text:
    THE STATE v. A. S. BROWN, Appellant.
    Division Two,
    February 18, 1908.
    1. WITNESS: Competency: New Trial. ■Whether or not an eleven-year-old boy was competent to testify as a witness will not be determined on appeal, if the ruling of the trial court in that regard was not laid as a ground for a new trial.
    2. INCEST: Previous Acts: General Objection. A general objection, in a prosecution for incest, to the admission of testimony of the prosecuting witness as to previous acts of the defendant, amounted to no objection at all.
    3. -: Information: Defendant Unmarried: Surplusage. In a prosecution for incest, an allegation in the information that defendant was a single man at the time of tne alleged sexual intercourse with his daughter, was unnecessary, and, therefore, unnecessary to be proved, and may be regarded as surplusage.
    4. -: Previous Acts: Instruction: No Exception: At Defendant’s Request. In a prosecution for incest, the action of the trial court in giving an instruction which confined the jury to one act of intercourse, and did not inform them to what extent and for what purpose they might consider other alleged acts of intercourse, is not for review, since it was not made a ground of the motion for new trial; and, besides, the instruction having been given at defendant’s request, he is in no position to complain.
    5. -: Insufficient Evidence. Evidence held insufficient to support the verdict finding defendant guilty of incest with his daughter.
    Appeal from Crawford Circuit Court. — -Ho». L. B. Woodside, Judge.
    Reversed.

      Á. H. Earriso-n and Frank H. Farris for appellant.
    (1) The court erred in the abuse of its judicial discretion in permitting witness Josbua Brown to testify, because be was incompetent, being a person deficient in understanding. 1 Greenl. Ev. (Redf. Ed.), pp. 413, 414; see. 4659, R. S. 1809'; Ridenour v. Railroad, 102 Mo. 288; State v. Nelson, 132 Mo. 198, (2) The testimony of Laura Brown with reference to previous acts of defendant ought not to have been admitted, because it does not detail any specific previous acts of unchastity by defendant nor refer to any particular time when any other alleged intercourse between them took place. State v. Prewitt, 202 Mo. 51. (3) The information having charged defendant to have been a single person, the State is compelled to prove the same to the same degree that it is required to prove • any other material allegation contained therein. 2 Greenl. Ev. (5 Ed.), p. 462; State v. Coffey, 39 Mo. App. 58; State v. St. John, 94 Mo. App'. 2291; State v. Cooper, 103 Mo. 266 ; State v. Roswell, 6. Conn. 446. (4) The instruction of the court, number 5, in confining the finding of the jury to the alleged act of intercourse in July, 1906', was not sufficient, in that it did not inform the jury to what extent and for what purpose they could consider any other alleged acts of intercourse or lascivious conduct between prosecuting witness and defendant.

      Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) No error was committed in permitting State’s witness.. Joshua Brown to testify. This witness testified that he was eleven years old, and the statute says that children under ten are presumed to be incapable of testifying. In other words, the witness was presumed to be old enough to appreciate his position and his duties. R. S. 1899, sec. 4659; State v. Nelson, 172 Mo. 198; State v. Doyle, 107 Mo. 42; Rapalje on Witnesses, sec. 7. No error was committed in allowing the State to prove by witness Laura Brown that defendant had sexual intercourse with her previous to the day in July, 1906, when they were seen by Joshua Brown. If error was committed, defendant is in no position to complain, as lie simply made objection to such, evidence without giving any reason therefor, which is insufficient. - State v. Adams, 108 Mo. 216. No error was committed in not limiting the State to any particular act of intercourse; as defendant’s attorneys did not ask to have the State elect upon which act the State would rely for a conviction. Having failed to make such a request, defendant has waived the right now to complain. State v. Prewitt, 202 Mo. 51; State v. Palm-berg, 199 Mo. 243. (2) The evidence that defendant was a single person was sufficient, especially in view of the fact that defendant offered no evidence to the contrary. Proof that a defendant has been lawfully married, and proof that he has been illegally married, may be made by the defendant’s admissions, and so may proof of his divorce. State v. McDonald, 25 Mo. 179; Buchanan v. State, 55 Ala. 175; State v. Sanders, 30 Iowa 582; State v. Libby, 44 Me. 679; Com. v. Holt, 121 Mass. 61; State v. Medbury, 8 R. I. 543; Boger v. State, 19 Tex. App. 91; Wolverton v. State, 16 Ohio 173; 2 G-reenl. on Bv., sec. 49. It is, therefore, earnestly insisted by the State that such an immaterial allegation in the information (as section 2172 makes no reference to married or single persons) is supported by evidence of defendant’s admissions. (3) The record shows that instruction 5 was asked by defendant and given at his request.
   BURGESS, J.

The defendant, at the June term, 1907, of the circuit court of Crawford county, was convicted of the crime of incest, under an information filed by the prosecuting attorney of said county, charging him with the commission of said offense with his daughter, Laura Brown, on the 1st day of April, 1907. His punishment was assessed at three years in the penitentiary. After filing unsuccessful motions for a new trial and in arrest, defendant appealed.

The evidence on the part of the State was to the following effect: The defendant had been divorced from his wife some twelve years, and was living with his children, three sons and two daughters, in a one-room log house a few miles north of Bourbon, in Crawford county, Missouri. In this single room the whole family of six persons lived, cooked, ate and slept. Laura, the defendant’s oldest daughter, was seventeen years of age and unmarried, at the time of the commission of the alleged offense. The two oldest sons, aged twenty-one and twenty years, respectively, worked away from home occasionally, but at the time in question they were living at home. The prosecuting witness, Laura Brown, testified that the defendant had sexual intercourse with her, in the house, some time in July, 1906, and that the commerce was indulged in and continued from the time, she was eleven years of age. She stated that she knew it was wrong, that the neighbors and officers would have protected her had she made known the facts, and that the reason why she did not tell anybody was that her father did not want her to tell. She further testified that her father had been strict with her, and punished her, that she wanted to get from under his care and control; that he had punished her a day or two before she made formal complaint against him, and that she and her brother John had planned to take charge of and run the place after her father had been arrested and put in jail. She also testified that her father punished her for alleged misconduct with a man named Cain, and that she went with her father to a justice of the peace for the purpose of securing a warrant for the arrest of Cain on a charge of seduction under promise of marriage; but she denied having misconducted herself with C’ain or with other young men. The prosecutrix was corroborated by her little brother Josh eleven years of age, who testified that on the afternoon of some day in July, 1906, while outside the house playing with his little sister, he peeped through a crack in the log wall of the house and saw the defendant and his sister, the prosecutrix, lying on the bed in the performance of the sexual act. John Brown, the second son, about twenty years of age, testified that the family slept upon beds laid on the floor; that his father and two sisters. slept in one bed, and he and his two brothers in another, and that part of the time the youngest brother slept with his father.

The testimony on the part of the defendant tended to prove that a short time prior to the issuance of the warrant against defendant, the latter, in company with his daughter, Laura, had applied to J. M. Johnson, a justice of the peace, for a warrant against one Gain on the ground of seduction, and that the justice asked the prosecuting witness if she had ever had intercourse with parties other than Cain, and she admitted that she had intercourse with the three Jost boys. Charles Hulsey, a deputy constable who assisted in the arrest of the defendant, testified that at the time of the arrest he asked the prosecuting witness why she wanted to have her father arrested, and that she replied that it was because he whipped her on account of her intimacy with one Cain; that she further told witness, in reply to questions, that she had had intercourse with Cain about seven times. Witness further testified that, afterwards, in a store in Bourbon, the prosecuting witness acknowledged to him that she had been intimate with a young man who worked in the store. All of these statements were denied by the prosecuting witness, upon cross-examination.

The defendant testified in his own behalf that he was fifty-two years of age, and had been engaged in farming near Bourbon, in Crawford county, since 1893; that his daughter admitted to him her intimacy with Cain, and that he had taken steps for the apprehension and prosecution of said Cain; that the day before he, the defendant, was placed under arrest, he went to Sullivan in an endeavor to locate the man Cain.

Mr. Harrison, counsel for the defendant, testified as to the diligence used and the efforts made by him to locate Cain and secure his attendance as a witness at the trial of this case.'

Several of the more prominent citizens of the county testified as to the general reputation of the defendant for truth, honesty and morals, the general tenor of their testimony being that they had never heard his reputation questioned.

The defendant contends that the court, in permitting witness Joshua Brown, over the objection of the defendant, to testify, committed error, on the ground that it was shown by the examination of the witness touching his understanding and capacity that he was incompetent to testify.

Among the persons incompetent to' testify, under section 4659, Revised Statutes 1899, is “a person of unsound mind at the time of his production for examination.” At common law every person of the age of fourteen years is presumed to have sufficient intelligence, discretion and understanding to testify as a witness, but under that age such presumption is not indulged, and therefore inquiry is made as to the degree of understanding which children offered as witnesses, may possess, and if upon examination touching his capacity, it be found that the witness has sufficient natural intelligence and has been so instructed as to understand the nature and effect of an oath, he is permitted to testify, whatever his age may be. [1 Greenleaf on Evidence (Redfield’s Ed.), p. 413.] But the common law rule has been changed by statute in this State (sec. 4659, supra), so that, by implication at least, any child or person over ten years of age is prima-facie competent to testify as a witness; but if shown upon examination to be of unsound mind, or 'not possessed of sufficient intelligence to stand the test indicated, at the time of his production for examination, he will not be permitted to testify, whether over or under that age. As to whether the witness is possessed of sufficient intelligence to testify is a preliminary question for the determination of the court, and unless the conclusion reached is clearly erroneous this court will not interfere. While, in our minds, it is exceedingly doubtful whether witness Joshua Brown had sufficient intelligence to testify in the case, it is unnecessary and profitless to pursue the subject further, as the ruling of the court, in this regard, was not laid as a ground for a new trial'in defendant’s motion therefor, and it is not the subject of review here.-

It is insisted that the testimony of Laura Brown with reference to previous acts of the defendant ought not to have been admitted, for the reason that it does not detail any specific acts of intercourse or refer to any particular time when the alleged previous acts of intercourse between them took place. The objection to this testimony was general, and amounted to no objection at all, and there was no error in admitting the evidence. [State v. Adams, 108 Mo. 208; Margrave v. Ausmuss, 51 Mo. 567.]

