author: GANTT, J. —

text:
    THE STATE v. WILLIAM JEFFRIES, Appellant.
    Division Two,
    March 17, 1908.
    1. INFORMATION: Preliminary Hearing. Where defendant and another have been in the same information charged as principals with a capital offense, and defendant has been given a preliminary examination, the defendant has no right to complain of the failure of the prosecuting attorney to accord the defendant’s co-principal a preliminary examination according to section 2476a, Laws 1905, p. 113 — said co-principal having fled and never been arrested.
    2. -: —--: All Witnesses. Defendant, tried upon an information, is not entitled under section 2476a, Laws 1905, p. 113, to have the State, on his preliminary examination, produce every witness it intends to call at the trial. There is need to call only so many as seem necessary to meet the purposes of an examination, namely, to satisfy the justice that a felony has been committed and to establish the probable cause for a belief on his part that defendant is guilty. The Act of 1905 must be read in connection with section 2457, R. S. 1899. The purpose of a preliminary examination is to prevent suspected persons from escaping and to secure their attendance at the trial, as well as to safeguard them from groundless and vindictive prosecutions.
    3. -: Failure to Indorse Witnesses, Failure of the prosecuting attorney to indorse on the information names of witnesses who had been subpoenaed before the justice at the preliminary hearing and before the circuit court for the trial, is not ground for quashing the information, but such failure is not approved.
    4. VENIRE: Summoned by Prejudiced Sheriff. The fact that a sheriff was diligent in pursuing and arresting defendant and that he is a witness for the prosecution is no ground for holding he is so biased and prejudiced against the defendant that the venire summoned by him should be quashed, if the trial court, upon fair investigation, finds he was not prejudiced. Besides,■'such motion should be made before the venire is summoned.
    5. EVIDENCE: Shoes Taken from Defendant: Constitutional Right. It is not a violation of defendant’s constitutional right not to be compelled to testify against himself, to permit shoes he wore at the time he was arrested to be offered in evidence and to show that they correspond to tracks found near the place of the homicide.
    6. WITNESS: Child Eight Years Old.- -Where the trial court found as a fact that an eight-year-old child, who had been going to school and was in the second reader, and who answered that if she did not tell the truth she would go to the bad place, was competent to testify, its finding will not be disturbed on appeal.
    7. INFORMATION: Two Counts: Two Principals: Election. The information in the first count charged that Hood committed the homicide and that defendant was present, aiding and abetting him, and in the second count that defendant committed the homicide and that Hood was present, aiding and assisting him. Held, that the court was not required to dismiss either count, nor to require the State to elect on which count it would go to the jury, but properly authorized the jury to pass upon the evidence and to find defendant- guilty upon whichever count it believed the evidence sustained, and it having found him guilty under the second count no possible error could have resulted to him by the submission to the jury of the first count.
    8. IDENTIFICATION. The identification of the defendant in this case as the murderer was sufficient to justify the verdict of guilty.
    9. JURY: Separation: Going to Theatre. The taking of a jury to a theatre by the sheriff during the progress of the trial in a capital case, will be ground for'a new trial, unless it be shown affirmatively by the State that the jurors were not subjected to improper influences.
    10. -: -: -: Comic Performance. The sheriff, during the progress of the trial in a capital case, took the jury to the opera house, to attend an entertainment consisting of comic songs and dances, there being no reference during the performance in any way to the trial of the case. The sheriff and his two deputies and every member of the jury testified that they occupied a separate section of the theatre to themselves, that they never separated and had no communication with themselves or with any other person while there or either going or returning. Held, that it was an irregularity, and one that is to be neither countenanced nor approved, but not reversible error. ^
    11. ARGUMENT OF COUNSEL: No Exceptions. Unless objections are made to the argument of the prosecuting attorney and exceptions saved to the ruling of the court thereon and the whole embodied in the bill of exceptions, there, is nothing in the argument for the appellate court to consider.
    Appeal from St. Charles Circuit Court. — Hon. Jas. D. Barnett, Judge.

    AmRMBD.

      Wilfred Jones and George Eigel for appellant.
    (1) The motion to quash raised three principal points of objection: (a) That Willis Hood, who is a joint defendant in this case, was informed against without his ever having been granted a preliminary examination, (b) That William Jeffries’ preliminary examination was not in accordance to law. (c) That the State had purposely refrained from endorsing names of known material witnesses on the information. The defense proved all of these allegations by evidence and testimony at the hearing on the motion. Sec. 2476a, Laws 1905, p. 133. Section 2447, Revised Statutes 1899, provides that on the hearing in preliminary examinations the examining magistrate shall examine the complainant and witnesses produced in support of the prosecution, on oath. This was not done. Five witnesses were all that were endorsed upon the information, although this was the second information drawn in the case, and ,was drawn over nine months after the killing of deceased. That the prosecuting attorney knew of other witnesses previous to drawing the information is proven by the subpoenas made out by him for witnesses Mike Wussler, Fred Walkenhorst and Nellie Jeffries, as well as by their testimony before the coroner, which was in his hands. The testimony of Annie Wussler, taken before tbe coroner, also informs Mm that Edna Wussler was a material witness for the State. On the stand himself; the prosecuting attorney admits that he knew of Sheriff Hines being a witness for the State, and also that he knew of other witnesses than those endorsed and might make use of them. State v. Roy, 83 Mo. 268; R S. 1899, sec. 2517. (2) The challenge to the array of jurors was upon the ground that the sheriff, the summoning officer, on account of his bias and prejudice against the defendant and of his being a witness for. the prosecution, was-not the proper party to summons the jury. The jury in the case was a special venire and the officer had absolute right to summons whomsoever he pleased. Although the State sought to conceal- the fact that Sheriff Hanes was to be a witness, he was made use of as a witness and proved to be a material witness for the.State. The defense also maintains that in the evidence adduced at the hearing on this question bias and prejudice are shown to exist in the sheriff and his officers against defendant. Objection to jurors on account of the sheriff who summons them is reached by challenge to the array. State v. Weedem, 133 Mo. 70. A sheriff who is a witness for the prosecution is disqualified to summon the jurors, on account of the bias and prejudice he is presumed to possess. State v. Powers, 136 Mo. 194; State v. Hultz, 106 Mo. 41. (3) Failure to endorse the names of all the material witnesses upon an information, if properly objected and excepted to, constitutes reversible error. R. S. 1899, sec. 2517; State v. Roy, 83 Mo. 268; State v. Grady, 84 Mo. 220; State v. Steifel, 106 Mo. 129; State v. Cole, 145 Mo. 672; State v. Nettles, 153 Mo. 464; State v. Bailey, 190 Mo. 278; State v. Barrington, 198 Mo. 124. (4) At the close of the State’s case and again at the close of all of the evidence in the case, the defendant demurred to the evidence under the first count of the information, which demurrer was by the court overruled and by the defense excepted to. There is absolutely no evidence to show that Willis Hood shot the deceased, and this first count should have been dismissed. (5) It was improper to allow in evidence all of the articles said to have been found by the sheriff and his posse. State v. Thomas, 99 Mo. 257; State v. Goddard, 162 Mo. 227. (6) The defense at once upon learning of the jury’s conduct on the night of April 26th, acquainted the court with such fact, and swore to the information, at the same time requesting the jury’s discharge. Thus, the court had full knowledge of it and overruled the request of defendant. (7) Improper conduct and remarks of the prosecuting attorney in making his argument to the jury constitute reversible error. State v. Elmer, 115 Mo. 401; State v. Ulrich, 110 Mo. 350; State v. Young, 97 Mo. 666; State v. Graves, 95 Mo. 510; State v Pagels, 92 Mo. 300; State v. Fisher, 124 Mo. 460; State v. Bobbst, 131 Mo. 328; State v. Barrington, 198 Mo. 132; State v. Snyder, 182 Mo. 462; State v. Gillespie, 104 Mo. App. 400; State v. Rose, 178 Mo. 25. (8) The act of the jurors in attending a public performance of a theatrical play in the public playhouse in St. Charles on the night of April 26th, which was during the course of the trial and before the State had closed its case, was first called to the court’s attention on the morning of April 28th, before the convening of court, in a motion verified by affidavit, filed and called-to the court’s attention. Again in the motion for' a new trial this act was made the 20th ground of said motion. Sheriff Hines was not in charge of the jury. They were under the charge of Deputy Sheriff Hehner. Hines was a material witness for the State, and was, also, as defendant believed and still believes, prejudiced against him. The jurors were made his guests at this evening’s entertainment. It was misconduct for the jury to attend a theatrical performance in company with an officer, even though he be the sheriff, if he was a witness for the prosecution and gave testimony in the case. State v. Snyder, 20 Kan. 306; People v. Knapp, 42 Mich. 267; State v. Bailey, 32 Kan. 84; Ganey v. People, 97 Ill. 270; Tarkington v. State, 72 Miss. 741; McElrath v. State, 2 Swan. (Tenn.) 378.

      Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) (a) No error was committed by the court in overruling the defendant’s motion to quash the information. (b) An affidavit was filed with the justice, charging the defendant with the murder of William Wussler and a preliminary examination was held. A number of witnesses testified for the State, and their testimony was reduced to writing. After hearing their evidence, the justice of the peace concluded that there was probable cause to believe that the defendant was guilty of murder in the first degree, and so found. This was a compliance with our statute, and was all that the defendant was entitled to. R. S. 1899, secs. 2457, 2461. (2) No error was committed by the court in overruling the motion to quash, because the names of certain important witnesses were not endorsed upon the information. State v. Barrington, 198 Mo. 23; State v. Myers, 198 Mo. 225; State v. Hottman, 196 Mo. 110. (3) No error was committed by the trial court in overruling defendant’s challenge to' the array of jurors after they had been summoned, on account of the alleged bias and prejudice of the sheriff. If the defendant desired to object to the sheriff summoning the jurors, timely motion should have been made before the venire had been summoned, and the defendant should not have waited until the jurors were in court. The question, however, of whether or not the sheriff is biased or prejudiced, either for the State or for the defense, is a question peculiarly proper for the trial court to pass upon. State v. Hultz, 106 Mo. 41. (4) Counsel for defendant argue, with much earnestness, that the court erred in permitting witnesses to testify whose names had not been endorsed on the back of the information, and especially in view of the fact that some of them were material witnesses. This matter, too, has been decided recently by this court, and reference to said decisions need only be made. State v. Barrington, 198 Mo. 23; State v. Myers, 198 Mo. 225; State v. Hottman, 196 Mo. 110. (5) The trial court did not err in permitting State’s witness Edna Wussler to testify, she being a child of tender years. This little girl showed remarkable intelligence, and showed that she fully understood the importance of her testimony, as well as the importance of telling the truth. R. S. 1899, sec. 4659. State v. Nelson, 172 Mo. 198; State v. Doyle, 107 Mo. 42; Rapalje on the Law of Witnesses, sec. 7. (6) No error was committed in overruling defendant’s demurrer at the close of the State’s evidence, and also at the close of all the evidence. The State had the right to charge the commission of a crime in several different ways, and -the jury are entitled to pass upon the evidence and find the defendant guilty under whichever count the jury believe the evidence sustains a conviction. It was not error to overrule defendant’s motion to require the State to elect, as-both of said counts related to the same transaction. State v. Schmidt, 137. Mo. 226; State v. Houx, 109 Mo. 654; State v. Pratt, 98 Mo. 482. (7) No error was committed by the court in allowing the jury to go in company with the sheriff and attend a theatrical performance during the progress of the trial. The trial was a long one, and the jurors, no doubt, became weary during its progress. As there was a total failure of any showing of misconduct on the part of the jury, oh misconduct on the part of the sheriff, this assignment of error becomes immaterial. (8) The argument of the prosecuting attorney was proper and legitimate. It is true he denounced the crime which the defendant committed, denounced it in strong language, and the evidence fully justified his denunciation. A prosecutor cannot too strenuously denounce the assassination of a prominent citizen of the county by two men whose object and desire was to rob him of his money and valuables. If such conduct cannot be denounced by our prosecutors, then there is very little need of the prosecuting attorney making any argument. State v. Barrington, 198 Mo. 23; State v. Howard, 203 Mo. 604.
   GANTT, J. —

On the 13th of December, 1905, the prosecuting attorney of St. Charles county filed an information, duly verified, charging the defendant with the murder of "William Wussler, in the said county, on the 3d day of March, 1905. The information was in two counts; the first count charged that the homicide was committed by one Willis Hood, and that the defendant, Jeffries, was present, aiding and assisting in the commission thereof; the second count charged that the homicide was committed by the defendant, and that one Willis Hood was present, aiding and assisting in the commission thereof. Both counts charged the homicide to have been committed by shooting the deceased with a pistol. At the March term, 1906, the defendant was tried and convicted of murder in the first degree. After unsuccessful motions for new trial and in arrest of judgment, the defendant was duly sentenced in accordance with the verdict and from that sentence has appealed to this court. -

On the part of the State the evidence tended to prove that the deceased, William Wussler, lived in the county of St. Charles, about one mile from the city limits of St. Charles, and about two miles from the main street in said city; that he was living there on the 3d day of March, 1905, with his family, and their dwelling house was close to the county road; the county road was called the Salt River road, and the deceased’s residence was right across from the city cemetery. The family of the deceased consisted of his wife, four children, the oldest of whom was eight years of age, and his father, Mike Wussler. There was no fence separating the deceased’s house from the Salt River road, which was a rock road. The entrance to the house is from the side. On the side of the house facing-west, there was a small porch and three steps leading-up on to the porch, and a door opened off this porch into the house. About three feet from this door there was a window in the house, which opened onto this porch. At the south end of this porch, there was a pump on the platform over the cistern. In front of the window there was a round table with a lamp sitting-on it. The deceased was a milkman and a farmer.

On Thursday before the shooting, two men and two women started from Pacific, a station on the Missouri Pacific Railroad in Franklin county. The defendant lived in Franklin county,' and he and a man by the name of Willis Hood and two women started from Pacific to Black Walnut, in St. Charles county, where defendant had been working and was acquainted. Black Walnut is a little village in the northern part of St. Charles county, about fifteen miles due north of St. Charles. Hood was a red-faced man with sandy hair, a little heavier set and taller tljan the defendant. At that time, the defendant wore a little black mustache, a black hat, very narrow brim. Of the women who accompanied the defendant and Hood from Pacific, one was his wife and the other his sister. This party of four .came to St. Charles on Friday, March 3, 1905, on an electric car. between 9 and 10 o’clock in the morning. The defendant and Hood stated before leaving Pacific, they were going to Black Walnut, where defendant had some furniture stored. They had a grip with them, a telescope grip in two parts, with three leather straps- around it, and one of the women had a basket. After arriving at St. Charles the men left the grip at Mr. Parmer’s, who kept a small restaurant at the foot of and a little north of the bridge in St. Charles. They were all together when'they left the grip at Parmer’s at about 11 o ’clock a. m. A little after dinner defendant and Hood came and got the grip and took it to the M. K. & T. saloon and it remained there until they finally got it. During the day they stayed about the town, the women sitting on the railr'oad track and around the depot. The defendant had on a pair of blue overalls; he had on a pair of shoes number six or number seven with large brass eyelets for the shoe strings; the left shoe had a patch, a homemade patch, fastened over the left part of the sole. This patch extended some distance over the surface of the toe. and large nails extended out from the surface of the soles. The defendant on that day wore a cartridge belt around his waist. He had a pair of mitts made partly of leather and partly of yarn knitting, the yarn of a green color. He had also a Colt’s revolver, number él, with side action. The revolver bore the defendant’s private marks upon the handle and it belonged to him. The defendant that day bought a box of matches in a store in St. Charles, and the box had a peculiar design on it, the figure of a rose. About noon of that day, defendant and Hood pawned a watch in a pawn shop in St. Charles. The defendant had on the overalls, a little black hat, and Hood was wearing a white felt hat. Hood had a pistol, which was a 32-calibre, Smith & Wesson, old fashion, and the hammer was broken.’ Hood and the defendant loitered around the station house with the two women until some time during the day, when Ilood and the defendant had a conversation; that conversation was to- the effect that they knew a man in Black Walnut who was easy picking, who had two sons, and Hood said to- the defendant, “We will go down to that man’s and one of ns will go in and talk to the hoys and get them out, while the other one goes in and robs the house. I will get somebody’s life or fifty dollars before night.” He made this statement two or three times to the defendant. It appears that the defendant and Hood had engaged in a crap game with some.other parties and had lost their money and the women had asked them for money, and Hood said to defendant and the women that they would get money before night, they would get fifty dollars or somebody’s life. This remark was made about one hour and a half before the shooting. About 6 or 6:30* that afternoon, they brought the women to the M. &. & T. station, and Hood slapped the defendant on the shoulder and said, “Bill, you go with me, some farmer has stole my grip-, let’s go and hunt for it.” The defendant and Hood then started away together from the station, leaving the women there, and went over to Burkholt’s saloon and got the grip. They then started out and were met about a quarter of a mile from the deceased’s house, about fifteen minutes before the shooting. At that time, the defendant had on a small felt hat with a very small brim around it, but had on no coat. Hood was wearing a gray hat and a coat. They were going in the direction of the deceased’s house. The deceased, his wife and little daughter, Edna, were sitting by a table, which was up against the window, already noted, and a lighted lamp was on the table. They heard some parties talking on the outside and saw one man peeping in the window. The deceased went out of the door and came out on the porch and spoke to a man standing there and asked what they wanted, and the smaller- man, the man -with the short, black, stubby mustache, asked for a night’s lodging. In the meantime, Edna, the little daughter of the deceased, came on the porch and stood by the side of her father. The deceased told the men he could not accommodate them. One of them asked to sleep in the stable, but deceased said he had no room in the stable. In the meantime, the wife of the deceased had also come out on the porch and stood by the side of her husband. The man with stubby mustache and small hat and in his shirt sleeves, stood within a foot or so of Mr<u Wussler. The little girl in the meantime had stepped off the steps and saw the other man with the.grip; this man, she says, had on a gray hat and stood off a little way towards the north and nearer the county road. The short man then stepped on the porch and in a loud voice said, “If you cannot keep us. here, where is Peruque station?” and the deceased answered, “That is fifteen miles up* the road. ’ ’ The small man then asked for a drink of water, and the deceased went to the pump and got a drink of water and handed it to him, whereupon the small man pulled his pistol and pointed it at the deceased’s face and said, “Money or your life.” The deceased immediately, in his fright, sprung to the door, when the small man, whom the wife of the deceased identified as the defendant, shot him. The daughter of the deceased also identified the defendant, as the man who did the shooting. The deceased immediately fell to the floor. Mike Wussler, the father of the deceased, heard the shot and ran out on the porch; when he got there a shot was fired at him. . Then the defendant and his companion left, going in a westerly direction.

