author: BUEGESS, J.

text:
    THE STATE v. ALBERT M. CRONE, Appellant.
    Division Two,
    February 18, 1908.
    1. DYING DECLARATIONS: Affirmative Ruling Thereon. Tbe fact that the court sent the jury from the room when evidence was offered by the State tending to show dying declarations by the deceased, and heard the evidence in respect thereto, and then had the jury recalled and allowed the evidence to be submitted to them, was equivalent to an affirmative ruling by the court that such declarations were primarily admissible.
    2. -: -: Instruction: Asked by Defendant: Nothing Else Left for Him to Do. The instruction given in this case admits in no uncertain language that the statement made by deceased to her mother was a dying declaration, and tells them the facts necessary to be found by them to constitute it a dying declaration and the proper weight to be given to it, and having been asked by defendant he cannot convict the trial court of error in giving it on the ground that “there was nothing left for him to do but to obtain the most favorable instruction possible upon the theory of law advanced by the court” that the dying declaration “is finally left to the jury and I think under the testimony I should let it go to them.”

      3. HEARSAY: Objection: Incompetent. An objection tbat proffered testimony is incompetent, irrelevant and immaterial, amounts to no objection at all, and bence where tbis was tbe only objection made to tbe testimony of witnesses to tbe effect tbat a witness wbo was with deceased at tbe time she was assaulted bad made statements connecting defendant with tbe assault, tbe Supreme Court cannot consider tbe competency of their testimony.
    4. CIRCUMSTANTIAL EVIDENCE: No Instruction. It is only where tbe State relies upon circumstantial evidence alone tbat. an instruction on such evidence should be given. So where tbe deceased made a dying declaration tbat it was defendant wbo assaulted her, and tbe young man wbo was with her said' tbe assault was committed by defendant, although be bad often contradicted tbat statement before testifying, yet, the. credibility of bis testimony being for tbe jury, tbe court did not err in refusing to' give an instruction on circumstantial evidence. >
    Appeal from Jackson Criminal Court. — Norn B. J. Casteel, Special Judge.
    Affirmed.

      Harlan, Jeffries, Wagner & Corum for appellant.
    (1) The court erred in admitting the declarations of deceased in evidence. The statements of the mother were admitted on the theory, we presume, that it was a dying declaration, hut how it can he so interpreted we do not understand. It appears that the mother asked deceased two questions in one sentence, (T) If she were going to get well, and (2) if she (deceased) were going home with her. The record shows that deceased replied, ‘‘uh uh.” Now, in the first place, it appears to us that the answer was affirmative; that deceased signified her belief that she was going to get well. But if not an affirmative answer, it certainly cannot be distorted into a negative one. Construed most favorably for the State, it cannot be said to amount to anything more than a grunt, and how such an answer as deceased made could be construed by any court that there was an absolute conviction in the mind of declarant that death was imminent, we cannot conceive.. There is no evidence that deceased made any preparation for death — no evidence that she was under the impression that the end of her life was near — no evidence even of consciousness on her part — she was terribly wounded — in such condition that the medical men who testified as experts relative to it, were of the opinion that one wounded as she was could not have a lucid interval. And the nurses who attended her while at the hospital were of the opinion that she was not rational at any time. Before declarations of this character can be introduced in evidence, it must be affirmatively shown and must clearly appear that the statement offered in evidence was made under a full realization that the solemn hour of death has come and the court must be satisfied that the declaration was made under an impression of almost immediate dissolution; there must not merely be an actual nearness of death, but there must be an absolute conviction in the mind of the declarant that death is impending and almost immediate. The declarations introduced in this case do not meet any of requirements of the law. State v. Simon, 501 Mo. 374; State v. Johnson, 118 Mo. 491; State v. Parker, 90 Mo. 629'. (2) The question whether a dying declaration is made under a sense of impending death is for the court. The court here did not pass upon the admissibility of this evidence. That is made clearly manifest from- the remarks of the learned trial judge. That the court did not intend to pass on the admissibility of this evidence and that he intended to leave it, and did leave it to the jury, is clear. Defendant was clearly entitled to the judgment of the trial court upon this preliminary question. State v. Zorn, 202 Mo. 12; State v. Simon, 50 Mo. 370; State v. McCanon, 51 Mo. 160. (3) The court should have instructed on circumstantial evidence. The evidence was largely circumstantial. The only direct evidence that defendant committed the crime was the testimony of Kern. And on account of his benighted mental vision, due, probably, from the serious wounds he received, or to some other cause, his testimony was not entitled to any consideration whatever. His testimony, standing alone, carried no conviction with it.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) The court did not err in refusing an instruction on circumstantial evidence. State v. Donnelly, 130 Mo. 649. - (2) The court did not err in admitting- in evidence, over the objection of defendant, the dying declaration of deceased. It appears in evidence that deceased was conscious, recognized her mother, stated that she was almost dead, and when asked if she was going to get well and go home with her mother, she answered, “No,” and answered in the affirmative a question as to whether or not she was, going to die. In this condition and under these circumstances, she repeated three or four times that the person who struck her was Bert Crone. The fact that declarant was in great pain and at times unconscious and taking- opiates, would not make the declaration incompetent. 4 Ency. Ev., p. 9'34. The evidence clearly shows that declarant was in extremis and made the declaration under the belief of impending death. She could not talk plainly on account of the injury to her mouth and face, but at different times she was rational and recognized and spoke to those who were present, though with difficulty. 1 Greenl. Ev. (14 Ed.), sec. 158.
   BUEGESS, J.

At the September term, 1906 of the criminal court of Jackson county, the prosecuting attorney of said county filed an information charging the defendant with having killed and murdered one Bertha Bowlin, at said county, on the 19th day of July, 1906. For want of time to try the cause, the court ordered it continued, and set the same for trial on the 4th day of February, 1907. On the 10th day of January, 1907, at the January term of said court, the defendant filed a demurrer to the information, also a motion to quash, which demurrer and motion to quash were overruled by the court, exceptions to such rulings being saved.by the defendant. At the same term the defendant filed an application for a change of venue from the judge of said court, which was granted, and the court ordered that the Honorable B. J. Casteel, judge of the criminal court of Buchanan county, be requested to sit as special judge in tbe trial of tbe cause, before wbicb said special judge, at said January term of said court, tbe defendant was put upon bis trial, convicted of murder in tbe second degree, and bis punishment assessed at eighteen years in the penitentiary. The defendant filed motions for a new trial and in arrest of judgment, which were overruled, whereupon he appealed to this court.

The deceased, Bertha Bowlin, was an unmarried woman, about twenty-one years of age, and resided at No. 1014 Jefferson street, Kansas City, Missouri, with her mother, a widow, who sewed for a livelihood, and lived with her family in a few rooms of the house which she had rented, the remainder of the house being sub-rented by her to other families who occupied the same. The house was near the summit of a bluff or bluffs which front west, toward the Kaw river, a short distance from the boundary line between this State and the State of Kansas. Near the home of the deceased was a driveway called the Kersey Coates Dtriveway, built by the city, beginning near the intersection of Twelfth and Jefferson streets, and extending in a southerly direction along the sidle of the hluffs to Seventeenth street, a distance of about half a mile. On the east side of the driveway, which was about fifty feet wide, there was a gutter and curb, and between the curb and an acclivity on that side there was a strip of grass from fifteen to twenty feet in width. On the same side of the driveway, near where the extension of Fourteenth street would have intersected it, there was a catch-basin, and about 150 yards east was an electric light which shed some light on the west side of the driveway, leaving the east side, near the catch-basin, in the shadow. West of the driveway, and between it and a precipitous bluff, was a narrow strip' of ground used as a sidewalk.

