author: BROWN, J.

text:
    CITY OF ST. LOUIS, Plaintiff in Error, v. HERMAN BERNARD.
    In Banc,
    March 28, 1913.
    1. GROCER: Delicatessen Keeper: Adjudged Not Same as Matter of Law. An allegation in defendant’s motion to quash the information charging him with keeping open a grocery store on Sunday, to the effect that he “is a delicatessen keeper, and not a grocery keeper within the meaning of the ordinance,” cannot he considered in the absence of any evidence on the point.
    2. ORDINANCE: Conflicting With Statute: Selling Provisions on Sunday. Where the statutes expressly restrict or limit the power of a city to legislate upon a given subject, such city cannot legally overstep the boundaries marked out for it by the General Assembly. But Secs. 4804-5, R. S. 1909, whose legal effect is to prohibit the sale of ail “goods, wares and merchandise” on Sunday except "drugs or medicine, provisions or other, articles of immediate necessity,” do not purport to authorize the sale of provisions on Sunday, but are simply a legislative announcement that the General Assembly has not prohibited the sale of such articles on that day, and, therefore, an ordinance which authorizes a grocery store to keep open on Sunday morning until nine o’clock, and prohibits any such store to keep open or sell groceries on Sunday after nine o’clock a. m., is not in conflict with those statutes. The ordinance simply takes up the proposition of selling on Sunday where the statutes left oil, and is valid.

      Appeal from St. Louis Court of Criminal Correction. —Hon. V. H. Falkenhainer, Judge.
    REVERSED AND REMANDED.

      Lambert E. Walther} PMl H. Sheridan and Davis .,v& Erd, for plaintiff in error.
    (1) The State, in the exercise of its undoubted police powers, had the right to, and did, enact a law forbidding the- keeping open, within the State, of grocery stores, on the first day of the week, commonly called Sunday. R. S. 1909, sec. 4804; St. Louis v. DeLassus, 205 Mo. 578; State v. Campbell, 206 Mo. 579. The right also undeniably existed in the State to exempt from the foregoing statute the sale of drugs or medicines, provisions, and other articles of immediate necessity. R. S. 1909, sec. 4805; and cases, supra. (2) The State laws in force at the date of the passage of the ordinance under review left the city, in the exercise of the powers delegated to it under its charter, unhampered in its right to adopt, by the passage of appropriate ordinances, reasonable regulations for the sale, within the municipal borders, of drugs, medicines, provisions, and other articles of immediate necessity. St. Louis v. DeLassus, 205 Mo. 578; State v. Campbell, 206 Mo. 579. The provisions of the ordinance upon which the present action is founded, afford reasonable opporunity to all the inhabitants of St. Louis to supply themselves, on Sunday, with needed provisions and other articles of immediate nécessity, and deprive none of the rights manifestly intended to . be reserved by the statutes of the State. Therefore the ordinance is not subject to the criticism made by counsel for defendant'that it is unjust, oppressive or unreasonable. Authorities, supra.

      Cornelius F. Bauer for defendant in error.
    The city is without power to enact any ordinance not in harmony with the Constitution and the laws of the State of Missouri. Constitution, sec. 23, art. 9; Charter, sec. 26, art. 3, pars. 1-14; R. S. 1909, sec. 6258; State v. Campbell, 206 Mo. 579; City v. Meyer, 185 Mo. 595; City y. Wortmann, 213 Mo. 142. The State, by appropriate enactment, has legislated upon the subject to be considered. R. S'. 1909, sec. 4808. And the State itself has created the exceptions to the operations of the foregoing’ provision. R. S. 1909, sec. 4805. And this court has interpreted said section and exemption. State v. Campbell, 206 Mo. 579. In con-' templation of law Sunday is simply a civil institution, and the power' of the Legislature to authorize the sale of any commodity or even to compel the performance of labor on Sunday has been recently determined. State v. Railroad, 239 Mo. 196; State v. Campbell, 206 Mo. 579.
   BROWN, J.

Writ of error by which plaintiff seeks to reverse the judgment of the St. Louis Court of Criminal Correction quashing an information filed by the city attorney, charging defendant with keeping open a grocery store and selling cured meats and pigs ’ feet on Sunday, the 13th day of November, 1910, after the hour of 9 o’clock in the forenoon of said day, contrary to the provisions of an ordinance of said city.

To obtain a proper understanding of the issues presented to the trial court we will insert in this opinion a copy of the ordinance which defendant is charged with having violated. It reads as follows:

“An ordinance to regulate the hours of opening and closing of grocery stores upon Simday, and to regulate the sale of groceries and other articles by grocery stores upon Sunday, and prescribing a pen-ally for the violation thereof.
“Be it ordained by the Municipal Assembly of the City of St. Louis as follows:
“Section One. Grocery — hours on Sunday — selling. Any grocery store may be kept open on Sunday morning until nine o’clock a. m., for the sale of the articles hereinafter described: but no grocery keeper or grocer shall keep open or expose for sale or sell any article hereinafter described after nine o’clock a. m.
“Section Two. Penalty for Keeping Open Store or Selling. Any keeper of a grocery store or grocer who shall keep open said store or expose for sale or sell any,article on Sunday after nine o’clock a. m., shall be deemed guilty 'of a misdemeanor, and upon conviction thereof shall be fined not less than twenty dollars and not more than one hundred dollars for each and every offense.
“Section Three. Store Keepers Defined — Sale of Article Prohibited, When. A grocery keeper or grocer within the meaning of this ordinance shall be defined to be any person, persons, co-partnership or corporation dealing in sugar, tea, coffee, country produce, garden products, canned goods, and the like; dried beef, hams, shoulders, sausages, smoked and cured meats of all kinds; or dealing in any other articles that are usually carried for sale in grocery stores.
“Section Pour. Owner and Agents Liable. A. keeper of ’a grocery store, within the meaning of this ordinance, shall be construed to include the agents and servants of such keeper as far as the penalties of this ordinance and its liabilities thereunto are concerned.” [Rombauer’s Revised Code of St. Louis (1912), p. 1113, secs. 2661-2663a.]

The information is as follows:

“City of St. Louis, Missouri, November 16th, A. D. 1910. Herman Bernard. To the City of St. Louis, Dr. To one hundred dollars, for the violation of an ordinance of said city, entitled ‘An ordinance in revision of the general ordinances of the City of St. Louis, being ordinance number 25024, sections 1, 2, 3, and 4, approved March 28th, 1910, in this, to-wit: In the city of St. Louis, the State of Missouri, on the 13th day of November, 1910, and on divers other days and times prior thereto, the said Herman Bernard did then and there, being a grocer and dealing in canned goods, sugar, smoked and cured meats, keep open his store after 9 a. m. on Sunday, the 13th day of November aforesaid, and did offer for sale and sell cured meats, and pigs’ feet, contrary to the ordinance in such case made and provided.”

OPINION.

I. In his motion to quash the information, and in his oral argument here, the defendant’s learned attorney asserts that defendant “is a delicatessen keeper, and not a grocery keeper within the meaning of the ordinance” hereinbefore set out.

If defendant is not a grocery keeper or grocer within the purview of the ordinance above quoted, that fact, when proved by competent evidence, would have constituted a complete defense to the charge upon which he was arrested, but as no evidence is found in the bill of exceptions we cannot consider this assignment.

II. Defendant alleged in his motion to quash, and asserts on this appeal, that the ordinance under which he is prosecuted is void, because it is in conflict with sections 4804 and 4805, Revised Statutes 1909, the legal effect of which last named sections is to prohibit the sale of'all “goods, wares and merchandise” on Sunday, except “drugs or medicines, provisions, or other articles of immediate necessity,” and that being in conflict with said last named sections of our statutes it violates section 23, article 9, of our State Constitution, section 9582, Revised Statutes 1909, and section 26, article 3, of the Scheme and Charter of St. Louis (p. 2484, R. S. 1899).

The design of said last named provisions of our Constitution, statutes and the Scheme and Charter of St. Louis is to prevent the enactment of city ordinances which are not in conformity with the general laws of the State.

The defendant’s motion to quash designates several alleged reasons why the information is defective, but the trial court made no finding of facts and gave no declarations of law. Therefore, we are not fully informed on what ground the information of the city attorney was quashed. However, the attorneys for both plaintiff and defendant have, in their briefs, assumed that the information was quashed on account of the alleged conflict between the ordinance and said sections 4804 and 4805, Revised Statutes 1909; and we will treat that alleged conflict as the issue upon which the judgment of the court of criminal correction must be affirmed or reversed. •

We think it is perfectly clear that the plaintiff city cannot by ordinance authorize the doing of any act which the general laws of the State have prohibited; and where the statutes of the State expressly restrict or limit the power of a city to legislate upon a given subject, such city cannot legally overstep the boundaries marked out for it by the General Assembly. Agreeable to these views it was held in the case of City of St. Louis v. Meyer, 185 Mo. 583, that St. Louis could not levy a peddler’s license tax upon a farmer who sold the products of his farm in said city, for the reason that section 9516, Revised Statutes 1909, prohibits all incorporated cities in the State from levying. any such tax.

A different issue arises in this case. Section 4805, Revised Statutes 1909, does not purport to authorize the sale of • provisions, etc., on Sunday. It is simply a legislative announcement that the General Assembly has not by section 4804, supra, prohibited the sale of such articles on Sunday. Those sections of our statutes simply leave the right to sell “drugs or medicines, provisions or other articles of immediate necessity” where, the right stood before any statute was enacted upon the subject of selling “goods, wares and merchandise” .on Sunday.

Finding the law in this condition the plaintiff city took up the proposition of the sale of provisions, such as the defendant is charged with selling, where the General Assembly left off, and by the ordinance now in judgment prohibited the keeping, open of grocery stores for the sale of provisions therein after the hour of 9 o’clock in the forenoon on Sundays.

In the very recent case of St. Louis v. Ameln, 235 Mo. 669, l. c. 686, this court In Banc announced the doctrine that in all cases where the State statutes are silent the city may speak through its ordinances. That rule applies here.

There is no resemblance of a conflict between sections 4804-5, Revised Statutes 1909, and the ordinance assailed, nor is there any evidence in the record or matter of judicial knowledge with the court whereby we would be justified in holding that the ordinance is so unreasonable as to be void as a mere capricious exercise of the police power of plaintiff city.

