author: VALLIANT, P. J. PER CURIAM:

text:
    MASTERSON et al., Appellants, v. ST. LOUIS TRANSIT COMPANY.
    In Banc,
    May 30, 1907.
    1. NEGLIGENCE: Excessive Speed: Instruction. Where the petition counted on a dangerous rate of speed and speed in excess of the ordinance rate of ten miles, an instruction for defendant which required the jury to find “either that defendant operated its car in excess of the speed of ten miles an hour, or at such a speed which under the evidence and circumstances amounted to negligence,” did not authorize defendant to run its car at ten miles per hour regardless of the circumstances.
    2. -: Instruction: Cause of Accident: Sounding Gong. Where several acts of negligence are charged, either one of which caused or contributed to cause the accident, the jury ought not to be instructed that unless they find one particular act to have been the sole cause they should disregard it entirely. But where the defendant’s instruction follows exactly the charge in the petition in that respect, it is not error. Where it is charged that failure to sound the bell caused the boy to be killed, it is not • error to give an instruction for defendant requiring the jury to find that failure to sound the bell was negligence and that such negligence was the cause of the child’s death. Furthermore, in this case, where a child eleven years old ran from the sidewalk, in the middle of the block, ten feet and eight inches to the track, and there stumbled and fell upon the track, it is difficult to see what good the sounding of the gong, whether the ear was twenty or fifty feet away, would have done in the emergency.
    3. -: Perilous Position: On Lookout. An instruction that tells the jury that unless the injured boy “was in a position of peril a sufficient length of time to have enabled those in charge of defendant’s car to stop, or so check the same as to avoid striking and killing him, in the exeicise of ordinary care on their part, and with the means and instrumentalities at hand,” etc., does not leave out of view the duty of the motorman to be on the lookout to discover the peril, but in effect concedes that he saw the dangpr as soon as it occurred and excuses him only on the ground that he did not have time after it occurred to stop the car.
    4. -: Stopping Car: Dragging Injured Person. An instruction which tells the jury that if “plaintiffs’ son undertook to run across the street” near the middle of a block “in front of defendant’s moving car, and while the same was so close to him as to prevent the motorman, in the exercise of ordinary care, with the means and appliances at hand, from stopping, or checking his car so as to avoid striking him, whereby their said son was killed,” etc., is not erroneous in ignoring defendant’s liability for its charged act of negligence in dragging the child after he was struck, if there was no evidence that the boy lost his life in consequence of having been dragged after he was struck, although there was evidence that he was dragged more than fifty feet.
    5. -: -: -: Excessive Speed. Nor is such instruction erroneous because it failed to require the jury to take into consideration the charge that the car was being run at an excessive and negligent rate of speed, if plaintiffs’ own instruction predicated their right to recover solely on the ground of failure to stop the car and on that theory tried the case.
    6. EVIDENCE: Conclusion of Witness. Conclusions of the witness, as, “There was a sunken place in the bricks there which evidently caused the boy to stumble,” and, “The motorman was looking north as his car went east, and evidently was talking to someone,” are incompetent, and properly excluded.
    7. -: Refusal to Testify Before Coroner: Self-Incrimination. The motorman, whose car struck and killed a boy eleven years old, was asked if he testified at the coroner’s inquest, and he said he had not. He was asked if he was present and said yes. Plaintiffs then produced a transcript of the evidence taken at the inquest, from which it appeared that the motorman was sworn and said: “I don’t care to testify; I might incriminate myself.” Held, that this transcript, on the trial of the damage case, was properly excluded. Whether or not it would have tended to impeach him, it was his high constitutional privilege to refuse to testify at the coroner’s inquest for the reason given, and the court will, not put him under the suspicion of carrying a guilty conscience because he then exercised a privilege the Constitution itself gave him the right to invoke.

      Appeal from St. Louis City Circuit Court. — Lío». Jiohn A. Blevins, Judge.
    Affirmed.

      Richard F. Ralph and Barclay, Shields-S Fauntleroy for appellants.
    (1) (a) Instruction 9 given for defendant is entirely erroneous because it directs a verdict for defendant on the sole fact or finding that- plaintiffs’ son was guilty of negligence in running across the street in front of the car, so close as to prevent the motorman by ordinary care from avoiding striking him. The instruction ignores the issue of defendant’s liability growing out of the facts supporting plaintiff’s allegation that, after the boy was caught by the car, he was dragged an unnecessary distance and thereby killed, because of want of ordinary care in the operator of the car after the child was hit. Under the ninth instruction the defendant was exonerated by a fact which did not control the issue of defendant’s negligence in failing to use care to stop the car after the boy was helpless beneath it, and could no longer avoid danger by his own act. The dragging was the proximate cause of his death (according to the testimony) yet the said ninth instruction for defendant excluded any finding to that effect, as a matter of law. McMahon v. Ex. Co., 132 Mo. 641; Burnham v. Railroad, 56 Mo. 338; Shanks v. Traction Co., 101 Mo. App. 702; Klockenbrink v. Railroad, 172 Mo. 678; Scullin v.'Railroad, 184 Mo. 695; Cin. H. & D. Co. v. Kassen, 49 Ohio St. 230. (b) The instruction is further erroneous because, even if defendant used ordinary care to stop the car and could not do so, “with the means and appliances at hand,” on account of its violation of law in running at a dangerous and excessive rate of speed (above the ordinance limit of ten miles an hour) defendant would be liable, notwithstanding’ the facts found as recited in said instruction. A person cannot with impunity violate law and put himself and his property in a condition to he dangerous to the lives of others, and then claim immunity from the consequences on the fallacy that he then did the best he could to avert them. He is responsible for the natural and proximate consequences of his original unlawful act. K. C. Co. v. Stoner, 51 Fed. 649 (10 U. S. App. 256); Morgan v. Cox, 22 Mo. 373; Karle v. Railroad, 55 Mo. 476; 21 Am. and Eng. Ency. Law (2 Eid.), 480, 481; Clark v. Chambers, 3 App. Cas. (L. R.) 377. (2) The instruction given by the court marked 7 was erroneous in ignoring the issue- arising from the facts of the dragging of the boy for a distance in excess of that needed to stop the car by the use of ordinary care after the boy was entangled in the machinery. It is error to give an instruction which completely ignores and obliterates a material issue in the case, as was here done. Bunyan v. Railroad, 127 Mo. 12; Holden v. Railroad, 177 Mo. 456. (3) The offer of the transcript of the motorman’s refusal to testify at the coroner’s inquest was- excluded by the trial court, contrary to an elemental rule of evidence by which a party is allowed to prove statements or acts elsewhere, contradictory of testimony given by an adverse witness, on laying proper foundation. 1 Greenl. Evid., sec. 462; State v. Downs, 91 Mo. 19; Stacy v. Railroad, 72 Wis. 331; 10 Eñcy. PL & Pr., 287; Selensky v. Railroad, 94 N. W. 272; Handy v. Canning, 166 Mass. 107; State v. Merriman, 34 S. Car. 16; Hamilton v. Coal Co., 108 Mo. 365. The proof offered was also competent to show the defective memory of the witness by proving he had testified at the inquest, when he swor-e he had not. It is certainly proper on cross-examination to test the accuracy of memory of a witness, -and especially of a witness who is the central figure in the scene from which the litigation arises.

      Boyle do Priest and Edward T. Miller for respondent.
    The court did not err in giving defendant’s instruction numbered 9. Boyd v. Railroad, 105 Mo. 371; Holwerson v. Railroad, 157 Mo. 216; Tanner v. Railroad, 161 Mo. 497; Moore v. Railroad, 176 Mo. 528.
   In Division One.

VALLIANT, P. J.

Plaintiffs’ son, who was about eleven years old, was struck and killed by one of defendant’s street cars and plaintiffs sue to recover damages under section 2864, Revised Statutes 1899, alleging that the accident was caused by the negligence of defendant’s motorman operating the car. On the trial the verdict of the jury was for the defendant, judgment in accordance with the verdict, and the plaintiffs have appealed.

The petition alleges that while plaintiffs’ son was crossing the street, he accidently stumbled and fell on the track of defendant’s railroad, and while he was in a condition of danger and endeavoring to get off the track, a car of defendant’s ran upon him and dragged him more than fifty feet, in consequence of which he received injuries of which he died. Following the general averment there are six specifications of negligence:

1. ' Running the car at a dangerous rate of speed, so that it was not under reasonable control;

2. Running at a rate in excess of fifteen miles an hour in violation of a city ordinance forbidding the running faster than eight miles an hour;

3. Failing to give signals by bell to warn the boy of the approaching car;

4. Failing to use ordinary care to discover the boy on the track in time to avoid the accident;

5. Failing to use ordinary care to stop the car after discovering him in a position of danger; and,

6. Failing to stop the ear after the collision, so as to avoid dragging him along the track under the car.

The answer was a general denial and a plea of con-tributary negligence.