We cannot admit the defendant’s contention that, because the information charges that the defendant was a single man at the time of the alleged sexual intercourse with his daughter, Laura Brown, it was essential to the conviction of defendant that the State so prove. The allegation was an unnecessary one, and, therefore, unnecessary to be proven, and may be regarded as surplusage. The elements of the offense, necessary to be alleged and proven were the sexual intercourse between the defendant and Laura Brown, and that she was his daughter. Whether he was or was not a married man at the time is wholly immaterial.

Defendant insists that the court erred in giving instruction number five, in that it confined the investigation of the jury to the one act of intercourse alleged to have taken place in July, 1906, and did not inform the jury to what extent and for what purpose they might consider any other alleged acts of intercourse or lascivious conduct between the prosecuting witness and the defendant. But the exception was not preserved in the motion for a new trial, and the subject is not before us for review. Besides, that instruction was given at defendant’s request, and he is in no position to complain.

The final question is, whether there was any evidence worthy to be called such upon which to base the verdict in this case. As reluctant as this court may be to interfere with the verdict of a jury which has been approved by the trial court, the law makes it our duty so to do when the exigencies of the case and the rights and freedom of a citizen seem to demand it.

The prosecuting witness, Laura. Brown, upon whose testimony the verdict must stand or fall, is shown by her own testimony to be a very ignorant, illiterate and unruly girl, and, by her admissions to other witnesses who testified in the case, to- be lewd and unchaste and unworthy of belief. She did not know the name of the county or State in which she lived, and the only reason given by her for not telling that the defendant had “courses” with her, as she expressed it, was that he did not want her to tell. She admitted to the justice of the peace before whom she went to make complaint against one Cain for seduction, and also to the constable who arrested her father on her complaint, that she had been criminally intimate with several young men in the neighborhood, and especially with the man Cain, all of which admissions she denied having made.

The following is taken from her testimony:

Q. Why was it that you did not tell anybody else, what it was your father did to you along in July? A. Because I was afraid to.
Q. What made you afraid? A. He told me that he did not want me to tell it; that was why I was afraid to.
Q. What, if anything, did your father do to you before last July? A. He done me the same as before.

On cross-examination, she testified:

Q. Your father has been strict with you, has not he? A. Yes, sir.
Q. You want to get out from under his care, from under his control? A. Yes, sir, I do.
Q. You made this complaint shortly after your father punished you, did not you? A. Yes, sir.
Q. The next day, is not that true? . A. No, sir; I don’t believe that it was the next day.
Q. Well, the second day? A. It might have been the second.
Q. Did you not plan to have your father arrested and put in jail, and your brother was to take charge of the place and you and he were to run it? A. Yes, sir.
Q. That was the way you had it planned? A. Yes, sir.

She also testified that she never made any complaint to her neighbors about her father, although she knew that they would protect her if she did so; that the first person she made any complaint to was her brother John, and that was the evening before she went to Bourbon to make formal complaint against her father, which was about nine, months after the time of the alleged intercourse with defendant.

It cannot be said that she was corroborated by her brother, Joshua, because his story is incredible and not of a feather’s weight. Aside from his apparent want of sufficient intelligence to testify, it seems incredible that he, a boy only eleven years of age, could keep his own counsel so long, for he did not tell what he testified he saw until the evening before his sister went to Bourbon to lodg'e the complaint, or the same evening she told her elder brother about it. He testified that after looking through a crack in the wall of the house and seeing his father and sister on the bed, he continued his play with his little sister, and that although his brother John, a young man about twenty years of age, was at the time out in the bam feeding the horses, he said nothing to him about what he saw, nor mentioned it until the evening stated, which was between eight and nine months afterwards. His long silence can hardly be attributed to modesty, for at the trial he told his story with a brazenness wholly incompatible with any idea of modesty, and in describing what he saw, used words and terms of a type so gross as seldom to be met with in print.

The facts detailed in evidence strongly indicate that it was malice or ill-will against her father that prompted the prosecuting witness to make this charge against him and have him prosecuted, and when we consider this in connection with the bad character of the prosecuting witness, her failure to make complaint until a day or two after being whipped by her father, although according to her testimony the commerce had been carried on for several years in the same room where the whole family slept, her successful impeachment, and the good reputation of the defendant for truth, honesty and morals in the neighborhood in which he lived, we are constrained to believe that the girl’s story was a fabrication, and are convinced that the verdict and judgment ought not to- be permitted to stand.

Our conclusion is that the judgment should be reversed and the defendant discharged. It is so ordered.

All concur.


source: Caselaw Access Project

author: GANTT, J.

license: Public Domain

text:
    THE STATE v. JOHN HARRIS, Appellant.
    Division Two,
    February 18, 1908.
    1. INFORMATION: Unnecessary Description: Proof. It is an accepted rule in criminal practice that if a necessary allegation is made unnecessarily minute in description, the proof must satisfy the description as well as the main part, since the one is essential to the identity of the other. But where the allegation is immaterial and surplusage, there need be no proof of it.
    2. -: -: Deadly Weapon: Proof. It is unnecessary to insert in the information the words “with a deadly weapon” as descriptive of the knife with which the stabbing was done, and an information charging a felonious assault with a knife with intent to kill is sufficient without those words; and it is also unnecessary to prove that the knife was a deadly weapon when the information uses those words, for they may be considered surplusage.
    3. -: -: -: Instruction. And it being unnecessary to prove the charge in the information that the stabbing was done “with a deadly weapon,” the instructions need not require the jury to find that the knife with which the stabbing was done was a deadly weapon.
    4. DEADLY WEAPON: Assumption: Presumption Arising from Use: In Instruction. But where the proof is such that it cannot be assumed as a matter of law, either from the size of the knife used or the wound itself, that the knife was a deadly weapon, it is error for the court to instruct the jury that “he who uses upon another at some vital part a deadly weapon of any kind, must in the absence of qualifying facts be presumed to know that the effect is likely to produce death, and knowing must be presumed to intend death,” etc., unless that or some other instruction requires the jury to find that the knife used was a deadly weapon.
    5. -; Possession: Self-Defense. An instruction which tells the jury that if defendant prepared himself with a knife and with it in hand sought and brought on the difficulty, etc., there is no self-defense in the case, is not error, and does not make the mere possession of the knife a circumstance which denied him the right of self-defense.
    6. ASSAULT: Malice Aforethought. Under the evidénce in this case, which is one for an assault with intent to kill, it was error to refuse an instruction which left it to the jury to say whether the assault was done with malice aforethought or with an intent to kill or do some great bodily harm without malice aforethought.
    7. IMPEACHMENT: Reputation: Cross-Examination. A liberal cross-examination of witnesses called by the State to rebut the defendant’s attack upon the reputation of the prosecuting witness for peace, should be allowed, but the extent to which it may go is largely in the discretion of the trial court. And in this case, it is Held that where an attempt was made to break down the defendant’s attempted showing that the prosecuting witness was a quarrelsome man, no reversible error was committed by the exclusion of a cross-examination tending to show that he had made vicious and unwarranted assaults upon others.
    Appeal from Lawrence Circuit Court. — No». F. G. Johnston, Judge.
    Reversed and remanded.

      William B. Skinner for appellant.
    (1) Instructions 3 and 4 are radically wrong as legal propositions, and the judgment should be reversed because of the error committed in giving them. State v. Grant, 152 Mo. 57; State v. Weeden, 133 Mo. 70; Sherwood’s Com. on Crim. Law, p. 547. (2) The court should have givon instruction “A,” requested by defendant. Sherwood’s Com. on Crim. Law, p. 141; State v. Grant, 144 Mo. 56; State v. Melton, 102 Mo. 633.

      Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) The information, which was accompanied by the affidavit of the prosecuting attorney, is sufficient in form and substance. Kelley’s Crim Law, sec. 579; State v. Elvins, 101 Mo. 243. No error was committed in sustaining the objections of the State to questions asked by defendant’s counsel of witnesses Renker, Garrison and Thurman. But, even if said objections were improperly sustained, defendant is in no position to complain, as he did not make any statement of what he expected to prove, or make any offer of proof. Defendant has waived said error, even if error was committed. State v. Martin, 124 Mo. 514; State v. Hodges, 144 Mo. 50. (2) No error was committed by the giving of State’s instruction 3, which was on the subject of the intentional use of a deadly weapon. Said instruction has been repeatedly approved by this court. State v. Grant, 152 Mo. 64. Neither was error committed in giving State’s instruction 4, which was in reference to defendant bringing on the difficulty. (3) The court properly refused defendant’s instruction “A,” as-asked by defendant. Said instruction was on the subject of an assault with intent to kill without malice. Under the evidence there were two theories: the one of an intentional and wilful assault upon the prosecuting witness with a deadly weapon, and the other justifiable conduct on the part of the defendant. There was, therefore, no half-way ground, and the trial court very properly refused to instruct the jury as requested by defendant in said instruction. State v. Bailey, 1901 Mo. 257; State v. Harris, 199' Mo. 716.
   GANTT, J.

On the 25th of February, 1907, the prosecuting attorney of Lawrence county filed an information, duly verified, charging that the defendant on the--day of January, 1907, in and upon one Joe Qualls, feloniously, on purpose and of his malice aforethought, with a deadly weapon, to-wit, a knife which he, the said Harris,.in his hands then and there held, did then and there make an assault, and him, the said Qualls, feloniously, on purpose and of his malice aforethought did strike, cut, stab and wound with said knife, with intent him the said Qualls then and there to kill, against the peace and dignity of the State.