If the ordinance assailed works more injury than benefit to the defendant and other citizens of St. Louis, the remedy is at hand through the same legislative power which called the ordinance into being.

Almost the identical issue here presented was before this court in the case of City of St. Louis v. DeLassus, 205 Mo. 578, wherein we upheld an ordinance of plaintiff city which prohibits the keepers of meat shops from opening the same and making sales therein after the hour of nine o’clock in the forenoon on Sundays. In that case Gantt, J., speaking for this court, fully reviewed the Constitution, statute law and authorities, and it would be a waste of time and tend to fill our reports with needless quotations to attempt to add anything to what was written by that learned jurist on that occasion.

The case of State v. Campbell, 206 Mo. 579, cited and relied upon by defendant, simply holds that the State law does not prohibit the sale of lemons on Sunday. No attempt was made in that case to determine what the legislative body of a city can or cannot do in regard to restricting or prohibiting the sale of cured meats or pigs’ feet on Sunday.

The judgment of the St. Louis Court of Criminal Correction will be reversed and the cause remanded. It is so ordered.

All. concur.


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    THE STATE ex rel. SNOW STEAM PUMP WORKS and INTERNATIONAL STEAM PUMP COMPANY v. WILLIAM B. HOMER, Judge.
    In Banc,
    March 28, 1913.
    1. MANDAMUS: When Available: Inadequate Remedy. Unless ' another remedy is fully adequate, a writ of mandamus will issue; and whether the other remedy is adequate is a question appealing to the judgment and discretion of the court when the circumstances of the case are laid before it.
    2. -:-:-: Appeal: Return Adjudged Insufficient. Where the circuit court has adjudged a sufficient return of service of process insufficient to give it jurisdiction over the persons of defendants, and the facts of the return are all admitted or established by record matters, an appeal, after judgment of dismissal, is not a full and adequate remedy, and plaintiff is entitled to mandamus from the appellate court.
    3. -:-: Refusing to Entertain Jurisdiction: Adjudging Process Insufficient. Where a circuit court refuses to proceed with a cause, because the court was of the opinion that- it did not have jurisdiction of the cause or of the parties, mandamus will issue from the Supreme Court to compel it to proceed. If the court adjudged the return of service of process to be insufficient to bring defendants into court, and refused to entertain jurisdiction and proceed with the cause and made that ruling upon a preliminary objection, and the facts touching the return stand admitted, the question of the sufficiency of the return then becomes purely a question of law, and plaintiff is entitled to a preliminary writ of mandamus, and on a hearing, if the return is adjudged sufficient, the writ will be made permanent, requiring the court to proceed to judgment on the merits.
    4. -: Defendants Not Made Parties: Right to Stop Proceeding After Writ Made Permanent. Where, upon the application of plaintiff, a writ of mandamus to proceed to judgment on the merits has issued to the circuit court, which had held that the return of service of process was insufficient to bring defendants into court, it would be a novel ruling to hold that the defendants can by their writ of prohibition prohibit the circuit court from carrying out the mandate of the appellate court in the mandamus case, on the sole ground that they were not made parties to the mandamus proceeding in the appellate cotirt. Where the judge of the circuit court declines to act in a matter wherein he should act, he is the only necessary party respondent to the mandamus suit to compel him to act, although the State proceeds upon the information and to the use of one of the parties to the action as relator.
    5. -: -: -: Estoppel: Acting for Judge in Mandamus. Where the judge, who was the respondent in the mandamus suit, was, in his return and on the hearing ■ of the information, represented by the counsel of the defendants in the circuit court, the defendants were real parties to the mandamus suit, though not parties of record, and are estopped by the judgment in the mandamus case to further call that adjudication in question. A party to a proceeding may be bound by the judgment therein without being a party of record; if his counsel appears for the respondent in a mandamus suit, he is hound by the judgment therein.
    6. -: -: Application for Writ Made After Expiration of Term. A writ of mandamus may issue to the circuit court to proceed to try a case on its merits although the term of the circuit court had expired before the mandamus case was brought. The right of the Supreme Court to issue such an order is determined by the Constitution, and is not restricted or hampered by the statute. The ruling applies to defendants who were not made parties of record to the mandamus suit brought in the Supreme Court, which issued its writ directing the judge of the circuit court, who had adjudged the return of service of process insufficient to bring defendants into court, to proceed to judgment on' the merits, although application for the writ of mandamus was not made until after the term of the circuit court had expired. The circuit court having refused to do what it should have done at a time when it could have acted, the Supreme Court has power under the Constitution, by its writ of mandamus, to compel the circuit court to hear the case on its merits, although the term of the circuit court had expired before timely application for the writ was made.
    Prohibition.
    WRIT DENIED.

      Nagel & Kirby for relators.
    (1) The filing of a petition for removal to a Federal court does not amount to a general appearance. G-oldey v. Morning News, 156 U. S. 518; Railroad v. Brow, 164 U. S. 271; Conley v. Alkali Works, 190 U. S. 406; Courtney v. Pradt, 196 U. S. 89; Clark v. Wells, 203 U. S. 164; Mutual Accident Co. v. Davis, 213 U. S. 245. (2) It appears from the record in the case below that respondent has no jurisdiction over relators and was without authority to compel them to plead. Crawford v. Railroad, 171 Mo. 74; State ex rel. v. Gibson, 187 Mo. 536. (3) The purpose of the statutes relating to service of process upon foreign corporations is to protect citizens of Missouri in controversies arising out of business done in this State, and such statutes dp not authorize suits here by one foreign corporation against another foreign corporation upon ■ a cause of action arising wholly without this State. Railroad v. Carr, 76 Ala. 388; Lumber Co. v. Smith Co., 145 Ala. 317; Sawyer v. Ins. Co., 46 Yt. 697; Mutual Reserve Assn. v. Phelps, 190 U. S. 147; McNichol v. Mercantile Agency, 74 Mo. 457; Mut. Accident Co. v. Davis, 213 U. S. 545; Newcomb v. Railroad, 182 Mo. 687; Relim v. German Ins. Institution,' 125 Ind. 135; Hardware Co. v. J. I. .Case Co., 77 Neb. 847. (4) When a foreign, corporation does business in a State without complying with its laws, there is no express consent to service therein, and the implied consent to service, if any, arising from the fact of doing business in the State, extends only to controversies arising out of such business. Ins. Co. v. McDonough, 204 U. S. 8; Hunter v. Ins. Co., 218 U. S. 573. (5) To imply consent to service in Missouri, in a suit by a non-resident corporation, involving transactions had outside of Missouri, would be an unreasonable inference of fact, and to take jurisdiction based on such an inference would be to deny that due process of law which is guaranteed by the Constitution of this State and of the United States. Ins. Co. v. McDonough, 204 U. S. 8.

      Edward D’Arcy and W. M. Williams for respond- , ent.
    (1) This court has decided that the circuit court of the city of St. Louis acquired jurisdiction of the defendants in the suit of Texas Portland Cement Company v. International Steam Pump Company et al., by the service of process upon said defendants within this State, and that the return of service is sufficient and is conclusive upon all the parties. State ex rel. v. Sale, 232 Mo. 166. (2) The lapse of the April term, 1910, without further action by the circuit court than sustaining defendants’ motions to quash the returns, and overruling plaintiff’s motion to set aside said order, did not deprive the circuit court of jurisdiction in said cause or prevent further proceedings therein. No final judgment discharging defendants was entered at the April term, 1910. The cause was still pending in said court after the orders sustaining the motion to quash, and overruling the motion to set aside said order on May 27, 1911.' Collier v. Lead Co., 208 Mo. 274; Winn v. Carter, 43 S. W. (Ky.) 436; Oland y. Insurance Co., 14 Atl. (Md.) 669; Persinger v. Tinkel, 51 N. W. (Neb.) 299; Brown v. Bice, 46 N. "W. (Neb.) 489. Even if the circuit court bad, by a final judgment at tbe April term, 1910, completely disposed of the case and could not thereafter, of its own motion, entertain further jurisdiction thereof, still this court could, and by its mandate did, in the exercise of its supervisory control, command said court to hear and determine the same, and the circuit court, notwithstanding the lapse of said term, was authorized, by' virtue of said mandate, to proceed with said cause. State ex rel. v. Patterson, 207 Mo. 129; State ex rel. v. Gibson, 187 Mo. 536; State ex rel. v. Phillips, 96 Mo. 570; State ex rel. v. Smith, 172 Mo. 618; State ex rel. v. Lewis, 71 Mo. 170. (3) Mandamus awarded by this court was against the office, and not against Judge Sale personally. The legal effect of the writ of mandamus awarded by this court on the last secular day of Judge Sale’s official term was to authorize and require the circuit court of the city of St. Louis, and not the individual who happened to be judge of the court at that time, to hear and determine said cause. Ex parte Parker, 131 U. S. 221; People v. Bacon, 18 Mich. 247; Thompson v. United States, 103 U. S. 480; State v. Puckett, 7 Lea (Tenn.), 709; People ex rel. v. Treasurer, 37 Mich. 351; People ex rel. v. Supervisor, 100 Ill. 332; People v.-McConnell, 146 Ill. 532; 13 Ency. PI. & Pr. 663, n. 5. Bespondent, as the successor of Judge Sale, was authorized to proceed with all cases pending and undisposed of in said court in the same manner as his predecessor could have done; and he could waive the service of a mandamus upon him personally, and has done so by making the order requiring the relators herein to plead, as required by the writ of mandamus, and by demurring to the petition herein. People v. Bacon, 18- Mich. 247; State ex rel. v. Schmitz, 36 Mo. App. 550; Edwards v. United States, 103 U. S. 471; People v. Cairo, 50 Ill. 154; State y. Anderson, 170 Ind. 540. (4) Where tlie action is transitory, the suit may be brought wherever the defendant may be found. Mason v. Warner, 31 Mo. 508; Bryant v. McClure, 44 Mo. App. 553; Barrell v. Benjamin, 12 Mass. 354; Moystyn y. Fabrigas, 1 Smith’s Leading Cases (8 Ed.), 562; 11 Cyc. 663. The courts of this State are open to a non-resident plaintiff, and a foreign corporation may be sued here if the proper service can be had upon it. R. S. 1909,' secs. 1751 and 3956; Barrow S. S. Co. v. Kane, 170 U. S. 100; Johnson v. Ins. Co., 132 Mass. 432; Abbeyville Co. v. Western Co., 85 Am. St. 922; McNichol v. Agency, 74 Mo. 457; Newcomb v. Railroad, 182 Mo. 687; Mohr v. Insurance Co., 12 Fed. 474,
   GRAVES, J.