Plaintiffs’ evidence tended to prove as follows:

■ Defendant operated a double-track street railroad running east and west in Laclede avenue. On May 25, 1902, about 7:30 o’clock in the evening, plaintiffs’ son, ten years, eleven months and three days old, was in the act of crossing the street from the south to the north side; when in the south track of the railroad he stumbled and fell, and while he was endeavoring to get up he was struck by an east-bound car, carried under the car and dragged along the track a distance estimated by various witnesses from sixty to ninety-two feet, when the car was stopped. The child received such injuries that he died soon after. When he fell on the track the car was fifty to fifty-five feet distant, no bell was being rung, the car was going twenty to twenty-five miles an hour, the motonnan was not looking forward, his face was towards the north and he seemed to be talking to someone on the front platform. The city ordinance limited the rate of speed of the car at that place to ten miles an hour. A witness for plaintiffs who had been in the employ of the defendant, and was the conductor of the car when this accident occurred, but who was not in the service of the defendant at the time he testified, gave it as his opinion that if the.car had been going at the rate of ten miles an hour it could have been stopped by using the reverse within five or ten feet, and if going at fifteen or twenty miles an hour, within fifteen or twenty feet. The place of the accident was not a street crossing, it was opposite house No. 3010 Laclede avenue, between Garrison and Cardinal avenues. Garrison avenue is thirtieth street, and Cardinal avenue is thirty-first.

On the part of the defendant the testimony tended to prove as follows:

The ear was going east on the south track. It stopped at Cardinal avenue to take on some passengers. The distance from Cardinal to Garrison avenue is about three hundred feet; it was a Sunday evening about 7:30 o ’clock. The car was crowded with passengers. After leaving Cardinal avenue the car had gained a speed of eight or ten miles an hour, and when it reached a point about twenty-five feet west of the point on the south sidewalk where the boy was, he ran quickly from the sidewalk, aiming to cross the tracks in a northeasterly course, and when he came to the south track he stumbled and fell; when he fell the car was within eight or ten feet of him. The first time the motorman saw the boy was when the latter “leaped from the sidewalk.” (to use the motorman’s words) and started running towards the track, when the motorman applied his reverse and sounded his gong, but “the overhead blew out,” and then the motorman resorted to the brake and the sand box and did everything he could to stop the car and did stop it in forty or sixty feet, which was the shortest space in which it could have been stopped under the circumstances. Defendant’s testimony also tended to show that the quickest method of stopping a car is by use of the reverse; that, however, is attended with danger and when the ear is full of passengers it is not resorted to, except to save life, or to avert some serious accident. "When the reverse is to be used it must be used quickly, and sometimes when it is applied (to use again the language of the motorman) the overhead blows out and the electric appliance becomes inoperative — useless — and when that happens the motorman must resort to the hand brake.

The motorman gave no explanation of the term “the overhead blew out” but as it related to an applianee that was within common knowledge of persons familiar with trolley cars, counsel on both sides seemed to assume that the jury understood it, as doubtless they did. This is what we understand he meant:

In the operation of the trolley car the electric current drawn from the wire on the outside, passes through a device called the “current braker” fixed against the inside of the roof or hood of the car just overhead.where the motorman stands; its office is to prevent an excess of the electric current flowing through the' motors. An excess of the current causes this device to open, and while open no current can pass through. When it opens there is a flash and a report, and the motive power for the time being is gone. This is what we understand by the motorman’s term “the overhead blew out.” At all events, according to the motorman’s evidence,' when that occurred which he described as “the overhead blew out,” there was no mechanical power at his command except the hand brake and the sand box.

The controller, by means of which the current of electricity that propels the car is controlled, is operated by the motorman with his left hand, the reverse with his right hand, the hand brake with his right hand,’ and the sand box with his foot, so that the reverse and the brake could not be applied at the same time, and after the “overhead blew out” the motorman had to begin to apply the hand brake, the first move in which was to take up the slack, and this was done as quickly as possible.

There were some exceptions taken to the ruling of the court concerning certain points of evidence, which will be considered in the course of the opinion.

The plaintiffs asked several instructions which were given, in two of which they set out the issues under which, if the finding was in their favor, they were entitled to recover.

The first of those instructions was to the effect that if the plaintiffs’ son was “hit and dragged” by the ear and so killed, and if after the motorman, if he had exercised ordinary care, would have seen the boy in a position of danger in front of the car, and if there was then time and space sufficient by the exercise of ordinary care in which to stop the car before it hit the boy, and the motorman failed to do so, the verdict should be for the plaintiffs.

The second instruction was to the effect that if the car was running in excess of ten miles an hour, and that rate of speed was the cause of the death of the child while he was exercising ordinary care, the plaintiffs were entitled to recover.

Another instruction for plaintiffs defined the term “ordinary care,” and another related to points not in controversy.

Of the instructions given for defendant those numbered 4, 5, 6, 7 and 9 are complained of.

I. Instruction 4 is as follows: “With respect to the alleged negligence of defendant in operating its car at a high and excessive rate of speed, you are instructed that under the ordinances of the city of St. Louis, defendant had the right to operate its car at the place mentioned in the testimony at a rate of speed not exceeding ten miles per hour. Before, therefore, you can find against the defendant on account of the excessive speed, you must find either that defendant operated its car in excess of the speed of ten miles an hour, or at such a speed which under the evidence and circumstances given in the testimony, amounted to' negligence, and unless you so find, and also further find that such excessive or negligent speed was the cause of the death of plaintiffs’ son, then plaintiffs are not entitled to recover on account of such speed.”

Plaintiffs interpret this to mean that the jury were instructed that defendant had the absolute "right to run its car then and there at the rate of ten miles an hour regardless of the circumstances. That is a misunderstanding of the instruction. Plaintiffs in their petition had counted on the ordinance and at the' trial, to obviate the necessity of introducing the ordinance in evidence, it was admitted by counsel on both sides in open court that the speed limit fixed by the ordinance was ten miles an hour. The plaintiffs having invoked the ordinance as one of the measures of speed to be observed by defendant, the latter had the right, in view of the admission, to have the jury instructed that so far as the ordinance was concerned defendant had the right to run its ear at the rate of ten miles an hour. But the instruction did not say that the car could be lawfully run ten miles an hour regardless of the circumstances; its natural meaning was, that if the car was not run in excess of ten miles an hour there was no violation of the ordinance, and it said, if the car was not run in excess of ten miles an hour or at such a speed which under the circumstances shown in the evidence amounted to negligence, the plaintiffs could not recover on the issue as to speed. We find no fault with that instruction.

II. Defendant’s instruction 5-is as follows: “With respect to the failure to sound the gong, or to give warning of the car’s approach, you are instructed that siich warning is not required under all circumstances, and before you can find against defendant on account of failure to sound its gong, you must find that failure to sound its gong under the facts and circumstances' in the testimony, would have amounted to negligence, and not then unless you find that failure to so sound its gong was the cause of the death of plaintiffs’ son.”

The plaintiffs’ criticism of that instruction is that it tells the jury that they cannot find for the plaintiffs on the issue as to the sounding of the gong, unless they find that the failure to sound the gong was the cause of the accident, instead of saying that it caused, or was one of the causes contributing to the accident.

Viewing the instruction as an abstract proposition the criticism is not entirely without merit. Where several acts of negligence are charged, either one of which, it is alleged, caused or contributed to cause the accident, the jury ought not to be instructed that, unless they should find one particular act to have been the sole cause of the accident they should disregard it entirely. But the defendant in drawing this instruction followed exactly the charge in the petition where it is said that in consequence of the failure to sound the bell the boy was hilled.

There was evidence for plaintiffs tending to prove that the bell (or gong) was not sounded, and there was evidence for the defendant that as soon as the motorman saw the boy leave the sidewalk running towards the track he sounded the gong to give the alarm.

The accident did not occur at a regular crossing where people were to be expected to be found crossing the street, and there is no circumstance shown in evidence which would indicate that it was the duty of the motorman to ring the bell at that point, unless the appearance of the boy on the scene created a condition that made it his duty.

According to the plaintiffs’ evidence the boy was running from the sidewalk towards the track; the distance from the curb to the south rail of the track where he stumbled and fell was 10 feet 8 inches. There was nothing to call the motorman’s attention to the boy until he left the sidewalk, and all that the motorman could do to avoid the accident had to be done while the boy was running the distance of ten feet eight inches. How fast he was running the evidence does not show, but the motorman’s time limit for action was compressed within the period of time that the boy consumed in running ten feet eight inches. Another fact to be considered in judging the motorman’s conduct in the emergency is, that when the boy reached the track he stumbled and fell, and the inference is not unreasonable that, but for the fall, he would have crossed over safely. Whether we take the plaintiffs’ testimony that at the moment the boy fell on the track the car was fifty or fifty-five feet distant and coming at the rate of twenty or twenty-five miles an hour, or that of the defendant, that when the boy “leaped from the sidewalk” the car was not more than twenty-five-feet distant and going at a rate not more than ten miles an hour, in either emergency the time space for the motorman’s action was very brief. If the contention is, that the point in which the motorman failed in his duty, was to use proper exertion to avoid the injury after he saw the child fall on the track, then we cannot well see what good the sounding of the gong would have done in that emergency.

