Dunn, 68 Mo. App. 212; Ensor v. Smith, 57 Mo. App. 584; Smith v. W. U. Tel. Co., 55 Mo. App. 626.]

The foregoing authorities leave no room for doubt, as to what should be done under the" circumstances of this case. The conduct of the State’s attorneys was well calculated to prejudice the jury against defendant, and there was no way to successfully eradicate the unwarranted poison, deliberately brought into the case for an illegitimate purpose, except to grant defendant a new trial.

III. Appellant contends that the trial court erred in refusing to permit him to prove that he was carrying the pistol, with which he shot deceased, under the requirements of the United States Government relating to mail carriers.

If such a rule was in existence at the time of the difficulty in question, and .the jury should believe from the evidence that defendant’s pistol was in the car, and not on his person, when the trouble commenced immediately before the shooting, it was a circumstance to he considered by the jury in determining whether defendant armed himself on that occasion in anticipation of trouble with deceased, or whether he had the pistol at that time where he usually carried it, in his car to protect the mail. The jury also had' the right to consider the above facts, in passing upon the question as to who was the aggressor at the commencement of the difficulty.

The ruling in State v. Ruck, 194 Mo. 1. c. 434, cited by the State, is not in conflict with the foregoing conclusions, as the facts and circumstances in the Ruck case were unlike those at bar.

We are of the opinion that in a re-trial of the case, the defendant should be permitted to prove, if he can, that the pistol with which he shot deceased was in his possession on the day of the homicide, under a governmental requirement, and not for the purpose of having trouble with deceased.

IY. Some other questions are raised by appellant-in this case, which were fully considered on the former appeal. We see no reason for departing from the conclusions there reached.

On account of the errors heretofore committed, the judgment below is reversed and the cause remanded for a new trial.

White and Mosley, CC., concur.

PER CURIAM:

The foregoing opinion of Railey, C., is hereby adopted as the opinion of the court.

All of the judges concur.