The defendant lived with his parents at No. 1407 Madison street, in said city, a few blocks distant from the home of the deceased, and was about twenty years of age at the time of the homicide. He had known the deceased for a number of years, was much in her company, had become jealous of her affections and intolerant of rivalry. He became dissipated and dissolute in his habits, a frequenter of saloons and bawdy-houses, and, according to his own statement, the first time he met the deceased was in a house of ill-fame. The year before the homicide, Mrs. Bowlin, mother of the deceased, refused to permit the defendant to enter her house to see her daughter. At this he became very angry, and threw bricks at the door and through a window of the house, one of the bricks striking Miss Bowlin, the deceased, on the arm. He threatened to kill her many times if he saw her with another, and told her if she could not go with him she could not go with anyone else. He violently assaulted her upon two occasions. Once, in the presence of witnesses, he knocked her down with a brick, and while she was prostrate on the ground he bent over her and beat her with, his fists, at the same time calling her vile names and threatening to kill her. In October and November, 1905, while in the State of California, the defendant wrote deceased letters which were read in evidence, and in which he made threats as to what he would do if he found her in another’s company. In one of these letters he upbraided her for going'with another, and said, “I am only 1,750 miles from home, but can make it in a short time. You know I am not coming 1,750 miles for nothing, and you will find i.t out;” and again, “As sure as 1 come back to Kansa's City and I ever see you I would have to talk to you, and there would be some trouble in sight, and that would be just what I would want; just for a minute or two, and then it would be all over.” He came back to Kansas City, and, as he had threatened, made an assault upon the deceased, after which assault he wrote her a letter, dated December 14, 1905, in which he said: “I leave to-night for Las Vegas, New Mexico, now I think we are about even. I think you done me dirty, .and I was only getting even.”

Prank Kern, who was with the deceased at the time of the homicide and who was also violently assaulted, lived with his parents in apartments rented from Mrs. Bowlin, in the same house in which the latter resided. In the summer of 1906', Kern commenced paying attention tO' Miss Bowlin, and walked out with her occasionally. He had seen the defendant a number of times, and knew him by sight, and had seen him in a drunken condition in front of Mrs. Bowlin’s house shortly before the homicide. About eight o’clock on the evening of the 19th of July, 1906, Kern and his two brothers were out walking when he saw Miss Bowlin at Twelfth and Summit streets, near their home. As he started across the street to join Miss Bowlin, he saw the defendant standing on the street corner, recognized him plainly, -and the defendant said, “Hello.”. Kern and the girl walked sonth on the driveway, and sat down on the catch-basin heretofore mentioned. It was not yet quite dark. They sat there talking for about half an hour, during which time several persons passed and saw them. When it was getting dark two men, one of whom was the defendant, were seen walking in the direction of, and near to, the place where Kern and Miss Bowlin were sitting. Two witnesses who saw the defendant at the time and place stated, and who did not know him by name at the time, afterwards identified him, and picked' him out of a number of prisoners at the county jail without hesitancy. One of the two' men seen .going in the direction of the catch-basin was . carrying what appeared to be a cane, but which resembled a piece of gaspipe found near the' scene of the homicide, and which was offered in evidence as the weapon with which the homicide was committed. The night before the homicide, one of the defendant’s associates saw him standing by the curbstone, not far from Miss Bowlin’s home, and when he asked the defendant to go and take a drink, the latter said: “No, Mack, I have a gaspipe here, and I am going to get a guy with it. ’ ’ One of the State’s witnesses, however, a street car conductor, testified that on the evening of the homicide he saw two men at Twelfth and Washington streets, not far from the driveway, one of whom was carrying a piece of gaspipe and using it as a cane. The witness got into conversation with the man, and the later said: “If yon had a sweetheart, and was gone away a long time and had come back, and there was another man going with her and lying on you, wouldn’t; yon beat him and beat him until yon beat him to death ? ’ ’ He also heard the man say to the other man, who was standing on the opposite corner of the street, “Come on, Henry; let ns go.” Henry replied, “Go back to the Tralle,” and witness further heard Henry say, “We will get them on the drive.” The conductor, however, testified that he knew the defendant, he having seen him on his car, and that -he was not the man with whom he had the said conversation. It developed during the trial that one Charles Henry was an associate of the defendant, and was also charged with the murder of the young woman.

As Kern and Miss Bowlin were starting to go home, Kern was struck on the side of the head from behind. He turned and grappled with his assailant, but another seized him by the shoulder, and he was again struck and rendered unconscious by the blow. He recognized the defendant as the man he saw and grappled with at the time. About nine o’clock, the night of the homicide, a dog belonging to a Mr. New-comb, and chained back of his house, near the foot of the bluffs, below the catch-basin, broke loose twice and ran off in the direction of the place where Miss Bowlin was found next morning. Mr. Newcomb went after his dog each time and brought him back, on one of which occasions he saw two men running north from near the point where the young woman was found. About daybreak, next morning, a boy found Miss Bowlin, almost unconscious, tying on the wet, muddy ground, at the foot of the bluffs, below the catch-basin. Her face was covered with blood,- her clothes smeared with mud, and though still alive, she was unable to do more than move her head a little. She was taken to the hospital, where she died next day at about one p. m., having lived about thirty-six hours after she was found, fatally wounded. At the hospital she called for her mother, who soon came and remained with her until her death. She recognized her mother, and in answer to a question as to who struck her, answered, “Bert Crone,” and kept repeating the word “Bert,” which was the name by winch the defendant was known.

The post-mortem examination disclosed a fracture of the skull, above the left ear. A piece of bone an inch and a half wide and two and a quarter inches long was crushed in and found loose and detached from the surrounding bone of the skull. Her face was crushed or caved in, her nose broken, and her left arm, between the elbow and wrist, broken and hanging loose. The attending physicians testified that death was caused by the fracture of the skull and the resulting hemorrhage of the brain.

It does not appear in the record where Kern was found, but it does appear that he was rendered unconscious by the blow on the head, and that he was brought to the hospital in an unconscious condition a half hour later than the deceased; that there was a fracture of the skull, near the base, causing a hemorrhage from both ears, and that he did not regain consciousness for about two weeks. Kern was interviewed and harassed a good deal, after he left the hosiptal, by the defendant’s attorneys and others, to whom he made conflicting statements, and stated on one or two occasions that Crone was not the man who assaulted him. At the trial, however, he stated that he had received threatening letters, and positively identified the defendant as his assailant.

The defendant was a witness in his own behalf, and testified that he went to a saloon called the Tralle saloon, owned by Thomas Tralle, in said city, a little before six o’clock the evening of the homicide, and remained there drinking and playing cards until after midnight. In this statement he was corroborated by several of the attaches of the saloon. It was in evidence that there was a large number of men in the saloon that evening and night, but, besides the men who were employed in and about the saloon, the only witnesses who testified to seeing the defendant in the sa.loon that evening were James Pigg and Clarence B. Fuller. The former testified that he saw the defendant in the saloon ahont six o’clock, and the latter, who was a friend of the defendant, testified that he went to the saloon about 9:15 o ’clock that evening, and saw the defendant playing cards there, and that the defendant was still in the saloon when witness left, at about 11:45 p. m.

It is claimed by defendant that the court erred in admitting in evidence, over the objection of the defendant, testimony as to statements made by the deceased a few hours before she died, to the effect that the defendant assaulted her as charged in the information, without having, first, passed upon its admissibility.

The record shows that Mrs. Mattie Bowlin, mother of the deceased, testified as a witness in behalf of the State, and after testifying that she was with her daughter, the deceased, at the hospital the morning after the assault, remaining with her until next day, and that her daughter recognized and talked some with her, the witness was asked by the attorney for the State if she had a conversation -with her daughter and heard her “say anything about whether or not she felt that she could get well.” Counsel for defendant objected to the question on the ground that it was suggestive and said.that the proper way to inquire would be to ask what was said. Thereupon the court said: “I think possibly this ought to be made in the absence of the jury.” The jury was then withdrawn from the courtroom, and the examination of the witness proceeded with. To the last question propounded to her, she answered, “Yes, sir.” She then made a detailed statement of what occurred between herself and the deceased at the hospital, and was cross-examined by defendant’s counsel. Mr. Whitsett, of counsel for defendant, finally announced that he did not want to cross-examine the witness further on this point. The prosecuting attorney then excused Mrs. Bowlin for the time being, the jury returned to their places, and the trial proceeded. Thereafter Mrs. Bowlin was recalled and the following ensued:

“Q. Yon said yesterday you had a talk with your daughter before she died? A. Yes, sir.