That same evening, a few minutes after the shot was fired, Mr. Schoene, who lived a short distance west from the deceased’s house, heard his dogs bark. The next morning, Schoene went out to his field and found two tracks and he reported this to the officers and they also went out and saw the tracks. One of these tracks was a number six or seven shoe, which could be plainly seen, as it had rained the day before and it was muddy. They found tracks of two men running or walking together, one was of a small shoe, a six or seven, the track showing that the left shoe had a patch on the left side. The officers traced this track to a place where they had evidently stopped and they found some clothes at that place. Among other things a pair of overalls,, which were the same ones the defendant had worn that afternoon. A little further down they found a red shirt, identified as the one on the man that shot the deceased. They also found a cartridge belt, which belonged to the defendant, and which he had worn that afternoon. They also found a pair of leather mitts exactly like those the defendant had on in the town that day. A short distance further they found a box of matches corresponding in every way with the box they had purchased in the town that day. They found a pair of overshoes that the defendant said were Hood’s. They found a grip with three straps around it, which was identified as the grip the defendant and Hood took to Farmer’s and to Burkholt’s saloon. They found a pistoi, which was a 32-calibre and belonged to Willis Hood. They followed the track, which had the imprint of the patch and the nails of a shoe that corresponded with the one the defendant wore on the night of the homicide. Those tracks after they left the house of the deceased, extended up the rock road and went through a hedge fence into an orchard, and turned and went back to the city of St. Charles on the other rock road where they were lost.

The two women in the meantime were left at the M. K. & T. station. The train at that time was a little late, and defendant and Hood came running into the station together a little before ten o’clock. They were excited and muddy. When asked where they had been, defendant said, “I have been with Hood taking care of him and he has gotten drnnk on my hands. ’ ’ Hood pretended to be drnnk and defendant was leading him. Defendant said to the station agent, “Give me four tickets to the next station.” The train to Black Walnut had already gone about five o’clock that afternoon. The train that was then due was going in the opposite direction. When he asked for a ticket for the next station, the agent told him that, the next station was Jefferson City and would cost him $3.12 single fare. Defendant said he did not have enough money to buy that and they left the station and proceeded up> the M. K. & T. track south. After they had gone some distance, two officers saw them and searched them; having found no guns on them, the officers put them on the 11 o ’clock electric car and started them towards St. Louis. All four of them got off at the next station, Pattonville; they stayed there all night, and Hood said to the defendant, “We better get rid of these women, for if we do not, both of our necks will be broken.” Defendant said, “No, I am going to take my sister home,” and they proceeded towards Valley Park, and were seen together there. They were apprehended by the officers and were allowed to go on their way, and they went to Pacific, where Hood left the party, and the other three went on to the home of the father of the defendant near Gray’s Summit, on the Missouri Pacific, reaching there March 4th. That night and the next day the defendant Jeff res spent at his father’s home. On Monday following, as his family were moving to a place near Eureka in St. Louis county, he was arrested by the officers of St. Oho-ios and St. Louis counties, and taken first to Clayton jail and thence to St. Charles.

• The defendant’s pistol, a 41-calibre Colt’s, had two marks on it, which the defendant himself identified and said the pistol belonged to him. He also admitted that the helt that was found and the overalls were his and that the grip found belonged to Hood. In the grip a raincoat was found that was in it when it was left at Farmer’s and Burkholt’s. Along about five .days after the homicide, August Ademeyer was hunting for some wild lettuce close to the waterworks and he found a pistol, a 41 Colt’s, lying behind a telegraph pole on the M. K. & T. road, and at the side of it were several cartridges.' This pistol was loaded and belonged to the defendant and was the one he had when he came to the city of St. Charles. The ball that entered the body of William Wussler, the deceased, and which caused his death, was a 41 Colt’s cartridge.

Doctors Tainter, Mudd and Wencker were called in between seven and eight o’clock the night of the homicide to see the deceased and they treated him until his death, which was on the 5th of March, 1905. Am operation was performed in hopes that the bullet could be extracted but the operation was not a success. These physicians and the coroner, who was present at the time of the operation, testified that the bullet entered to the left of the spinal column and took a course to the right and a little upwards, striking the ninth rib in the right side and severing the spinal cord. In the opinion of all the physicians the wound was necessarily fatal and was the cause of the death of the deceased. The wound was made by a 41 Colt’s, bullet.

The defendant’s testimony tended to prove that he first became acquainted with Willis Hood on the first day of March, 1905; that previous to that time and within less than a year the defendant had worked in St. Charles county, and had gone from there to his father’s home in Franklin county, remaining there the remainder of the winter. That the defendant and his wife and sister, after meeting Hood, came over to St. Charles county, and arrived in the city of St. Charles on the electric car at 11 a. m. on the 3d of March and spent most of the day in the city of St. Charles; that Hood was not with the defendant all the time and no arrangement was made between them as to anything they were going to do that day; that the defendant intended -to go to Black Walnut to get a position as a farm hand or as a section hand and to work as he had previously done; that he had no baggage with him and did not have a red shirt, nor a pair of trousers, nor a pair of mittens like those offered in evidence by the State. He admitted that he did have a revolver, which he sold to Hood in Pacific on the first day of' March before coming to St. Charles, and which he turned over to Hood. The defendant claimed that the shoes that were introduced in evidence were the only shoes that he had and which he was wearing on the day and night of the homicide and which he wore back at his father’s home. The Sunday morning following, so the defendant testified, the repairing was done on his shoes, and the patch was placed there which was spoken of by the witnesses for the State. He testified he did not know how many pairs of pants he had on the night of the homicide; that he did not know how many shirts he had on, but admitted that he had on the overalls a part of the day, but said he took them off and gave them to Hood. He admitted buying the box of matches. The defendant’s father and mother corroborated him as to the patch on his shoe, and as to the fact that he did not have or wear any red shirt or trousers like those introduced in evidence by the State. The defendant denied all connection with and knowledge of the homicide, but claimed that Hood returned to the M. K. & T.depot about nine o’clock in company with another man and that Plood was drinking. The testimony of the defendant taken at the coroner’s inquest was read in evidence by the State, in which he testified that he had on four shirts that night. The State offered in evidence also the record of the conviction of the defendant in the Franklin Circuit Court of the crime of burglary and his sentence to three years in the penitentiary at the April term, 1899. Emil P'uchta testified that he was sheriff of Franklin county and' that defendant was the William Jeffries who was convicted of burglary in said county at the April term, 1899, and that he took the defendant to the penitentiary. The State also offered evidence tending to show that defendant’s general reputation in the community in which he lived, for truth and veracity, was bad.

I. The information is in the form often approved by this court and is sufficient. Indeed, it is not challenged by the defendant’s counsel. No- error was therefore committed by the court in overruling defendant’s motion to quash the same in so- far as the allegations of the information itself are concerned. The motion to quash, however, assails the information on grounds dehors the charges in the information itself. First, it is insisted that the information should be quashed because Willis Hood, who is jointly charged with the defendant Jeffries, had never been granted a preliminary examination prior to the filing of the information against him. This .contention is based upon section 2476a, Laws 1905, page 133, which provides: “No prosecuting--or circuit attorney in this State shall file any information charging any person or persons with any capital offense until such person or persons shall first have been accorded the right to a preliminary examination before some justice of the peace in the county where the offense is alleged to have been committed, in accordance with article 3 of chapter 16, Revised Statutes 189-9.” The record in this case shows that the said Willis Hood was at the time of the filing of the information* and still is, a fugitive from justice. The Governor has offered a reward for his apprehension, and it has been renewed several times, but the said Hood has never been found. It is too plain for discussion that the defendant has no right to complain of the failure to accord said Hood the benefit of said statute. Such failure could in no manner have presented any obstacle to .the prosecution of the defendant for said offense.