The complaint of this instruction is that it tells the jury that they cannot find for the plaintiffs on account of failure to sound the gong, even if they should find there was such failure, unless that fact caused the death of the plaintiffs’ son. The instruction in that form follows the plaintiffs’ allegation in the petition where the negligence in that particular is alleged, not as one of the acts that caused or contributed to cause the accident, but as the cause of the catastrophe. This may be a very narrow criticism of the plaintiffs’ petition in that particular, but it is exactly the same criticism that the plaintiffs make of this instruction. And the plaintiffs’ instructions in submitting the questions of negligence touching the two acts on which they ask a verdict in their favor are precisely in the same form; defendant has in this respect only followed where plaintiffs led.

The plaintiffs ’ counsel do not seem to have thought that the failure to sound the gong, if there was such failure, was a fact of any importance in the case, for they did not ask an instruction submitting that question to the jury. The jury are to look to the instructions, not to the pleadings, for the issues. The only issues in reference to defendant’s negligence submitted to the jury under plaintiffs’ instructions, related to the alleged failure to stop the car in time to avoid the accident, and running in excess of the speed ordinance. There is nothing in instruction 5 of which plaintiffs have any right to complain.

III. Defendant’s instruction numbered 6 is as follows: “With respect to the charge of negligence that the defendant’s motorman failed to stop its car after plaintiffs’ son was in a position of peril, you are instructed that this principle of law does not apply, unless the plaintiffs’ said son was in a position of peril a sufficient length of time to have enabled those in charge of defendant’s car to stop, or so cheek the same as to avoid striking and killing plaintiffs’ said son, in the exercise of ordinary care on their part, and with the means and instrumentalities at hand for so stopping said car.”

The complaint of that instruction is, that it is said that it leaves out of view the duty of the motorman to be on the lookout to discover the peril. That is a misunderstanding of the instruction. The instruction in effect concedes that the motorman saw the danger as soon as it occurred and excuses him only on the ground that he did not have time after it occurred in which to stop the car with the means and instrumentalities at hand. In this respect it is less favorable to the defendant than if it had introduced the question of whether the motorman, by the exercise of ordinary care, could have discovered the danger sooner than he did. There was sufficient evidence to support the instruction.

IV. Defendant’s seventh instruction is also criticised. That instruction was to the effect that if the jury find from the evidence that the hoy was of sufficient age and intelligence, judging him by the standard of boys of his age, to appreciate the danger and that he went upon the track without looking or listening so close to the car that the motorman by the exercise of ordinary care could not stop' in time to avoid hitting him, the defendant was not liable. The criticism is that it does not deal with the question of dragging after hitting the boy, the instruction is otherwise unassailed. The same point is urged against defendant’s ninth instruction, which we will presently consider.

V. Defendant’s instruction 9 is as follows: “The court instructs the jury that if they find from the evidence that the plaintiffs’ son undertook to run across the street in front of defendant’s moving car, and 'while the same was so close to plaintiff as to prevent the motorman in the exercise of ordinary care with the means and appliances at hand, from stopping, or checking his car so as to avoid striking the plaintiffs ’ said son, whereby plaintiffs ’ said son was struck and killed, then plaintiffs are not entitled to recover and your verdict must be for the defendant. ”

Of that instruction it is said that it ignores the liability of defendant for its alleged act of negligence in dragging the child after he was struck.

Whilst the petition charges and the evidence proved that the boy was struck and dragged and thereby received injuries of which he died, yet there was nothing in the evidence that would have justified the submitting of a proposition to the jury that the boy lost his life not in consequence of having been struck by the car but in consequence of having been dragged after he was struck. If the jury had found from the evidence that the boy had fallen upon the track so close to the coming car that the motorman could not have avoided the collision, yet had rendered a verdict for plaintiffs on the theory that it was the dragging that caused the injury, the verdict would have been based on mere conjecture. If the evidence had raised such a question this instruction did not eliminate it from the case but only omitted to submit it; the instruction dealt only with the charge that the defendant failed to stop its car in time to avoid striking the boy and told the jury that if the plaintiffs’ son was struck and killed under the conditions in the instruction mentioned the defendant was not liable.

And in this respect also the defendant followed the theory contained in the plaintiffs’ instructions. The plaintiffs asked no instruction presenting the question that they now say this instruction ought to have presented.

It is said that this instruction is also faulty because it leaves out of view the question of excessive or dangerous speed. In other words, the contention is, that although the boy may have come on the track so close to the approaching car that it was impossible for the motorman to stop it in time to avoid the accident, yet if that impossibility was caused by the excessive speed of the car the defendant is liable. We need not discuss that proposition because there was no such theory advanced by the plaintiffs in the circuit court, ■either in their pleadings or instructions. True it is, the petition alleges that the car was being run at a dangerous speed, and in excess of the limit prescribed by the ordinance, and that such speed contributed to cause the accident, but it is also true that the plaintiffs allege in their petition, in the fifth specification of negligence, that the motorman was negligent in failing to use ordinary care to stop the car after he discovered the boy in danger at a sufficient distance to have permitted the car to be stopped before hitting .him. And that was the theory on which the plaintiffs asked a verdict in their favor; they said in their first instruction if the jury believe from the evidence that plaintiffs ’ son was killed in consequence- of being hit and dragged by the car and “was so killed by reason of the failure of said agent of defendant to use ordinary care to stop said car after said agent by exercising ordinary care could have discovered that said boy was in a position of danger in front of said car, and was in a place w;here he would be hit by said car as it moved eastward ; and if your further believe from the evidence that after said agent of defendant could have so discovered said boy, in a position of danger as aforesaid, there was time and space sufficient to permit said car to be stopped by said agent of defendant before hitting said boy, had said agent exercised ordinary care to stop said car and that nevertheless said agent failed to exercise such care,” etc., then the defendant was liable. Now the defendant’s instruction follows the same theory and tells the jury that, if the boy came on the track so close to the car that the motorman could not stop it in time to avoid the collision, defendant was not liable. Defendant’s'instruction only accepted the issue which plaintiffs tendered in their instruction. There was no error in that instruction.

VI. One of the plaintiffs’ eye-witnesses to the accident, a young lady, narrating what she saw, said: “He stumbled there — .” Counsel for defendant objected that the witness was stating a conclusion,'the court sustained the objection and the plaintiffs excepted. This is assigned for error. As it appears literally on the face of the record (and the stenographer has doubtless recorded it just as it occurred) the objection follows the words, “He stumbled there,” but reading what immediately precedes those words we see,that the objection related to the preceding statement and not to those words. Taking the witness’s statement on that point in full this is what she said: “He (meaning the child) went direct through Gordon’s east gate and started across the street, and just as he got inside the eastbound track he stumbled; evidently as I found later there was a hole where the bricks had been sunken was what caused the child’s fall. He stumbled there— Mr. Hocker: I object to that as a conclusion. The Court: Objection sustained.” Thus we see that although the objection came after the witness had started another sentence yet it was aimed at what she had said in the sentence which she had just ended, interrupting the oue she was just beginning. What the witness said as to the cause of the boy’s falling was her conclusion, and that is what the objection referred to. The same witness had just before said that the boy stumbled and she said it two or three times afterwards and no objection was made. The motorman, a witness for defendant, also said that the boy stumbled and fell on the track. There was no error in that ruling.

VII. This same witness, who was standing on the steps in front of the house in which she lived, which was on the south side of the street, testified that the motorman was not looking towards the boy but his face was turned towards the north, “There were persons on the platform and he evidently was talking to someone on the platform.” Defendant’s counsel objected to that statement as a conclusion and the court sustained the objection. That is assigned for error. We see no fault in that ruling.

VIII. The motorman was a witness for defendant and gave his account of the accident. On cross-examination he was asked if he had testified at the coroner’s inquest and he answered, “No.” “Were you present at the inquest? A. . Yes.” The counsel for plaintiffs then produced and showed to the court what purported to be a transcript of tbe evidence taken at tbe coroner’s inquest in which it appeared that this motorman was sworn as a witness and had in answer to questions stated his name, residence and business; he was then asked to state all about running over this boy, whereupon he said: “I don’t care to testify; I might incriminate myself.” The court on objection of defendant ruled that that statement should not go to the jury. That is assigned for error.