“Q. Tell the jury what conversation you had with your daughter about her condition. A. I asked her how she felt; she said awful bad. I asked her if she wasn’t going to get well and go home with me. She said, ‘Uh, uh.’ I asked her if she was going to die. She said, ‘Uh, uh.’ I asked her if she couldn’t open her mouth and tell me who it was that hit her and hurt her so badly last night. She said, ‘Hu, hu.’ I said, ‘Who was it?’ She said, ‘Bert.’ I said, ‘Bert who?’ She said, ‘Bert Crone.’ I said, ‘Bert did this, Dovie?’ She said, ‘Sure.’ She emphasized it.

“Q. What was the condition of her mouth? A. The upper lip was cut through, and the jaw bone was fractured, and that made her teeth a little loose. That kept her from talking very distinctly at times; at times she could push her teeth up, and she could speak as distinctly as I'am. ”

The fact that the court sent the jury from the room where the case was being tried when evidence was offered by the State tending to show dying declarations by the deceased, and heard the evidence with respect thereto, and then had the jury recalled and allowed the evidence to be submitted to them, was equivalent to an affirmative ruling by the court that such declarations were primarily admissible. Moreover, in the absence of the jury, the court remarked: “This is a matter that is finally left to the jury, and I think under the testimony, I should let it (that is, the dying declaration) go to the jury;” and thereupon the court directed the return of the jury, and the evidence with respect to said declarations was submitted to them, with all other evidence in the case. The court would not have used the word “finally” if he had not already held the evidence admissible.

We recognize the rule upon this subject announced in State v. Zorn, 202 Mo. 12; State v. Simon, 50 Mo. 370, and State v. McCanon, 51 Mo. 160, to the effect that whether or not dying declarations offered in evidence are in fact dying- declarations, and admissible as such, is a question to be passed upon by the court. In this' instance, that is what the court did. Not only this, but upon this question the defendant asked and the court gave the following instruction:

“8. The court instructs you that the statement put in proof by the State claimed to have been made by Bertha Bowlin on the morning of the day upon which she died, was competent evidence, if the jury find and believe that at the time she made such statement (if you find that she did make such statement) she was suffering from the wounds of which she subsequently died, and that at the time of making such statement believed that death was imminent and near at hand and had given up all hope of recovery, and if you further believe from the evidence that said Bertha, Bowlin, at the time of making such statement, if you find she did make such statement, her mind was clear, and that she was able to recall the circumstances attending the infliction of the injury upon her, and that she knew what she was doing, and it would be your duty to consider such statement as the dying declaration of the said Bertha Bowlin, and you should give it such weight as you justly think it entitled to upon a consideration of it along with all the other facts and circumstances disclosed by the evidence in the case. You should consider, however, that such statement was not made in the presence of the defendant, that the declarant was not subject to cross-examination by the defendant, or counsel for him, and that the jury had no opportunity to observe the manner of the deceased at the time such statement was made, and that she was not subject to prosecution for perjury if such statement, or any part of it, is untrue, and if the jury believe from the evidence that the deceased at any other time or times made statements contradictory of or inconsistent with such dying declaration (if the jury believe from the evidence such dying declarations were made), or that she was laboring under the influence of drugs administered to alleviate her condition to such an extent as to cloud her mind, then such contradictory or inconsistent statement and her condition at the time of making the statement introduced in evidence should be considered by the jury in determining the weight to be given to such dying declaration.”
This instruction admits in no uncertain language that the statement made by the deceased on the morning of the day upon which she died was competent evidence, and then proceeds to tell the jury the facts necessary to be found by them to constitute a dying declaration, and the weight to be given it by them in passing upon the guilt or innocence of the defendant. This instruction having been given at defendant’s request, he cannot now convict the court of error upon the ground that “there was nothing left for him to do but to obtain the most favorable instructions possible upon the theory of law advanced by the court. ’ ’

Defendant claims that error was committed in permitting the State to introduce witnesses to testify as to what Kern, a witness for the State, had told them with reference to the homicide. Kern was in the company of the deceased at the time she was assaulted, and was also assaulted at the same time by the same person or persons, and seriously injured. He testified that he recognized the defendant as one of the assailants, and, according to the testimony of other witnesses, he made the same statement to them immediately upon his return to consciousness after- the assault upon him. On cross-examination, he was asked if he had not stated at different times that he did not know either of the persons who made the assault, and admitted that he had so stated. On re-direct examination, he explained such contradictory statements by saying that he had received threatening letters, and that the attorneys and friends of the defendant had been annoying him with inquiries as to what he knew, and that he decided to tell them what he did, intending to tell the facts when placed upon the witness stand.

Several of the State’s witnesses testified, over the objections of the defendant, to statements made- by Kern connecting the defendant with the assault, but the objection made to the admission of the testimony, in every instance, was to the effect that it was “incompetent, irrelevant and immaterial. ’ ’ It has been many times held by this court that such an objection is too indefinite and uncertain, and counts for no objection at all. [State v. Wright, 134 Mo. 404; State v. Moore, 117 Mo. 395; State v. Harlan, 130 Mo. 381; State v. Nelson, 132 Mo. 184.]

- A final contention is that the court should have instructed on circumstantial evidence. This insistence is not bottomed upon the theory that there was no direct evidence that the defendant committed the assault, but upon the theory that Kern’s was the only direct evidence, and that he was shown to be unworthy of belief. We are unable'to assent to this. In the first place, w.e do not think Kern "was impeached; besides, his credibility as a witness was for the consideration of the jury under the circumstances in proof. In the second place, this was not the only evidence of the assault, for, in addition thereto, the murdered girl stated to her mother on the morning of the day upon which she died that Bert Crone did it, and the court, at the request of the defendant, instructed the jury that the statement by the dying girl as testified to by her mother was competent evidence. So that the court, either under the testimony' of Kern or the statement of the deceased to her mother, was justified in refusing to instruct upon circumstantial evidence. "While there was considerable circumstantial evidence upon the part of the State tending to show that defendant was guilty of the crime charged against him, it is only when the State relies upon circumstantial evidence alone that an instruction on such evidence should be given. [State v. Moxley, 102 Mo. 374; State v. Robinson, 117 Mo. 649; State v. Donnelly, 130 Mo. 642; State v. Maxwell, 42 Iowa 208.]

The murder was a most brutal one, and the evidence proves beyond question that defendant committed it, wilfully, deliberately and premeditatedly.

Finding no reversible error in the record, the judgment is affirmed.

All concur.


source: Caselaw Access Project

author: GANTT, J.