Secondly, it is insisted that the defendant Jeffries was not accorded such a preliminary examination before the filing of the information herein as is contemplated by section 2476a, approved April 12, 1905. It is alleged in the motion to quash that the defendant was arrested and taken before the justice of the peace on the charge mentioned' in the information, and the justice found there was probable cause for charging the defendant with the offense of murder and committed him to jail to answer to said charge. The contention is that on the preliminary trial only three witnesses were examined in behalf of the State in said proceedings and other witnesses who were summoned were not examined, and that for this reason the preliminary trial was not such as was intended by the Legislature. In a word, defendant insists that on the preliminary examination he is entitled to have the State produce every witness it intends to call in the prosecution and examine every one of them and unless it does so the subsequent information must be quashed. This is a misapprehension of the Act of 1905'. In the absence of a statute no preliminary examination is necessary. The grand jury may indict or under our present Constitution the prosecuting attorney may file his information, and even where a preliminary examination is required, it has been held that it was unnecessary for the information to allege that the accused had had a preliminary examination or had waived it. This is not a matter which goes to the merits of the trial, but the regularity of the previous proceedings. [Washburn v. People, 10 Mich. 383; State v. Barnett, 3 Kan. 250.] When the statute uses the term preliminary examination, it obviously refers to the -well-established law of this State found in sections 2457, 2460, and 2461, Revised Statutes 1800, which provide that if the justice shall be satisfied that a felony has been committed and there is probable cause to believe the prisoner guilty thereof, the magistrate shall commit him to jail or admit him to bail for trial upon the charge. The magistrate is not charged with, or empowered to determine the guilt or innocence of the accused. All that he is required to find is that a felony has been committed and probable cause to believe the prisoner guilty thereof. The preliminary examination after all is but an expedient to prevent a suspected person from escaping and to preserve the evidence and keep the witnesses within the control of the State. It is to be remembered that these preliminary proceedings are generally required to be held before justices of the peace, officers not learned in the law, and the same fullness and precision, the same precaution against all of the contingencies of the testimony required in the trial of the cause in the circuit or criminal courts upon informations, or indictments, were never intended. The Act of 1905 was in all probability intended as a safeguard against groundless or vindictive prosecutions, which it was supposed might otherwise occur where the interposition of the grand jury was dispensed with. But it must, in our opinion, be read in connection with .section 2457, Revised Statutes 1899, which provided not for a trial in which the guilt or innocence of the accused should be finally determined, but as already said, was intended to prevent suspected persons from escaping and to secure their presence for a trial after indicted by the grand jury or upon an information filed by the prosecuting attorney. The statute simply requires that the justice shall be satisfied that the offense has been committed and probable cause that the accused is guilty of the offense. It was, in our oipnion, never intended that the judgment of the circuit or criminal. court or a jury on a plea in abatement should be substituted for that of the examining magistrate as to whether there was or was not probable cause for believing the accused’ was guilty of the offense before he could be held to answer to the indictment or information. The record in this case discloses that the defendant had a preliminary examination and the justice found that a murder had been committed and there was probable cause to believe that the defendant was guilty of the offense. The fact that other witnesses had been summoned before the justice and were not examined, in our opinion, did not affect the finding of the justice that there was probable cause upon the evidence adduced' before him. He was the sole judge at that time of the sufficiency of the evidence to satisfy him that there was probable cause to hold the defendant to answer to an indictment or information. Accordingly, we hold that there was no error in refusing to quash the information, either on the motion to quash or on the plea' in abatement, which tendered the same issue to the court.

Having reached this conclusion, we are not inclined to enter upon a consideration of the proposition advanced by the Attorney-General that the Act of 1905 is unconstitutional on the ground that it is an unwarranted interference with the prerogative of the prosecuting attorney under the Constitution to file an information in the absence of a preliminary examination. Much can be said upon each side of that proposition, and in a number of states the right of the Legislature to insist upon a preliminary examination as a condition precedent to the filing of an information by the prosecuting attorney has been sustained, notably in Michigan and Kansas.

Thirdly, it is insisted that the motion to quash should have been sustained because the names of Fred Walkenhorst, Nellie Jeffries and Mike Wussler were not endorsed upon the information. It appears that the names of these witnesses had not been endorsed npon the information at the time the motion was filed and passed npon by the court. But it also appears that these witnesses had been summoned before the justice of the peace on the preliminary examination and before the coroner, and had been subpoenaed for the State for the trial of this cause in the circuit court, and the defendant was fully advised that they had been so summoned, and the prosecuting attorney testified that the names of those endorsed upon the information were the main witnesses that he knew anything about at the time he drew the information. We have so recently reviewed the statute on this subject, section 2517, Revised Statutes 1899, that it is unnecessary to repeat what has been said in State v. Barrington, 198 Mo. 23; State v. Myers, 198 Mo. 225, and State v. Hottman, 196 Mo. 110. In our opinion, there was no error in refusing to quash the information on this ground. But we are not to be understood as approving the failure of the prosecuting attorneys in not endorsing the witnesses on either indictments or informations.

The statute provides that the names of the witnesses shall be endorsed, and no fair-minded prosecuting attorney ought to deprive the defendant of the benefit which this statute gives him. It was enacted for a wise and beneficent purpose, and prosecuting attorneys ought to observe it so that this question would not so often be urged in this court. And the circuit courts should require it to be done whenever a motion to quash or complaint is made on that ground. It was ruled as early as State v. Patterson, 73 Mo. 695, that it was competent for the court to permit the names of the witnesses to be endorsed pending a motion to qnasb. And we may add, in onr opinion, it is perfectly competent to require it to be done.

II. It is next insisted that tbe court erred in refusing to'quash tbe venire upon tbe ground that tbe sheriff, wbo summoned tbe panel, was biased and prejudiced against tbe defendant, and being a witness for tbe prosecution, was not tbe proper party to summon tbe jury. The court beard tbe evidence on tbis question, and held that tbe sheriff was not disqualified. Tbe mere fact that tbe sheriff exercised all due diligence in pursuing and arresting tbe defendant after suspicion was directed to him, was no ground for alleging that tbe sheriff was prejudiced. In State v. Hultz, 106 Mo. l. c. 49, it was observed that “a duly chosen officer ought not to be deprived of bis office save and for tbe gravest reason. Tbis is true because tbe people have reserved to themselves tbe right , to name their officers, and have not, save in exceptional cases, left to any one man tbe power to select them. . . . And when a citizen is to be deprived of bis life or liberty, one of bis safeguards is that it can be done only by an officer duly elected, and wbo is under tbe obligation of bis oath of office and a sense of responsibility to the public which elected him. . . . Tbe statute does not prescribe bow tbe court shall ascertain tbe prejudice of tbe sheriff, but it is left to tbe discretion of tbe court in what form tbe evidence shall be presented, and of course it is for tbe court to say when it is satisfied. Tbis investigation tbe law has confided to tbe circuit judge. Of course, bis action is subject to review, if it shall appear arbitrary and unjust.” In tbis instance we see nothing that smacks of a want of a wise discretion in refusing to set aside tbe panel on account of tbe prejudice of tbe sheriff. Moreover, if tbe defendant desired to object to tbe sheriff summoning the jurors, a timely motion should have been made before the venire had been summoned and he should not have waited until the jurors were in court.

III. Counsel urges that it was error in the circuit court to permit witnesses to testify whose names had not been indorsed on the back of the information. As we have already reached the conclusion that the failure to indorse these names of the witnesses on the information did not constitute reversible error, it follows that this objection is not tenable, as the statute itself expressly provides that other witnesses may be called and examined. [State v. Barrington, 198 Mo. 23; State v. Myers, 198 Mo. 225; State v. Hottman, 196 Mo. 110.]

IV. Error is assigned in regard to the admission of testimony as to tracks or foot-prints found in the soft mud in the orchard near the deceased’s home, and that one of said foot-prints corresponded with one of the shoes worn by the defendant on the night of the homicide. The ground of this objection seems to be that the foot-prints were found one-half mile from the scene of the crime, and that there was no evidence as to when they were made. This is a clear misapprehension of the evidence. The tracks were traced from the deceased’s house up the rock road and through a hedge fence into an orchard, and it was by following these tracks that the articles of apparel belonging to the defendant were found and the size of the track corresponded with the size of the defendant’s shoe, especially that portion of his shoe which had the heavy home-made patch upon it. Moreover, the evidence was that it had rained the night before and there was no trouble to discover that they were fresh foot-prints. We think there can be no doubt whatever of the competency and admissibility of this evidence when taken in connection -with, the testimony of the witness Schoene as to the barking of his dogs that night after .the shooting or after the shot was fired that killed the deceased. This evidence was not only competent, but very damaging indeed when taken in connection with the other circumstances as to the finding of the overalls and the red shirt and the cartridge belt which had been worn by the defendant the day of the homicide in St. Charles. It is also objected that the court erred in permitting the witnesses to testify to the finding of the Colt’s revolver, calibre 41, near the same place. This evidence was also exceedingly pertinent. The defendant himself stated that this pistol had formerly belonged to him and he identified it by the two notches on it, and said that he had disposed of it to his companion Iiood, who was jointly charged with blm in the information.

It is also assigned as error that the court permitted the shoes that the defendant wore at the time he was arrested to be offered in evidence, .on the ground that it violated the defendant’s constitutional right not to be compelled to testify against himself. This subject was examined and considered in State v. Pomeroy, 130 Mo. 489, and it was held in that case that the introduction of lottery tickets, papers, etc., taken from the person of the defendant and from his desk and introduced in evidence over his objection, was not a violation of section 23 of article 2 of the Constitution of this State, providing: “That no person shall be compelled to testify against himself in a criminal case.” [Following Com. v. Dana, 2 Metc. (Mass.) 329; 1 Greenleaf’s Evidence (14 Ed.), sec. 254a; State v. Flynn, 36 N. H. 64; Siebert v. People, 143, Ill. 571; Gindrat v. People, 138 Ill. 103.] Moreover, in this case, we have been unable to find any evidence that these shoes were taken from the defendant, but, in our opinion, it is immaterial how they were obtained, because the authorities all hold that it was competent to introduce them.