A short statement will suffice in this case. In November, 1909, the Texas Portland Cement Company, a corporation of West Virginia, sued the International Steam Pump Company, a corporation of New Jersey, and the Snow Steam Pump Works, a corporation of New York, in the circuit court of the city of St. Louis. [State ex rel. v. Sale, 232 Mo. l. c. 169.]

In this case pending in the said court the defendants specially appeared and moved to quash the service. These motions were sustained May 26, 1910, and on the next day the plaintiff in that case filed a motion to compel the defendants in that case to plead to its petition. This motion the court overruled, and on June 28, 1910, the plaintiff in the circuit court case, as relator in this court, applied for a writ of mandamus to compel the Hon. Moses Sale, then judge of the circuit court, to proceed with the case. Our alternative writ issued, to which Judge Sale made his return. The further situation of the mandamus case is thus outlined in State ex rel. v. Sale, 232 Mo. l. c. 171, thus:

“Relator filed a motion for judgment upon the pleadings, so that the case stands here upon the admissions made in the return. Respondent Sale seeks the judgment of this court upon the merits, and to that end there is presented the sole question of the sufficiency of these returns. Other questions are discussed in the briefs, but were waived in the oral argument at request of respondent, who deemed the question presented upon the returns as a very important one to the circuit court of the city of St. Louis, where many such suits are pending and others being continually brought. This outlines therefore the sole issue in the case.”

In this condition the mandamus case in this court was submitted, and we then determined that the returns upon the summons in the circuit court showed a valid service of process, and our peremptory writ of mandamus was awarded directing the circuit court to proceed with the case. Pursuant to this mandate the circuit court assumed jurisdiction and was proceeding with the case, when the defendants in the circuit court applied for and obtained a preliminary rule in prohibition, so that the real question is whether such rule should be made absolute.

As a further statement a few preliminary facts should be made clear. In the mandamus case the same lawyers who represented the defendants in the circuit court appeared and argued the case for Judge Sale in this court. Not only so but whilst the mandamus case was pending in this court Judge Sale telegraphed that he desired the case determined upon its merits so that the court might know whether such returns were good, and to that end he waived all other questions in his return. To this request of Judge Sale the counsel for Judge Sale, now; the counsel for the rela-tors in the present case, .consented in open court. It was under these circumstances that’we determined the mandamus case, with the result above indicated.

I. For several reasons we think this writ of prohibition should be denied. It is true that in the mandamus case we only considered one • question. It is true that we did not then discuss the question as to whether a writ of mandamus would properly lie to compel the court to proceed in the circuit court case under all the facts disclosed and admitted. It is true that the mandamus will not issue to compel a court to decide a case in any certain way. It is further true that mandamus cannot be invoked to compel the doing of a thing which has already been done. ^he 'writ has been granted to compel the undoing of a thing wrongly and improperly done, which thing precluded a determination of a case upon its merits. [State ex rel. v. Phillips, 97 Mo. 331.] Nor will mandamus usually issue where there are other adequate remedies, but in the light of this rule the other remedies or remedy must be fully adequate. The mere fact that there might be another remedy is not sufficient to preclude the use of the writ of mandamus. The other remedy must be adequate, and whether it is adequate is one appealing to the judgment and discretion of this court when the circumstances of each case are laid before us. And we say now that it is not clear that we were not fully justified in issuing our Writ of mandamus in the Sale case, supra, upon all grounds of the return being considered. The circuit court had in a way determined its jurisdiction over the defendants in the circuit court case, but its determination was upon, admitted and undisputed record facts. Whether that court had jurisdiction of the defendants thus became a pure question of law. It may be that an appeal or some such remedy was at hand, but was that remedy adequate? Under the facts we could have well said that it was not.

But aside from this there is much respectable authority to the effect that mandamus is the only proper remedy where a circuit court refuses to proceed with a case, because the court was of opinion that it did not have jurisdiction of the cause, or of the parties to the cause. In the circuit court case the trial court refused to entertain jurisdiction and proceed with the case upon a preliminary objection to the return of service to the process. In the very early case of Castello v. St. Louis Circuit Court, 28 Mo. l. c. 274, we had up a very similar question. The question there was whether a notice of contest in a contested election case was sufficient to give the circuit court jurisdiction to hear and determine the case upon its merits. The circuit court held the notice insufficient and refused to proceed further with •the case. This court issued its alternative writ and then proceeded, to determine whether or not the trial court was right or wrong in refusing to proceed further. We held that the trial court was right and that the notice was insufficient, and denied the peremptory writ for that reason, but in the course of the opinion we thus spoke upon the question in issue here:

“Upon the facts disclosed in the petition in this ease for a mandamus upon the circuit court, a majority of this court determined that a conditional mandamus should be awarded, and it was accordingly so ordered. This determination was based upon the principal that where an inferior judicial tribunal declines to hear a case upon what is termed a preliminary objection, and that objection is purely a matter of law, a mandamus will go, if the inferior court has misconstrued the law. The cases of the King v. The Justices of the West Riding of Yorkshire, 5 Barn. & Adol. 667, and Rex v. The Justices of Middlesex, 5 B. & Ad. 1113, The King v. Hewes, 3 Ad. & Ellis, 725, and Regina v. The Recorder of Liverpool, 1 Eng. Law & Eq. R. 291, are believed to be conclusive upon this point so far as the English authorities go; and our attention had not been directed to any American cases conflicting with this view of the law. If the circuit court declined to go into the merits of the case because the party complaining had not given the notice required by the statute, that was a preliminary objection upon a point of law which this court can review upon a writ of mandamus; and if the circuit court called for a notice which the statute did not require, the mandamus ought to be made peremptory.
“It is not deemed important to go into any extended examination of this question, since upon the return to the conditional mandamus by the circuit court, we were satisfied that the construction which that.court gave to the statute was correct.”

So in the case at bar. The trial court entertained an objection to a preliminary matter and then refused to proceed further. The return was before the court and was therefore an undisputed fact, and it was thus a pure question of law as to whether the court should héar the case upon its merits. The doctrine of the Castello case, supra, has since met with the express approval of this court in the later case of State ex rel. Bayha v. Philips, 97 Mo. l. c. 347. This latter case was a mandamus against the Kansas City Court of Appeals. Over the protest of Bayha that court had dismissed a case appealed by Bayha for the reason that it was made to appear to the court by motion of the respondents that the tax bills which Bayha sought to have cancelled by his bill had in fact been cancelled. In the case Sherwood, J., discusses at length the powers of this court by mandamus against inferior courts and in closing, thus speaks:

“But as already shown, the Constitution has conferred on this court more enlarged powers, and consequently the rulings on the point in courts of other jurisdictions, not possessed of such ample powers, can have no application here. And whatever the rulings of other courts may have been in respect to the issuance of writs of mandamus, the ruling’s of this court, heretofore made, establish that this court will award its writs of mandamus: Where the St. Louis Court of Appeals refused to take a bond for an appeal to this court on the ground that the appeal having been granted, that court had no further jurisdiction of the cause. [State ex rel. v. Lewis, 71 Mo. 170.] Where a circuit court refused to enter judgment on a verdict, but granted a new trial. [State ex rel. v. Adams, 76 Mo. 605.] When a trial court ordered a cause to be “dropped from the docket.” [State ex rel. v. Cape Girardeau Court of Common Pleas, 73 Mo. 560.] Where a trial court determined it had no jurisdiction of a criminal cause, by reason of the unconstitutionality of a statute and ordered the cause transferred to another court. [State ex rel. v. Laughlin, 75 Mo. 358.] To compel the judge of a trial court to enter a judgment on a verdict, which he had refused to receive, because the jury by that verdict found for the defendants, but required them to pay the costs. [State ex rel. v. Knight, 46 Mo. 83.] In Castello v. Circuit Court, 28 Mo. 259, it is said: ‘If the circuit court declined to go into the merits of the case because the party complaining has not given the notice required by the statute, that was a preliminary objection upon a point of law which this court can review upon a writ of mandamus; and if the circuit court called for a notice which the statute did not require, the mandamus ought to be made peremptory.’ [See also, Miller v. Richardson, 1 Mo. 310.]”

And 'in this same case at page 343 we thus cite with approval the case of Ex parte Schollenberger, 96 U. S. 369:

“In Ex parte Schollenberger, 96 U. S. 369, the circuit court, in which the suit was brought, because of opinion it had no jurisdiction, quashed the process, and it was held that mandamus would lie to compel it to reinstate and hear the cause, as it had jurisdiction, though it had erroneously decided to the contrary.”. The California Court of Appeals has likewise quoted from and approved the Castello case in the case of Hill v. Superior Court, 114 Pac. l. c. 808, et seq. In the Hill case, the lower court had quashed a citation in an election contest case and thereby refused to hear the contest. In the course of that opinion it is said:
“At the time and place appointed for the holding of said special session the court quashed the service of said citation, and refused to hear the contest of petitioner, for the reason that the notice to the court by the clerk was given and the order of the court fixing the special session was made prematurely, and the citation was issued prior to the time fixed by the statute. Upon application to this court, an alternative writ of mandate was issued, and it is now sought to have it made peremptory upon an answer admitting all the facts set out in the petition. While, technically- speaking, the order of the court below simply directed the citation to be quashed, it amounted to a refusal to proceed with the trial of the contest on the ground that the court had no jurisdiction of the person of the contestee by reason of the premature order and service as aforesaid. . . .
“As we view it, then, the trial judge, upon a preliminary matter, decided contrary to the law and the facts, that the court had not acquired jurisdiction of the ‘contestee,’ and therefore was not authorized to proceed with the trial at the time appointed. Upon our understanding of the statutory provision, the court had and still has jurisdiction of the subject-matter and of the parties, and it was its plain duty to proceed to trial at the time appointed. It could not divest itself of this jurisdiction by an order purporting to quash the citation, nor is there a case presented here of jurisdiction to decide wrong as well as right beyond the reach of the writ of mandate. Where there is no conflict as to the facts and in the judgment of the higher tribunal those facts confer jurisdiction and make it clearly the duty of the lower tribunal to proceed with the trial of the cause, if there is no other adequate remedy, the writ of mandate will issue commanding such action. . . .
“The authorities are in line with these reflections.” The California court likewise quotes with approval what this court said in the Bayha case, 97 Mo., supra, concerning the Schollenberger case, 96 U. S. 369. It will he noticed that the California court-lays some stress upon there being no conflict of facts in matters touching the jurisdiction or-right to proceed. In the case at bar the facts stand admitted and undisputed. They are in fact bound up as a part of the judgment roll. This court, like the California court, has made some observations as to the admitted facts concerning jurisdiction, and in what cases the extraordinary writ will issue. Thus in State ex rel. Crouse v. Mills, 231 Mo. l. c. 500, we said:
. “Where the jurisdiction of the probate court is dependent upon the fact of the person being within the territorial jurisdiction of the court, a writ of prohibition will not lie to prevent the probate court from, investigating the necessary facts to determine its own jurisdiction, nor could prohibition be granted to prevent an entry of the court’s judgment, whether that judgment be right or wrong, as to the jurisdiction over the person. In other words, if the law determines the right of a court to entertain or not entertain jurisdiction of a case, then prohibition will lie, but if jurisdiction'is contingent upon facts, unless such facts be admitted and not disputed, the lower court has the right to determine its jurisdiction from the facts before it.”