license: Public Domain

text:
    THE STATE v. WALTER GIESEKE, Appellant.
    Division Two,
    February 18, 1908.
    1. INDICTMENT: Preliminary Examination. The fact that the circuit attorney had filed an information in the court of criminal correction, charging the defendant with murder in the first degree, was no bar to the finding of an indictment by the grand jury, charging him with the same offense, while said preliminary examination was yet under way. The Act of 1905 (Laws 1905, p. 132) does not apply to an indictment, or to such a case.
    2. -: --: Bar. The grand jury may investigate and indict one charged with a felony although he has been arrested and is held for a preliminary examination, and is not bound to await the action of the examining court.
    3. -: -: Procedure First Instituted. Section 2476, Revised Statutes 1899, providing that “that mode of procedure which shall be first instituted by the filing of an indictment or information for any offense shall be pursued to the exclusion of the other,” etc., has reference only to informations filed in the circuit or criminal courts, and not to those filed before a justice of the peace or any other like court in which an examination is held merely for the purpose of binding the defendant over on bail, etc.
    4. -: Pleat in Abatement: No New Arraignment. A plea in abatement and a motion to quash the indictment, filed after arraignment and a plea of not guilty entered, do not have the effect of withdrawing the plea of not guilty, and defendant is triable after an overruling of the motion, without a new arraignment or another plea of not guilty.
    • 5. HOMICIDE: Provocation: Just Cause. Instead of using the words “just cause or provocation” the instruction should tell the jury that “no words of abuse or vile names, however calculated to excite indignation 6r anger, would constitute a lawful and reasonable provocation;” but when the whole instruction obviously means that no words of abuse or vile names were sufficient to reduce the homicide from murder to manslaughter, it is not erroneous, simply because it unhappily uses the words “just cause or provocation” instead of “lawful and reasonable provocation.” The case of State v. Grugin, 147 Mo. 39, is no authority for a legal distinction between “just cause” and “reasonable and lawful provocation,” nor does it overrule the long and unbroken line of authority to the effect that mere words of reproach, however degrading, will not of themselves constitute such a lawful provocation as to reduce a killing from murder to manslaughter.
    6. -: Self-Defense: Instruction. To a full and favorable instruction on self-defense, the court added these words: “Words and epithets, however vile and grievous, will not justify an assault, and if you believe from the evidence that the defendant sought or brought on a difficulty with the said Charles Schaefer with the intent to kill him or do him some great bodily harm, then the defendant cannot justify the killing of said Schaefer on the plea of self-defense.” Held, that the words “with intent to kill him or do him some great bodily harm” modify the words “sought or brought on a difficulty,” etc., and the instruction is correct, and in no sense in conflict with prior rulings of this court.
    7. -: Heat of Passion. The instructions in this case correctly define “heat of passion.”
    Appeal from St. Louis City Circuit Court. — Hon. Moses N. Sale, Judge.

      Affirmed.

      Joseph McCoy, John B. Denvir, Jr., and 8. 8. Bass for appellant.
    (1) It has been declared again and again, and it is one of the well-settled principles of the law of homicide in this State, as well as elsewhere, that “grevious and degrading words of reproach would amount to ‘just .provocation’ as contradistinguished from lawful and reasonable provocation,” and consequently what words of reproach and attendant circumstances will be deemed a just cause of provocation, and constitute the homicide murder in the second degree, is in every case a question of law for the court; and whether the state of mind necessary to make the killing the lowest grade of murder was superinduced by such just provocation, is a question of fact for the jury. Here the jury were told that words would not constitute just cause or provocation on part of defendant, when the only question that the jury was to determine was whether if the words had been used they caused1 such state of mind as to reduce to a lower grade of murder. State v. Grugin, 147 Mo. 39; State v. Ellis, 74 Mo. 207. (2) It is not true as a -matter of law that one loses the right of the plea of self-defense if he sought or brought on a difficulty, as the instruction declares. One may .enter or bring on a difficulty, and be entitled to defend himself on the plea of self-defense, or he may be guilty of manslaughter. State v. Patterson, 159 Mo. 560; State v. Goddard, 146 Mo. 177; State v. Rapp-, 142 Mo. 443; State v. Addler, 146 Mo. 18; State v. Vaughan, 144 Mo. 514; State v. Lewis, 118 Mo. 84. The court in the trial of this case entirely overlooked the principle laid down by this court in the case of State- v. P’artlow, 90 Mo. 608. (3) .'The trial court committed prejudicial error in failing to define “heat of passion.” State v. Strong, 153 Mo. 548; State v. Skaggs, 159 Mo. 581.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) Defendant was not entitled to a preliminary examination, as a matter of right; bnt said preliminary examination is “a mere expedient to prevent the suspected person from escaping, or for preserving the evidence or keeping the witnesses within control.” 1 Bishop’s Grim. Pro. (3 Ed.), sec. 239a; State v. Brooks, 92 Mo. 571. (2) Defendant did not withdraw his plea of not guilty at the time he filed his plea in abatement and motion to quash, or at any other time, hence this matter has been waived. (3) The instructions given are full and fair, and exceedingly liberal towards defendant. The “rough words” said to have been used by deceased were not sufficient to reduce the offense down to the crime of manslaughter. State v. Ballance, 207 Mo. 607. (4) No error was committed in giving the State’s instruction on the subject of the defendant entering into the difficulty with a felonious intent, as said instruction, even in a broader form, has been approved. State v. Bailey, 190 Mo. 257.
   GANTT, J.

On February 5, 1906, the grand jury of the city of St. Louis returned an indictment against the defendant charging him with murder in the first-degree. At the January term, 1907, the defendant was tried and convicted of murder in the second degree and his punishment assessed at ten years’ imprisonment in the penitentiary. His motions for new trial and in arrest of judgment were heard and overruled, and the defendant appeals.

The State’s evidence tended to prove that the defendant was a butcher by occupation and lived in the city of St. Louis. The deceased, Charles Schaefer, and his wife occupied rooms in the second story of an apartment house in said city. The mother of the defendant had done some sewing for the wife of the deceased, and had been delayed in the collection of her account for the same, which amounted to $1.20. About seven o’clock on the evening of November 8, 1905, the defendant, his mother and a younger brother called at the home of the deceased and found him and his wife eating supper. After asking for the money due the mother of the defendant, the wife of the deceased said she was poor and could not pay it all at once, but desired to be allowed to pay it in two or three payments. This was not satisfactory to the defendant’s mother and some words were exchanged between the parties. The deceased told his wife to push defendant’s mother down the stairs and ordered the defendant to leave the place. About that time the defendant drew his pistol upon the deceased, and the latter left the house, saying he was going to get a policeman to arrest the defendant, and walked through a nearby saloon. The defendant waited on the porch of the house of the deceased for awhile, and when asked by the deceased’s wife if he intended to shoot her husband replied, “It is none of your d— business.” After sitting on the porch for sometime with his pistol in his hand, the defendant got up and went into the same saloon through which the deceased had gone, and took two or three drinks of liquor. The deceased had inquired for a policeman in the saloon, and had gone out of another door. The defendant stated to a man in the saloon that he had had1 trouble with the man upstairs trying to collect for some clothing that his mother had sewed for them; that his younger brother had been there to collect the bill and the deceased had threatened to throw him and his mother down the stairs if either of them ever, came there again; that he would not stand for that, and he was going to get even with that man. Defendant then took his pistol out of one pocket and put it into1 another pocket and walked out of the saloon. In a. few minutes the deceased returned to his porch, saying he could not find a policeman, and the defendant said, “I have got you, you son of a b — .” The deceased tried to grab the defendant’s pistol and the defendant fired twice at the deceased, but missed him, the struggle after the pistol was fired continued, and the defendant backed down the stairs out into the yard where he fired three more shots, the third shot taking effect in the body of the deceased. The deceased then went into his room, an ambulance was sent for and he was taken to the City Hospital where he died two days later. The defendant, after the shooting, returned to the saloon, took out his pistol and laid it on the bar saying: “I got my man. ’ ’ After taking another drink the defendant step: ped out on the sidewalk where two policemen arrested him. A post-mortem examination was held on the body of the deceased and the physicians testified that the deceased’s death was- the result of a gun-shot wound, which entered the abdomen two and one-half inches to the left, and about one inch and a half above the navel. The bullet went straight through the body of the deceased.