Another objection to testimony is that the witness Edna Wussler was an incompetent witness, owing to her age and lack of understanding. Before permitting this little girl to testify, the court heard evidence as to her competency. It appeared that she was eight years old .and that she had been going to school and was in the second reader. She had been taught to say her prayers, and she answered to the court that if she did not tell the truth she would go to the bad place. After a full examination, the court decided to admit her testimony. In State v. Scanlan, 58 Mo. 204, this subject was examined by this court, and Judge Lewis, speaking for the court, said: “The capacity or incapacity of a child as a witness in certain essential particulars was a question of fact which the judge determined upon personal inspection and oral examination. If any principle of law had been' declared by him — as that, although found incapable of discriminating between truth and falsehood, the law made her, nevertheless, a competent witness — that might well bo brought here for review. But I can find no case in which it is held proper for an appellate court to review the finding of fact. The contrary, rule is declared by all respectable authorities. No hardship* necessarily results; for, if the judge should chance to err in his conclusion, the jury hold a powerful corrective in their right to pass upon the credibility of the witness, as tested on the stand by the usual appliances.” Our statute, section 4659, Revised Statutes 1899, excludes, simply, “a child under ten years of age, who appears incapable of receiving just impressions of the facts-respecting which they are examined, or of relating them truly.” In State v. Nelson, 132 Mo. 198, it was said by this court: “It is not unusual to receive the testimony of children under nine, and sometimes under seven, years of age, if they appear to he of sufficient understanding; and it has been admitted even at the age of five years. [1 Greenleaf’s Ev. (14 Ed.), sec. 367.] Indeed, there is no precise age at which children are competent or incompetent. Their competency is to be determined by their apparent capacity.. It belongs to the judge in each case to determine by appropriate questions the competency of the infant offered as a witness, and his decision is not open to review unless there.be a clear abuse of judicial discretion, or the witness be admitted or rejected upon an erroneous view of a legal principle. [State v. Scanlan, 58 Mo. 204; State v. Doyle, 107 Mo. l. c. 42.] ” After reading the testimony of the child and the examination which the court gave her, we are of the opinion no' error was committed in permitting her to testify.

V. It. is insisted that the court should have required the State to dismiss as to the first count of the information on the ground that the evidence established that Willis Hood did not shoot the deceased as charged in that count. There was no error in this. The State had the right to charge the commission of the crime in different ways and the jury were entitled to pass upon the evidence and find the defendant guilty under whichever count the jury believed the evidence sustained. [State v. Schmidt, 137 Mo. 266; State v. Houx, 109 Mo. 654; State v. Pratt, 98 Mo. 482.] As the defendant was not convicted of assisting Willis Hood in hilling the deceased, but on the ground that he fired the fatal shot himself, no possible error could have resulted to him by reason of the submission of the other count to the jury. The defendant would have been equally guilty had the jury found that Hood fired the shot and the defendant was present aiding and assisting Hood in the attempt to perpetrate a robbery and in the commission of the murder. It is too plain for discussion that the circuit court committed no error in refusing to instruct the jury to acquit the defendant at the close of the evidence in the case. The State was. not required to elect on which count it would proceed,, nor to enter a nolle as to the first count.

VT. It is next urged that there was no such identification of the defendant Jeffries as would justify the verdict of the jury. With this contention we cannot agree. Not only was the defendant identified by Mrs. Wussler, the wife of the deceased, and Edna Wussler, his daughter, but the incriminating circumstances strongly corroborated by the admissions and statements of the defendant himself all point to his. guilty participation in-the murder of William Wussler. His association with Willis Hood in St. Charles on the' day of the homicide, and the fact that after that the two were seen within a quarter of a mile of the residence of the deceased only a few minutes before the homicide, and going in that direction; the various articles of his clothing that were found near the home of the deceased, and the tracks that were found in the soft ground near the residence of the deceased corresponding exactly with his own foot and shoe; the fact that the deceased was killed with a bullet out of a 41-calibre pistol, the fact of the finding of that pistol on the route taken by the defendant after the homicide, his identification of it as a pistol that he had owned, and by some of the witnesses as his own property, the threats of his companion Willis Hood that they would get fifty dollars or kill some one that night, their flight and attempted flight from St. Charles, the sudden change of his announced plan to go to Black Walnut, and instead, attempting to go after the shooting in the opposite direction, established a case which fully justified the jury in finding him guilty of the offense charged against him. While the defendant attempted to explain the criminating circumstances against him, it is. clear the jury did not accept his explanations, and in view of the fact that he had been impeached as a witness, it is not strange that the jury disregarded his evidence. We think there was ample evidence tending to identify the defendant as the person who shot and killed. William Wussler, and to justify the finding of the jury.

YII. Again, it is insisted that error was committed in allowing the various articles of apparel found by the sheriff and the other witnesses and identified as the property of the defendant, in evidence. We think there is no merit in this objection when it is considered that the defendant and Hood left the station together and went to Burkholt’s saloon and got the grip and were seen going off together not over an hour before the homicide was committed, and that one of the two men who shot and killed William Wussler stood in the yard with the grip in his hand at the time of the shooting, and that the two fled together .and their tracks led through the orchard up to and beyond where these articles, which defendant admitted were his own, and which were otherwise shown to have been worn by him that afternoon, were found. It was incriminating evidence of a most persuasive .character showing his presence at the homicide. Nothing said in State v. Thomas, 99 Mo. l. c. 257, 258, or in State v. Goddard, 162 Mo. l. c. 227, is opposed to this view. In neither of those cases did the evidence of the clothing show any connection with the defendant or ownership by him, whereas in this case his ownership of these articles was shown beyond a reasonable doubt.

YIII. Error is predicated upon the fact that on the night of the 26th of April, during the progress of the trial of said cause, the sheriff, with two of his deputies, took the jury together to a public performance in the opera house in the city of St. Charles, and the defendant brought this matter to ■ the attention of the court, and requested the discharge of the panel of jurors and summons for a new panel. On the part of the State it was shown by the sheriff and his two deputies, Hehner and Mades, that they did take the jury to a minstrel performance in the opera house of St. Charles on the night mentioned. The sheriff and his two deputies and every member of the jury testified that they sat in a section to themselves and no member of the jury had any communication with any person or persons during the said performance, nor was any member of the said jury, or the said jury at any time, in going and returning from the said performance, subjected to any outside influence whatever; that the entertainment was simply a song and dance affair consisting wholly of comic songs and dances, and there was no reference of any nature to the trial of the case in any way. A program of the entertainment is incorporated in the record and consists entirely of comic and sentimental songs with an occasional dance to relieve the tedium. This motion the court overruled, and as already said this action of the sheriff is assigned as error. The irregularity in this case occurred before the conclusion of the trial and before the jury had finally been charged with the fate of the prisoner. That it was an irregularity and improper for the sheriff to have taken the jury to the opera house after they had been selected and sworn to try the case, we take it that there can be little difference of opinion. From time immemorial it has been a part of our system of ■criminal trials under the common law in all capital cases to sequester the jury from the rest of the community, and our statute accentuates this principle. It is not a matter of insubstantial form, but one of the means provided by the law to have the verdict-of the jury founded entirely updn the-law and the evidence in the case uninfluenced by outside opinions. The original common law rule was based upon the theory that the jury should be kept while the trial was progressing under the eye of the court, or what was in legal effect the same thing, under the eye of the officers of the court. When, therefore, criminal trials became the business of several days, it was deemed no deflection of the original rule to place the jury in charge of a sworn officer of the court with instructions not to permit any communication between the jury and other persons in regard to the case on trial. Thus, in The King v. Stone, 6 Tr. Rep. 527, the trial having lasted more than one day, Lord Kenyon, who presided, permitted the jury to retire to an adjoining tavern where accommodations were prepared for them, the bailiffs being sworn “well and truly to keep the jury and neither speak to them themselves nor suffer any other person to speak to them touching any matter relative to the trial.” Our statute evidently had its origin in this principle indicated by the action of Lord Kenyon in that case.

In State v. Orrick, 106 Mo. l. c. 125, it was said by this court: “The rule was followed in this State for many years that the separation of a jury, in a criminal case, was not sufficient to authorize a reversal of a judgment, unless it appeared that improper influence had been exerted, or there was just ground for suspecting such influence. The history of the administration of the criminal law demonstrates that during the time it was followed, granting new trials was a common occurrence upon this ground, and a conviction was seldom obtained that was not attacked on the ground that the jury had been permitted to separate, and, during such separation, improper influences had been exerted over them. [Whitney v. State, 8 Mo. 165; State v. Mix, 15 Mo. 153; State v. Barton, 19 Mo. 227; State v. Igo, 21 Mo. 459; State v. Carlisle, 57 Mo. 102; State v. Brannon, 45 Mo. 330; State v. Bell, 70 Mo. 633.] Under the revision of 1879 three new sections on this subject were adopted, sections 1909, 1910 and 1966. Revised Statutes 1879 (now secs. 2628, 2629 and 2688. R. S. 1899). These new sections were-evidently designed to effect some change in the conduct of criminal trials. Section 1909 so far as it affects the trial of' capital cases was but declaratory of the common law, which forbade the separation of the 'jury during the-trial in all felony cases. [1 Bish. Crim. Proc., sec. 995.] In so far as said section authorized the separation of the jury in felony eases other than those made capital by the statute, it effected a relaxation of the common-law rule to the extent of permitting a separation of the* jury by the consent of the parties. If this section stood alone no such change in the statute could be-seen as would require any change of the practice in respect to the separation of the jury, or the rule, above mentioned, requiring suspicion of improper influences-upon the jury before a verdict would be set aside on account of a separation. It is not so, however, in regard to sections 1910' and 1966. These were evidently intended to effect a radical change in the previous law and practice; yet it will be observed that these sections, by their express terms, only apply -to the conduct of juries after they retire, under the charge of a sworn officer, to deliberate upon their verdict. From that time until their final discharge the law is imperative that they shall be kept together. A failure to observe the requirements of section 1910 will be cause for a new trial under section 1966. These sections are held to he mandatory to the extent, at least, of preventing any opportunity for misconduct on the part of the jurors, or suspicion of improper influences upon them. [State v. Collins, 81 Mo. 652; State v. Murray, 91 Mo. 95; State v. Woodward, 95 Mo. 129; State v. Rush, 95 Mo. 204; State v. Gray, 100 Mo. 524; State v. Witten, 100 Mo. 527.] ” Accordingly, the conclusion was reached in that case that a separation of the jury before they retired to deliberate on their verdict, will be a ground for a new trial, unless it be shown affirmatively by the State that the jurors were not subjected to improper influence. In this case there was no separation of the jury, but in our opinion, a like principle should obtain, the case being a capital one.