At the March term, 1907, the defendant was duly arraigned and entered his plea of not guilty, and at the same term, he was put upon his trial and found guilty as charged in the information and his punishment assessed at two years in the penitentiary. From the sentence on that Verdict he appeals to this court.

The evidence on the part' of the State tends to prove that the prosecuting witness, Qualls, was the proprietor of a saw mill which he was operating near the farm owned by the defendant in Lawrence county, and the defendant’s minor son had been working for the prosecuting witness at said mill. On the Saturday previous to the Tuesday on which the assault was made, the son of the defendant had quit work and had complained to his father that Qualls had counted him out of a dollar in paying him his wages. The prosecuting witness testified that the defendant came, to the mill on the day of the difficulty about two o’clock in the afternoon; that the prosecuting witness was very busy at the time sawing his lumber, but noticed the defendant in the mill yard, but paid little attention to him except to see that he and one Smith walked off northeast from the mill; that the next time he saw him, the defendant had come up> to him into the small space in which he was working and immediately assumed a threatening attitude with his left fist up to the prosecuting witness’s face and said: “What do you mean by saying that you had broken even with Harris?” and he said, “What is the matter with you, Mr. Harris?” Thereupon the defendant said: “You look me in the eyes” (then called me a vile name), “and tell me what you mean;” thereupon the prosecuting witness said: “If I have done or said anything, Mr. Harris, I did not mean a thing in the world,” when he said that the defendant said: “You owe my boy a dollar,” and the prosecuting witness said: “No; I paid your boy on Saturday night every cent I owed him, and you are a fool trying to raise a row with a man for nothing;” when the witness said that the defendant reached for him, caught hold of him with his left hand and struck him with his right hand, and the witness immediately felt the cat of a knife and says, “I either struck at him and run over him or shoved him down and run right over him, and started to run, I did not go but a few steps until I stumped my toe and fell and he came right up. on me with his knife and I kicked at him with my foot, and he said, ‘Damn you, I will cut your throat,’ and I called to Miller and Miller came around and took hold of him. He had hold of my foot and was trying to cut over; when Miller took hold of him then defendant stopped and I jumped up and ran again and went to Dr. Cottingham’s office and had him dress my wounds, on my arm and left side.” The witness further said that the defendant stabbed him in the side the first lick he gave him, and cut him on the arm as he started to run away from him.

Dr. Cottingham testified that the prosecuting witness came to him for treatment that afternoon and he discovered that the witness had a cut in the arm, which was bleeding profusely, and the doctor dressed this wound and sewed it up and he also had a cut in the left side about the eighth rib. This last cut was about two inches deep and extended nearly to the cavity; the cut on the arm was two and a half inches long and went to the bone. The wounds had been very recently inflicted when the witness came to him.

The witness was confined to his bed on account of these wounds for some seven or eight days. On cross-examination it appeared that the prosecuting witness had become acquainted with the defendant about the first of January and this difficulty occurred on the 29th of January. The prosecuting witness had located his saw mill about one-half mile from the defendant’s residence and had been using the defendant’s stable that month free of charge. The son of the defendant had been working for the prosecuting- witness about a week before this difficulty with the consent of his father. The prosecuting witness was asked if he liad not stated on the day before the difficulty that he had broken even with Harris, and he denied that he had ever made such a remark. He testified he was thirty-nine years old and weighed 175' pounds and was five feet and ten inches tall. On further examination, the prosecuting witness stated that the only expression he used in regard to breaking, even was in settling with another son of the defendant’s about the corn that he had used in feeding his team while there, and had made an arrangement with the Davis boys for his team and said when the Davis boys came up, “I am ready for my com, I had an even break up at Harris’s, just an even break about the corn.”

Miller, a witness for the State, testified that he was at the mill when the defendant came there on the day of the difficulty, and the defendant asked him what Qualls meant by breaking even with the Harrises the evening before, and witness told him he did not know, unless he bought some corn from the Harris boys and that he had some there, but the boys told him that he had taken it all up and thereupon the defendant turned and walked away with James Smith. In about ten or fifteen minutes they returned and he saw Harris go to where Qualls was working, and Smith went back to the engine. The defendant had a knife of some description in his right hand and his right hand was hanging down. The defendant went to talking to Qualls and had his right hand up1 close to Qualls’ face.' The defendant seemed to be out of humor; I could tell, they seemed to be quarreling. Qualls did not seem to be angry at first, but did appear so later on. When the defendant came up Qualls loosened the lever and it stopped, he could not hear what they said on account of the noise made by the saw. Qualls struck at Harris with his fist, then Harris threw his arm around him, and he could not see whether he was cutting him or not. Qualls seemed to jerk loose and ran out past Harris and did not go but a little ways until be fell down; he was going tolerably pert and tbe defendant started after bim and got to bim pretty soon after be fell. When Qualls fell be seemed to strike on bis left shoulder and turned on bis back and got bis foot up to keep Harris off and Harris caught one of Quail’s feet. Then tbe witness went over and took bold of Harris’s shoulder and told bim to stop. Then Qualls got up and went off around tbe engine and tbe defendant walked off and stayed awhile; then be came back and asked witnes's if be did not see Qualls draw a hammer on bim; witness told him be did not notice it. Witness did not see Qualls with anything in his bands. He thought tbe defendant struck bim twice while they were standing and struck at bim once as be went out. Then prosecuting witness was sent off to Aurora in a buggy. On cross-examination be detailed tbe particulars of tbe difficulty, in which be stated that Qualls struck at tbe defendant and then they clinched, defendant dodged and threw bis arms around Qualls. This all occurred in tbe little space in which Qualls stood in handling the lever in controlling the saw; that after Harris struck Qualls twice with tbe band that bad tbe knife in it, Qualls started to run. He saw nothing in bis band,- and did not see him pick up anything or attempt to pick up anything. On re-examination be stated be did not desire to be understood as saying that Qualls ever clinched tbe defendant; on tbe contrary be seemed to be trying to get away.

Charter Davis testified that be sgw tbe defendant approach tbe prosecuting witness and saw them talking and saw the defendant shake his fist in Quail’s face and tbe next thing be knew they clinched and defendant went to cutting Qualls with a knife. By clinching, be meant defendant threw bis arms around Quail’s neck. This witness could not see the knife, but saw tbe stroke of tbe band in which defendant held tbe knife. Saw Mm strike Qualls twice and Qualls shoved him hack and ran out of the place and defendant after him. Qualls fell and the defendant ran up> and caught him by the foot and was still motioning with Ms knife in the other hand. Saw Miller go up1 and separate them. He saw no provocation on the part of Qualls before the defendant struck him and stabbed him.

James Davis also testified that he saw the defendant going' up to where Qualls was sawing and the latter was sawing a log, had just got it squared and was standing with his hand on the lever when the defendant came up and began to talk to him, but that on account of the noise he could not hear what was said. Saw defendant shaking his fist close to Qualls’s face; after talking a little, he saw defendant throw his arm around Qualls’s neck, the scuffle only lasted a minute and Qualls got loose and ran off; that the defendant followed him and Qualls fell and the defendant got him by the foot; Miller seemed to separate them. Defendant asked him if he did not see Qualls hit him the first lick, and he told him no, he did not see him hit him. Defendant said he wondered if Qualls thought he had broke even with him now.

The defendant testified in his own behalf that his son had told him that the prosecuting witness Qualls had short-changed him in paying him his wages on Saturday, and that Smith told him it was a fact, and thereupon he went back to get Qualls to pay it; when he got back he went up> to where the prosecuting witness stood and said to him: “Joe, you are cutting away,” and he said, “Yes,” and I said, “How was it you broke even with the Harrises?” and he said “Oh! nothing,” and I said: “If it was nothing you would not care to tell me,” and he said.: “It is none of your damn business,” and he reached over and took up. a hammer, and I said: “Leave that alone, you do not need that,” then I told him it was my business to see that he paid my boy what he owed him, and he said he did not owe him anything, and I said to him that the hoy said he had counted him out of a dollar and then he said I was a G— d— liar, then I told him he was another one, and he squared himself, he turned facing me and drew hack and struck square at my face, and I dropped my hand until he missed his lick and he clinched me around the neck and I reached1 around with my left hand, with my head down, trying to get hold of him and cut him with my knife to get him off of me, and as he threw his arm over I threw the knife up' and it hung in his arm as he got loose of me. Then he walked off pretty pert four or five steps and turned and looked back and as he ran over to pick up> a rock, he hit his foot on a post oak stump and fell over and commenced kicking at me and I caught him by the breeches leg with my left hand, and says, says I, “Joe, have you got enough?” and he said, “Yes, sir, I have,” and I says, “Will you ever strike at me again?” and he says “No,” and I says, “Get up from there,” and then Billy Miller came up and said, “Quit fighting.” The knife with which he cut Qualls was a little four-bladed knife. He was whittling with it when he commQnced talking with Qualls. He cut him to get him off of him.

Defendant also offered evidence tending to show that the general reputation of Qualls as a peaceful, law-abiding man was not good. Other witnesses testified that Qualls had been a justice of the peace in his township and road commissioner and had also been a police officer in the city of Aurora. There was also evidence on the part of the State tending to show that the prosecuting witness’s general reputation was that of a peaceable, law-abiding citizen.