The latter clause of the quotation is the more ap-plicablé portion. But in the case at bar the actual return was admitted and not denied. It was a part of the files of the case the circuit court was then deal-, ing with and the circuit court was simply determining whether it would proceed or not proceed upon an admitted fact. . Other courts have followed the same trend of thought thus:

The Supreme Court of the United States, In re Hohorst, 150 U. S. 663, issued a mandamus, directing the United States Circuit Court of the Southern District of New York to take jurisdiction of and proceed with the trial of a case, in which the circuit court had set aside and quashed the service and dismissed the suit, saying: “The Hamburg-American Packing Company being liable to this suit in the Circuit Court of the United States for the Southern District of New York if duly served with process in the district, and having been so served, and the order of- that court dismissing the suit as against the corporation not being reviewable on appeal at this stage of the case, there can be no doubt that mandamus lies to compel the circuit court to take jurisdiction of the suit as against the corporation.”

The Supreme Court of Alabama, on January 20, 1910, in Ex parte Hill, 51 So. 786 (Syl. 4), held: “"Where the court makes an order quashing the service of process on an unincorporated association, which order is erroneous and works an injury to the plaintiff in the action against the association, and no appeal lies from the order, and no other remedy exists, mandamus will issue to- the judge, commanding him to vacate the order.”

The Supreme Court of Florida, in State ex rel. v. Wills, Judge, 38 So. l. c. 291, said: “Another contention for the respondent is that the issuance of a writ of mandamus in this cause would be a review of his judicial discretion, which can properly be done only by appropriate appellate proceedings,' tbe respondent claiming that be bad assumed jurisdiction of tbe cause by entertaining and granting tbe motion to dismiss tbe appeal, thus determining a question of practice only. It is conceded that tbe appeal was dismissed because no writ of error bad been issued in tbe cause, and that tbe court held that tbe issuance of a writ of error was necessary to give tbe court jurisdiction of tbe appeal. A dismissal on tbe ground of tbe want of jurisdiction is not such an assumption of jurisdiction as to require its review by appellate proceedings.”

Tbe question was directly decided in Hill v. Morgan, 76 Pac. 323. Tbe trial court, in that case; held that tbe summons was insufficient to give it jurisdiction to bear tbe cause, and set aside tbe service of tbe summons. It was held (Syl. 1-2): “Tbe rule that mandamus will not issue to control discretion or revise judicial action has no application to tbe determination of preliminary questions relating to tbe sufficiency of tbe service of summons. When tbe tribunal or officer whose duty it is to take jurisdiction of a matter, and believing erroneously that it has no jurisdiction, declines to consider tbe matter, mandamus will issue to compel action.”

In People ex rel. v. Judge of Wayne Circuit Court, 22 Mich. 493, it is held: “Where suit is commenced by declaration against tbe maker and indors-ers of a promissory note in tbe circuit court for tbe county where tbe indorsers reside, tbe service is first duly bad in said county upon tbe defendants residing herein, and thereupon, by virtue of Act No. 54 of 1869 (Sess. Laws 1869, p. 101) service is made upon tbe maker, who resides in another county, by tbe sheriff of tbe county where maker resides, and tbe circuit court on motion, orders such service, as to said maker, to be set aside as unauthorized by said statute, man-damns will be granted to compel said court to vacate said order.”

Beturning now for some analogous cases in Missouri. In State ex rel. v. O’Bryan, 102 Mo. 254, we have a case where a cause was sent by change of venue from the Cape Girardeau Court of Common Pleas to the circuit court of Scott county. The latter court held that the cause had been improperly sent to it and ordered it stricken from the docket and the papers returned to -the common pleas court. The common pleas court, holding that it had lost jurisdiction, ordered the papers returned to the circuit court of Scott county. That court then dismissed the cause. This court was then applied to for a writ of mandamus and one was awarded. In that case (l. c. 259), we said:

“It had been urged that inasmuch as the Scott Circuit Court had made its final order remanding the cause to the common pleas court, and inasmuch as the latter court, after this was done, simply made its order directing the return of the papers to the Scott Circuit Court, therefore the latter court is not vested with jurisdiction to try the cause, etc. To this objection it may be answered that the order made by the Scott Circuit Court as aforesaid was coram non judice. That court had no more authority under the law and the facts to make such an order than it would have had to have sent the cause to the circuit court of 'Mississippi county. Such orders are nullities and consequently oppose no barrier to a correct method of procedure when the error committed is ascertained. [State v. Gabriel, 88 Mo. 631.] Nor is it any obstacle to the obtaining of the proper relief, here, because the lower court has acted. [Bayha’s Case, 97 Mo. 331, and cases cited.]
“Nor would an appeal or writ of error afford any substantial or effectual remedy in a case of this sort. Were an appeal taken in an instance like the present, there would he nothing to pass npon, no errors to correct; for no trial had occurred. It is not the intention of the law to permit a canse to he bandied about like a shuttle-cock from court to court without affording a more effective and prompt relief than would be afforded by an appeal or writ of error.
“The premises considered, we do not doubt that this is an appropriate occasion for the exercise of our supervisory control and mandatory authority and consequently we issue our peremptory writ. All concur.”

And in a separate opinion Barclay, J., further said:

“Under the statutes governing this case, fully set forth in the foregoing opinion, it appears to me that the learned judge of the Scott County Circuit Court was in error in refusing to take jurisdiction of the cause referred to. While the plaintiff therein might properly have resorted to a writ of error or an appeal to rectify that ruling, it seems to me he was not necessarily bound to do so.
“Under the Constitution of this State, giving the Supreme Court ‘a general superintending control’ over the trial courts (Const. 1875, art. 6, sec. 3), it is within the proper scope of the constitutional authority of this court to intervene by the writ of mandamus to reinstate a cause which has been erroneously stricken from the docket at the circuit, and in which a hearing there is absolutely denied. In such a case we think the party injured should not be put to the delay of an appeal. ’ ’

So too we have by mandamus compelled the courts ' of appeals to reinstate and hear cases, after such courts had dismissed the appeals therein. [State ex rel. v. Smith, 172 Mo. 446; State ex rel. v. Broaddus, 210 Mo. 1; State ex rel. v. Broaddus, 234 Mo. 331; State ex rel. v. Broaddus, 239 Mo. 359.] In all these cases the courts of appeals had passed upon prelimb nary matters and disposed of the appeals without going into the merits. This court of necessity had and did examine into the same preliminary questions and holding opposite views upon the said preliminary questions directed the court of appeals to undo what it had done, and proceed to do what it should have done, i. e., decide the merits of the case.

That an appeal in the case at bar and under consideration was not a full 'and adequate remedy is sustained by the following cases: State ex rel. v. O’Bryan, 102 Mo. 254; Sedgwick Furniture Co. v. Craig, 160 Mo. App. 91; French v. Bennett, 72 S. E. 746; Mining Co. v. Fremont, 7 Cal. 130; People’s Bank v. Burdett, 71 S. E. 399; 26 Cyc. 171.

We are thus brought to the conclusion that had we been compelled to examine all the issues. in the mandamus case, ample authority can be found for the opinion in this case. But we take it that this is not a really important question now. We did hear the case and did issue that writ and such is sufficient for the cause now.

The writ of prohibition should be denied in the instant case for several reasons. First, these relat-ors are estopped by the judgment in the mandamus cash. By that judgment we have directed the circuit court to try relators’ case upon the merits. It would be a novel idea to say that they can prohibit the judge of the circuit court from carrying out our mandate in the mandamus case just because they were not on the re'cord here parties thereto. If a circuit court declines to act in a matter where it should act, the only necessary party to the mandamus suit is the official sought to be reached by our writ. The parties to the suit who are benefited by the lower court’s refusal to act are not necessary parties. This court in the exercise of its superintending control over inferior courts is not concerned in the contentions of the parties to the canse. We are only concerned in seeing that the lower court acts when it should act, and in an action to which the State and the delinquent judge are the real parties, although the State proceeds upon the information and to the use of a relator. And when we have directed the court to proceed the court and the parties must proceed. In a sense the judge who refuses to act at the instance of the prevailing parties nisi, represents such parties in the mandamus case here. But we need not go thus far in this case. It is so universally the practice in this State that the counsel for the prevailing party nisi represents the judge upon whom they have prevailed in the ruling and represent him because of the interest and employment of their clients, that we can well judiciously know this fact. -In the case at bar the very lawyers who represent, relators in this suit represented them as defendants in the court nisi, and represented the judge in the mandamus suit. When representing the judge we have no doubt that they were acting for and in behalf of their clients and were at the time and in the mandamus case, in the pay of their clients, these relators. Relators were therefore real parties to the mandamus case, although not parties of record. A party to a proceeding does not have to be a party to such of record before being bound. His conduct in the case may make him such a party, though not of record, as to make the judgment res adjudicata. Such is the relation here, and for this reason these relators are estopped by the judgment in the mandamus case, and cannot have the relief now sought in the instant case.