What irregularity, on the part of the officer will require a new trial has been discussed in a number of cases. In 17 Am. and Eng. Ency. Law (2 Ed.), 1202, it was said: “It is not improper for an officer in charge to take the jury for a walk, provided proper precautions are taken that no communication with outsiders takes place; nor is it a ground for new trial that such walk extend beyond the limits of the county or even of the State. . . . Nor will the verdict be set aside because the officer took the jurors to a theatrical performance involving a burlesque of judicial proceedings, or because they were taken to church and there heard a sermon applicable to the case on trial, such application not being intended.”

In Moore v. People, 26 Colo. 213, it appeared that the jury after they were impanelled but before any evidence was introduced in the case, were permitted by the court under the charge of sworn bailiffs to attend a theatrical performance; it was alleged and attempted to be shown by the affidavit of one of the jurors in support of the motion for new trial upon this ground, that during the performance divers persons, not jurors, were permitted to intrude upon and occupy seats among the members of the jury; that confusion prevailed at the time the jurors were being reassembled and collected after the conclusion of the performance; that the entertainment they attended was a burlesque representation of judicial proceedings; that in short the performance was a satire upon the judiciary and judicial proceedings. Counter-affidavits of the bailiffs in charge of the jury were filed to the effect that the jurors were seated in line with one bailiff at each end of the line; that there was no improper conduct indulged in by said jurors; that they were at no time allowed to separate, and that the bailiffs were constantly on watch and in touch with the jurors. Affidavits of six of the jurors were filed of the same purport, and were further to the effect that the play had no effect upon their minds, either for or against the defendant, and that they were not influenced by witnessing it. Upon this state of facts the Supreme Court said: “While the practice of allowing jurors impaneled in important criminal cases to attend public entertainments should not be permitted, yet, under the rule announced in former decisións in this court, in the absence of any showing that defendant’s rights were thereby prejudiced, the mere fact that such indulgence was granted, is not in itself sufficient reason for setting aside the verdict. [Jones v. People, 6 Colo. 452; May v. People, 8 Colo. 210; Chesnut v. People, 21 Colo. 512.] ” And it was held that it was no error to refuse to set aside the verdict under the circumstances.

In Jones v. People, 6 Colo. l. c. 463, it appeared from the testimony of the officer in charge of the jury, as well as every member of the jury, that the entire jury in charge of a sworn officer of the court attended a theatrical play at a hall or opera house in Georgetown where the court was sitting; that they occupied seats especially engaged for them in a body; that no one occupied these seats but the jurors and the officer in charge; that they did not separate either while there or in going to and from the place and had no conversation or communication with any one except between themselves and the officer; that-no other spectators at the theatre mingled with them; that they were all the time while there, as well as while going and coming, in charge of said officer, and that they so attended the theatre by permission of the judge trying the case. These facts were not contradicted in any part. In that case the record was silent as to the literary dr moral character of the play, whether tragical, comic or sentimental, and it was held that where it does not appear that the acts complained of have affected the jury in the full and impartial discharge of their duties in trying the case, there was no sufficient cause for holding the verdict thereby vitiated, or for setting it aside. The court said: “We are not to be understood as approving the practice of an indulgence to jurors, such as were granted here; on the contrary, such a relaxation, as a rule, is not to be countenanced; but in this particular instance . . . since it appears to have been harmless, we cannot hold that there was error in the refusal of the court to set aside the verdict on this ground.” That was a case of murder with a sentence of imprisonment for life.

The facts of this last-cited case are in all respects similar to the one before us for review. In this ease the three officers in charge of the jury and every member of the jury testified that they occupied a separate section of the theatre by themselves; that they were never separated and had no communication either going or coming from the opera house, or while there, or at any other time with any person outside of their number. Neither is it charged in the affidavit that they did so and' their evidence was wholly uncontradicted on this subject. While we think it was an irregularity that is not to be countenanced or approved, in view of the uncontradicted testimony on the subject showing the performance, a copy of the program of which is included in the record, to have been nothing more than a minstrel performance consisting of sentimental and comic songs, we are constrained to hold that the circuit court did not err in refusing to set .aside the verdict on this ground.

IS. Finally, it is insisted that the remarks of the prosecuting attorney in his argument to the jury constituted error for which this judgment should he reversed. We have read what appears to he a full report •of the prosecuting attorney’s argument, both in opening and closing the case. Among other things he said: "“When the two murderers went up the road that night "to that man’s house, they were going to get money ■or his life blood. They were preparing for a crime not coneeiveable in the heart of a man born of a woman hut of a fiend from hell.” To this statement Mr. Jones, ■counsel for the defendant, objected on the ground that it was improper argument and misconduct on the part •of the prosecuting attorney. The court made no ruling on the matter and no exception was saved and "the counsel proceeded with his argument. In discussing the testimony the prosecuting attorney said, “Mrs. Wussler, the woman you made a widow, said she recognized you by the scar you now bear upon your face. She recognized you from the stubby mustache. She recognized you by the- shirt found by the officers, the red shirt you had on, and by the pants she positively identified.” At this point the counsel for the defendant said, “I object to the actions of the prosecuting attorney in shaking his fist at the defendant, and I want that shown in the record.” The prosecuting attorney replied, “I do not want this taken out of my time. ” Counsel for the defendant, “I want the gestures and approaching the defendant and shaking his fist at him to go into the record.” Thereupon, the court ordered the prosecuting attorney not to direct his argument to the defendant in person. No exception was taken and the court was not notified that his rebuke or reproof was not sufficiently severe. Again, in the course of his argument the prosecuting attorney was discussing the evidence given by the defendant on the stand and said: “I asked him, ‘What did you do the first thing after you got to town?’ and he commenced to laugh in a. sneering way, you saw it, laughing when his life was at stake, laughing when a man’s life is at stake, trying to vindicate himself for a murder. He laughed in a sneering way when I' asked him what is the first thing he did when he came to town and he said, ‘I guess the first thing we did was to hunt up a saloon.’ ” Objected to by counsel for the defendant as improper argument. The objection was overruled and exceptions saved. Thus it appears that of the objections made by the counsel for the defendant to the argument of the prosecuting attorney the court rebuked the prosecuting attorney and directed him not to make his argument to the defendant but to the jury. As to the first objection noted, he saved no exception whatever and obtained no ruling from the court, the only exception saved was to the argument for the counsel for the State in his criticism of the manner of the defendant in testifying, his laughing in a sneering way when asked as to what he did when he first came to St. Charles that day. We have read the whole address, and we agree with the learned circuit court that there is nothing out of the way in this criticism of the defendant’s manner of testifying. It has been so often ruled that if counsel use objection-: able argument or make statements not authorized by the testimony on the facts in the casé, it is the duty of the opposing counsel to object to the court and if the court overrules their objections to save an exception thereto and incorporate the same in their bill of exceptions, that a citation of the cases is deemed entirely unnecessary. It follows that this last assignment furnishes no ground for a reversal of the sentence in this case.

The record in this case is very voluminous, but we have gone through it with a purpose to discover whether the defendant has been deprived of that fair and impartial trial to which he is,entitled under the law, and have weighed and considered. the evidence and all the propositions advanced by his able and industrious counsel and have been unable to find any reversible error in the record, and have reached the conclusion that the evidence in the case fully warranted the verdict of the jury. The judgment of the circuit court- must, therefore, be affirmed, and the sentence which the law pronounces is directed to be carried into execution.

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


source: Caselaw Access Project

author: BURGESS, J. —

license: Public Domain

text:
    MARY ANN HOLLAND v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
    Division Two,
    March 17, 1908.
    1. NEGLIGENCE: Track in Street: Duty to Pedestrian. A railroad company in running its train over tracks laid in a public street, owes to an adult and well-informed pedestrian walking between tbe tracks towards a cross-over track, no greater duty than to exercise ordinary care and caution in looking out for and avoiding injuring him.
    2. -: -: Duty of Pedestrian. Every person wbo goes on a railroad track, or proposes to cross a 6ross-over track connecting tbe two main tracks laid in a public street, must use bis eyes and ears to avoid injury; and every intelligent person wbo bas arrived at tbe years of discretion is presumed to know that it is dangerous to be on a railroad track when trains are passing to and fro, and is expected when crossing one to be vigilant and watchful of tbe approach of a train. Failure to exercise such vigilance is negligence per se.
    3. -:-i Cross-Over Track: Demurrer. Tbe city ordinance prohibited tbe running of a train in excess of five miles per hour, and it is assumed that a violation of that ordinance would be negligence per se. Two railroad tracks were laid in a public street, and between them was a cross-over track from the west track to the east. South-bound passenger trains left the west track and proceeded over this cross-over track to the east track, and freight trains proceeded south on the west track. A witness testified that he saw defendant’s passenger train pass him 1200 feet north of the cross-over track, going south, at a speed of twenty-five miles per hour; that the train whistled; that plaintiff’s husband was struck at the frog or point where the cross-over track converged with the'-west rail of the' east track; that he did not think the train made a stop after it passed him, and that he heard three sharp ’ whistles and the train stopped near the frog. The fireman, also a witness for plaintiff, testified that the train almost stopped near the frog on the west track because another train below the frog on the east track was taking water, that the train then moved forward over the cross-over track, and he saw plaintiff’s husband about the south frog wálking north between the two tracks; that he was not then in a position of danger, and he gave no warning to the engineer; that he rang the bell; that the train was moving about five miles per hour at the time; that the engine' cab obstructed his vision, but that the train did not run more than fifteen or twenty feet more before the air brakes were applied, and that the. train stopped in twenty-five or thirty feet. Plaintiff’s husband had once worked for six months in the yards, and lived in the community at the time, and is therefore held to have been acquainted with the-fact that south-bound passenger trains took the cross-over track. The time was 8:10 p. m. of a February day, and the head light “made it as bright as day.” Held, that a judgment for plaintiff cannot stand. The proximate cause of her husband’s injury'was his contributory negligence in going upon the track in close proximity to an approaching train.
    Appeal from Buchanan Circuit Court. — Row. Henry M. Barney, Judge.
    Reversed.