On the part of the defendant the evidence discloses that he was twenty-four years old and lived with his mother and brother; that he was engaged in business at 1430 Bremen avenue in St. Louis; that he went from his place of business with his mother and brother on the evening of the homicide, to the residence of the deceased; that he carried a revolver with him because he had the receipts of his day’s business, amounting to between sixty-five and seventy-five dollars, with him at the time; that defendant, his mother and brother went into the room occupied by the deceased and his wife at the invitation of the deceased and presented the bill for the sewing; that an argument arose and the. defendant and his mother were ordered out of the place; that the deceased pushed both of them out, took hold of defendant’s mother, called her names and tried to push her over the banisters; that defendant objected and deceased went into the room and got a knife with a blade about ten inches long; that defendant then drew his revolver and told the deceased to lay down the knife, which deceased did, and then defendant put up- his revolver; that deceased then said he was going to get a policeman, and went out for one; that the defendant in a short time did the same thing; that the deceased came back first and waited for the defendant at the foot of the stairs leading to deceased’s room; that the defendant came back, approached the said stairs and called to his mother; that the deceased who had returned in the meantime was concealed from the defendant by the corner of the porch; that as defendant came near the deceased, the deceased began striking him on the head and struck him some fifteen times and knocked him to the ground; that they had then gone back about twenty-five feet from the place where the deceased first struck defendant. The deceased had defendant down and was beating and choking him and defendant drew his revolver and shot the deceased; that the defendant was so stunned that he could not get up for some minutes, but presently got up- and walked into the saloon and gave his pistol to one of the men, and waited until the policemen came and arrested him. There was also some evidence to prove that the. defendant’s general reputation for peacefulness and good order Was good.

The evidence on the part of the State in rebuttal tended to prove that there were no wounds or bruises on the defendant’s head and neck at the time that he came into the saloon after the shooting, nor the next morning at the police station. There was also evidence that the deceased did not have a knife at the time of the difficulty in the room as testified to by the defendant’s witnesses.

The indictment in this case is sufficient both in form and substance and such as has been approved by'this court In Banc in State v. Wilson, 172 Mo. 420, and State v. Gray, 172 Mo. 430, and it is unnecessary to set it out at length in this opinion.

The grounds upon which a reversal is sought will be considered in the order of defendant’s brief in this court.

I. It is urged that the defendant’s plea in abatement was erroneously overruled. This plea in substance was to the effect- that prior to the preparing of the indictment herein by the grand jury, an information had been filed in the St. Louis Court of Criminal Correction by the assistant prosecuting attorney of said court charging the defendant herein with murder in the first degree, and that said court had authority by law to make a preliminary examination of all charges of felony, whether capital or otherwise, committed in the city of St. Louis, and that before said charge was heard and disposed of before the defendant had had his preliminary examination, the circuit attorney of St. Louis had caused the said charge to be heard before the grand jury and the indictment herein had been preferred and the preliminary proceedings in the St. Louis Court of Criminal Correction dismissed, in consequence of which the defendant had been denied a preliminary examination in said St. Louis Court of Criminal Correction. This insistence is predicated upon the act of the Legislature of this State passed- and approved in 1905 (Laws 1905', p. 132, to be known as Sec. 2476a, R. S. 1899'), which provides: “No prosecuting or circuit attorney in this State shall file any information charging any person or persons with any capital offense until such person or persons shall first have been accorded the right to a preliminary examination before some justice of the peace in the county where the offense is alleged to have been committed.” Counsel fox defendant urge that the word “information” in said section should be read “indictment.” It is plain that this is a clear misapprehension of the purpose of that act. The Legislature had in mind, we think, to differentiate between an indictment found by a grand jury after an investigation of the charge with the witnesses before it, and the act of the prosecuting or circuit attorney filing an information charging an accused with a capital offense without the prisoner or accused having had the benefit of an examination of the facts by a grand jury, and intended, in the latter case, to accord the accused the security of a preliminary examination before he should be charged by information for a capital offense. It is a well-established law of this State that the grand jury may investigate and indict one charged with a felony although he has been arrested and held for a preliminary examination, and is not bound to await the action of the examining court, for the reason that the action of the examining .court is no bar to the right of the grand jury to inquire into the case and indict the accused even though he has been discharged on the preliminary1 examination. [State v. Whalen, 148 Mo. 286.] The plea in abatement was properly overruled, as the Act of 1905, upon which it is based, has no reference whatever to indictments preferred by a gfand jury.

Counsel cite us, however, to section 2476, Revised Statutes 1899, which provides: “But that mode of procedure which shall be first instituted by the filing of the indictment or information for any offense shall be pursued to the exclusion of the other, so long as the same shall be pending and undetermined; and the court in which the prosecution shall be first commenced by the filing therein of the indictment or information, and the issuing of a warrant thereon, shall retain jurisdiction and control of the cause to the exclusion of any other court so long as the same shall be pending and undisposed of.” This section has inference only to informations filed in the circuit or criminal courts, which have jurisdiction to hear and determine the guilt or innocence of-an accused, and not to informations filed before the justice of the peace or before the St. Louis Court of Criminal Correction, merely for the purpose of binding the defendant over on bail or committing him to jail to' await the action of a grand jury or the filing of an information in the circuit or criminal court by the prosecuting or circuit attorney. So that the St. Louis Court of Criminal Correction had no power to retain the case before it for preliminary examina ■ tion of the defendant after the grand jury had preferred the indictment in this case.

II. The record discloses that the defendant was duly arraigned and entered his plea of not guilty to the indictment at the January term, 1906, and that afterwards at the December term, 1906', he filed a plea in abatement and a motion to quash the indictment, which has just been considered and which the court adjudged insufficient, thereupon, the cause proceeded to trial. It is now urged that the sentence of the circuit court must be reversed because there was no new arraignment of the defendant after his plea in abatement and his motion to quash had been overruled. This objection is made for the first time in this court; it was not made a ground for a new trial or in arrest of judgment in the circuit court. The, learned counsel for the defendant have cited us to no authority in support of their contention. The record does not state that the defendant withdrew his plea of not guilty by consent of the court when he filed his motion to quash and his plea in abatement, nor was it in fact withdrawn. And this court, in State v. Reeves, 97 Mo. 668, specifically held that a motion to quash the indictment, though filed with the consent of the court and after a plea of not guilty entered, but not withdrawn, did' not have the effect of withdrawing that plea. A motion to quash is in the nature of a -demurrer, which certainly occupies no higher plane; and at common law a defendant in a prosecution for a felony might at one and the same time enter his plea of not guilty to the indictment and his demurrer to the sufficiency thereof and if his demurrer were overruled, he would he triable upon his plea of not guilty just as if no demurrer had been interposed, and this was true of a plea in abatement interposed at the same time with a plea of not guilty. [1 Chitty’s Crim. Law, 435, 440; 2 Hawkin’s P. C., chap. 23, sec. 1281, chap. 3, sec. 6; 1 Bishop’s Crim. Proc., sec. 762; see, also, State v. Meagher, 49 Mo. App. 571; Baker v. State (Wis.), 59 N. W. l. c. 572. We think the point is without authority or merit.

III. The third assignment of error is that the mo-’ tion to quash ought to have been sustained because no preliminary examination had been allowed the defendant before the indictment was preferred and that without such examination the circuit court had no jurisdiction. We have already disposed of this contention in answer to the first assignment of error.

IV. The instruction of the court, in the following, words, is assailed as erroneous: “The jury are further instructed that no words of abuse or vile names, however calculated to excite indignation or anger, are sufficient to reduce the crime of killing to a lower degree than murder, and the use by the deceased of such words, or the calling of such names by him (if you find from the evidence that he did use such words or call such names), would not constitute just cause or provocation on the part of the defendant to use a deadly weapon upon the deceased. The provocation which would reduce the crime of killing to a lower degree than murder must consist of personal violence to the defendant, or the danger of such personal violence must. have been apparent and imminent, or' must have appeared to the defendant to be apparent and imminent at the time he shot and killed the deceased, before the defendant can claim in this case that he had jnst cause or provocation to use upon the deceased a deadly weapon, such as was used by the defendant in this case. On the other hand, if you find and believe from the evidence that the deceased struck the defendant with his fist with force and violence, or assaulted the defendant in any other manner before the defendant shot the deceased, then such violence or such assault would constitute in law just cause or provocation which would reduce the crime below the degree of murder, and if you find that the defendant was assaulted by the deceased or received personal violence at the hands of the deceased before the defendant dischargd his pistol at the deceased, and thereupon, while in the heat of passion, caused by such assault or by such personal violence, he, the defendant, shot and killed the deceased, then and in -that event, you should convict the defendant of manslaughter in the fourth degree, unless, under other instructions given you, you acquit the defendant on the grounds of self-defense.”