III. But it is urged that the term in the circuit court had elapsed before the mandamus ease was brought, and that therefore these relators were out of the circuit court, and for that reason were not feached by this judgment in mandamus. In other words, that the term having expired the circuit court could not afterward act. This contention we think unsound in view of the latest expression of this court upon the subject. It may be granted that by reason of the lapse of the time or lapse of the term the circuit court had lost its right to proceed against these relators, yet that does not preclude this court from directing that court to do at a later time the thing which was refused at a time when it could have been legally done by such court. In this regard our power under the Constitution is broader than that of the inferior tribunal, and if the lower court refuses to act at a time when it could act, we can by our writ direct such court to act, and our mandate becomes his authority rather than the statute. Thus in State ex rel. v. Gibson, 187 Mo. 536, we have a case wherein Judge Gibson of the circuit court had refused to sign a certain bill of exceptions within the time allowed. In this situation mandamus was sued out here, and it was urged that it would not lie because the time had elapsed and Judge Gibson could not act, even under the direction of this court. Discussing that proposition this court, In Banc, at page 550 of the opinion, by unanimous, voice said:

“Notwithstanding this is so, it does not follow that because respondent had lost the power to settle the bills of his own motion, or by consent, relators were remediless on timely application-here. No such reproach can be imputed to the law as that an injured suitor loses his right to an effectual appeal or writ of error, by the inadvertent or capricious refusal of a trial court to do its duty and create a receptacle for errors and exceptions at a time when the inherent power existed; because this court, either of its original or its appellate jurisdiction, by virtue of its constitutional superintending Control, may ex debito jus-ticiad, compel the doing of an act which a lower court has lost the power to do spontaneously. In State ex rel. v. Lewis, 71 Mo. 170, the time had expired for the Court of Appeals (under the former practice of appeal therefrom) to approve a bond in appeal and grant a supersedeas, it having refused a bond at the proper term under the mistaken notion that it had lost jurisdiction by prior order granting an appeal to this court, and Sherwood, J., speaking for the court, said: ‘We are of the opinion, also, that it is a matter of no importance that the term has now passed during which the judgment of the Court of Appeals was rendered. An incident of this sort by no means divests the power of this court to afford that measure of relief which is applied for in the present instance.’ State ex rel. v. Philips, 96 Mo. 570, was a case where the Court of Appeals had lost the power to certify a case here because of a lapse of the term at which it was decided, and Brace, J., speaking for the court, said: ‘If it did not become its duty to certify the cause during the term, it could not become so afterward and after the term the court could not of its own motion certify and transfer the cause; but if it did during the term become its duty to do so, and they failed to discharge that duty, it is no answer to the writ of mandamus commanding them to perform that duty, to say that it was our duty under the Constitution to perform the act, during the term, we failed to perform that duty and now we have no power to act. The Supreme Court has power to command the performance of a neglected duty, and although your neglect has rendered you powerless to do it upon your own motion, its command carries with it the power to do the act required. The Constitution has placed no such restriction of time upon the exercise of its power to command the performance of neglected duty, and when that duty is performed, under its mandate, it is by virtue of and in obedience to tbe power of that mandate and not sua sponte, by virtue of the power given by the Constitution which created the duty which has been neglected. The provisions of the Constitution enacted for the purpose of securing a prompt performance-- of a duty by prescribing a period of time within which it must be done, cannot be defeated by delay to perform that duty until the allotted time has expired. It does not follow because the court is forbidden bn its own motion to transfer a cause after the term in which the decision was therein rendered, that they may not be compelled to do so by mandamus if it was their duty to transfer it during the term and they failed to do so.’
“These cases have been cited and approved in later cases (State ex rel. v. Smith, 107 Mo. 534; State ex rel. v. Public Schools, 134 Mo. 311; State ex rel. v. Smith, 172 Mo. 627-630), and must be regarded as settling the principles of law applicable to the question in hand.
“Treating, then, the request of relators to respondent to settle and sign the bills as of no vitality, treating the signing and filing of the bills by respondent on or about December 20, 1904, as a nullity, and regarding the bills the same as blank paper, we hold "that relators are entitled to a peremptory writ unless their right to one is interfered with by some other recognized principles of law applicable to the facts ef the case.”

We declined the peremptory writ in the Gibson ■case upon another ground. We held that there was laches in making the application here, a question not rising here and could not have been raised in the mandamus. case which we disposed of at a previous term. So that we say now that the circuit court refused to ■do what it should have dope at. a time when it could .have acted; that in the mandamus case we have adjudged that fact; that our mandate in the mandamus case is now the constitutional legal basis of the circuit court’s right, jurisdiction and power to proceed with the case before it, and that this mandate having conferred the power and the jurisdiction to hear the particular case, such court is now proceeding with a full power and jurisdiction-both of the subject-matter and the parties, and we should not stop such proceeding by our writ of prohibition. The writ should be refused. It is so ordered.

All concur, except Woodson, J., not sitting.


author: BROWN, J. GRAVES, J.

text:
    THE STATE v. JOHN L. JONES, Appellant.
    In Banc,
    March 28, 1913.
    1. EVIDENCE: Murder of Hackman: Conspiracy of Defendant and Strikers. A strike was in progress at railroad car stops, and defendant was one of the strikers and a “picket.” The foreman, a brother-in-law of deceased, had refused to go on strike, and was accosted by some,of the strikers and threatened as he returned to his residence at noon on the day preceding the killing. He telephoned for the sheriff, who came in a carriage driven by a half-brother of deceased, and took him to the shops. There was testimony that defendant was on-the porch of a store that adjoined the foreman’s residence, with other strikers, at the time the sheriff arrived, but none-that he said or did anything at that time, or that there was any conspiracy between him and the other strikers to assault the foreman or the cab driver. The next day deceased was at the station with his cabs, and. defendant approached and asked deceased who had hauled the foreman the day before, and deceased replied he did not know and asked defendant why he wished to know, to which defendant replied that the foreman had drawn a gun on a boy out at the shops the day before and a warrant had been sworn out for his arrest and he wanted to know how they had got along with him. Deceased asked why the foreman had drawn the gun, to which- defendant replied that “we ain’t, putting out a thing, especially to you fellows, you hack drivers.” About that time the horses hitched to one of the cabs became frightened, and, according to the State’s evidence, deceased turned to stop them, and defendant followed and stabbed him with a knife, instantly killing him, and, according to defendant’s testimony, deceased struck defendant with his fist and reached down for a brick, whereupon defendant stabbed him. Held, that the testimony of the attempted mobbing of the foreman at his residence the preceding day was improper and its admission constituted, error, there being no evidence that defendant took any part in it; but it was proper to permit the State to show that a strike had been declared, that defendant was one of the strikers and had acted as a picket, and that one of the cab drivers, present at the place of the homicide, had hauled the foreman, a brother-in-law of deceased — all for the purpose of proving malice.
    2. -: Motive: When Important. Motive is a vital matter where the identity of the person who committed the crime is in doubt, and where defendant claims that his unlawful act was the result of an accident; but it is not so important when defendant admits he did the killing, and relies upon self-defense.
    8. -: Defendant: Belief Life Was in Danger: Self-serving. Where the court instructs the jury that if defendant "did believe” his life was in danger, etc., it was error to refuse to permit him to testify that he thought his life was in danger at the time he killed deceased. Such evidence may be self-serving, but if it .is proper to include in the instruction' the words that defendant “had reasonable cause to believe, and did believe, his life was in danger," he is most likely to know the condition of his own mind, and should be permitted to testify he did so believe, though the jury is under no obligation to believe his testimony unless it and the other facts establish a reasonable ground for the apprehension.
    4. REMARKS OF PROSECUTOR: Defendant as Horse Thief: Invited by Counsel. Where defendant’s counsel in his opening statement to the jury referred to the fact that defendant, on trial for murder, had been convicted of stealing a horse, it was not reversible error for the special prosecutor to thereafter refer to defendant as a horse thief. If error, it was invited by defendant.
    5. -: Defendant as Murderer. Where defendant’s counsel fails to except to the refusal of the court to rebuke the prosecutor for stating he hoped this is not the day when juries begin to compromise with horse thieves and murderers, there was no reversible error in the reference to him as a murderer, since there was evidence tending to prove that defendant had killed deceased without provocation. But such arguments are not to be commended.

      6. -: Request to Convict Defendant Because Previously Convicted of Other Crime. But an appeal to tlie jury to convict defendant óf the charge of murder because he has previously been convicted oí horse-stealing is error. Where the court has properly instructed that defendant’s former conviction oi another crime can he considered only as affecting his credibility, it is the duty both of the jury and of counsel in their arguments to obey that instruction. [Overruling State v. Boyd, 178 Mo. 1. c. 19, so far as conflicting.]
    7. EVIDENCE: Explaining Former Conviction. Defendant on trial for murder should not he permitted to testify to facts in mitigation of the crime of horse-stealing of which he has previously been convicted; hut it is proper to permit him to show that he has obeyed the law since his release from the penitentiary up to the time of the homicide.
    8. FAIR TRIAL: Misconduct of Special Counsel. The defendant, because the deliberate misconduct of special counsel employed to assist the prosecuting attorney by repeating their objections and persistently arguing their views after the court had made its rulings, created such confusion as made it well nigh impossible for the jury to understand the evidence, did not obtain a fair trial.
    Appeal from Pettis Circuit Court. — Ron. H. B. Sham, Judge.
    REVERSED AND REMANDED.