Thereupon the court instructed the jury as follows :

“2. Gentlemen of the jury, the court instructs you that if you believe and find from the evidence, beyond a reasonable doubt, that the defendant, John Harris, at the county of Lawrence and State of Missouri, on or about the 29th day of January, 1907, did wilfully, feloniously, on purpose and of his malice aforethought, cut, stab, strike and wound Joe Qualls with a knife, with intent then and there the said Qualls, on purpose and of his malice aforethought to kill, you will find the defendant guilty as he is charged in the information and assess his punishment at imprisonment in the pen-’ itentiary for a term not less than two years nor more than ten years.
“3. The court instructs the jury that he who uses upon another at some vital part a deadly weapon of any kind, must in the absence of qualifying facts be presumed to know that the effect is likely to produce death, and knowing this must be presumed to intend death, which is the probable and ordinary consequence-of such an act, and if such.deadly weapon is used without just cause, he must be presumed to do it wickedly or from a bad heart; if, therefore, the jury believe from the evidence in this case that the defendant wilfully, feloniously, on purpose and of his malice aforethought made an assault on the witness, Joe Qualls, as charged in the information, by cutting and stabbing said Qualls with a knife, in some vital part, with a manifest design to use such weapon upon him without sufficient reason, cause or extenuation, then it must be presumed that the defendant intended to kill said Qualls.
“4. The jury are instructed that a -person who brings on a difficulty for the purpose of killing his adversary or wreaking his vengeance on him, cannot avail himself of the right of self-defense in order to shield himself of the consequences of wounding or injuring his adversary, however imminent the danger in which he may have found himself during the progress of the affray, and if in this case the jury believe from the evidence that the defendant prepared himself with a knife previous to the difficulty with, or the wounding of, the witness, Joe Qualls, and sought, brought on, or voluntarily entered into the encounter with Qualls in order to wreak his malice on him, then there is no self-defense in the case.
“8. Upon the question of self-defense interposed hy the defendant in this case, you are instructed that if at the time the defendant cut the prosecuting witness, Qualls, if you find from the evidence he did cut him, defendant had reasonable cause to apprehend a design on the part of Qualls to take his life or do him some great personal injury, and that there was reasonable cause for him to apprehend immediate danger of such design being accomplished, and to prevent such apprehended danger, he cut the said Qualls, and if at the time he did said cutting, he had a reasonable cause to believe and did believe that it was necessary for him to do such cutting to protect himself against such apprehended danger, you will acquit the defendant on the ground of self-defense.
“It is not necessary that the danger should have been actual or real, or that the danger should have been impending or about to fall, all that is necessary is, that the defendant had reasonable cause to believe and did believe those facts. On the other hand, it is not enough that the defendant should have so believed; he must have had reasonable, cause for such belief; whether or not he had reasonable cause for such belief is for you to determine under all the facts and circumstances given in the evidence; and if you believe from the evidence that the defendant did not have reasonable cause for such belief, you cannot acquit him on the ground of self defense. ’ ’

In addition to these instructions the court also instructed the jury on the presumption of innocence, the credibility of the witnesses, and defined reasonable doubt and the competency of the defendant as a witness, and the words, “Feloniously, wilfully and malice aforethought.” To all of which instructions the defendant objected and saved his exceptions.

The defendant requested the court to give the following instruction:

“A. The court instructs the jury that if you believe from the evidence in this case, beyond a reasonable doubt, that the defendant, John Harris, at the county of Lawrence and State of Missouri, on or about the 29th day of January, 1907, did unlawfully and feloniously make an assault upon one Joe Qualls, and did then and there unlawfully and feloniously cut, stab' and wound said Qualls with a knife, with intent the said Qualls, feloniously and unlawfully to kill or do great bodily harm, you will find him guilty of an assault with intent to kill, and assess bis punishment in the penitentiary for a term not less than two' years nor more than five years, or imprisonment in the county jail not less than six months, nor more than twelve months, or at both a fine not less than one hundred dollars and imprisonment in the county jail not less than three months nor more than twelve months, or at a fine not less than one hundred dollars. ’ ’

Which instruction the court refused and the defendant excepted. The jury having found defendant guilty, within four days he filed his motion for new trial, which was heard and overruled, to which he saved his exceptions. Defendant also filed a motion in arrest of judgment which was heard and overruled and his exceptions noted.

I. The information is sufficient and the record proper otherwise appears free from error.

Both the third and fourth instructions are challenged by the defendant for the reason that the court in each assumed as a fact that the knife with which the defendant stabbed the prosecuting witness, was a deadly weapon. The statute tinder which this information was drawn, section 1847, Revised Statutes 1899, provides: “Every person who shall, on purpose and of malice aforethought, shoot at or stab another, or assault or beat another with a deadly weapon, or by any other means or force likely to produce death or great bodily harm, with intent to kill, maim, ravish or rob such person, or in the attempt to commit any burglary or other felony, or in resisting the execution of legal process, shall be punished by imprisonment in the penitentiary not exceeding ten years. ’ ’ In State v. Keele, 105 Mo. 38, it was held that a felonious stabbing of another with intent to kill, constituted one offense under said section, and it was not necessary when the assault had been made with a certain knife to charge that said knife was a deadly weapon, as the statute was as to that offense silent as to the character of the weapon used. In State v. Laycock, 141 Mo. 278, 279, the assault was alleged to have been committed feloniously, on purpose and with malice aforethought, with knives the length of the blade of which was four inches, etc., but it was not alleged that said knife was a deadly weapon and this court following State v. Keele, supra, held that it was not necessary to allege that the knife was a deadly weapon under this,section of the statute. In State v. Bond, 191 Mo. 555, l. c. 568, this same distinction is maintained between that clause in the statute which makes the shooting at or stabbing another one offense, and an assault with a deadly weapon, another and distinct offense. See also State v. Webster, 77 Mo. 566; State v. Painter, 67 Mo. 84; State v. Wood, 124 Mo. 412; State v. Hoffman, 78 Mo. 256. In State v. Spaugh, 199 Mo. 147, it is ruled that in an information under section 1848, Revised Statutes 1899, the words, “on purpose” and “a deadly weapon,” were surplusage and unnecessary.

In view of this long line of decisions, it must be held that the insertion of the words “with a deadly, weapon,” as descriptive of the knife with which the stabbing was done, was an unnecessary allegation, and the information would have been sufficient without it, but having alleged it, the question arises, could the court in its instructions ignore it as redundant and unnecessary to be proved?

Unquestionably it is the accepted rule in criminal practice that if a necessary allegation is made unnecessarily minute in description, the proof must satisfy the descriptive as well as the main part, since the one is essential to the identity of the other. [1 Bishop’s New Criminal Proc., sec. 485; State v. Samuels, 144 Mo. 68.] In this last-mentioned case, the indictment charged the felonious uttering of a forged check “with intent him, the said Walter Robinson, then and thereby feloniously to injure and defraud.” It was ruled that while our statute provided that it was sufficient to allege that the defendant did the act with intent to defraud without alleging the intent to defraud any particular person, yet, inasmuch as the pleader had unnecessarily charged the intent to' defraud a particular person, to-wit, Walter Robinson, it became descriptive of an intent to defraud Robinson and no one else, and as the proof failed to show any intent to cheat Robinson there was a failure of proof, and the judgment was reversed. In that case it is to be observed that it was an essential averment to charge an intent to cheat and' defraud generally, and when the pleader went further and specified the intent to defraud a particular person, he had made the necessary allegation unnecessarily minute, and he was therefore held to prove the offense as alleged. But in State v. Sakowski, 191 Mo. 635, the indictment was for receiving stolen goods knowing them to have been stolen and the pleader without stopping at the allegation that the defendant feloniously received the stolen goods, knowing’ them to have been stolen, added “from the St. Louis & San Francisco Railroad Company,” and the contention was that the judgment must be reversed because the circuit court refused to instruct the jury that before they could convict the defendant they must find and believe that the defendant not only knew that the property was stolen, but that he knew that the property was stolen from the said railroad company. And this court, while recognizing the rule announced in State v. Samuels and by Bishop as above quoted, drew the distinction between allegations that were necessary which were made unnecessarily specific, and allegations which were merely superfluous and immaterial, and cited 1 Chitty’s Crim. Law, page 173, wherein it is laid down that, “Though the indictment must in all respects be certain, yet the introduction of averments although superfluous and immaterial will seldom prejudice. For if the indictment can be supported without the words which are bad, they may on arrest of judgment.be rejected as surplusage;” and quoted from the same learned author, in the same volume, page 250: “It is a general rule, which runs through the whole criminal law, that it is sufficient to prove so much of the indictment as shows the defendant has committed a substantive crime therein specified; and in the case of redundant allegations it is sufficient to prove part of what is alleged according to its legal effect, provided that that which is alleged, but not proved, be neither essential to the charge, nor describe or limit that which is essential.” And it was held in that ease that it was neither essential nor necessary to charge that the defendant knew that the stolen goods were the property of any particular person, but the offense was complete if the defendant knew the property was stolen when he received it. It mattered not from whom it was stolen and it was not necessary that the State should prove that he knew it was stolen from the particular railroad company, citing Rex v. Jervis, 6 C. & P. 156; People v. Caswell, 21 Wend. 86; 2 East, P. C. 780, sec. 163; Clark’s Crim. Proc., 332; Com. v. Squire, 42 Mass. l. c. 260, 261; United States v. Howard, 3 Sumner, 12; Anderson v. State, 38 Fla. 3; State v. Smith, 37 Mo. l. c. 64.

As we have seen that the uniform construction placed by this court upon the first clause of section 1847 has been that it is not necessary to allege that the instrument with which the defendant stabs another is a deadly weapon, the allegation that the knife with which the defendant in this ease stabbed the prosecuting witness was a deadly weapon was unnecessary and can be treated as surplusage, and it was not essential to- prove that it was a deadly weapon to sustain the charge in the information, and therefore, it was not necessary for the court to submit to the jury the question whether such knife was or was not a deadly weapon, and hence, the second instruction was entirely sufficient without requiring the jury to find that the knife with which the defendant stabbed Qualls was a deadly weapon, as the fact whether it was a deadly weapon or not, was wholly unnecessary and immaterial.