      Martin L. Clardy and Ben. J. Woodson for appellant.
    The demurrer offered to the evidence of plaintiff, by the defendant, should have been sustained for the following reasons: First. There was not a particle of evidence which tended to show that the train which struck Holland was running in excess of five miles an hour at the time he was killed. Second. There was not a syllable of evidence offered tending to show the bell of the locomotive was not being rung when Holland was struck. Harlan v. Railroad, 64 Mo. 480; Taylor v. Railroad, 86 Mo. 462; Purl v. Railroad, 72 Mo. 171; Hallihan v. Railroad, '71 Mo. 113; Turner v. Railroad, 74 Mo. 605; Kelley v. Railroad, 75 Mo. 141; Stepp v. Railroad, 85> Mo. 235; Kelley v. Railroad, 88 Mo. 548; .Yancey v. Railroad, 93 Mo. 437; Haulon v. Railroad, 104 Mo. 388; Jennings v. Railroad, 112 Mo. 275; Prewitt v. Eddy, 115 Mo. 302; Baker v. Railroad, 122 Mo. 573; Lane v. Railroad, 132 Mo. 27; Payne v. Railroad, 136' Mo. 576; Dlauhi v. Railroad, 139 Mo. 296; Schmidt v. Railroad, 191 Mo. 228. Third. It is argued that the company was liable, although Holland was injured through his own negligence by going upon the track in front of the engine if the defendant negligently failed to discover his dangerous position, when by the exercise of ordinary care on the part of the employees they would have discovered the danger and could have averted the calamity. This rule of law is too well grounded in our jurisprudence to need the citation of authorities to support it, and at this late date it is too well rooted therein to justify us in assailing its wisdom or justice. But that rule only applies to cases where “the approximate cause of the injury was the omission of defendant, after becoming aware of the danger to which the plaintiff was exposed, to use a proper degree of care to avoid injuring him . . . or if the company failed to discover the danger through the recklessness of its employees when the exercise of ordinary care would have discovered the danger and averted the calamity. ’ ’ Scoville v. Railroad, 81 Mo. 440; Harlan v. Railroad, 64 Mo. 480; Harlan v. Railroad, 65 Mo. 22; Donohoe v. Railroad, 83. Mo. 554; Williams v. Railroad, 96 Mo.' 280'.

      W. K. Amick, T. F. Ryan, F. G. Chase and G. A. Smith for respondent.
    The court properly overruled defendant’s demurrer. There was ample evidence from which the jury could infer that the speed of the train exceeded five miles per hour. Hahn says that the train was running twenty-five miles per hour when it passed him. He was then, about 1,200 feet north of where Holland was killed. After the train passed him, he had gone north about one hundred feet and “walking fast,” when he heard the engine whistle an alarm. He turned around and it looked to him like the train “was pretty near stopped.” It was then at Cedar street and Holland had been struck. From this evidence it seems that the train ran 1,200 feet while Hahn walked one hundred feet. If he walked, only two miles per hour, the train must have traveled at the rate of twenty-four miles per hour. The train did not stop after it passed Hahn until after the deceased was struck. Another fact that shows' that the train was exceeding a speed of five miles per hour was the distance the train ran after the braises were applied. The brakes were applied within twenty feet after the fireman lost sight of him but the train was 150 feet away when he passed out of the fireman’s view, for they were then just entering the cut-off, and the map shows it was 150 feet. So the brakes were applied when the train was about 130 feet from Holland. After he was struck, the train then ran about seventy-five or eighty feet. The marks show that he was dragged forty feet and he was taken out from under the engine twenty-five feet back of the pilot. So that the train actually ran about 200 feet after the brakes were applied. Running at the rate of five miles per hour, the train could have been stopped in twenty-five or Thirty feet. We are mindful that the fireman said the train was not exceeding five miles per hour, but we are not bound by his statement. He also says that his train stopped and waited for the £<Q” train to take water, but he is contradicted by Hahn who says the ££Q” train was not at the water tank when he' came out' on Cedar street, nor did any passenger train, except the defendant’s train, pass him us he went north. It must be remembered that the fireman, Rehard, was still in defendant’s employ at the time of the trial, and that he was to blame for the death of the deceased. We are not bound by all of his statements, even if he was our witness, as there was other evidence which contradicted him. Holland v. Railroad, 105 Mo. App. 124. The deceased evidently knew of the presence of the train on the west track. This was conceded by both sides. But he did not know that it was going to take the cross-over. The fact that he saw the headlight did not notify him that the train was coming on the cross-over. Nor did he know that it would come on that track. If he had stepped towards the west and got on the west track and the train continued down that track and struck him; he would have been negligent, for that was the main track. Now they say he was negligent because he went the other way.He was not presumed to know anything about the operation of the night trains on those tracks. He had no warning that the train was approaching him on the cross-over track, even if he did see the headlight. When the fireman last saw Holland, he was then between the tracks opposite the cross-frog and at this point the map shows the tracks were not over five and one-half feet apart. He was walking north and every step he took the tracks came closer together and he was in greater danger — a few steps took him on the crossover. After they saw him in danger, there was plenty of time to stop, if they were running only five miles an hour, but they did not try to s^op, nor did they whistle or warn him.
   BURGESS, J. —

This suit was instituted by plaintiff to recover the statutory penalty of five.’ thousand dollars for the death of her husband, John Holland, who was killed by one of defendant’s engines through the alleged negligence of defendant’s servants in operating said engine.

The deceased was run over and killed on February 25, 1904, about 8:10 p. m., by one of defendant’s engines attached to a passenger'train going south on Fifth street, in the city of St. Joseph. This street ran north and south, and the Burlington Railway Company had its tracks laid thereon for a distance of seven or eight blocks, and the defendant, under a contract with the Burlington company, operated its trains over the same tracks. The street, while occupied by railroad tracks, was also used as a public thoroughfare by pedestrians. There were two main tracks on Fifth street, the east track being used for north-bound trains, and the west track for south-bound trains.

Cedar street crosses Fifth street, and north of Cedar street is a cross-over track connecting the two main tracks, which cross-over track connected with the west track at a point about 225 feet north of Cedar street, and connected with the east track at the north line of-Cedar street. All passenger trains going south took this cross-over, passing from the west to the east track, but all freight trains going south did not do so, but kept on the west track. There was a switch at each end of said cross-over' track, and switchmen to operate them.

John Holland, the deceased, was about sixty years of age, and was a section hand in the employ of the Burlington railroad at the time he was killed. He was walking north on Fifth street between the two main tracks, and was struck by the engine of the train when he reached the cross-over track, while the engine was ■crossing from the west to the east track. , The headlight on the engine was shining brightly at the time, and there was no obstruction to prevent deceased from seeing the approaching train.

A. H. Rehard, who was fireman on the engine in question, testified that he saw Holland walking north between the tracks. The last time he saw him before he was struck Holland was at‘ about the south frog between the two tracks,” and was still coming north. As the engine had at this time entered the cross-over track, and was headed in a southeasterly direction, witness, who was on the left side of the engine, was unable to see Holland after that, the engine obstructing his vision. He did not think deceased was at the time in a position of danger, and he gave no warning to the engineer. He said he rang the bell continually from the time the train left the Union station up to the time deceased was struck; that the train was running about five miles an hour at the time he last saw deceased between the tracks; that a train going at that rate of speed could be stopped in twenty or twenty-five feet by use of the air brake; that from the time he last saw the man before he was struck the train did not run more than fifteen or twenty feet before the air brakes were applied, and that the train ran twenty-five or thirty feet after the application of the air-brakes. This witness also testified that the train stopped or almost stopped at Oak street, which was one block north of Cedar street, for the reason that the east track was blocked by a Burlington train which was standing at the water tank south of Cedar street, the rear car of the Burlington train being about on a line with the north line of Cedar street, and that the engine on which witness was did not cross over till the Burlington train had pulled out.

Witness Frank Hahn, testifying for the plaintiff, said that he was a laborer and had been around railroads all his life. He lived on the corner of Fifth and Cedar streets, and on the night in question he was going up town on 5th street. When within about fifty feet of Sycamore street, which was the fourth street north of Cedar, a Missouri Pacific passenger train passed him going south, which he said was running at a speed of twenty-five miles an hour. There was no bell ringing on the train as it passed by him. Just as he reached the other side of Sycamore street he heard the train whistle several times in quick succession, from which he understood that there was a man or some obstruction on the track. He looked back and saw the train standing near Cedar street. • Going back to where the train was he found that Holland had been removed from under the engine, the front end of which, he judged, was opposite a switch stand on the north side of Cedar street. The next day witness examined the place on the track where deceased was run over, and noticed that some object had been dragged along the track which made an impression in the ground about half an inch deep for a distance of about forty feet. The dragging, he said, had been done along the west rail of the east track, and commenced at the frog or point where the cross-over track converged with the west rail of the east track. Witness did not know what had made this impression, but thought it was made by a sack of coal which deceased had with him. He did not see any train standing south of Cedar street as he got on the track that evening, as testified to by witness Rehard, nor did he think that the Missouri Pacific train which passed by him and killed the deceased made any stop after it passed by him until deceased had been killed.