      Claude Wither son and W. G. Lynch for appellant.
    (1) The court erred in admitting evidence of the Vinson trouble. Defendant had no connection with it, and was not present when it occurred. Deceased had no connection with it and was not present when it occurred. It bore no relation to the crime, and was not relevant to the issues involved. The admission of such evidence -tended to confuse the issues, distract the mind of the jury and inject in their minds a prejudice against the accused that deprived him of a fair and impartial trial. State v. Jackson, 95 Mo. 649; State v. Faulkner, 175 Mo. 579; Bank v. Murdock, 62 Mo. 70; State v. Martin, 74 Mo. 547; State v. Clayton, 100 Mo. 520'; State v. Tabor, 95 Mo. 590; State v. Parker, 96 Mo. 388; State y. Thomas, 99 Mo. 257; State y. Nelson, 166 Mo. 191, State y. Kenhner, 93 Mo. 196; State y. Swain, 68 Mo. 605; State v. Harris, 73 Mo. 288; State v. Elkiiis, 63 Mo. 159; State v. Turner, 76 Mo. 350. The State should not have been permitted to show that it -became necessary for Yinson to call the sheriff to protect him or that it. was necessary for the sheriff to go to his rescue. The defendant should not be held responsible for the acts and words of others, or have his own rights prejudiced or imperiled because others did wrong. State v. Faulkner, 175 Mo. 579. (2) The State should not have been permitted to show the strike conditions; that violence was being committed and that pickets were employed by the strikers; that the railroad employed guards to protect men working from the violence of the strikers; and that a sort of miniature warfare was being conducted. Such evidence was obviously irrelevant and prejudicial to the’ rights of the accused. Oases supra. (3) The State should not have been permitted to show who hauled Yinson the day before the tragedy. Cases supra; State v. Tabor, 95 Mo. 591. (4) It will be noted upon an examination of the bill of exceptions that not once did the court rebuke or reprimand the attorneys for the State on account of objectionable remarks made by them; that the jury was never excluded. from the court room while they were being made; and that the remarks objected to were not legal arguments addressed to a point of law, but were either personal abuse of witnesses on the stand, unjust comments on their character or testimony or with reference to matters which were not being investigated, but would greatly prejudice the accused. The remarks evidenced a premeditated and well-contrived campaign of abuse and slander, having for its aim and object the prejudicing of the jury, against defendant. They were harmful and prejudicial, and their effect was in no way cured or removed. State v. Spevy, 191 Mo. 112; State v. Woodward, 191 Mo. 635; State v. Todd, 194 Mo. 377; State v. Mills, 199 Mo. 530; State v. Ferguson, 152 Mo. 92; State v. Hubbard, 149 Mo. 478; State v. Summar, 143 Mo. 220; State v. Punsbon, 13 Mo. 44; State v. Johnson, 76 Mo. 121; State v. Griffin, 87 Mo. 608; State v. Kring, 64 Mo. 591; State v. Clapper, 203 Mo. 549; State v. Shipley, 174 Mo. 512; State v. Boyd, 178 Mo. 2; State v. Pageto, 92 Mo. 300; State v. Woolard, 111 Mo. 248; State v. Lee, 66 Mo. 165; State v. Mably, 68 Mo. 315; State v. Reed, 71 Mo. 200; State v. Ulrich, 110 Mo. 350; State v. Young, 99 Mo. 666; State v. Fisher, 124 Mo. 460; State v. Babbot, 131 Mo. 328; State v. Jackson, 95 Mo. 623; State v. Prendible, 165 Mo. 329; State v. Wright, 141 Mo. 333; State y. Jackson, 95 Mo. 623; State v. Gillespie, 104 Mo. 400. (5) The court erred in admitting testimony of the strikers employing pickets and the railroad company employing guards. State v. Thomas, 78 Mo. 343; State v. Nelson, 166 Mo. 203; State v. Faulkner, 175 Mo. 546; State v. Swain, 68 Mo. 605; State v. Spivey, 191 Mo. 112.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State; Perry 8. Rader of counsel.
    (1) The testimony concerning the assault on Yin-son by the strikers on the day preceding the homicide, that there was a carmen’s strike, and that defendant was a member of the carmen’s union, was admissible. The said testimony was a circumstance connected- with the crime, and defendant’s own testimony connected him with it. Some part of his connection with it was shown by the testimony of Jack Savage, O. O. Schmidt, James Yinson and others. Besides there was a strike, Yinson was a fellow-laborer but not a striker, defendant was both -a striker and a picket at the- Katy station. He testified himself in chief that he was a member of the carmen’s unión and a striker. State v. Bailey, 190 Mo. 258; State v.. Meyers, 198 Mo. 260; State v. Testerman, 68 Mo. 408; State v. Spaugli, 200 Mo. 599; State v. Rudolph, T87 Mo. 83; State v. Earnest, 70 Mo. 520; State y. Tabor, 95 Mo. 585; State v. For-sythe, 89 Mo. 667; State v. Saunders, 106 Mo. 188; State v. Hoffman, 78 Mo. 256. It was also competent as showing motive. State y. Roberts, 201 Mo. 726; State v. Williamson, 106 Mo. 162; State v. Duestrow, 137 Mo. 86, secs. 5 and 6; State v. Hathhorn, 166 Mo. 229; State v. Evans, 159 Mo. 589. (2) In his argument to the jury, Mr. McG-ruder, special counsel for the State, said: “I hope this seventeenth day of January is not the day when the juries begin to compromise with horse thieves and murderers.” The court held that the reference to this defendant as a horse thief was permissible only as affecting his credibility as a witness, hut that it was allowable for that purpose. There was no error in either the attorney’s remark or the court’s ruling. The defendant had himself testified in chief that he had stolen a horse and had served a sentence in the penitentiary on a plea of •guilty; and the evidence certainly authorized the State to speak of him as a murder. State v. Barrington, 198 Mo. 91; State v. Phillips, 160 Mo. 505; State v. Sum-mar, 143 Mo. 220; State v. Allen, 174 Mo. 689; State v. Boyd, 178 Mo. 2. (3) The record abounds in useless objections and remarks by the State’s special counsel, hut of most of them nothing worse .can be said than that they were useless and tended to impede the progress of the trial; and perhaps to fret and vex both the defendant’s counsel and the court. It will he observed that no exception was saved to the ruling of the court upon the remarks of Mr. Steele. Mr. Lynch interposed a very strenuous objection to those remarks, or “speech” the court calls them, but when the court, after Mr. Lyncth inter'posed hisvigorous protest, said, “Now, gentlemen, you have .both made your speeches, and the court is going to rule again; I think you are treading on dangerous ground in making these speeches; I have tried as best I could to keep them out,” there was no exception saved by appellant. Nor was any further objection made. Nor was any request made' that the court reprimand Mr. Steele, or caution the jury; The court ruled that the testimony was competent, and apparently defendant was satisfied with the court’s action. He himself injected the horse-stealing incident into the case in his examination in chief. We also frankly admit there were clauses in Mr. Steele’s statement that were improper, such as the statement that defendant, in explaining the taking of the horse as a trespass (that “he took the horse and failed to return it”), was coming into court “with this lie in his mouth,” and also the statement that ‘ ‘ the gentleman is talking about' going to the Supreme Court.” But Mr. Steele’s remarks were not reversible error, for several reasons; (a) There was no exception saved to the court’s failure to more vigorously sustain defendant’s objection to them. State v. Zorn, 202 Mo. 12; State v. Coleman, 186 Mo. 159; State v. Lamb, 141 Mo. 305; State v. Hilsabeck, 132 Mo. 359; State v. Thurman, 121 Mo. App. 377. (b) It was not .improper for the State’s counsel to' allude to the defendant as a horse thief. Defendant, in his direct testimony, proceeded at once to say he had taken Mr. Brown’s horse and had pleaded guilty to stealing it, and prior thereto his counsel, in his opening statement, had said defendant had been sentenced to three years’ imprisonment for stealing Brown’s horse. It was not prejudicial for the State’s counsel to so characterize him. State v. King, 214 Mo. 391; State v. Allen, 174 Mo. 689. (c) A judgment should not be reversed for every transgression by counsel of the legitimate bounds of argument or for improper remarks during the progress of the trial; to warrant a reversal on that ground, the court must be satisfied that the improper remarks were prejudicial to defendant, and had some influence with the jury in arriving at their verdict. State v. Sublett, 191 Mo. 174; State v. Emery, 76 Mo. 348. (4) Exceptions to the remarks of counsel must be made at the time the, remarks were made. State v. Voile,. 196 Mo. 29; State v. Ohenault, 212 Mo. 137; State v. McCarver, 194 Mo. 740; State v. Armstrong, 167 Mo. 257; State v. Scullin, 185 Mo. 709; State v. G-race, 230 Mo. 702; State v. Thavanot, 225 Mo. 546; State v. Foley, 220 Mo. 89; State v. Murphy, 201 Mo. 696. (5) No remarks were made by the State’s counsel, either in the, progress of the trial or in their argument to the jury, that would justify the Supreme. Court in ordering a new trial, and for several reasons : (a) Where the remarks were improper and defendant raised a proper objection, the court in most cases sustained that objection. (b) Where the remarks were improper, if indeed there were any such, and defendant’s counsel made a proper objection which the court refused to sustain, no exception was saved to the court’s ruling, and therefore those remarks cannot be considered on appeal. State v. Pegels, 92 Mo. 311; Sec. 2081, R. S. 1909. (c) The court sustained objections to most of the damaging remarks made by the State’s counsel, and therefore of them the appellant cannot complain, (d) Where objections to remarks of counsel were made, they were of ten Insufficient to justify a ruling. An objection that .the remarks are prejudicial is alone the same as no objection at all. State v. Young, 153 Mo. 445. (e) Oral remarks by the trial judge during the progress of the trial must be objected to at the time. State v. Dewitt, 152 Mo. 76. (f) The burden is on appellant to show that the remarks of the State’s attorneys during the progress of the trial were prejudicial. State v. Edie, 147 Mo. 535; State v. Hibler, 149 Mo. 478. (g) The statement of a truth is not an improper remark. State v. Summar, 143 Mo. 220; State v. Griffin, 87 Mo. 615. (6) The testimony concerning the Yinson trouble was competent as explaining the conversation of defendant at the station at the time of the homicide. No stronger authority on this point could be cited than the case of State v. Nelson, 166 Mo. 191, cited by defendant, and especially what is between pages 196 and 202, inclusive, (a) The testimony was competent as a circumstance closely connected with the homicide, and as going to establish one of the constitutive elements of the offense. State v. Dettmer, 124 Mo. 432; State v. Rasco, 239 Mo. 562; State v. Ferrell, 233 Mo. 452; State v. Boyer, 232 Mo. 267; Wharton on Orim. Ev. (9 Ed.), sec. 48; Underhill on Evidence, sec. 58; People v. •Molineux, 168 N. Y. 293; State v. .Bailey, 190 Mo. 280. “This evidence constituted a part of the history of the transaction.” State v. Collins, 181 Mo. 259; State v. Nugent, 71 Mo. 143. (b) It was competent to prove motive. State v. Lehman, 175 Mo. 619; State v. Hyde, 234 Mo. 237. (c) If the testimony concerning the Vinson matter was not competent as tending to show motive or as a fact or circumstance tending to establish one of the constitutive elements of the homicide, or as a part of the history of the transaction and explanatory of it, then how could its admission be prej-udical to defendant? The fact that there had been trouble between Campbell and Yinson the day before the homicide, and that the sheriff had come in Jack Savage’s carriage and taken Yinson down town, could not have prejudiced defendant in the minds of the jury. How could they have been influenced a hair’s breadth by those facts? On that theory the incident at its worst was a mere immaterial and irrelevant matter, and did not endanger a fair and impartial trial, and in such case the judgment will not be reversed. State v. Cummings, 189 Mo. 643; State v. Kretschmar, 232 Mo. 48. (7) It was not error to permit the State to show that there was a strike, that defendant was a picket, and that the railroad employed guards to protect men who were working for the railroad. -Defendant objected to the relevancy of the Vinson trouble, but he did not object to what had been said about the strikers. Both sides seemed to assume that the strike was in some way connected with the homicide, and testimony concerning it was proper, and no effort was made to keep from the jury the fact that there was a strike, or that the railway company had guards at the station to protect the men who had taken the place of the strikers or that there were strikers at the store when the sheriff went there to taken Vinson down town.
   BROWN, J.