The court’s ruling on that point was correct. The statement of the witness that he had not testified at the coroner’s inquest was substantially true and as the witness evidently understood it it was entirely true. Plaintiffs were not entitled to have the jury in this case draw an inference to the prejudice of the defendant from the fact that the motorman through caution, or timidity for his own sake, would decline to testify before the coroner. He had just gone through the distressing experience of having killed a child, and though he may have been entirely conscious of having done everything in his power to prevent it, yet the distressing fact remained; the law did not compel him to speak, and he declined to do so, but that was his personal affair, with which the defendant had nothing1 to do.

The contention of plaintiffs is that the evidence was competent as tending to impeach the witness; the inference they would draw is that if he had not been afraid of incriminating himself he would have told a different story at the coroner’s inquest from that which he told at this trial, and the fact that he declined for that reason to testify puts him under the suspicion of carrying a guilty conscience and authorizes the jury to discredit his testimony. The right of the motorman to refuse to testify under the circumstances stated was a personal right of such high importance that it is expressly guarded in the Constitution itself. It is there given absolutely and unequivocally, yet we are now asked to declare that it is a right which the citizen will exercise at his peril, the peril of being branded with suspicion, the peril of having it brought up against him to impeach himself if he should ever assert his innocence. Such a ruling would be a gross impairment of the constitutional right; because it would burden it with a dangerous consequence. Not only is this, right given in the Constitution but the General Assembly in dealing with another feature of the same subject has shown its high appreciation of it. In section 2637, Revised Statutes 1899, the right of an accused person to testify in his own behalf is given, but to guard the person from suspicion for failing to avail himself of that right that section is immediately followed by one which expressly forbids an invidious inference to be drawn from that fact, and forbids any reference to it being made by court or counsel. The courts have no right to brand as- criminal or suspicious an act which the law unconditionally and unequivocally authorized to be done.

In the brief of counsel for plaintiffs several authorities are cited as supporting their contention, but as we understand those cases there is only one that sustains the position, that is, Commonwealth v. Smith, 163 Mass. 411. In that case the defendant, an alderman, was indicted for engaging in a conspiracy to solicit bribes in connection with his official duties. On the trial the defendant was a witness in his own behalf and testified in effect that he was innocent of the charge; on cross-examination, over his objection, the trial court required him to answer whether he did not refuse to testify before the grand jury on the ground that he might incriminate himself. The Supreme Court of Massachusetts held that that was not error. But in discussing the subject that court pointed out a peculiarity of the law of that State which is quite different from the law of Missouri. The court said: “In this Commonwealth, the cross-examination [of a defendant] is not restricted to matters inquired of in chief. He may he cross-examined like other witnesses. He may be questioned as to all. incriminating circumstances, and he must answer all such questions as are relevant to the subject of the charge against him. Whatever he has said or done, or omitted to say or do, which is relevant, may be inquired into.” Even if our law did not, as it does, limit the cross-examination of a defendant in a criminal case to the matters in relation to which he had testified in chief, we- would not say that a man who had only availed himself of a high personal privilege which the Constitution had given him was for that reason to be stigmatized with suspicion of guilt or have it brought up to discredit him as a witness when he avails himself of the right given him by law to testify in his own behalf. We must not interpret this provision of our Constitution as if it was designed to protect the guilty nor should we presume that one who avails himself of it is hiding his guilt. The object of the law is to protect the innocent and the law still covers the man with the presumption of innocence even when he refuses to give testimony that might be turned against himself.

The trial court committed no error when it refused to allow this evidence to go to the jury to impeach the motorman as a witness.

We find no error in the record. The judgment is affirmed.

All concur, except Judge Woodson dissents from paragraph Vin.

In Banc.

PER CURIAM:

The foregoing opinion delivered in Division No. one, with paragraph VIII re-written, is adopted as the opinion of the Court in Banc.

All concur, except Woodson, J., who concurs in all except paragraph VIII, as to which he dissents.


source: Caselaw Access Project

author: BURGESS, J.

license: Public Domain

text:
    OZARK CITY v. MARY WELLS, Appellant.
    Division Two,
    June 11, 1907.
    NO ABSTRACT: Dismissal. A filing of a complete transcript in an ejectment, without any abstract of the record setting forth the evidence, wihich must necessarily be reviewed in order to pass upon the questions involved, there being no index of the manuscript record, nor any reference to the evidence of the respective witnesses in the brief, will not save a dismissal of the appeal for failure to comply with rules 12 and 13.
    Appeal from Christian Circuit Court.— Hon. G. W. Thornberry, Judge.
    Appeal dismissed.

      J. C. West for appellant.

      G. A. Watson and G. Purd Hays for respondent.
   BURGESS, J.

This is an action of ejectment ■ by plaintiff, an incorporated city, against the defendant, to recover possession of that part of the northeast quarter of the southwest quarter of section twenty three, township twenty-seven, range twenty-one, in Christian county, Missouri, beginning at a point fifty feet east of the southeast corner of lot six, block two, in the old town of Ozark, Missouri, thence north 132 feet; thence east 132 feet; thence south 132-feet; thence west 132 feet, to the beginning, known as “The Old Public Square. ’ ’ Ouster is laid May 2, 1900.

The case, by agreement of the parties, was tried by the court, a jury having been waived; and the trial resulted in a judgment for plaintiff for the possession of the land sued for. In due time defendant filed motions for new trial and in arrest, which were overruled, and defendant duly excepted.

While the case is before this court upon a complete transcript, no abstract of the record has been filed, setting forth the evidence of the witnesses, which, because of the state of the record, must necessarily be reviewed by this court in order to pass upon the questions involved. Nor is there any index to the manuscript record, nor any reference to the evidence of the respective witnesses in the brief of appellant. Therefore, for the failure to comply with rules 12 and 13 of this court, the appeal is dismissed.

All concur.


author: FOX, P. J.

text:
    THE STATE v. GEORGE HORN, Appellant.
    Division Two,
    June 11, 1907.
    1. INFORMATION: First Degree Murder. Information, set out in the statement, held sufficient to charge first degree murder.
    2. DYING DECLARATION: Inadmissible Statements. It was error to admit in evidence, as a part of the| dying declaration of deceased, his statement that “Medlock wanted me to go down to arrest George Horn [the defendant] who was druhk and crasy; and he ran his family off from the house. I went down; I went to Medlock’s house first . . . and Medlock said he guessed he wouldn’t have him arrested.” It was also error to admit in evidence a question propounded to deceased, and his answer thereto, as follows: "Q. He fired at you then? A. Yes, sir. Q. And you fired in self-defense? A. Yes, sir.” These statements were hut conclusions of the deceased, were inadmissible, and were calculated to damage the defendant.
    3. INSTRUCTION: Singling Out Particular Facts: Ignoring Defendant’s Rights: Request to Leave Premises. It was error to give an instruction which singled out particular acts of the deceased and gave them undue prominence before the jury, especially since under the general instructions the jury were authorized to consider all the facts. The instruction was erroneous for the further reason that it ignored the right of defendant to request deceased to leave his premises, and ignored the uncontradicted testimony that he did request deceased to leave his premises.
    4. STATEMENTS OF DECEASED: Not Res Gestae. It was error to admit in evidence a statement of deceased, made after the difficulty occurred, “that he did not know what would become of his poor children.” Such statement was not a part of the res gestae, and was incompetent for any purpose.
    5. MANSLAUGHTER: Instruction Favorable to Defendant. Where defendant has asked and obtained an instruction on manslaughter, he can not complain of an instruction on that subject, given by the court, which, if erroneous, is more favorable to him than he is entitled to.
    Appeal from St. Francois Circuit Court. — Hon. Chas. A. Killian, Judge.
    Reversed and remanded.

      Jerry B. Burks and W. S. Anthony for appellant.
    (1) The information does not charge murder. In fact, it wholly fails to charge that Francis Burns, or any other person, for that matter, died from the wounds received at the hands of defendant, George Horn. This is an essential averment, and cannot be dispensed with nor supplied by intendment or implication. State v. Blan, 69 Mo. 321; State v. Hagan, 164 Mo. 654; State v. Sides, 64 Mo. 383; State v. Pemberton, 30 Mo. 376; State v. Wilson, 172 Mo. 423; Kelley’s Crim. Law, sec. 474. (2) The court erred in admitting the dying declaration of Francis Burns. No sufficient foundation was laid to warrant the introduction of said statement; and because it did not purport on its face to be a free and voluntary statement of deceased. On the contrary, it was obtained and drawn ont by a series of leading questions, all of which indicated the nature of the answer desired. State v. Partlow, 90 Mo. 608. (3) The court unquestionably committed serious error in giving instruction 7, at the instance of counsel for the State, for the following reasons: 1. Because it singles out a special fact and makes the whole case turn upon it. 2. It tells the jury that deceased had the right to resist or act, not only as an individual, but as constable or officer as well, when as a matter of fact, he was at no time acting as an officer; his dying statement shows this to be the fact, and the court had, in its instruction 14, so declared. 3. It denies the right of a man to defend his home and person against trespassers, and against those seeking to commit a felony upon persons or property, and makes him a murderer if he does so. 4. It makes defendant guilty of murder in the first degree, if the jury finds that Burns was not a trespasser in going on the premises of defendant, regardless of what he did while on the premises. State v. Rutherford, 152 Mo. 133; State v. Mathews, 148 Mo. 185; State v. Taylor, 143 Mo. 150; State v. Hill, 69 Mo. 451; State v. G-artrell, 171 Mo. 516; State v. Clayton, 100 Mo. 521. (4) The court committed error in permitting Mrs. Bennett to testify that Burns stated in the yard of defendant, after the shooting, that he did not know what would become of his poor children. It was no part of the res gestae and was wholly incompetent for any purpose. State v. Hendricks, 172 Mo. 672. (5) Instruction 4, on manslaughter, given on motion of the court, does not state .the láw correctly and was necessarily contradictory to other instructions given by the court on manslaughter in the fourth degree. It is unintelligible and necessarily had a tendency to divert the minds of the jury from the true issues in the cause.