But notwithstanding the fact that it was unnecessary to charge that the knife was a deadly weapon, or to prove that it was, if the defendant on purpose and of his malice aforethought did assault and stab the prosecuting witness therewith with intent to kill him, does it follow that the third instruction was correct in view of the evidence in the case? By reference to the said instraction it will be observed that the court invoked the presumption of law which arises from the intentional use of a deadly weapon by one person upon' another at some vital point, to-wit, that he must be presumed to have intended death, which is the probable and ordinary consequence of such an act, and that if such deadly weapon is used without just cause, he is presumed to have done it wickedly and from a bad heart, that is to say, malice may be inferred, and in applying this presumption of law to the facts in this case, the court manifestly assumed the knife used by the defendant upon the prosecuting witness was a deadly weapon, without leaving it to the jury to find whether such knife was in fact a deadly weapon, before indulging the presumption arising from its use upon the prosecuting witness. The only evidence as to the character of the knife was from the defendant himself, who says that it was a little four-bladed pocket knife, and which he carried as a pocket knife, and the depth of the wound which he inflicted with it; the wound being nearly two inches deep in the side of the prosecuting witness and reaching nearly to the cavity. In State v. Bowles, 146 Mo. l. c. 13, it was said: “A deadly weapon is any weapon or instrument by which death would likely be produced, when used in the manner in which it may appear it was used in the affray. . . . ' . It does not follow that because no witness testified to seeing the knife, or detailed its exact dimensions, there was no proof as to its dangerous or deadly character. The-deadly effect it produced was confirmation strong of its lethal qualities.” In that case, the deceased had been cut in the right groin, the wound had been inflicted by a sharps instrument. It cut through two parts ligament, severed the illiac artery, and cut through the peritoneum. The physicians testified that the wound was in a vital part and was necessarily fatal. It was ruled that it needed no argument-to prove that a knife, capable of inflicting a wound of the dimensions and depth shown in that record, and in the vital part of a grown man, was such a weapon as the law denominated deadly. But.in this case from the description given by the defendant of the knife and the fact that the wound in the side did not reach the cavity, which the doctor says was about two inches from the surface of the body, we do not think it could be assumed as a matter of law that this knife was a deadly weapon, bnt the fact whether it was or was not should have been submitted to the jury by the court as the predicate of the presumption which the court invoked for the purpose of allowing the jury to infer a felonious intent to kill the prosecuting witness. From this instruction we think the jury were bound to find that the knife was a deadly weapon and that it was erroneous on the part of the court to have assumed that it was such. [State v. Weeden, 133 Mo. l. c. 75, 83; State v. Grant, 152 Mo. 57.]

II. The 4th instruction is assailed on the ground that it in effect told the jury that the possession of this pocket knife by the defendant was a circumstance which would warrant them in denying him the benefit of the law of self-defense, when in truth the possession of such a knife by the' defendant or any other citizen is an act in and of itself of an innocent and harmless nature. But we think the criticism of this instruction is without merit when considered in connection with the testimony in the case, which at least tended to show that the defendant sought and brought on the difficulty with the prosecuting witness and had his knife in his hand and without provocation began at once to stab him with his knife. This was left for-the jury to find as a fact, and if true went far to demonstrate that the defendant was not acting in self-defense in cutting and stabbing the prosecuting witness as he did.

III. Error is also assigned in the refusal of the court to instruct the jury as asked by the defendant' in his instruction designated in the record as “A,” and which prayed the court to instruct the jury that even though the defendant did unlawfully and feloniously assault the prosecuting witness and cut and stab him with a knife with intent to kill him or do him some great bodily harm, they might find him, guilty of an assault with intent to kill him without malice aforethought. In view of all the evidence in the case we are of the opinion that the court should have given this instruction and have left it to the jury to say whether the assault was done with malice aforethought or with intent to kill or do some great bodily harm without malice aforethought. Section 2370, Revised Statutes 1899, expressly provides that upon an indictment for an assault with intent to commit a felony or for a felonious assault, the defendant may be convicted of a less offense.. [State v. Grant, 144 Mo. l. c. 67.]

IY. Finally it is submitted that the circuit court improperly excluded the questions of the defendant on the cross-examination of the witnesses Rinker, Garrison and Thurman. These witnesses had been called by the State in rebuttal of testimony offered on the part of the defendant to prove that the prosecuting witness had the general reputation of being a quarrelsome man, and they testified that his reputation was good for being a peaceable and quiet citizen. On cross-examination counsel for the defendant inquired of the witness Rinker if he had ever heard about a boy by the name of Grover Berry doing some work for the prosecuting witness for seventy-five cents, and going into a saloon and asking him for the amount, and that the prosecuting witness knocked him down with a glass of beer? Which question the court excluded and the defendant excepted. Counsel for the defendant then asked him if he had ever heard of the prosecuting witness going up behind a stranger, while he was on the police force one time, and striking him, which question the court also excluded. Counsel for the defendant then made an offer to prove that the prosecuting witness walked up behind a stranger that got off the train at Aurora and hit him on the head with his pistol and knocked him down, and when asked why he did it, said he looked like a man he had heard was wanted somewhere. This was also excluded, and the defendant saved his exceptions to the exclusion of all these questions and answers. No question seemed' to have been excluded on the cross-examination of the witness Garrison. On cross-examination the counsel for defendant repeated the same question to the witness Thurman in regard to the Berry boy and as to the prosecuting witness striking him on the head and knocking- him down, and also as to the prosecuting witness stepping up behind a stranger and knocking him down. These questions were excluded and the defendant excepted.

In State v. Crow, 107 Mo. l. c. 347, it was said by this court: “Reputation, itself, can only be known from hearsay information and the courts give great latitude in cross-examination upon that question. ‘The real purpose (says Judge Cooney in Annis v. People, 13 Mich. 511) of this cross-examination is to enable the court and the jury to- determine whether the impeaching witness in fact knows the general reputation of the other, and if so, whether he testifies truthfully in regard to it. ’ [1 Greenleaf, Evidence, sec. 461; State v. Miller, 71 Mo. 90; State v. Beal, 68 Ind. 345.] The objections that are urged against the admissibility of this cross-examination to the extent it was carried, namely, that it is oppressive to a defendant to have accusations brought against him founded alone on rumors, and which he had no opportunity to defend, and that it multiplies collateral issues, we do not think well taken.” The conclusion was reached in that case that a defendant himself and his witnesses were subject to legitimate cross-examination though other independent crimes were thereby disclosed.

In State v. Miller, 71 Mo. l. c. 90, 91, it was said: “When a witness is called to impeach another by proof of general character, a liberal cross-examination touching his means of knowledge should be allowed, and authorities of the highest respectability go- to the extent of saying that on snch cross-examination it is permissible to inquire of the witness the name of the person whom he has heard speak against the reputation of the witness sought to be impeached, and it may turn out that all the persons from whom he has heard unfavoráble reports are personal enemies and sustain such relations to the witness or party whose character is the subject of assailment'that but little if any importance should be attached to what they may have said.”

In State v. McLaughlin, 149 Mo. l. c. 33, it was said: “It is settled law that when a witness is called to sustain or attack the reputation of another witness, the opposite party may cross-examine him liberally as to his means of knowledge, and test Ms own truthfulness, and it is largely a matter of discretion with the court how far such an examination shall be allowed. We think it would be an unwise exercise of our appellate jurisdiction to reverse a cause on this showing-alone. [State v. Crow, 107 Mo. 341.] ”

In view of the fact that the defendant had called other witnesses, who had testified that the reputation of the prosecuting- witness for quarrelsomeness was bad, if this were the only ground for reversal, we would not hesitate to affirm the judgment. While the authorities cited concur in holding that a liberal cross-examination should be allowed, they also hold that the extent to which it may go is largely in the discretion of the trial court. In view of all the evidence in the case we are of the opinion that the exclusion of the answers and questions propounded to Rinker and Thurman on the cross-examination, was not error and worked no prejudice to the defendant.

For the error in the instruction number three already noted, and the refusal of the court to give the instruction designated as “A,” the judgment is reversed and the cause remanded for new trial.

Fox, P. J., and Burgess, J., concur.


author: BURGESS, J.

text:
    THE STATE v. JOHN BAKER, Appellant.
    Division Two,
    February 18, 1908.
    1. RES GESTAE: Evidence: Statements of Party Injured. In a prosecution for murder, all that occurred at the time and place of the shooting, which had reference thereto or connection therewith, was part of the res gestae, and was properly admitted in evidence; and, therefore, it was not error to permit a witness, who was wounded by defendant at the time of the shooting of deceased, to testify as to the nature of the wound the witness received and as to what he said and did following the shooting.
    2. DEFENDANT AS WITNESS: Impeachment: Reputation: Improper Form of Question: Rebuke. When a defendant testifies as a witness in his own behalf, he is subject to impeachment by evidence of his general reputation for truth and morality, the same as any other witness. While a question propounded to a witness, if he knew the defendant’s reputation for truth and veracity as an average negro, was not in proper form, yet the subject of the inquiry was a proper one, and the question being presumably asked in good faith, a rebuke of the prosecuting attorney for asking the .question was not called for.
    3. REMARKS OF COUNSEL: Rebuke: No Exception: Waiver. The prosecuting attorney, in his closing address to the jury, said: “The parties to this killing were negroes, and if you allow negroes to. shoot each other, how long will it be until they are shooting you white men?” Upon objection by defendant to these remarks, the court said to the prosecuting attorney: “It is improper for you to appeal to race prejudice, or refer to the race of the defendant. It must not be repeated, you must stay in the record.” Held, that the court’s rebuke was sufficient; and, besides, no exception being taken or saved at the time to the insufficiency of the rebuke, the point must be considered as waived.
    4. JURY: Separation: Misconduct: Affidavit. An affidavit which states that affiant left at the residence of one of the members of the jury a daily paper which contained a statement with reference to the trial, and the names of the jurors selected to try the case, and the names of the attorneys engaged in the trial, but which does not say that the juror ever saw-or read the paper, is no proof that the jury separated, or that any member of the jury was guilty of misconduct.
    5. MURDER: First Degree: Sufficiency of Evidence. Evidence held sufficient to support the verdict finding defendant guilty of first degree murder.

      6. -: Shooting at One, Killing Another: Intent. Although. defendant may have shot at one party with the intention of killing him, and killed another party, he is equally as guilty of murder as if he had killed the party whom he intended to kill, since the felonious intent in such case, follows the hullet.
    Appeal from. Boone Circuit Court. — Hon. E. W. Hinton, Special Judge.
    Affirmed.