The criticism of this instruction is that “grievous and degrading words of reproach will amount to just provocation as contradistinguished from lawful and reasonable provocation.” Counsel say, “We understand the law to be that it is not only personal violence that entitles a defendant to claim that he has just cause or provocation, which would reduce the crime of killing to a lower degree than murder,” and cite us to State v. Grugin, 147 Mo. 39. We think that the court was unfortunate in the use of the word “just” in the first paragraph of the instruction, “just cause” instead of “reasonable or lawful,” but when the whole instruction is read together, it is obvious that it was intended to say, and did direct the jury properly, that no words of abuse or vile names were, sufficient to reduce the crime of killing to a lower degree than murder, and that in order to reduce the crime of killing to manslaughter, the provocation must have consisted of personal violence to the defendant, or the danger of such personal violence must have been so apparent and imminent, or must have appeared to the defendant to be so apparent and imminent at the time of the shooting and killing the deceased, before they could find him guilty of manslaughter. If the learned circuit court had used the word “lawful .and reasonable” in describing the provocation instead of “just cause or provocation” the instruction would have been absolutely and technically correct, but when the whole instruction is read together, it is plain that the court properly told the jury that mere words of reproach or abuse or vile names would not alone be sufficient provocation to reduce the killing from murder to manslaughter. [State v. Ballance, 207 Mo. 607; State v. Gartrell, 171 Mo. l. c. 515, 518, inclusive; State v. Bailey, 190 Mo. l. c. 291; State v. Gordon, 191 Mo. l. c. 125; State v. Todd, 194 Mo. l. c. 396; State v. McKenzie, 177 Mo. l. c. 712; State v. Kelleher, 201 Mo. l. c. 631; State v. Edwards, 203 Mo. l. c. 543.] Our conclusion on this point is that taking the instruction all together, upon this proposition the court properly instructed the jury that mere words of reproach or vile names would not constitute such lawful or reasonable provocation as would reduce the crime from murder to manslaughter, although the use of the word “just” was unfortunate and unhappy. What was said in-State v. Grugiii, 147 Mo. 39, applied to the peculiar facts of that ease, as since explained by this court, and is in no manner to be construed as overruling the long and unbroken line of authority in this State to the effect that mere words of reproach, however degrading, will not of themselves constitute such a lawful provocation as to reduce a killing from murder to manslaughter.

V. In the course of its instruction on self-defense, after a very full and favorable instruction for the defendant on the law of self-defense, the court added these words: “Words and epithets, however vile and grievous, will not justify an assault, and if you believe from the evidence that the defendant sought or brought on a difficulty with the said Charles Schaefer with the intent to kill him or do him some great bodily harm, then the defendant cannot justify the killing of said Schaefer on the plea of self-defense.” And this is assigned as error.

Counsel cite us to the decisions of this court in State v. Patterson, 159 Mo. l. c. 560; State v. Goddard, 146 Mo. 177; State v. Hopper, 142 Mo. 478; State v. Partlow, 90 Mo. 608, but the reading of each one of those cases will show that the trial court in its instruction omitted the words found in the instruction herein: “with the intent to kill him or do him some great bodily harm,” and therein lies the difference between those instructions and the one at bar.

This character of instruction came under review in the case of State v. Bailey, 190 Mo, l. c. 286, 287, wherein it was said that this expression “with intention of killing or inflicting upon him some great bodily injury” modified the phrases, “voluntarily brought on the difficulty, and voluntarily entering into the difficulty,” and when thus read and understood, it in no manner conflicts with the rule announced in State v. Partlow, 90 Mo. 608, or State v. Herrell, 97 Mo. 105, but simply announces the sound and wholesome law that if one brings on a difficulty with the purpose of wrealdng his malice by slaying his adversary or doing him some great bodily harm and actuated by such a felonious purpose does the homicidal act, then there is no self-defense in the case. See, also, State v. Sharp, 183 Mo. l. c. 738, 739; State v. Pennington, 146 Mo. l. c. 35, 36, in which State v. Rapp, 142 Mo. 443, was distinguished.

That there was ample evidence tending to prove that the defendant armed himself with the deadly weapon and went back to the residence of the deceased and sought the difficulty with him with intent to kill or do him some great bodily harm, we think is not a debatable question.

VI. Finally, it is insisted that the court committed error in defining the expression “heat of passion,” but this is a misapprehension of the instructions. In the fourth instruction the court told the jury that manslaughter in the fourth degree was the intentional killing of a human being without malice and in- the heat of passion, and then instructed the jury that if the defendant intentionally shot and wounded the deceased, Schaefer, with a pistol charged with gunpowder and a leaden bullet and that at the time of such shooting and wounding of the deceased, the defendant was so far under the influence of a passion suddenly aroused by being struck or assaulted by the deceased, before the defendant shot the deceased, as to render the defendant incapable of thinking coolly of the natural consequences of hi s act, they should convict him of manslaughter in the fourth degree. And the jury were instructed that it was a passion resulting from the provocation, and not the provocation itself, which reduced the grade of the offense from murder to manslaughter. This was all that was necessary for the court to do, and fully answers the objection of the counsel to this instruction. In our opinion, the defendant had a fair and impartial trial and there is no reversible error in the record.

The judgment is accordingly affirmed.

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


author: FOX, P. J.

text:
    THE STATE v. FRANK JOHNSON, Appellant.
    Division Two,
    February 18, 1908.
    1. CONVICTION: Sufficiency of Evidence. Before a defendant can be convicted of a criminal offense the testimony must he sufficient to authorize and support such conviction.
    2. -: -: Suspicion: Based on Other Crimes. Where the most that can be said of the testimony is that it raises a suspicion that the defendant committed the murder charged, and this suspicion is aroused by proof that defendant had three days before the murder stole a pistol in St. Louis which was found on the railroad track near the house in Kansas City in which the crime was committed, and by proof that that pistol was of the same calíbrelas bullets found lodged in wood in the room in which the crime was committed, there is no evidence upon which a verdict of guilty can rest.
    3. -: -: Absence. Where there is an entire absence of any testimony showing that the defendant or any one answering his description was near the premises at the time deceased was killed in his saloon in Kansas City, and the first time he was seen thereafter was soon after a train, that left Kansas City shortly after the murder, arrived in* Independence, and no evidence was forthcoming that connects him with the murder except that a pistol which he stole in St. Louis was found on the railroad track near the saloon early next morning, a verdict of guilty cannot stand.
    4. -: Application of Law. The law should be universal in its application. Every citizen, whatever his station, is entitled to the presumption of innocence, and when charged with a crime substantial evidence touching his guilt must be adduced or he should be discharged.
    Appeal from Jackson Criminal Court. — Ho». Jno. W. Wofford, Judge.
    Reversed and remanded.

      W. F. Riggs for appellant.
    The court erred in overruling the demurrer. The conviction of defendant is based upon circumstantial evidence alone; there is no direct evidence in the case. Its weakness leaves the homicide shrouded in mystery. It is evident the jury substituted their own suspicions in place of proof, which the law will not permit. The State utterly failed to connect defendant with the killing; of Carrothers. “Where at most the evidence adduced only raises a suspicion of guilt against the defendant, no verdict of guilty can be permitted to stand.” Francis Case, 199' Mo. 671. “In a criminal case circumstantial evidence, to justify the inference of guilt, must exclude to a moral certainty every other reasonable hypothesis.” 3 Ency. Ev., p. 92; State v. Spray, 174 Mo. 569; State v. Bailey, 190 Mo. 280; State V.. Molineux, 168 N. Y. 264.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    The evidence of defendant’s guilt was sufficient. Hinshaw v. State, 147 Ind. 362; State v. Benner, 64 Me. 289; State v. Dickson, 78 Mo. 448; State v. Ferguson, 162 Mo. 678; State v. Grubb, 201 Mo. 608; Wills, Circ. Ev., pp. 80 and 81; Walker v. State, 49 Ala. 400; People v. Arnold, 43 Mich. 305; 4 Elliott on Ev., sec. 2723. Where there is substantial evidence tending to show that the defendant is guilty, this court will not usurp the province of the jury in attempting to weigh such circumstances, but will defer to the verdict of the jury and tbe finding of the trial court. State v.' Smith, 190 Mo. 706; State v. Payne, 194 Mo. 442; State v. Groves, 194 Mo. 452; State v. -Williams, 186 Mo. 128; State v. Swisher, 186' Mo. 8.
   FOX, P. J.