      Herbert 8. Hadley, Attorney-General, N. T. Gentry, Assistant Attorney-General, and George M. Wilson for respondent.
    (1), The amended information, which was accompanied by. the affidavit of the prosecuting attorney, is sufficient in form and substance. State v. Hudspeth, 150 Mo. 19; State v. Worton, 139 Mo. 532. (2) (a) Defendant’s counsel objected to State’s witness Mrs. Bennett testifying that, immediately after the shooting, the deceased called for help; that she told him she could not help him, but she could get some one who could; and that the deceased said he was going to die, and did not know what would become of his poor children. This evidence was clearly a part of the res gestae, as the conversation was immediately after the shooting; it was an expression of pain, and an opinion that the deceased could not recover, and was. therefore, admissible. State v. Martin, 124 Mo. 514; State v. Hudspeth, 150 Mo. 26; State v. Talbert, 41 S. C. 530; 1 Wharton’s Law of Evid., sec. 259. (b) Defendant’s counsel further objected to the dying declarations, which were offered and read in evidence by the State. But by reading all o£ the testimony of the witness Alexander on the surroundings and statements of the deceased, relative to his having given up all hope of recovery, it will be seen that said declarations were properly admitted. State v. Kilgore, 70 Mo. 551; State v. Parker, 172 Mo.’ 191; State v. • Turlington, 102 Mo. 656; 1 Greenl. on Evidence, sec. 158; 2 Wigmore on Evidence, secs. 1438-1441; 1 Elliott on Evidence, sec. 349; Underhill on Grim. Ev., sec. 103; Whart. Grim. Ev., sec. 276. (3) Instruction 7, asked by the State, is not subject to the defendant’s criticisms, but correctly defines the láw on the subject of deceased’s right to be on defendant’s premises. It is the counterpart of defendant’s instruction 13, which the court gave at defendant’s request. If one of said instructions is erroneous, then both are erroneous; and the error in one off-sets the error in the other, in which event defendant is not entitled to a reversal. State v. Sykes, 191 Mo. 82.
   FOX, P. J.

This cause is brought to this court by appeal on the part of the defendant from , a judgment of the circuit court of St. Francois county, convicting him of murder of the first degree. The conviction and judgment in this case rest upon an amended information filed by the prosecuting attorney of St. Francois county, which was duly verified. Omitting formal parts, it was as follows:

“Now at this day comes George M. Wilson, prosecuting attorney within and for the county of St. Francois and State of Missouri, leave of court having been first had and obtained, and files this, his first amended information.
“Now at this day comes George M. Wilson, prosecuting attorney within and for the county of St. Francois, and State of Missouri, upon his oath of office, and upon his knowledge, information and belief, and informs the court that George Horn, late of the county aforesaid and State aforesaid, on the 4th day of September, A. D. 1905, at and in the county of St. Francois and State of Missouri, with force and' arms, in and upon one James Francis Burns, in the peace of the State, then and there being, feloniously, wilfully, deliberately, premeditatedly and of his malice aforethought, did make an assault; and that the said George Horn, with a certain dangerous and deadly weapon, to-wit, a revolving pistol, then and there loaded with gunpowder and leaden balls, which he, the said George Horn, in his hand then and there had and held at and against him, the said James Francis Burns, then and there feloniously, wilfully, deliberately, premeditatedly, on purpose and of his malice aforethought did shoot off, discharge and with the revolving pistol aforesaid, and with the gunpowder and leaden balls aforesaid, then and there feloniously, wilfully, deliberately, premeditatedly on purpose and of his malice aforethought, did shoot, strike, penetrate and wound him, the said James Francis Burns, in and upon the body of him, the said James Francis Burns, then and there with the dangerous and deadly weapon, to-wit, the revolving pistol aforesaid and the gunpowder aforesaid and the leaden balls aforesaid, giving to him, the said James Francis Burns, in and upon the body of him, the said James Francis Burns, one mortal wound, of which said mortal wound aforesaid, he, the said James Francis Burns, from the fourth day of September, A. D. 1905, until the twenty-third day of September, A. D. 1905, in the county of St. Francois and State of Missouri, and the city of St. Louis and State of Missouri, did languish and languishing did live, on which said twenty-third day of September, A. D. 1905, in the city of St. Louis, and State of Missouri, of the mortal wound aforesaid, then and there did die.
“And so George M. Wilson, prosecuting attorney aforesaid, on behalf of the county and State aforesaid, upon his oath of office aforesaid, and upon his knowledge, information and belief, aforesaid, does inform the court that the said George Horn, him the said James Francis Bums, in the county of St. Francois and State of Missouri, in the manner and by the means aforesaid, feloniously, wilfully, deliberately, premeditatedly, on purpose and of his malice aforethought, did kill and murder, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State.”

To this information there was a plea of not guilty and the defendant, at the May term, 1906, was put upon his trial. We shall not undertake to detail all of the evidence developed at the trial of this cause. It is sufficient, in order to enable us to determine the legal propositions presented, to indicate what the testimony developed at- the trial tended to prove.

The testimony on the part of the State tended to show that on the afternoon of" September 4, 1905, there was a picnic at Elvins, about one mile from Flat Biver, and that Francis Burns was at the picnic, and that witness Carl Norwine told the deceased, who •was constable of St. Francois township, that defendant’s wife, Mrs. George Horn, wanted him to come over to the house and take charge of George and take him to Farmington- until he got sober. After having this conversation with Norwine the deceased went to the house of Mr.' Medlock, the son-in-law of the defendant, and Medlock accompanied the deceased over to the house of the defendant. On arriving at the house of the defendant the deceased and Medlock found the defendant sitting on a couch in the front room2 conversing with a neighbor, Mrs. L. A. Hunt. The defendant at that time was quiet and conducting himself properly. Mrs. Hunt testified that she arrived at Mrs. Horn’s home about 3 p. m., September 4, 1905; that she found Mr. Horn sitting or lying on the sofa in the front room, and while she was talking to him Mr. Burns, the deceased, and Mr. Medlock came in and they were received in a friendly way. Mrs. Hunt further .testified as follows: “I asked Mr. Burns why he had not united with our church during that conversation, and he said, ‘I don’t know,’ was the words, I believe, and he said he ‘wasn’t quite satisfied on the communion question,’ made that remark. -I looked around and there was a Bible lying on the table and I says, ‘Here is a Bible. Let us read something about it.’ During the conversation Mr. Horn left the room and came back while we were talking about the meeting and when he come back Mr. Medlock says, ‘I will go after the ladies,’ and I says, ‘No, don’t go, I am going home.’ He got up and left the room and that left Mr. Horn, Mr. Burns and myself, and I was looking at the scriptures. Q. You were reading the scriptures. Did you read it there? A. ISTo, sir; I didn’t read it. I was looking for the scriptures and while Mr. Medlock was' gone Mr. Horn and Mr. Burns got up and left the room. Q. What door did they get out of? A. Went out of the room door that goes into the hall. Q. Do yon know who went out first? A. No,1 sir; I couldn’t tell you which one went out first because I was looking at the book and didn’t think about them and wasn’t paying any attention to what they was saying or the conversation between them. Q. Did you hear any conversation about going out? A. I didn’t catch the words. I heard nothing about what they were saying to each other. I didn’t catch any of the words at all. Q. Did you hear any suggestion in the room? A. No, sir; I didn’t. Q: Then what transpired, Mrs. Hunt? A. While they was gone out a short time I had looked over my Bible, I had found the chapter — 11th chapter, First Corinthians — and had the Bible in my lap, and I heard talking'out of doors and I got up and stepped into the hall and I looked out of the front door that fronts on Taylor avenue and I saw Mr. Horn standing not far from the corner of the porch. Q. Yes, sir? A. He was standing with his hand dropped down and a revolver in his hand. Q. Where was Burns, if you saw him ? A. I didn’t see him after he left the room. ’ ’