      Boyle G. Clark for appellant.
    (1) The court erred in allowing witness Lewis Berry to testify as to the nature of the wound that he received, and as to what he said and did following the shooting. State v. Hendricks, 172 Mo. 672. (2) The court erred in allowing the prosecuting attorney to ask a witness questions in regard to defendant’s character, when his character was not in issue, without rebuking the prosecuting attorney, and instructing the jury that defendant’s character was not in issue. State v. Rose, 178 Mo. 34. (3) The court erred in not granting defendant a new trial on account of the prejudicial remarks of the prosecuting attorney. State v. Rose, 178 Mo. 34; State v. Flerguson, 152 Mo. 99; State v. Dawson, 24 S. W. 414; State v. Jackson, 95 Mo. 653 (4) The court erred in allowing the jury to separate after their selection to- try the cause, and upon the hearing of defendant’s motion for a new trial should have required the State to show that there was no ground for prejudice of defendant’s cause on account of such separation. State v. Schaeffer, 172 Mo. 342. Defendant filed an affidavit in support of his motion for a new trial, showing that there was probable ground for prejudice on the part of the jury, and the State made no effort to show that there was no ground for prejudice, as by law it was required to do. State v. Orrick, 106 Mo: 126.

      Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) No error was committed by the court in allowing .the jury to separate prior to the time that the jury was sworn. Our statute simply requires that the jurors shall be kept together after they are sworn to> try the case. R. S. 1899, sec. 2628; State v. Todd, 146 Mo. 300. But even if error was committed by the court in this regard, the same has been waived by defendant, as the bill of exceptions does not show that he made any objections or saved any exceptions to. the ruling of the trial court. State v. Frier, 118 Mo. 648. (2) No error was committed by the trial court in permitting the State to prove that defendant shot and wounded Lewis Berry and Shannon Stark, immediately after he had shot and fatally wounded Boss Hall, the deceased. State v. Oavin, 199 Mo. 158; State v. Woodward, 191 Mo. 633; State v. Vaughan, 200' Mo. 1; State v. Spaugh, 200 Mo. 598. (3) No error was committed by the trial eourt in not reprimanding the prosecuting attorney for asking State’s witness Bedford about the general reputation of defendant for truth and veracity. The defendant had already testified in full in regard to the case, and, like any other witness, was subject to contradiction and impeachment. When, therefore, the trial court sustained defendant’s objection to. the State’s question, and refused to allow the witness to. testify to defendant’s reputation, it committed error in favor of defendant, of which he can not complain. Again, defendant seemed satisfied at the action of the court (and well he may have been), for he did not save any exceptions to the ruling, nor ask that the prosecuting attorney be reprimanded. And still further, no mention is made of said alleged error in defendant’s motion for a new trial, which constitutes a waiver. (4) The court’s rebuke of the prosecuting attorney for improper argument was sufficient, and was evidently satisfactory to defendant', as he saved no exceptions at the time. (5) No error was committed by the trial court in overruling the motion for a new trial on the ground of alleged misconduct of juror Park. State v. Hunt, 141 Mo. 637; State v. Howard, 118 Mo. 127; State v. Burns, 85 Mo. 47; State v. Phillips, 117 Mo. 394.
   BURGESS, J.

At the October term, 1906, of the Boone Circuit Court, the defendant was convicted of murder, in the first degree, under an indictment charging him with said offense, for the shooting and killing of one Boss Hall. His motions for a new trial and in arrest of judgment having been overruled, defendant appealed.

After the grand jury returned the indictment in this case, Hon. A. H. Waller, the regular judge of said court, was compelled on account of sickness to vacate the bench, and the case was tried before Hon. E. W. Hinton, a member of the Boone County Bar, who was duly elected special judge.

The defendant, the deceased and nearly all the witnesses on both sides were negroes. The evidence for the State tended to prove that on the 16th of June, 1906, one Lewis Berry, a negro, gave a picnic near Deer Park, Boone county, to which was invited the colored population of the neighborhood. For the accommodation and pleasure of the picnickers, and Ifia own enrichment, Berry erected dining and cooking booths and a dancing platform upon the grounds and had for sale various table delicacies and liquid refreshments. The picnic lasted all evening, and until after midnight. At ten o’clock, or thereabouts, the defendant raised a disturbance at the dancing platform, and used some vile and vigorous language in addressing- those about him. Lewis Berry stepped upi to him and told him to hush and sit down, and the defendant replied, “You damn son of a bitch, if you don’t like that you don’t have to take it.” Berry’s wife had occasion to leave the cooking bootli and get some meal to be used in connection with tbe fisb wbicb she was cooking, and she met the defendant outside, who struck her on the shoulder, and the two engaged in a little altercation. Soon after-wards the defendant left the grounds on his horse, Elwood Baker accompanying him, and went home. In the course of two or three hours, the defendant returned to the picnic grounds; going in through an opening in a fence, and1 riding up to a point within a few yards of the eating booth, he said, “I will kill all of you sons-of-bitches. ” He stopped his horse, drew a pistol and fired three shots, one of which took effect in the head of Boss Hall, wlm was standing quietly near the booth and in the act of lighting a cigar. The defendant jumped from his horse, and some one called to Lewis Berry and said, “He will kill you; run, run.” Berry immediately made a dash for the woods, as did also Shannon Stark, but while fleeing two additional bullets fired from defendant’s pistol struck and brought both men to the ground. When Berry fell, the defendant said, “I got you.” Berry managed to get further into the woods, and was found next morning concealed under a brush pile, where he was bleeding and suffering from the wound which he had received. The State’s evidence further tended to prove that the defendant fired five shots from his pistol, that no one else did any shooting, and that neither the deceased nor Berry nor Stark had any weapon at the time of the shooting. After the shooting, the defendant said, “I told you that I would get some son-of-a-bitch here to-night.” The deceased was taken to Columbia and medical attention given him at the Parker Memorial Hospital until July 8, 1906, when he died from the effects of the bullet wound in his head. Dr. Walter McNabb Miller testified that he made a post-mortem examination, and found a bullet wound on the right side of the head of the deceased, about one inch from the median line over the ear, which wound was one and one-half inches long and one inch wide, piercing the brain, and in the opinion of the witness said wound caused the death of the deceased. -

The defendant’s evidence tended to prove that he used some profane language at the dancing floor that night; that Lewis Berry told him to stop cursing, and that Berry’s wife came up and began choking the defendant. That one Charles Yaughn pulled Mrs. Berry away, and Lewis Berry and one Dave Jordan began cutting at defendant. He further testified that he left the picnic grounds, rode home and .went to sleep, and then returned to look 'for his hat which he said had been knocked off his head in the scuffle with Mrs. Berry. After riding into the grounds he saw Lewis Berry, who put his hand on his hip pocket as if to draw a pistol, and thereupon he, the defendant, drew his pistol and began shooting. He did not know that he had shot the deceased, nor know whom he did hit. He was unable to give any reason why Lewis Berry and Dave Jordan did not succeed in cutting him with their knives, except that somebody interfered. The defendant introduced some evidence to the effect that when Lewis Berry was found next morning, Berry asked the boys to handle him easy, as he was going to die, that he shook hands with them, told them good-bye, and said he did not know who shot him. Most of the witnesses for the defendant were his near relatives.

In rebuttal, the State introduced evidence to prove that Lewis Berry did not make the statement attributed to him by defendant’s witnesses, and that neither Lewis Berry nor Dave Jordan made any assault upon' defendant with knives; also that the defendant had his hat on when he returned to the picnic grounds and commenced shooting. It was also proved by the State that the reputation of two of defendant’s witnesses for truth and veracity was bad.

The point is made that the court erred in allowing Lewis Berry, over the objection of the defendant, to testify as to the nature of the wound he received and as to what he said and did following the shooting. Under the law as we understand it, all that occurred at the time and place of the shooting, which had reference thereto or connection therewith, was part of the res gestae, and was properly admitted in evidence upon that ground. [State v. Woodward, 191 Mo. 617; State v. Cavin, 199 Mo. 154; State v. Vaughan, 200 Mo. 1; State v. Spaugh, 200 Mo. 571.]

It is contended that the court erred in allowing the prosecuting attorney to ask a witness for the State if he knew Baker’s (the defendant’s) reputation for truth and veracity as an average negro. This question was objected to by the defendant upon the ground that his character was not in issue, and the objection was sustained. Defendant insists that the object of the question was to prejudice the jury against him, and that the prosecuting attorney should have been rebuked by the court for asking it, and, for failure so to do, committed reversible error. This occurred after Baker had testified as a witness in his own behalf, and he was then subject to impeachment by evidence of his general reputation for truth and morality the same as any other witness. [Sec. 2637, R. S. 1899; State v. Smith, 125 Mo. 2; State v. Weeden, 133 Mo. 70; State v. Dyer, 139 Mo. 199.] While the question propounded was not in proper form, the subject of the inquiry was, a proper one, and the question was presumably asked in good faith and the rebuke of the attorney uncalled for.

A further contention is that the court erred in refusing to grant the defendant a new trial on account of prejudicial remarks by the prosecuting. attorney. The remarks complained of were made by the prosecuting attorney during his closing address to the jury, and were as follows: “The parties to this killing were negroes, and if you allow negroes to shoot each other, how long will it be until they are shooting you white men?” Upon objection by defendant to said remark, the court said to the prosecuting attorney, “Mr. Harris, it is improper for you to appeal to race prejudice, or refer to the race of the defendant. It must not be repeated, you must stay in the record.” It seems to us that this rebuke, made in most emphatic terms, was entirely sufficient, and the jury could not but have understood that the court strongly disapproved of the remark. Besides, no exception was taken and saved at the time to the insufficiency of the rebuke by the court, and the point must, therefore, be considered as waived. [State v. Murphy, 201 Mo. 691.]