This cause is how pending in this court upon appeal by the defendant from a judgment of conviction in the criminal court of Jackson county for murder in the second degree.

On April 21, 1906, the prosecuting attorney of Jackson county filed an information charging the defendant with murder in the first degree. The party charged to have been killed was one James Carrothers. This killing* is charged to have occurred on December 5, 1905. At the January term, 1907, the defendant was put upon his trial. The evidence on the part of the State tended to prove that James Carrothers, the deceased, was a saloon-keeper, and that his place of business, was located on the corner of First street and Grand avenue, in Kansas City, Missouri. He had been engaged in business at that place for something like eight months prior to the time he was killed, which was the evening of the 5th of December, 1905. The deceased’s saloon faced the east and the bar was on the south side, and extended back to an ice-box. The saloon was fifty feet long by twenty feet wide, and was in a building which was isolated from other buildings. At 7:30' p. m., on December 5th, Clifford Murray, a street-car conductor on the Metropolitan Street Railroad, waspassingthe deceased’s saloon, and saw the deceased’s wife upstairs over the saloon, and heard her screaming. Mr. Murray jumped off of his car and entered the saloon. He found the dead body of the deceased sitting on the floor at the west end of the bar and leaning against the ice-box. His left hand was down by his side and his right hand was across his lap. In his right hand was a revolver, which contained one cartridge and four empty shells, and there was no one in the saloon, except a man who was dead drunk. Officer John Julian soon arrived, and identified this revolver as the one that the deceased usually kept in his saloon under the cash register. This cash register was sitting on the front bar with the keys turned toward the back of the bar, and had been removed. The furniture in the saloon indicated that there had been a fierce struggle between the deceased and the person who- killed him. The deceased’s shirt and collar were torn, and the floor of the saloon was dirty and the glasses were disarranged and some of them broken. On the front har was a hullet mark, as if the shot had.been fired on the outside and glanced inside of the bar; there was also a hullet mark in the ice-box. This bullet was found by Officer Halvey and produced at the trial. It was a copper-coated bullet, thirty-eight calibre. Three other bullet marks were found in the ice-box; one bullet went into the wainscoting, and another one into the wall of the saloon. One bullet went under the bar and shattered a glass demijohn, and another bullet hole was discovered in the sink, where glasses are washed. The cash register was usually kept on the back bar, and the marks on the bar indicated that it had very recently been moved. The police officers searched the neighborhood of the saloon, and, failing to find any one, telephoned to the police of Independence and other neighboring cities to look out for persons on out-going trains.Shortly after this shooting, Wm. J. Roberts, nightwatchman for the Builders ’ Sand Company, saw a tall white man, seemed to be slender, who had on no overcoat, running along the Missouri Pacific tracks, and trying to catch an east-bound Missouri Pacific freight train; this train was headed toward Independence. At that time the train was very near the crossing of Walnut street, which was one block from Grand avenue. Witness did not see him get on the train. Mrs. Emma White and little daughter were walking along the street, near the Missouri Pacific track, between Grand avenue and Walnut street, going to a grocery store, when they heard a noise in the weeds and looked up; they saw a man come from under some box cars on the side track. This man ran along the side of the cars until he got to a path, and ran down the path, across the road and toward the Missouri river. He was holding his right hand up and his left hand was down by his side. He was a tall, slender white man, and was wearing dark clothes and a soft derby hat; witness did not think he had on an overcoat. When Mrs. White reached the grocery store she first learned of the killing of James Carrothers. This witness did not recognize the defendant, who was then in court, as the man she saw running on the Missouri Pacific tracks, and she stated that she was not able to state that he looked like the defendant.

The operator at Independence, having received word to be on the lookout for persons coming into Independence on the night trains, called officers W. H. Rogers and Ed. Booth to the Missouri Pacific depot at Independence. They reached the depot at 9:15 o’clock on the evening of December 5th. They arrived at the depot about the time a Missouri Pacific freight train from Kansas City was coming in sight. The train stopped a short distance west of the water tank; the engine was taken loose and the conductor was requested to wait' a few minutes, so the train could be searched. The train stopped before it reached the switch. At the place where the train stopped, west of the depot, there is a deep' cut which extends for some distance on each side. The sides of the embankment are very high, so high that two overhead bridges are constructed across the track. The station agent assisted the officers in searching the train. One man jumped out from the car, two or three cars ahead of the caboose and started away from the train toward the depot. He was wearing an overcoat, had on a black cap and was a small man. He drew a revolver on the station agent, and the station agent allowed him to escape. He started toward the city and passed around the track toward Lexington. This man was not Frank Johnson. The two officers searched the train, looked under the cars, but failed to find any one in the cars, except two emigrants, a man and his wife. Witness W. H. Rogers testified that he did not see the defendant, Frank Johnson, until about the time the train was leaving the toAvn of Independence. He says that when he first saw Johnson he was about the switches, about two-thirds of the way down from the depot to the bridge. He also stated that he and Mr. Booth, when they saw him coming up the track, walked down to meet him, arrested him and took him to the depot. In answer to the question as to how he was dressed he said: “I cannot describe his clothes; he had on what looked like light color, but no overcoat.” Witness Rogers- did not see the defendant, Prank Johnson, get off the train; saw him for the first time at Independence about the time the train was leaving; some distance from the depot. Ed. Booth first saw the defendant at Independence about the time the train pulled out or shortly afterward'. He was about 250 yards away on the railroad, near the point where this train stopped. This witness said: “We walked down and met him; he made no- effort to run or get away; we arrested him and took him into the depot and searched him and found nothing on him; no money. He gave his name as Prank Johnson; was a tall, slender white man, well dressed in dark clothes, a soft derby hat, but had on no overcoat. On being asked where he came from, said he came from St. Louis, and had jumped off the train at Little Blue, and hurt his neck and chin.” The defendant had a scratch on his chin a little over on inch long, and on the left side of his neck there were two or three scratches. One of the witnesses gave as his impression that the scratches were finger prints. The defendant said these marks were made when he jumped off of the train and struck a switch flag, east of Independence, as he was coming in that evening. When Officer Halvey came to. Independence the defendant said that he had just been in Warrensburg, but did not say where he came from.

Coroner Thompson visited the scene of the shooting a short while after it occurred and found upon the body of the deceased an undershirt and celluloid collar, which were torn, and a pair of pants; this clothing had bullet holes in them. A gun-shot wound entered bett m the thumb and the index finger of the deceased, ranging hack about four inches, and coming out, making a ragged wound in the right hand. The second wound was found in the top of the head of the deceased made by a bullet, the bullet coming out under the chin and passing through the brain; this wound was a fatal one. The third wound grazed the ear, g-oing through the collar and entering the body. A fourth wound entered the abdomen and passed entirely through the body; this was also a fatal wound. A fifth wound entered the neck of deceased; a sixth wound entered the breast of the deceased and passed through his body. Two other wounds were found on his body, but they were slight ones.

The morning after the alleged homicide a Missouri Pacific flagman, John Hall, was walking along the Missouri Pacific track at the foot of Main street, which is one block west of Walnut street, when a porter on the rear end of a passenger train called his attention to a pistol lying between the tracks. The pistol was on the ground by the side of the rail where a board had been nailed down for Wagons to cross the tracks. This pistol was produced by the flagman, who testified that there was frost on it when he found it that morning at seven o’clock, and that it was frozen to the ground. This track was the one used by freight trains in going out of Kansas City toward Independence. That same morning eleven or twelve cartridges were found by Berry Ott, while walking along the.Missouri Pacific track at the foot of Grand avenue. This witness did not say whether they were empty or loaded cartridges nor give the calibre of the gun or pistol they would suit.