Mrs. Victoria Bennett, a witness for the State, testified substantially as follows:

“Well, I heard Mr. Burns say that he come there to make peace, and didn’t come to have any trouble; that he come to make peace. ‘Let’s settle this business now.’ Horn told him, ‘It is settled. I wish you would get out of here.’ Burns kept talking kind and coming to him — wanted to ‘settle this matter and make peace. ’ Mr. Horn kept telling- him it was already settled, for him to get out, to go outside. He kept backing off from him and Mr. Burns kept crowding up to Mr. Horn and he kept backing off, and he kept backing down — backing down until he got to the front gate. "When he, Horn, got to the front gate it looked to me like he come around to the front side of the house and Mr. Horn swore for him to get outside or he would kill him. I saw Horn with a gun in his hand, and Burns says, ‘If that is the case, I have got .one too,’ and he took a pistol out of his pocket, and drawed a pistol at each other, and Mr. Burns looked like he got kind of mad and they got to talking and they dropped their pistols down to the side, and I didn’t see any pistol for a while. Directly they raised their pistols and fired. Q. Who fired first? A. I am not very positive, but I think Mr. Horn fired the first shot. ’ ’

Witness further testified, over the objection and exception of defendant, that Burns, while lying in the yard of defendant after the shooting, stated that deceased cried and said he “did not know what would become of his poor children.”

Cross-Examination.

Q. During the conversation you say that Horn commenced backing down by the end of the house ? A. Yes, sir.
Q. Away from Burns? A. Yes, sir.
Q. Did Burns say anything about arresting him? A. No, sir; not that I heard.
Q. Nothing said about it? A. No, sir.
Q. He just wanted to make peace? A. Yes, sir.
Q. Now during that conversation was Burns still following Horn up? A. Yes, sir.
Q. Horn was hacking away from him? A. Yes, sir.
Q. Did they have pistols in their hands at that time? A. I didn’t see any at that time.
Q. You don’t know whether they had them in their hands or not? A. They might have had them for all I know. I don’t know.
Q. How far did Horn back away from Burns ? A. He kept backing until he backed down to the front gate.
Q. As they were going back there wasn’t Horn telling him to get out of the yard? A. Yes, sir.
Q. What was Burns doing? A. He told him he didn’t come for trouble, he come to make peace. ‘Let’s talk this matter over,’ he says, ‘and make peace.’
Q. He wouldn’t get out? A. He didn’t get out.
Q. He could have gone out of the gate where you were —. A. Yes, sir.
Q. While Horn was going around the house? A. Yes, sir.
Q. When they got down next to the fence you say Horn turned around? A. Yes, sir. •
Q. Didn’t he go around a peach tree? A. A peach tree or flower bush, yes, sir.
Q. Why didn’t Bums go out of the front gate? A. I don’t know. I never asked him.
Q. Didn’t he start around towards Horn again? A. Yes, sir.
Q. And Horn swore if he wouldn’t get out he would shoot him? A. Bums kept coming just the same.
Q. He kept coming just the same? A. Yes, sir.
Q. Then you discovered them with pistols? A. Yes, sir.
Q. You say they raised their pistols —? A. Yes, sir.
Qv Then dropped them to their side? A. Yes, sir.
Q. Didn’t Horn again tell him to get out of the yard? A. Yes, sir.
Q. And he didn’t go? A. No, sir.
Q. You don’t know who fired the first shot, though? A. I think Horn fired the first shot.
Mrs. Margaret Tyson, on behalf of the State, testified as follows:
Q, What attracted your attention over there first? A. I heard some one quarreling, somebody fussing. I didn’t understand it, though.
Q. You didn’t understand it? A. No, sir.
Q. Next you say you saw the shooting? A. Yes, sir, the shooting.
Q. Was there any interval between the times of this shooting at all? A. Sir?
Q. Was there any space of time elapsed between the shots? A. No, sir; as soon as the shooting started.
Q. It was rapid, was it? The shooting was quick? A. Awfully quick. Five shots were fired.

Joseph Alexander, introduced by the State, was an uncle of the deceased and testified concerning' the statement read in evidence as the dying declaration of the deceased, over the objections and exceptions of the defendant. The statement containing the dying declarations of the deceased was read in evidence. It was as follows:

Q. Do you realize, Mr. Bums, you are in the presence of death and that you have no hopes of living? A. Yes, sir.
Q. Do you -know you are about to meet your Maker? A. Yes, sir.
Q. Your name in full is James F. Burns? A. Yes, sir.
Q. Where do you live? A. Flat River.
Q. What was your position in Flat River? A. I was constable.
Q. Of what township ? A. St. Francois.
Q. Just state in your own way as briefly as you can how this trouble occurred? A. Well, a fellow came after me — • . ' . •
Q. What is his name? A. Carl Norwine; I was up in Elvins and William Medlock wanted me to go down to arrest George Horn, who was drunk and crazy; and he ran his family off from the house. I went down; I went to Medlock’s house first; we went down to Medlock’s brother-in-law, Covington.
Q. What did you find there? A. And Medlock he said he guessed he wouldn’t have him arrested; he did not have no warrant anyway.
Q. Where did you find Horn? A. Found him at his own house.
Q. What occurred there? A. We went in and sat down a little bit and Medlock says, “Well,” he says, “I will go down and get the folks and bring them up — ”
Q. What did Horn do ? A. Horn still sat there.
Q. Where was he sitting? A. He was sitting on the sofa.
Q. What were the first words between you and Horn? A. After Medlock left he called me out and asked me if Medlock didn’t bring me up there.to investigate that trouble. I says, “No;” “Yes,” he says, “He has and God damn him I am going to kill him.” “Now,” I says, “Look here, George, I wouldn’t do anything like that.” I says, “Let’s talk this over.” I says, “Let’s talk it over.” He says, “I don’t want to talk with you at all, ’ ’ and he grabbed his pistol and I couldn’t say which one shot first.
Q. Did you see him draw his pistol? A. Yes,
Q. Did you have your pistol drawn at that time? A. No, sir.
Q. You saw him draw his pistol before you got yours? A. Yes, sir.
Q. Then when you saw him draw his pistol and raise it in a threatening manner, you drew your own? A. Yes, sir.
Q. You say you cannot tell who fired first? A. Cannot tell who fired first.
Q. And you are sure you saw him draw his pistol and cock it before you attempted to draw your pistol? A. Yes, sir.
Q. He fired at you then? A. Yes, sir.
Q. And you fired in self-defense? A. Yes, sir.
Q. How many shots did he fire? A. I couldn’t say. • •
Q. You were struck by one of his shots? A. One of his shots.
Q. This gun was in the hands of George Horn? A. Yes, sir.
Q. That was in St. Francois county, Missouri?
A. St. Francois township, St. Francois county, Missouri.
Q. You realize, as I said at first, you make this statement with the knowledge that death is impending? A. Yes, sir.
Q. Did you ever previous to this time have any trouble with Horn personally? A. No, sir.

There were other witnesses introduced by the State, but their testimony does not materially conflict with the testimony as hereinbefore indicated; therefore, we deem it unnecessary to reproduce it. The testimony of the State further tended to show that the wound inflicted upon the deceased was fatal and that his death resulted from such wound.

On the part of the defendant the sheriff, James J. Croke, testified concerning the appearance of the revolver of the defendant. He stated that only two cartridges had been fired and that two of the chambers had never been nsed.

The defendant, George Horn, testified in his own behalf, and his testimony was partly as follows:

Q. What is yonr name? A. George Horn.
Q. Yon are the defendant in this case? A. Yes, sir.
Q. How old are yon, Mr. Horn? A. I will be fifty-fonr. the sixth day of this month.
Q. Yon are a son of Joe Horn, the old gentleman here? A. Yes, sir.
Q. Nephew of John Horn? A. Yes, sir.
Q. How long have yon lived in this connty? A. . I have lived here fifty-fonr years pretty near.
Q. Did yon know Francis Bnrns — ? A. Yes, sir.
Q. In his lifetime? A. Yes, sir.
Q. Were yon at yonr home in the afternoon of September 4, 1905 — ? A. Yes, sir; I was.
Q. When Francis Bnrns came to yonr honse? A. Yes, sir.
Q. What were yon doing when he came in? A. I was sitting in the room talking to Mrs. Hnnt when he come in.
Q. How long had Mrs. Hnnt been there when he came in? A. Jnst a few minntes. I don’t remember.
Q. Who came in with him? A. William Med-lock.
Q. William Medlock. Did they knock at the door? A. I don’t remember. I think — I don’t think they did. I think they come right on in.
Q. After Mr. Bnrns came there what happened in the room while Mrs. Hnnt was there? A. Well, her and I was talking something abont a meeting, protracted meeting going on there — I don’t know whether in a tent — Baptist meeting anyway, whether in church or tent. They come in and spoke just as I gave them chairs and they sat down and the subject went on about the same. They was talking about the meeting.
Q. Well, what was said by Mr. Burns to her in your presence, if you know? A. She asked him about why he didn’t come up and join the Baptist church. He said that he didn’t agree with the Baptists on close communion. I think that is the way he said.
Q. Then what next happened in the room? A. She says • — • she was sitting close to the .center table. She says, “Here is the Bible. I will explain it to you and show you that we are right. ’ ’
Q. Well? A. About that time I heard a noise out in the dining room and I had had that pistol in there trying to get the hulls out of it and I thought it was my little grandson in there and I got up and went out and Mr. Burns followed me.
Q. What did he say when you went out, if you remember? A. I picked it up. There was lying in the dining room a small screw driver, about that long (indicating) and a little pair of compasses, and with them I “was taking it to pieces. I didn’t know how else to get them out, and as I went in I walked past the table and picked them up, all three, and went out of the1 dining room out on the porch. There is a cistern right here, and there is a walk here to the alley gate, and there was a walk out here to the wood house (indicating), and I always kept it in my tool chest.-
Q. You kept it in a tool chest. You say “tool chest,” are you a mechanic or carpenter? A. Carpenter.
Q. By trade? Well, go ahead. A. When I went out of this door I saw him come from the hall through this door into the dining room; That was the first that I knew he was coming and I looked out at the cistern — the cistern stands right over here — to see if the dipper was on top of it, thinking he was coining for a drink of water, and I didn’t say anything at all. I walked this way a little, ont this walk out here, and about the time I started over here, before I got there, he says, “Put that down” or “drop it.” Something to that amount, I thought he was just joking. We was always friends and I thought he was joking at me and I didn’t pay any attention to it. Just about the time I turned on that walk, he says, “I tell you to stop,” and I stopped and when I turned around he had his pistol. He didn’t have it by the handle but had it about the middle of it. He says “Come here,” motioning for me to come to him, and I started to go to him and I asked him if he wanted to arrest me and he said he did not. The first time I asked him he didn’t answer. The next time he said he didn’t. He says, “I don’t want to arrest you,” hut he kept telling me to come to him. He looked like he was excited and I asked him what was the matter and he just kept motioning this way (indicating). He says “You come here,” motioning this way with his pistol, and I suppose I got as close as this table to him and I thought he was going to hit me- over the head with the pistol, and I says, “Burns, I ain’t coming any closer.” He says, “I don’t want to arrest you. I want to talk to you.” I says, “I can hear you.”
Q. What further was said? A. When I said that he stepped a few steps towards me and I stepped a few steps back. I was on the walk that runs out to the alley gate and he was on the walk that goes to the cistern.
Q. That was in the back yard? A. Yes, sir. I stepped down off of the walk into the yard here and I says, “Burns, I don’t want you to hit me with a pistol,” he says, “I don’t want to arrest you. I want to talk with you and make peace with you.” I says, “Bums, we were always friends. There is no peace to make,” and I says, “I want yon to get out of the yard. I ain’t going to let you hit me.” I kept backing around this way thinking to get into the front door and get into the house. When I got about half ways he come down the walk and I got along at the end of the house and he got between me and the front door. When I come along here nearest the house I just backed off a little, down this way closer to the fence, away from the house. Of course I was excited. I says, “Co away until you are at yourself and not excited and come back here and I will talk to you all day.” And he says, “I will do it.” I started then back — I was about twenty feet from the house, and I started back to the back part around the house. He was between me and the front door and close to the walk. I don’t know whether on the walk or not, but when I started back he started to follow me again. He was right at the gate. I says, “Burns, don’t follow me any more.” I says, “I have run all over the yard from you and I ain’t going to run any further.”
Q. What position was he in when you shot him? A. Of course, when I stepped up to the bay window, that throwed the corner of the house between me and him, and he left the gate and come up> fifteen feet in the yard and a little closer to the end of the house and the fence and where he could see me, and he threw his gun up that way again and when I seen him do1 that I throwed my gun right up this way and fired.
Q. What position was his pistol in when you shot him? A. Had it right up to my head.
Q. Pointed at you? A. Yes, sir.
Q. Do you know how many shots he fired, Mr. Horn? A. No, sir, I don’t know. I think four. I wouldn’t say positively.
Q. Do you know how many you fired? A. Yes, sir.
Q. How many? A. I shot one.
Q. How do you know that, Mr. Horn? A. I know I only fired one, and I know there was only two in the gun.

The testimony in this ease also shows that the defendant was seriously wounded by shots fired by the deceased during this difficulty. The first bullet fired by the deceased at the defendant burned the defendant as it glanced across his wrist and entered the side of the house; another shot fired by the deceased at the defendant wounded the defendant in the left side of the stomach, the ball passing out the right side of the stomach. The defendant, after being arrested, was taken to the Sanitarium at Farmington, where his wounds were treated. There was other testimony tending to show that two bullet holes were found in the side of the house near the southeast corner and near where the defendant was standing at the time of the shooting.

This is a sufficient statement of the nature and character of the testimony upon which this cause was submitted to the jury. At the close of the evidence the court instructed the jury upon murder of the first and second degrees, manslaughter in the fourth degree,’and upon self-defense, credibility of witnesses, presumption of innocence and reasonable doubt, and upon other subjects to which the testimony was applicable. We will give due consideration to the objections to the admissibility of testimony as well as the challenge to the correctness of the instructions during the course of the opinion. The cause was submitted to the jury upon the testimony as introduced upon the trial and the instructions of the court and they returned a verdict finding the defendant guilty of murder of the first degree. Timely motions for new trial and in arrest of judgment were filed and by the court overruled. Sentence and judgment followed in conformity to the verdict, and from this judgment the defendant in proper form and due time prosecuted his appeal to this court, and the record is now before us f.or consideration.

OPINION.

The record before us discloses numerous assignments of error as a basis for the reversal of the judgment in this cause. We will give such consideration to the complaints of appellant as their importance and the importance of the case réquires.

I.

The sufficiency of the information upon which this judgment is predicated is challenged. We have carefully considered this information and analyzed the allegations contained in it and it is sufficient to say upon this question that in our opinion, while the form of the charge may be subject to some criticism, it substantially charges every essential element necessary to constitute the offense of murder of the first degree, and fully informed the defendant of the nature and cause of the accusation against him; .therefore, the ruling upon this assignment of error must be adverse to the appellant.

II.

It is next insisted that the court erred in admitting the dying declarations of Francis Burns. This subject has frequently had the attention of this court and it is not out of place to say that there is no subject applicable to the rules of evidence that has received more careful consideration than the one relating to the admission of dying declarations in evidence. The uniform expressions of this court in a long line of well-considered cases has been that this character of testimony ought to be admitted with appropriate care and should he received with great caution. The rule as applicable to this class of testimony has been so firmly established in our jurisprudence that it is hardly necessary to cite authority upon the subject. In Smith v. State, 9 Humph. l. c. 17, the rule was thus clearly and forcibly announced as applicable to this subject. Turley, J., speaking for the court, said: “Testimony of this character is only admitted from necessity, and an abuse of it is guarded against by the law with most minute particularity.” This court, in State v. Johnson, 118 Mo. l. c. 502, quoted approvingly what was. said by Byies, J., wherein this rule was announced and the reasons clearly set forth upon which it is predicated, that “dying declarations ought to be .admitted with scrupulous, and, I had almost said, with superstitious, care. They have not necessarily the sanction of an oath; they are made in the absence of the prisoner; the person making them is not subject to cross-examination, and is in no peril of prosecution for perjury.”

If we are to heed the admonition of the court as indicated in the clear announcement of the rules' applicable to this subject, as herein indicated, and undertake with minute particularity to guard against an abuse of the rule applicable to the admission of dying declarations in evidence, we see no- escape from the conclusion that at least a part of the statements made by the deceased and admitted in evidence as dying declarations were inadmissible. The- statments to which we allude as being clearly incompetent and inadmissible were as follows:

“Q. Just state in your own way as briefly as you can how this trouble occurred? A. "Well, a fellow came after me —
“Q. What is his name. A; Carl Norwine; I was up in Elvins and William Medlock wanted me to go' down to arrest George Horn, who was drunk and crazy; and he ran his family off from the honse. I went down; I went to Medlock’s house first; we went down to Med-lock ’s hr other-in-law, Covington.
“Q. What did you find there? A. And Medlock he said he guessed he wouldn’t have him arrested; he didn’t have no warrant anyway.”

That such statements as made by the deceased as dying declarations are inadmissible, in our opinion, is too plain for discussion. Such statements are but a conclusion presumptively drawn from what Norwine or Medlock told him as to the condition of the defendant and as to his improper conduct. Equally objectionable is the question propounded to and answered by the deceased when making his dying declarations in which he was asked: “Q. He fired at you then? A. Yes, sir. Q. And you fired in self-defense? A. Yes, sir.'”