It is next contended that the court erred in allowing the jury to separate after their selection to try the cause, and that, upon the hearing of the defendant’s motion for a new trial, the court should have required the State to show that there was no ground for prejudice of defendant’s cause on account of such separation. As supporting this charge, we are referred to the affidavit of one Frank Dinwiddie, in which, however, there is not one word regarding the separation of the jury or of its conduct at any time. It states in substance that the affiant left at the residence of Allen Park, a member of the jury, a copy of the Columbia Daily Tribune* of date October 22, 1905, being a paper published at Columbia, and which contained a statement with reference to the trial of defendant, also the names of the jurors selected to try the cause, among whom was one Allen Park, and the names of the attorneys engaged in the trial; but the affiant does not even state that Park ever saw or read the paper. This affidavit is no- proof whatever that the jury separated, or that Park or any other member of the jury was guilty of misconduct.

A final contention is that the verdict of the jury ivas the result of passion and prejudice. There is no merit whatever in this assumption. No one, unprejudiced, can read the evidence disclosed by the record in this case without being at once convinced that this was a deliberate and premeditated assault with, intent to kill and murder Lewis Berry, or any other negro who might come within range of defendant’s deadly aim; and although defendant shot at Berry with the intention of killing and murdering him, and killed Boss Hall, as charged in the indictment, he is equally as guilty as if he had killed Berry. [State v. Gilmore, 95 Mo. 554; State v. Clark, 147 Mo. 20; State v. Cavin, 199 Mo. 154.] In such case, the felonious intent follows the bullet, and the person committing the homicide is responsible for the result, although he may not in fact have intended to kill or injure the person whom he did kill.

Finding no reversible error in the record, we affirm the judgment and direct the sentence pronounced by the trial court to be executed.

All concur.


author: BUEGESS, J.

text:
    THE STATE v. WILLIAM HORN, alias STICK HORN, Appellant.
    Division Two,
    February 18, 1908.
    1. CONTINUANCE: Affidavit: Absent Witnesses. An affidavit for a continuance based on tbe absence of witnesses wbo would swear to things indicating defendant’s insanity, which does not disclose the names of such witnesses nor the place of their residence, is clearly insufficient.
    2. -: No Subpoena. Where-no subpoena had been ashed for a witness who resided in an adjoining county, and no time was ashed to secure his attendance at the trial, it is not error to refuse a continuance because of the absence of such witness.
    . 3. -: -: Cumulative. Where the affidavit states that four witnesses, naming them, are in attendance at the trial, and will testify substantially to the same things as would a certain other person, on account of whose absence a continuance is asked, the testimony of such absent person would be only cumulative, and the application should be denied.
    4. -: Insanity: Defense Not Made. Where the defense of insanity was not made at the trial, and the witnesses which the affidavit stated would testify to defendant’s insanity did not testify at all, an application which asked for a continuance on account of the absence of witnesses who would testify as to his insanity, stated no ground for a continuance.
    5. -: Court’s Discretion. The granting or refusing of a continuance is a matter so. largely resting in the judicial discretion of the trial court that the Supreme Court will not interfere unless it be made to appear that such discretion has been unwisely exercised.
    6. BURGLARY: Intent: Res Gestae. In determining defendant’s intent in breaking into a dwelling house the jury are not confined to what defendant did or said prior to the time he actually entered the house, but can consider all he said and did thereafter, which was a part of the res gestae.

    7. -: -: Shooting Through Door: Threats. Defendant and his wife had been divorced. She was at a neighbor’s house with her four-year-old child. He came there about nine o’clock of a July evening, and inquired for her and the child, but the neighbor’s daughter, thinking him intoxicated, told him they were at his former wife’s brother’s, to whose house he went and was told where they were. He returned about ten o’clock, when the ladies were in the act of retiring, and demanded admittance. The same young lady partly opened the door, the screen door remaining fastened, and defendant stated he wanted his wife and child and was going into the house. She told him they were not in the house, and that he could not come in. He cursed her and swore he would kill her, and she closed the door, and he immediately fired three shots from his revolver, the bullets going through the door. He then went to the back door, broke it open, and the young lady’s father pointed an unloaded gun at him and told him not to enter, but he pushed it aside, sprang in, swinging his revolver, and demanding his wife and baby, and threatened the young lady with, “Death or the baby.” Held, that there was ample evidence to justify the jury’s finding that the breaking was done with a felonious intent.
    8. -: -: -: ■>-: Demurrer. And the court did not err in overruling a demurrer to the evidence based on the ground that fifteen minutes had elapsed after the defendant broke into the house before he did anything that squinted at an assault or the consummation of a felonious intent, for that, like ali other facts in the case, was for the consideration of the jury.

      Appeal from Greene Criminal Court. — Ho». A. W. Lincoln, Judge.
    Affirmed.

      Jas. B. Delaney for appellant.
    (1) The trial court erred in overruling defendant’s application for a continuance. The application contained all the necessary averments: (1) materiality of evidence; (2) diligence; (3) probability of pro- . curing testimony within reasonable time; (4) what testimony would consist of; (5) that affiant believed the same to be true; (6) that such testimony was not wanting through connivance or consent of defendant; (7) that such application was not made for vexation or delay; (8) such application was properly verified. Where the statutory requirements are complied with and it appears that the overruling of a motion for continuance affected in any way the result of the case, such ruling is reversible error. State v. Woodward, 182 Mo. 491; sec. 2600, R. S. 1899. (2) The element of intent to commit a felony was wholly lacking at the time of the breaking and entering of the Smith home, and an intent formed after such breaking will not constitute the offense of burglary in the first degree. Sec. 1880!, R. S. 1899; 2 Arch. P., 329. The evidence on behalf of the State utterly fails to show any felonious intent at the time of the breaking. (3) Defendant’s demurrer to the State’s case should have been sustained. There is a hiatus in time as shown by the testimony of Stella Smith and the rest of the State’s witnesses of over fifteen minutes from the moment of defendant’s breaking into the house before a single act is shown which even squints at an assault or the consummation of the felonious intent. The language used by defendant in connection with the act of pointing the pistol too plainly falls within the old rule of “harmless alternative” to be a threat, and on the other hand absolutely negatives any intent to kill. 2 Greenl. on Ev. (13 Ed.), pp. 69, 70; State v. Sears, 86 Mo. 175; State v. Llewellyn, 93 Mo. App. 469. (4) The proof of statements of a third party, made after defendant had been in the Smith home for at least an hour, and after Stella Smith had left the house (she being the one against whom the defendant was charged to have the felonious intent) is no part of tbe res gestae and amounts to hearsay testimony. State v. McGuire, 113 Mo. 670; State v. Grote, 109' Mo. 355; State v. Foley, 130 Mo.'484; State v. Rider, 96 Mo. 548; State v. Beard, 126 Mo. 548.

      Herbert S. Hadley, Attorney-General, and F. G. Ferris for the State.
    (1) It does not appear of record that the trial court committed any error in denying the application of defendant’s attorney asking for an inquiry as to defendant’s sanity on the day the cause was set for trial. It does not appear that any evidence in support of the application was laid before the court, and it is not shown that the court had reason to believe that defendant had become insane after the time of his indictment. R. S. 1899, sec. 2603; State v. Crane, 202 Mo.. 79. (2) There was. no error in the action of the trial court in refusing defendant’s application for a continuance, (a) The granting or refusal of an application for continuance is a matter addressed to the wise discretion of the trial court, and while it is reviewable, it must appear to have been unwisely and oppressively refused before this court will interfere with the judgment of the circuit or trial court. State v. Crane, 202 Mo. 74; State v. "Williams, 170 Mo. 204. (b) In order to warrant a reversal on the ground of the refusal of a. continuance, it must appear from the whole case that the result might have been different had the testimony been given as indicated. State v. Woodward, 182 Mo. 391; State v. Crane, 202 Mo.' 77. (c) The application for continuance is not sufficient, inasmuch as the affidavit does not show that admissible testimony is expected from the witnesses having a material bearing on some point in issue, and the affidavit does not show due diligence to have been used by the defendant. While the affidavit refers to supposed witnesses who might testify to the condition of defendant’s mind, it does not show that the defense relied upon was insanity, nor disclose the nature of the defense. The affidavit names four such witnesses who were then in attendance upon the court, and for purposes of mere cumulative evidence, asks delay in order to bring in one Emerson from Polk county; unnamed and unknown witnesses to the alleged fact that some of the descendants of defendant’s grandmother were, or had been afflicted with nervous trouble or insanity, are alleged in the affidavit, to be in Shelby county in the State of Illinois; but the affidavit does not disclose the information upon which affiant made the statement that there might be such witnesses, nor what assurance affiant had that such testimony could be obtained from them. State v. Crane, 202 Mo. 74; State v. Rice, 149 Mo. 461. (d) The plea of insanity was not made as a defense at the trial. The trial took place on the same day that the application for continuance was filed and refused, and defendant testified in his own behalf. It would seem that the allegation of insanity in the motion for inquiry and application for continuance was a mere pretext for delay, and hence defendant could not possibly have been prejudiced by the action of the court in that respect. State v. Rice, 149 Mo. 465; State v. Dettmer, 124 Mo. 426. (3) Every essential element of the crime charged in the indictment was conclusively proved by the evidence. That defendant broke into and entered the dwelling house with intent to commit a felony was clearly proved, and defendant’s demurrer to the evidence at the close of the State’s ease was properly overruled. State v. Painter, 167 Mo. 84; State v. Dooley, 121 Mo. 591.
   BUEGESS, J.

On the 1st day of August, 1907, at the July term, 1907, of the criminal court of Greene county, an indictment was returned against the defendant charging him with burglary in the first degree. At the same term, and on the 23rd day of August, 1907, defendant’s attorney filed a motion asking for the appointment of a lunacy commission to inquire into the mental condition of the defendant, which motion was overruled by the court. On the same day the defendant, by his attorney, filed application for a continuance, which was overruled. The defendant, being formally arraigned, stood mute and refused to plead, whereupon the court ordered a plea of not guilty entered, and, on the same day, defendant was put upon trial and convicted, his punishment being assessed at sixteen years in the penitentiary. Defendant’s motions for a new trial and in arrest having been overruled, he appealed.