Defendant stands convicted of stabbing and killing one Milton Akins Mackey in Pettis county on November 20, 1911, and from a judgment of the circuit court of that county fixing his punishment at death he appeals.

A very fair outline of the case made by the State will be obtained by quoting the salient parts of the evidence of witness Charles L. Hollingsworth, who /■testified as follows:

“A. They was at the Katy depot, and we was all standing there talking, and Mr. Jones came up, and he didn’t speak to Mr. Mackey, but he was looking right at Mr. Mackey, and asked Mr. Mackey: ‘Who hauled this man, Vinson, the day before?,’ And Mr, Mackey replied, he said he didn’t know. Mr. Mackey .wanted to know then why he wanted to know. ‘Why,’ he says, ‘he dr awed a gun on a boy at the shops and they swore out a warrant for him,’ and he wanted to know how they got along with him.' Mr. Mackey asked Mr. Jones: ‘What made him draw this gun?’ Mr. Jones wouldn’t tell him; says: ‘We ain’t putting out a thing’ he says, ‘specially to you fellows’ — you hack drivers or something like that. That’s the words he said, and then Mr. Mackey’s team got scared and started to run, and Mr. Mackey run after the team and Mr. Jones run in and stabbed him.
“Q. How far did Mr. Mackey have to run to get to his team from where he was standing? A. About twelve or thirteen feet.
“Q. When he was running to get his team was he running towards or away from the defendant, Jones? A. He was running away from him.
“Q. And just state what Mr. Mackey did when he reached where his team was? A. He grabbed the lines. •
“Q. Now, how were the lines fixed, Charley, so the jury will understand? A. They was wrapped around the hub of the wheel, and Mr. Mackey run up to grab the lines, and put his left hand on top of the wheel and his right hand ahold of the lines.”

Hollingsworth further testified that Jones looked •like he was mad and held his right hand in his front pants pocket when he first came down where the hacks were standing. That immediately after the stabbing took place, Jones’s hat was on the ground, but witness did not know how it came to be there. Hollings-worth further testified that after Mackey was stabbed and fell he (Hollingsworth) and others started towards Mackey’s body, whereupon Jones slashed at them with his knife.

The evidence of witness Hollingsworth was strongly corroborated by five other witnesses for the State. These witnesses were standing from ten to fifteen feet from Mackey and Jones, but did not hear, any quarrel, nor see any hostile demonstration on the part of Mackey whatever. One witness for the defendant who was present at the tragedy testified that while Mackey struck defendant before the stabbing took place the defendant was not knocked down. *

Defendant’s account of the killing is as follows:

“Q. What conversation occurred there in the presence of Mr. Mackey, Mr. Jones?
“The Court: That conversation has been gone into.
“A. Well, I asked the question:• If any of them knew whether- or not Sheriff Henderson had got back to town with Mr. Vinson. And this man, Mr. Mackey, says: ‘I don’t know. Why?’ ‘Well,’ I says, ‘I heard this morning there had been a warrant sworn out for him and the sheriff had went after him.’ And Mackey says: ‘What in the hell do you know about it?’ I says: ‘I don’t know anything about it.’ I wasn’t supposed to know because I wasn’t there. ‘Well,’ he says, ‘what was the warrant sworn out for?’ I says: ‘I understand Mr. Vinson made a gun-play out at the Katy shops yesterday at noon.’ And Mr. Mackey says: ‘Are yon a carman?’ I says: ‘Yes, sir.’ He says: ‘Where is your card?’ Isays: ‘I have none.’ I says: ‘I have nothing but my receipts to show I have paid my dues.’ Red Baldwin says: ‘He is a carman all right.’ And Mr. Mackey was standing on the foot step of the Terry van when I was talking to him, and he stepped off onto the sidewalk.
“Q. In which direction? A. Why, he stepped off south from where he was standing, and stopped southeast of me. I was standing near the edge of the curbing. And he says: ‘You may have to know something about it.’ ‘Well,’ I says, ‘I ain’t putting out anything to-day.’ I told him: ‘That’s all right,’ and I made a step or two backwards, and went to turn. Mr. Mackey says: ‘You son-of-a-biteh,’ and he hit me right behind the ear (indicating), and knocked me off the curb into the street.
“Q. Now, then, what happened, Mr. Jones? A. He followed me up and hit me right along back there (indicating) and knocked me to my knees, and as I straightened up, I turned facing the south, and Mr. Mackey hit me one lick right over my heart, and knocked me down (indicating), and I went flat and he made a rush towards the front wheel of the second rig from the east. It was a carriage. And lie readied down below the liub of the wheel towards a brick-bat that was laying there, and I thought my life was in danger — ■
“Mr. Steele (interrupting): We object to that, and ask that it be stricken out.
“The Court: Objection sustained. Strike out what he thought.
“To which action and ruling of the court in sustaining said objection and in granting said motion to strike out, the defendant then and there duly excepted at the time and still excepts.
“Q. Then what occurred? A. When I got on my knees, I took my knife out of my right-hand pants pocket, and opened it while I was on my knees, and grabbed Mr. Mackey by the overcoat and pulled myself up, and he straightened up. Pie saw the knife and throwed his right hand down in his overcoat pocket, and I struck him with the knife. (Indicating all the time.)
“Q. Iiow many times did you strike him with the knife? A. I don’t know.”

Defendant was corroborated by one witness and partially corroborated by two' others. One witness called by the State, who was standing about sixty feet from the parties, testified that immediately before the stabbing he heard Mackey say to defendant: “You are a damn liar, yon will do nothing.”

Mackey was killed with a pocketknife, the blade of which was about three inches long.

As we find the judgment must be reversed for errors hereafter noted, it is unnecessary to give a more detailed statement of the evidence. It is sufficient to say that the testimony on the part of the State, if true, is sufficient to sustain the verdict of the jury imposing the death penalty upon defendant; while the evidence on the part of defendant, if true, would have justified the jury in finding a verdict of murder in the second degree, or manslaughter in the fourth degree.

OPINION.

I. On the part of the State the evidence tended to prove that many of the employees of the car shops of the Missouri, Kansas & Texas Railroad Company at Sedalia had been on a strike for about a month before Mackey was killed; that defendant Jones was one of the strikers and had performed “picket work” for them. The trial court permitted the State to introduce evidence tending to prove that on the day before Mackey was killed about twenty-five of the strikers attempted to assault and mob one Vinson, a brother-in-law of Mackey. That said Vinson was chased to his residence by said strikers, whereupon the sheriff of Pettis county engaged one Jack Savage, a half brother of Mackey, to go with him and haul Vinson from his residence to the car shops. Vinson had been working at the railroad car shops with the strikers, but had. refused to join the strike. Mackey operated a hack and it does not appear that he had any interest in the strike.

Defendant objected to the testimony relating to the attempted mobbing of Vinson on the ground that it tended to prejudice the minds of the jury by placing before them evidence of another crime with which defendant was not connected. The prosecution promised to connect defendant with the mobbing of Vinson, whereupon the court admitted the evidence. •

Jack Savage, one of the witnesses for. the State, testified that he saw defendant standing on the steps of a near-by grocery store when he and the sheriff arrived at Vinson’s house, but there was no evidence that defendant took any part in the attempted assault on Vinson. "We find that the evidence of this attempted mobbing of Vinson was improper and its admission constituted error. [State v. Spray, 174 Mo. 569; State v. Boatright, 182 Mo. l. c. 51; State v. Teeter, 239 Mo. 475, l. c. 485; Constitution of Missouri, article 2, section 22.]

Even if it had been shown that defendant took part in the attempted mobbing of Vinson, that would not tend to show malice on the part of the defendant towards Mackey who was engaged in a different occupation than Vinson and was apparently not connected with the strike. The case of State v. Bailey, 190 Mo. l. c. 279, cited by the Attorney-General, is not in point becau'se it was not proved that the parties who tried to mob Vinson were acting in concert with defendant. There is nothing in the record tending to prove that any other striker had'agreed or undertaken to co-operate with defendant in assaulting Mackey or other hackmen..

Strikes do frequently result in rioting and murder, but we cannot, as a matter of judicial knowledge, say that all persons who go on a strike are desirous. of committing murder.

The fact that the special prosecutor for the State promised the trial court to connect Jones with the' attempted mobbing of Vinson, but did not do so, con-' vinces us that the evidence of this rioting was introduced for the sole purpose of inflaming the minds of the jury against defendant. This was highly improper.

The human mind is so constituted that when it becomes prejudiced against an individual it cannot impartially weigh evidence tending to show his guilt or innocence — prejudice and malice dethrone reason, and overcome the natural impulse of both juries and courts to weigh evidence and decide disputed facts correctly and impartially.

Upon a retrial of the case the State should be permitted to show that a strike had been declared by the employees of the car shops; that defendant was one of the strikers and had acted as a picket. Also that one of the hackdrivers present at the place where the killing occurred had hauled Yinson, a brother-in-law of Mackey, to the car shops, and all of these enumerated facts for the purpose only and to the extent only of proving malice. No evidence should be admitted of rioting or other acts of lawlessness committed by other strikers than defendant, unless the State can furnish evidence of a conspiracy between such other strikers and defendant to assault Mackey. [State v. Bailey, 190 Mo. 257.]

The following cases may profitably be consulted regarding the admissibility of evidence to prove motive: State v. Page, 212 Mo. 224; State v. Callaway, 154 Mo. 91; State v. Duestrow, 137 Mo. 44.