While the deceased in a dying declaration might detail anything that occurred, it was no part of his province to determine by the doing of a particular act that he did it in self-defense. That statement was a mere conclusion and should have been excluded. The conclusion reached as to the admissibility of the portion of the dying declarations herein indicated is fully supported in the case of State v. Elkins, 101 Mo. l. c. 350, 351. This court, speaking through Judge Black, after ruling that a sufficient showing had been made as to the condition of the deceased at the time of making the dying declarations to render them admissible, said: ‘£ The difficulty, however, arises over the answer of the witness to the question propounded by the State on re-examination. The deceased is here made to say: Defendant ‘picked a fuss with me, and was running over me, and, because I did not want him to, he killed me. ’ This statement covers and includes all that transpired in the house and thereafter up to the time defendant shot. It is the only evidence introduced by the State as to what transpired in the house. It is not a narration of facts, and was not designed as such by the declarant, but it is a statement by the deceased of his conclusions as to the whole matter. The declarations of a deceased person are admissible only as to those things to which he could testify, if sworn in the cause, and he should state facts and not conclusions. Now, we are aware that such general conclusions often drop from a witness, and, when they are made by a witness on a witness stand so that there may be a full examination and cross-examination, they seldom furnish a ground for a reversal of a judgment. But here the witness, who is speaking, could not be examined or cross-examined, and his conclusions as to what transpired in the house are not accompanied with a statement of the facts. All of the facts covered by these conclusions of the deceased were susceptible of narration. The evidence elicited by the State on re-examination should have been excluded, that is to say, that part of it last quoted. It was for the jury, and not the witness, to draw conclusions. ’ ’

As to what weight or influence this incompetent testimony in the nature of a dying declaration had upon the jury, we are unable to say, and in a case where the results are of such a serious character we are unwilling to indulge in a guess or surmise as to the influence such improper statements had upon the jury in reaching their verdict; at least we are unwilling to say that the statements as made by the deceased as a part of his dying declaration, that William Medlock wanted him to go down to arrest George Horn who was drunk and crazy, and who had run his family off from the house, were entirely ignored by the jury, and if we were permitted to indulge in surmises, we would be inclined to say that this testimony was calculated to damage the defendant in the trial of this cause. Emphasizing the error of the admission of this portion of the dying declaration o'f the deceased, it is practically conceded that the deceased , did not go to the house and premises of the defendant as an officer, or-that he was in any way acting in his official capacity. The trial court who heard all of the testimony relating to the action and conduct of the deceased, plainly instructed the jury that “the deceased, Francis Burns, while at the house and on the premises of the defendant at the time of the difficulty, was not there in the capacity of an officer, nor performing any duty per-taining to his office, and in determining the, guilt or innocence of the defendant, you should disregard the fact that deceased was at such time constable of St. Francois township.” The admission of those portions of the dying declarations as herein indicated was,manifestly erroneous and they should have been promptly excluded.

Learned counsel for appellant complain of the action of the court in giving instruction 7. This instruction was as follows:

“The court instructs the jury that if you believe and find from the evidence that the defendant, just prior to and at the time of the alleged homicide, was attempting, without just cause or provocation, to assault the deceased with a pistol, and that deceased had good reason-to believe and did believe that defendant was about to kill him, or to do him some great bodily harm, then, and in that event, deceased, either as an individual or as a constable or officer, had the right to resist said assault and defend himself, and did not have' to leave the premises of defendant in order to do so, notwithstanding you may believe and find from the evidence that the premises belonged to defendant, and that defendant was at the time ordering and did order deceased to leave the premises, provided you find that deceased rightfully and peaceably entered upon said defendant’s premises. ’ ’

To the giving of which said instruction defendant by his counsel objected and excepted at the time and before said instruction was read to the jury.

It is sufficient to say of this instruction that in our opinion it has no place in the trial of this cause and should not have been given. In the first place, the deceased was not upon trial, and under the other general instructions in the case it was the province of the jury to fully consider his acts and conduct and determine whether or not such acts and conduct were of such a character as afforded any justification on the part of the defendant to take his life. Therefore, it was error to single out particular acts and conduct of the deceased and give them undue prominence before the jury. Particularly is this true in view of the fact that the jury under the general instructions applicable to the difficulty were fully authorized to consider all the facts in the case. This instruction is also erroneous for the further reason that it ignores the right of the defendant to request the deceased to leave his premises and further ignores the fact that, as is shown by the uncontradicted testimony, he did request the deceased to leave his premises, and if the deceased, as is practically conceded in this case, was not there in his official capacity, the instruction is also erroneous in ignoring any reference as to what should have been the action of the • deceased under those circumstances when requested to leave the premises. It also ignores the fact that the defendant had the right to request the deceased to leave his premises, whether he entered upon them peaceably or wrongfully. Now, while it is not to be understood as the opinion of this court that the defendant had the right to kill the deceased because he requested him to leave his premises and he refused such request, we simply indicate that the fact that he had a right to make such request and that it was the duty of the deceased to heed it, are absolutely ignored in the instruction now under consideration. It is unnecessary to pursue this subject further. We simply repeat that the instructions of the court which required that the defendant should be justified in killing the deceased before he was entitled to be acquitted, fully submitted to the jury for their consideration every act done by the deceased and as to whether or not his acts furnished any justification on the part of the defendant for taking his life.

IV.

It is next insisted that the court erroneously admitted in evidence by the witness Mrs. Bennett, a statement of the deceased after the shooting occurred, “that he did not know what would become of his poor children. ’ ’

This was a statement made by the deceased after the difficulty was over and was no part of the res gestae; it had no tendency to pi’ove or disprove any of the issues presented in this trial, and was wholly.incompetent for any purpose, and was simply calculated to inflame the minds of the jury, and should have been excluded by the court. •

V.

Finally, it is insisted that the court erred in giving instruction 4 on manslaughter in the fourth degree. Upon this grade of the offense the court gave two instructions, one of them instruction 13, requested by the defendant, of which it necessarily follows there can be no complaint. Instruction 4 was as follows

“The court instructs the jury that if you believe and-find from the evidence in this .cause that at the county of St. Francois and State of Missouri, at any time within three years before the 2nd day of November, A. D. 1905, James Francis Burns approached the defendant in a threatening manner and assumed an attitude which gave the defendant good reason to believe, and that he did believe, that the said James Francis Burns was then and there about to assault him with a revolver and strike him with the same, but not under such circumstances as to justify the defendant on the ground of self-defense as defined'in these instructions, and that such assault by said Bums provoked on the part of the defendant a sudden heat of passion, and that while still in such heat of passion and before the blood had time to cool defendant shot the said Burns, giving the said James Francis Burns a mortal wound, from which said mortal wound' the said James Francis Burns within one year thereafter, at the city of St. Louis and State of Missouri, died, then you will .find the defendant guilty of manslaughter in the fourth degree and assess his punishment at imprisonment in the penitentiary for a term of two years, or at imprisonment in the county jail for a term not less than six months nor more than twelve months, or at a fine of not less than five hundred dollars or at both a fine of not less than one hundred dollars and imprisonment in the county jail not less than three months nor more than twelve months.”

It is sufficient to say of this instruction that while it may be subject to some criticism in its recitation of the -facts upon which is based the arousing of the sudden heat of passion on the part of the defendant, yet we take it that as appellant was given an instruction upon that grade of the crime in a form requested by him, and as instruction 4; if in any way erroneous, is more favorable to the defendant than he was entitled to under the uniform rulings of this court, he is in no position to complain of that instruction.

We have thus indicated our views upon the main propositions disclosed by the record before us. It is unnecessary to say that this is a serious case. The result of the trial in the lower court was a judgment inflicting the highest penalty known to the law, that of death, and a judgment so serious in its results can only be justified after a fair and impartial trial free from any substantial error. That tbe deceased, James Francis Burns, did not go upon the premises of tbe defendant with tbe avowed purpose and intention of doing bim any personal injury, we are of tbe opinion tbe testimony fully shows. However, it must not be overlooked that tbe deceased, according to tbe testimony and tbe instructions of tbe court, was not in tbe discharge of any official duty, but simply acting as a plain, ordinary citizen, and that this difficulty occurred upon tbe premises of tbe defendant, respecting which tbe law guarantees to bim certain rights. We are unwilling to say that the penalty of death should be inflicted upon tbe defendant until every element of the offense of murder of tbe first degree has been established in a trial which, at least, is free from substantial error affecting bis rights. Hence tbe conclusion follows that tbe ends of justice would be best subserved by awarding tbe appellant a new trial in which the errors herein indicated may be avoided. It follows, therefore, that tbe judgment of tbe trial court should be reversed and tbe cause remanded, and it is so ordered.

All concur.