The evidence on the part of the State tended to prove that defendant and his wife, Maud Horn, were divorced in May, 1907, on the petition of the wife, who retained custody of their child, aged about four years. After the divorce, the woman and her child went to live with her father, Jacob Head, who' resided near Ash Grove, Greene county, Missouri. On Sunday, July 14,1907, Maud Horn and her child were at the home of John Smith, about three-quarters of a mile south of Jacob Head’s home. About nine o’clock in the evening of that day the defendant, in company with one Morris-sett, arrived in a buggy at the Smith home and inquired for Maud, his former wife, and the child. Stella Smith, daughter of John Smith, thought the defendant was intoxicated, and she told him that Maud,and the baby were at the home of Vet Head, Maud’s brother, across the creek. Defendant and his companion drove away, and having been informed by Mr. Head that the woman and child were at Smith’s the defendant returned to the Smith home. It was then about ten o’clock, p. m. Mr. Smith was in bed in a front room of the house, and his daughters, Stella and Mary, and Maud Horn and child, the latter being sick, were in the act of retiring in another room. The defendant knocked on the front door, and Stella asked him what he wanted. He answered that he wanted his wife and baby, and asked Stella to come to the door. She replied that she was in her night clothes and could not come, and he said that she had better come, and began rattling the screen door. Stella went back to Maud and asked her what she should do, and Maud told her not to let him in as he was drinking. Maud then concealed herself and her baby in a closet. Stella went to the door, unlocked and partly opened it, the screen door remaining- fastened, and the defendant asked her to come out into the yard, which she refused to do. Defendant then said that he was going into' the house and that he wanted his wife and baby. She told him they were not in the house, and that he could not come in. He then said, “Damn you, Stella Smith, I will kill you.” She closed the door in his face, and immediately the defendant fired three shots from his revolver, two of the bullets going through the center of the door, and the third a little higher up. The defendant then went around the house to' the back door, which he burst open, brealdng the lock, whch consisted of a thumb latch and hook fastened on by screws. As he was about to enter, Mr. Smith pointed his gun at him and threatened to shoot him if he came in. Defendant said, “Kill me, I want to die.” Smith’s gun was not loaded, and the defendant shoved it aside, told Smith to stand back, and sprang into the room, swinging his revolver and demanding his wife and baby. Stella ran into the dining room to get to the telephone, but defendant followed her and made her hang up> the receiver. She began talking to him, and tried, without avail, to induce him to leave. As she was about to go back to the room where her father was, the defendant grabbed her by the arm and, pointing his revolver in her face, said, “Death or the baby. ” She released herself and went back to her father’s room and sat down by him, but the defendant followed, and, again raising his revolver, said they would all die together or he would have his wife and baby. Smith told him to give up his revolver, and he would let him see his wife, but tl^e defendant refused. Maud Horn escaped out of the house and hid herself and child in some weeds near by, and Mr. Smith and his daughters ran out and went to a neighbor’s house. The defendant’s companion, Morrissett, had entered the house before all had left, and Maud heard them talking and calling for her. The next day defendant’s revolver, two chambers of which were loaded and three empty, was found behind a log in the yard of the Smith home.

It also appeared in evidence that within a week prior to said July 14, 1907, the defendant called two or three times at Smith’s house and saw his child, and brought it ice cream, candy, shoes and stockings. On those occasions Maud, his former wife, was present, and there was no trouble or unpleasantness, and the Smith family, Maud and the defendant were all on good terms.

The defendant testified in his own behalf that he was twenty-six years of age, that he and his wife first had trouble in February of the same year, and that it was brought about by his wife’s parents. His wife, he said, applied for a divorce on April 10, 1907, and it was granted her while he was in jail at Bolivar, Missouri, on a charge of attempting to kill his child, which charge had been brought by his wife’s. brothers. That the day he got out of jail he went to Jacob Head’s to see his child, and Mr. Head would not let him see it. A few days later, his brotlier-in-law, John Head, told him there would be no objection to his seeing his child, and, accompanied by his sister, defendant called at Jacob Head’s and saw the child, which was brought out to the road where he was. On that occasion he and his former wife talked in a friendly manner, and she invited him to come out to Smith’s to see her, which invitation resulted in the visits by defendant referred to in the State’s evidence. Defendant further testified that when Stella Smith told him at the front door of the Smith home that his child was not there and refused to let him in, he, while standing on the ground, shot with his revolver through the door to scare Stella in order that she might let him in to see his child; that after the first shot he heard her run from the door, and that he shot twice more to frighten her, and not with any intention to kill. That he then went to the back door, which was unlocked, and there he was met by Mr. Smith who had a shotgun in his hands. Defendant denied that he had any intention to kill anybody, or that he made the threats testified to by Stella Smith. On cross-examination, he said that he had been in jail at Bolivar in April, on the charge of assulting his baby with intent to kill, and that he remained in jail until June 26, 1907. He denied that he pointed a pistol at Stella Smith at any time while in the house. He admitted that he had had a few drinks that evening, but denied that he was intoxicated. He further admitted that he had at other times pleaded guilty to offenses as follows: February 6, 1902, assault; January 23, 1904, fighting and disturbing the peace; July 24, 1905, gambling; September 22, 1905, fighting.

It is said for defendant that the court erred in overruling his application for a continuance, which he insists was in due form and in compliance with section 2600, Bevised Statutes 1899. The motion for a continuance was filed on behalf of the defendant, and sworn to by his brother, on the 23rd day of Angnst, 1907, being the same day the cause was set for hearing. One of the assigned grounds for continuance was the absence of a number of witnesses, to be sought among the inhabitants of Winsor, Shelby county, Illinois, whose names were not then known to the affiant, but by whom defendant expected to prove that he had for some time been afflicted with a nervous trouble verging on St. Yitus’s dance, that other members of his family were similarly afflicted, and that the grandmother as well as a cousin of the defendant, residing in Illinois, were periodically insane, the belief of the affiant being, as disclosed by the affidavit, that the testimony of such witnesses, if procured, would form the basis for an opinion of an expert 'as to the defendant’s sanity or insanity. The affidavit in this regard is clearly insufficient as it does not give the names of the persons, nor show where they reside, as required by section 2600-, supra.

Another alleged ground for continuance was that one Emerson, residing in Polk county, Missouri, was a material witness for the defendant, and that his testimony, if obtained, would be that the defendant, even before the commission of the alleged offense, was possessed of the idea that some members, of the family of his wife were intent on taking his child, Florence Horn, away from him, and that defendant further seemed to be possessed of the idea to. kill the child rather than let it be so taken from him by a conspiracy between his wife and her relations, as defendant believed they had so conspired to do; that said idea of defendant was a delusion, but that defendant verily believed the same to be true. As to this witness, no subpoena was asked for him, nor for time to secure his attendance at the trial, although, as shown by the affidavit, he was a resident of an adjoining county. We think the showing as to this witness was also insufficient.

The affidavit further states that four witnesses, A. L. Martin, Elvil Goforth, John Barker and George Bryant, were in attendance at the trial, and would testify to substantially the same matters that the said Emerson would, if present. So that the testimony of said Emerson would have been only cumulative, and the application was, on that ground, also properly denied. Besides, the defense of insanity was not made upon the trial, nor did any of the witnesses alleged in the affidavit to have been present testify. It, therefore, seems, to us that no ground for a continuance was .shown by the affidavit. Moreover, the granting or refusing a continuance is a matter so largely resting in the discretion of the trial court that the Supreme Court will not interfere unless it be made to appear that such discretion has been unwisely exercised, which does not seem to us to have been done in this case. [State v. Day, 100 Mo. 242; State v. Banks, 118 Mo. 117; State v. Rice, 149 Mo. 461; State v. Crane, 202 Mo. 54.]

Defendant contends that the element of intent to commit a felony was absent at the time of the breaking and entering of the Smith home, and that an intent formed after such breaking will not constitute the offense of burglary in the first degree.

Section 1880; Revised Statutes 1899; defining burglary in the first degree, declares that “every person who shall be convicted of breaking into and entering the dwelling house of another, in which there shall be at the time some human being, with intent to commit some felony or larceny therein, first, by forcibly bursting or breaking the wall or outer door, window or shutter of a window of such house, or the lock or holt of such door, or the fastening of such window or shutter; or, second, by breaking in any other manner, being armed with some dangerous weapon, . . . shall be adjudged guilty of burglary in the first degree.”

In determining the question of intent upon the part of the defendant in breaking into the Smith home, the jury were not confined to what the defendant said and did before the time he actually entered the house, but could consider all that he said and did thereafter, which was part of the res gestae, and when the fact that he went there armed with a loaded pistol and fired three times through the door be considered in connection with the other facts and circumstances relating to the breaking in, there was ample evidence to justify the jury’s finding that the breaking was with a felonious intent.

Defendant next insists that the demurrer interposed by him to the evidence at the close of the State’s case should have been sustained. The ground iipon which this contention is based is that from the time the defendant broke into the house a period of fifteen minutes had elapsed before he did anything which even squints at an assault or the consummation of a felonious intent. This, like all other facts in evidence, was for the consideration of the jury, and as there was ample evidence to take the case to the jury, there was no error in overruling the demurrer.

It is said for defendant that proof of statements of a third party (Morrissett) made after the defendant had been in the Smith home for sometime, and after Stella Smith, the girl against whom the defendant was charged to have the felonious intent, had left the house, constituted no part of the res gestae and amounted to hearsay testimony. The record shows that the court sustained an objection to the introduction in evidence of a conversation had between witness Maud Horn and Morrissett, who was with defendant, and came into the house after Stella- Smith had left, so that defendant seems to be in error in saying that such testimony was admitted.

Finding no reversible error in the record, we affirm the judgment.

All concur.