Motive is a very vital matter in cases where the identity of the party who committed the crime is in doubt, and also where defendant claims that his unlawful act was the result of an 'accident, but it is not so important when, as in this case, the defendant admits that he did the killing and relies upon the plea of self-defense. .

II. The defendant further contends that the trial court committed error in striking out that part of his evidence wherein he stated that at time he stabbed and killed Mackey he believed his life was in danger.

Defendant had, by his plea of not guilty, and by his evidence, tendered the issue of self-defense. The learned trial judge submitted that issue to the jury in the first paragraph of instruction numbered 13, which reads as follows:

“The right to defend one’s self against danger not of his own seeking is a right which the law not only concedes but guarantees to all men. The defendant may, therefore, have killed deceased and still be innocent of any offense against the,law. If at the time he stabbed deceased he had reasonable canse to apprehend on the part of deceased a design to do him some great personal injury, and there was reasonable cause for him to apprehend immediate danger of such design being accomplished, and to avert such apprehended danger he stabbed, and at the time he did so he had reasonable cause to believe, and did believe, it necessary to use his knife in the way he did, to protect himself from such apprehended danger, then and in that case the stabbing was not felonious, but was justifiable, and you ought to acquit him upon the ground of necessary self-defense. It is not necessary to this defense that the danger should have been actual or real, or that danger should have been impending and immediately about to fall. All that is necessary is that defendant had reasonable cause to believe and did believe these facts. But before you acquit on the ground of self-defense, you ought to believe that defendant’s cause of ’apprehension was reasonable. "Whether the facts constituting such reasonable cause have been established by the evidence you are to determine, and unless the facts constituting such reasonable cause have been established by the evidence in the cause, you cannot acquit in such case on the ground of self-defense, even though you may believe the defendant thought he was in danger.”

In view of the foregoing instruction we hold that it was error to strike out that part of defendant’s evidence tending to show the condition of his mind and his belief of impending danger from deceased at the time he did the stabbing. Such was the ruling of Division No. Two of this court in the recent case of State v. Turner, 246 Mo. 598, l. c. 616, 617.

In the mind of the writer it is only a matter of common sense to hold that when under the law as declared by the court a defendant is required to convince the jury that his mind was in a certain condition at the time he assaulted or killed-another person, in order to escape the ordinary consequences of his act, it is error to refuse to allow such defendant to testify as to the condition of his mind and his apprehension of danger at the time of sneh assault or killing.

It may be said that the evidence of defendant under such circumstances would amount to only a self-serving statement. Be that as it may; the defendant is the man most likely to know the condition of his own mind, and the jury is under no obligation to believe him unless upon his cross-examination and upon a consideration of all the facts in the case his evidence as to his apprehension of danger is so reasonable and consistent that the jury is convinced he has testified truthfully.

Whether error of this character is sufficient to work a reversal of a judgment must depend somewhat upon the other facts in the case in which it is committed.

III. It is also asserted by defendant that the judgment below should be reversed because one of the special prosecutors, while defendant was giving his evidence, frequently referrfed to him as a horse thief. This grew out of the fact that defendant’s attorney in his opening statement to the jury admitted that the defendant had been convicted of stealing a horse. If defendant’s attorney had not undertaken the unusual, and, perhaps, unwise course of discrediting the testimony of his client before the latter was sworn, the alleged error complained of would probably not have occurred. If there was any error in the language used by the assistant prosecutor at the time the defendant was testifying, such error was, in a large measure, self-invited and would not justify a reversal.

The trial of defendant was concluded on the 17th day of January, 1912, and one of the special prosecutors for the State in his argument to the jury said: “I hope this 17th day of January is not the day when the juries begin to compromise with horse thieves and murderers.” This argument was objected to by defendant and is assigned as ground for reversal. The court told the jury, orally 'and also by instructions, that they should only consider the prior conviction of defendant as tending to discredit his evidence as a witness. The defendant failed to except to the action of the court in neglecting to rebuke the special counsel for the above mentioned argument, and we would not notice it here, except for the reason that the matter may come up again upon a second trial of the case. As there was evidence tending to prove that defendant killed Mackey without provocation, it was not reversible error to call him a murderer. [State v. Allen, 174 Mo. 689; State v. Summar, 143 Mo. 220.] However, such arguments are not to be commended. Epithets weaken any argument, wherever used, whether in court or out of it. The use of epithets and extravagant language sometimes inflames the minds of inconsiderate people, but in reality such language indicates that the speaker is short on facts upon which to support a real argument.

Another point of objection to the remarks of the special prosecutor is that they amounted to an appeal to the jury to convict defendant of murder because he had previously been convicted of horse-stealing. This insistence is not without merit. The trial court had instructed the jury that defendant’s conviction of horse-stealing was not evidence that he had murdered Mackey; consequently, the above quoted argument was directly in face of the law" as correctly declared by the court. It is never proper for attorneys to directly or indirectly invite juries to disregard or disobey the written instructions of the. court.

' The laws of the State of Texas, like our own, provide that evidence of the former conviction of a defendant can be introduced for tbe purpose of discrediting bis evidence. In tbe recent case of Taylor v. State, 50 Tex. Cr. R. 560, l. c. 561, 100 S. W. 392, tbe county attorney made tbe following statement:

“ ‘Tbe only punishment you can give tbis negro bully is’ to end bis earthly career. If you send him to tbe penitentiary, it will not reform him. He has been in tbe penitentiary for assault to murder, and it has bad no effect on him. And be goes out tbe first thing and gets a big six-shooter, and goes to killing. He has been tried in tbe penitentiary, and that does no good, and you must not give him another chance in tbe penitentiary, for, if you do, be will watch bis opportunity to kill tbe guards and escape.”

In reversing tbe judgment in that case tbe Supreme Court of Texas said:

“Tbe language of tbe county attorney in bis argument to tbe jury was highly inflammatory and prejudicial to tbe rights of appellant, and tbe court should not only have reprimanded tbe counsel, but should have charged tbe jury to totally disregard such argument. . . . Tbe fact of appellant having previously been in tbe penitentiary was admitted by tbe court for tbe sole purpose of testing tbe credibility of tbe appellant as a witness in bis own behalf. It was legitimately admissible for tbis purpose, and could not legitimately be used for any other purpose.”

To tbe same effect is tbe ruling of Division No. Two of tbis court in tbe recent case of State v. Phillips, 233 Mo. l. c. 306.

Upon a retrial of tbe case tbe prosecuting attorney should be permitted, in commenting specifically upon tbe evidence of defendant, to refer to tbe fact that be has been convicted of horse-stealing, as tending to discredit bis evidence as a witness in bis own behalf, but he should not be allowed to urge bis prior conviction as evidence that be committed tbe crime with which be is now charged.

In so far as the case of State v. Boyd, 178 Mo. 2, l. c. 19, is in conflict with the views herein expressed it is overruled. But it does not appear in what connection the prosecuting attorney in the Boyd case referred to defendant’s former conviction, and that case is not necessarily in conflict with this opinion.

This case does not fall within the purview of section 4913, Revised Statutes 1909, under which a former conviction may be charged in the indictment and proved to increase the punishment. [State v. Austin, 113 Mo. 538.]

IV. The defendant while on the stand attempted to testify to facts in mitigation of the crime of horse-stealing of which he had previously been convicted. We do not think he should be allowed to do so. If a defendant may impeach or partially impeach a judgment of conviction, then it would undoubtedly be permissible for the State to introduce other witnesses to prove that there were no mitigating circumstances connected with the former conviction, and thus a trial court would, to a large extent, have to re-try the former case. Such a procedure would be very confusing and unsatisfactory. If defendant can show that he obeyed the law and lived the life of a good citizen after being released from the penitentiary up to the time the present charge was preferred ag'ainst him he should be permitted to do so.

Y. A careful reading of the record in this cause convinces us that the learned trial judge was, at all times, desirous of according the defendant a fap- trial according to the forms of law, but we are further convinced that defendant did not obtain a fair trial on account of what appears to have been the deliberate misconduct of the special counsel employed to assist the prosecuting attorney.

The special counsel employed to assist the prosecuting attorney, as well as defendant’s attorneys, by repeating their objections to the evidence, and by persisting in arguing their views after the court had ruled against them, created such a state of confusion that it must have been well nigh impossible for the jury to have understood the evidence which was admitted. Upon a retrial of the cause the circuit court should require the attorneys to refrain from personal abuse of each other, to make their exceptions to evidence in a concise form, and compel them to abide all rulings of the court when made, even if to accomplish these results he should find it necessary to punish them for contempt.

The defendant complains of other alleged errors, but, if errors, they are of such a nature that they are not likely to reoccur upon a second trial of the cause. Therefore, we will not incumber this opinion with them.

The real object in creating and maintaining courts is to accord litigants fair trials. The greater the punishment sought to be inflicted upon'a defendant, the greater the necessity that his trial should be in accordance with the forms prescribed by law. As the defendant was not given a fair trial we will reverse the judgment and remand the cause for a new trial in accordance with the views herein expressed. It is so ordered.

Faris, J., concurs; Graves, Walker and Woodson, JJ., concur in separate opinion filed by Graves, J.; Bond, J., concurs in result; Lamm, C. J., not sitting.

CONCURRING OPINION.

GRAVES, J.

I fully concur in the result reached in the principal opinion, and in most of the opinion. There are, however, some things in which I do not concur. In the last sentence of paragraph two of the opinion it is said: “Whether error of this character is sufficient to work a reversal of a judgment must depend somewhat upon the other facts in the case in which it is committed.” This language is too broad. If there are any facts in the case tending to show that the defendant acted in self-defense, it is absolute and reversible error to refuse such- defendant the right to testify to what he believed his situation to be when he struck the fatal blow, and this, too, irrespective of any other facts in the case. The only prerequisite for the exercise of this right by the defendant, should he, that self-defense was invoked, and that there should be in evidence some facts tending to establish such defense. For these reasons I think the concluding remarks under his paragraph two is a little broad, and not hedged with proper limiting words.

As to the third paragraph of the opinion I only wish to say that in my view of the law the language used by, and the conduct of, the special prosecutor in this ease, are of themselves sufficient to work a reversal of this judgment. It strikes me that my brother does not go quite so far, but it may be that he does. At any rate this will make my position clear. With these exceptions I concur fully in the opinion and fully concur in the result thereof.

Woodson and Walker, JJ concur in these views. ■