Plaintiff in her petition pleaded, and also introduced in evidence, over'the objection of defendant, section 2 of a special ordinance of the city of St. Joseph granting the Burlington Railroad the right to lay and maintain tracks on Fifth street, which section provided:

“Said railroad company shall not have the right to run their cars over the right of way herein granted at a greater rate of speed than five miles per hour, and the city council may by ordinance prescribe the penalty for violation of this section.”

Plaintiff also pleaded in her petition, and introduced in evidence, sections 1 and 6 of a general ordinance of the city of St. Joseph, which are as follows:

“Section 1. No locomotive engine, railroad joassenger car or freight car shall be driven, propelled or ran upon or along any railroad track within said city at a greater speed than the rate of five miles per hour. ’ ’
“Section 6. Bell to be Bung. The bell -of each locomotive engine shall be rung continually while running within said city.”

The defendant offered no testimony, but at the close of plaintiff’s case asked for a peremptory instruction to find for the defendant, which was by the court refused, and defendant excepted.

The jury returned a verdict for the plaintiff in the sum of $5,000', and judgment was rendered accordingly, from which judgment, after ineffectual motions for a new trial' and in arrest, defendant appeals.

Defendant insists that there is no evidence whatever to support the verdict of the jury.

There were but two witnesses whose testimony tended to show how the accident occurred, both being-introduced by the plaintiff, one of said witnesses, A. PI. Rehard, being fireman upon defendant’s train at the time of the accident, the other witness being Frank Plahn, a laborer,, who lived at that time at the northwest corner of Cedar and Fifth streets. The latter’s testimony was that when the train passed him at Fifth and Sycamore streets it was, in his judgment, running at the rate of twenty-five miles an hour. But, according to his testimony, the place where the train passed him was about four blocks, or twelve hundred feet, north of the point where Holland was killed, while Re-hard, the fireman, testified that the train came almost, if not quite, to a stand-still at Oak street, which was three hundred feet north of Cedar street and nine hundred feet south of Sycamore street, waiting for the train ahead to take water. Witness Hahn said that he did not think the train stopped after passing him and before striking Holland; but in answer to a question put to him by the court, he said, “No, I won’t say whether it made a stop or not.” This testimony does not contradict the direct and positive testimony of Re-hard that the train almost stopped at Oak street, and was running from thence on to Cedar at a rate of speed not exceeding four or five miles an hour. Hahn further- testified that he heard the danger signal, which consisted of three or four short, -quick blasts of the whistle, that he paid but little attention to the first blast, but started to turn round when he heard the second, and before the last was sounded he had turned completely around, facing south, the direction in which the train had gone, that by that time the train had about come to a complete stop, and that it was not more than one or two seconds from the time he heard the first blast of the whistle until the train had stopped. Even if the train was running at the rate of twenty-five miles an hour when it passed Hahn at Fifth and Sycamore streets, that was not the proximate cause of the injury, because, according to the testimony of Rehard, it was not moving faster than four or five miles an hour, or about as fast as an ordinary man would walk, at the time it struck Holland. The train was stopped, according to Rehard’s testimony, within a distance of twenty-five to thirty feet after deceased was struck, or about the distance covered by one and one-half revolutions of the drive-wheel of the engine, which would have been an impossibility if the train had been running faster than five miles an hour at the time.

It is, however, said for plaintiff that witness Re-hard was still in the defendant’s employ at the.time of the trial, that he was to blame for the death of the deceased, and that'plaintiff is not bound by all of his statements even if he was her witness, as there was other evidence which contradicted him.

Mr. Greenleaf says: “It is exceedingly clear that the party calling a witness is not precluded from proving the truth of any particular fact by any other competent testimony in direct contradiction to what such witness may have testified.” [1 Greenleaf on Ev. (16 Ed.), sec. 443b.] But this does not help plaintiff’s case, because, when properly analyzed, there is no material conflict'between the testimony of Rehard and .Hahn.

As to whether or not the bell was ringing at the time of the accident, counsel for plaintiff concede in their brief that that is a matter of no importance, as they asked for no instruction upon that point. They concede that Holland knew of the presence of the train on the west track, but assert that he could not know that it was going to take the cross-over track; that the headlight, though he saw it, would not notify him that the traip was coming on the cross-over track, and that if he stepped toward the west and got on the west track, and the train continued down that track and struck him, he would have been negligent, as that was the main track. Allowing these things to be true, they do not tend to show that the defendant was negligent in the operation of its train at the time of the accident, nor would such conditions justify the deceased in going upon the track so near in front of an approaching train as to endanger his safety. The defendant owed the deceased no other or greater duty than to exercise ordinary care and caution in looking out for and avoid-' ing injuring Mm, or any other person who might be on the track. It has been said .that a railroad track is of itself a signal of danger; but notwithstanding this, and the knowledge of the deceased that the train was upon the west track, which was straight and level for four or five blocks north of the point where the injury occurred, with no obstruction on the track between Holland and the engine, whose brilliant headlight, in the language of a witness, “made it as bright as day,” and which he must have seen, he left a place of safety and stepped in front of the approaching train, was struck by the engine and killed. He was warned both by the headlight and the whistle of the near approach of the train, and had he remained where he was at the time of the first wMstle, or made a step to the left, he would have avoided the collision. If the glare of the headlight blinded and confused him, as claimed by plaintiff, so that he did not know which way to move, it was his misfortune and not negligence of the defendant company. He had worked in those yards for six months some years before the accident, lived but a short distance from where the accident occurred, and-must have been familiar with the location of the tracks at this point. All of defendant’s passenger trains going south made this cross-over, that is, crossed over from the west to the east track, which deceased must also have known.

The fireman testified (and there is no evidence to the contrary) that when he first saw the deceased he was between the west track and the cross-over track, coming north, and that he was there and when he last saw him in no danger at all, and that the engineer, as soon as he discovered deceased in a place of danger, sounded the alarm whistle three or four times in rapid succession, put on the emergency brake, and did everything that he could do to stop the train in the shortest possible time.

It is ruled in Harlan v. Railroad, 64 Mo. 480, that every person who goes on a railroad track, or purposes to cross it, must use his eyes and ears to avoid injury, and that every intelligent person who- has arrived at years of discretion is presumed to know that it is dangerous to he on a railroad track when trains are passing to and fro, and when crossing one is expected to he vigilant and watchful of the approach of a locomotive. Failure to exercise such vigilance is negligence per se. These familiar principles have been many times announced hy this court. [Taylor v. Railroad, 86 Mo. 457; Prewitt v. Eddy, 115 Mo. 283; Baker v. Railroad, 122 Mo. 533; Lane v. Railroad, 132 Mo. 4; Schmidt v. Railroad, 191 Mo. 215.]

Plaintiff, however, says that John Holland had the right to presume that defendant’s train would not he run at a greater rate' of speed 4han five miles an hour, and to act upon such presumption until he knew, or hy the exercise of ordinary care ought to have known, to the contrary. The only evidence with respect to the speed of the train at the time of the accident was the testimony of the fireman, and, as stated before, he testified that the train was not then running at a rate of speed exceeding five miles an hour. In all of the cases relied upon hy plaintiff as supporting her contention, namely, Hutchinson v. Railroad, 161 Mo. 246; Eckhard v. Railroad, 190 Mo. 593; Riska v. Railroad, 180 Mo. 168; Weller v. Railroad, 164 Mo. 180, there was 'evidence tending to show that the train was running at a rate of speed in excess of that fixed hy ordinance, or there was a failure to observe the requirements of the ordinance in some other respect. But even if the train in question was running at the time of the accident at a rate of speed in excess of that prescribed hy the city ordinance (which we do not concede), and the defendant was, therefore, guilty of negligence per se, the conduct of the deceased in going upon the track in proximity to the approaching train was contributory negligence on his part, which negligence was the proximate cause of the injury.

In Schmidt v. Railroad, supra, it is said: “The rule of contributory negligence is not changed or abrogated by reason of a statute or ordinance imposing the duty on account of the violation of which the injury resulted. [Weller v. Railroad, 120 Mo. 653.] The statute does not absolve persons' approaching a public railway crossing from exercising’ common prudence to avoid danger, nor shift the responsibility to another should injury ensue from the failure-, to- exercise it. [Kenney v. Railroad, 105 Mo. 284.]” The same rule is announced in the following cases: Boyd v. Railroad, 105 Mo. 381; Sweeney v. Railroad, 150 Mo. 396; Moore v. Railroad, 176 Mo. 546; Evans v. Railroad, 178 Mo. 508; Ries v. Railroad, 179 Mo. 1.

There is no escaping the conclusion that the deceased saw the approaching train. He must, therefore, have been absorbed in other matters, or have misjudged the speed of the train and determined to take the risk of being caught by it before he could .cross the track. But, whatever -may have induced his action, his conduct can only be characterized as the grossest recklessness. The demurrer interposed by the defendant to the evidence should have been sustained.

The judgment is reversed.

All concur.