John E. Drummond and Edward O. Theiss resided in St. Louis and were in December, 1905, in the employ of T. Dunn Loan & Mercantile Company, brokers, doing business in the city of St. Louis. This firm handled revolvers. These twu witnesses identified the pistol as found by witness Hall near the Missouri Pacific tracks in Kansas City by certain letters on certain parts of the pistol. While there was some discrepancy in their testimony as to these marks, their testimony tended to establish the identity of the pistol found by Hall. They also identified the defendant and testified that he had by force taken that pistol from the business house of T. Dunn Loan & Mercantile Company on December 2,1905.

The operator at Independence testified that, when they were searching about the cars to see who was on them, a man jumped out who had 'on an overcoat and a little cap, and that he could not stop him for the reason that he drew a pistol on him and made his escape. He also stated that that man was not the defendant in this case. He further testified that, between twelve o’clock and the arrival of the Joplin freight on that date, which Mr. Booth and Mr. Rogers investigated and searched on its arrival from Kansas City at Independence, there was one train that arrived there at 3:20, going west towards Kansas City, which was called an L. & S. transfer; the next one was a train from St. Louis, and in going to Kansas City got to Independence at 4:57; that train was called No. 1. There was also an L. & S. train at 1:55; there was another L. & S. freight at 3:45 and an L. & S. freight at 4:30; then there was an L. & S. freight at 7:30. He further stated that there were two trains in and out of Independence between 6 and 9 o’clock on that evening, both of them west-bound; one got there at 7:35, that was the Sedalia train; the next one was the Lexington passenger, at 7:59.

This is substantially the statement of this cause as made by the Attorney-General representing the State, and is a sufficient statement at least to indicate the nature and character of the testimony upon which the State must rely for the support of the judgment in this cause. At the conclusion of the case the defendant’s counsel requested an instruction in the nature of a demurrer, directing the jury to acquit the defendant. This request was by the court denied. The court then instructed the jury upon murder in the first and second degree and manslaughter in the fourth degree, together with other instructions upon circumstantial evidence, reasonable doubt, etc. The cause was submitted to the jury and they returned a verdict finding the defendant guilty of murder in the second, degree and assessing his punishment at ninety-nine years ’ imprisonment in the penitentiary. Timely motions for new trial and in arrest of judgment were filed and by the court taken up and overruled'. Sentence and judgment was entered of record in accordance with the verdict heretofore indicated. From this judgment the defendant prosecutes this appeal and the record is now before us for consideration.

OPINION.

The leading proposition disclosed by the record in this cause is whether or not the testimony developed at the trial was sufficient to support the verdict as returned by the jury and the judgment of conviction upon it.

We have indicated in the statement of this cause substantially the nature and character of the testimony upon which it was submitted to the jury. We have also read in detail and re-read every line of testimony disclosed by the record now before us, and we have no hesitancy in sayiug-that.it is absolutely insufficient to support the verdict as returned by the jury. That Mr. Oarrothers, the saloon-keeper, was brutally murdered, there is no sort of dispute; but that the State has failed to connect the defendant, Frank Johnson, with such crime is equally clear. There is an entire absence of any testimony in the record showing that this defendant or anyone answering his description was anywhere near the premises where Mr. Carrothers was killed. The witnesses down on the railroad track who saw a man running as though making an effort to get on a moving freight train, fail to identify this defendant as being the man they saw, and they even do not go to the extent of stating that it is their impression that he was the same man. Mrs. White, one of the witnesses, says in positive terms that she is unable to state that the man she saw running down on the railroad tracks looked like the defendant then in court on trial. The general description may have some similarity, but the description given by the witnesses would be as equally applicable to thousands of other people as it is to the defendant. Neither one of the witnesses could tell whether he boarded the train or not, and the only identity of the defendant is when he is located some eight or ten miles from the place where the murder occurred. Mr. Booth, Mr. Rogers and the station agent or operator were at Independence when the train upon which it was supposed that the defendant was riding, arrived. They were keeping a close watch-out; neither of them saw him get off the train and neither of them is able to state whether he did get off or not. There wás a man who rushed out from one of the cars or from under the cars, who drew a pistol upon the operator and he made his escape. The operator says that was not the defendant. The defendant was not discovered or seen until about the time the train coming from Kansas City had left the station. He then came along meeting witnesses Booth and Rog'ers; they arrested him, took him into the depot; he was searched and nothing found upon him that would indicate that he had any connection with the murder of the deceased Carrothers. He stated in answer to questions propounded to him that he had arrived at Independence from, an easterly direction, going west, and that in jumping off the train he received the little marks or scratches that were about his face and neck. There were two trains at least coming from the east, one arriving at Independence about 7:35', that defendant could have been on. The fact that he was not seen in Independence until after the arrival of this freight train, is by no means satisfactory evidence that he did not reach there from the east. In other words, upon the disclosures of the record, it is absolutely a guess or conjecture as to what train the defendant reached Independence upon. The only testimony which in any way tends to show that the defendant was in Kansas City is the testimony of the two witnesses from the city of St. Louis that identified the automatic Colt’s pistol found near the railroad tracks the next morning after the killing of Carrothers, which they say the defendant forcibly obtained from. their employer at his business house in St. Louis on December 2," '1905. Conceding that he was there and dropped that pistol near the tracks, and that that pistol was of the same calibre of the pistol with which deceased was shot, then in order to find that he was guilty of the murder of Carrothers you have simply got to jump at the conclusion, without any evidence upon which to base it, that he was in the saloon of Carrothers and shot him with this pistol and afterwards threw it down near the railroad tracks.

Whether the deceased was shot with an automatic gun of a thirty-eight calibre or some other sort of a gun of a similar calibre, the testimony fails to show. It will not be seriously contended that there are not in existence numerous automatic pistols of thirty-eight calibre and numerous other pistols of a similar calibre, and to find that the defendant, as disclosed by the record, shot and killed the deceased with a thirty-eight calibre automatic pistol, such finding could only be predicated upon a mere guess or conjecture.

That tbe defendant may have been guilty of robbery in taking from tbe brokers in St. Louis, with violence, the pistol found near the railroad tracks, is by no means sufficient to authorize his conviction of murder. It may also be said that the proper place for this defendant is in the penitentiary of this State, and that he is in fact guilty of the crime with which he is charged, but unless we have reached that point in the administration of the criminal laws of this State where we are willing to sanction the overruling of the repeated announcements by this court that before a defendant can be convicted of a criminal offense the testimony must be sufficient to authorize and support such conviction, then we see no escape from the conclusion that the testimony in this case was absolutely insuffi-. cient to support the verdict returned by the jury.

The most that can be said about the testimony developed at the trial of this cause is that it raises a bare suspicion that the defendant may havé committed the murder charged, and this suspicion is aroused by the simple proof of the commission of the offense of robbery in the city of St. Louis.

The law should be universal in its application. It should be applied to every citizen alike. Whether he be humble or exalted he is entitled, when charged with a criminal offense, to have indulged in his favor the presumption of innocence; and the only safe rule for the protection of the citizen is that when he is charged with the commission of a criminal offense, to require at least the introduction of substantial evidence touching his guilt by the government seeking such conviction of the crime charged in the information or indictment.

This court has repeatedly recognized that just, humane and well-settled rule that in order to authorize the conviction of a defendant charged with a criminal offense, it is not sufficient that there should be strong suspicions or even strong probabilities of his guilt, but the testimony when fully considered should be clear and abiding, fully satisfying the minds and consciences of the jury.

Conceding the truth of every fact developed by the State in the trial of this cause, and viewing such facts in as strong and favorable light to the State as they may properly be susceptible of, yet they fall far short of furnishing sufficient testimony of the guilt of the defendant of the murder charged in the information in this cause. ,

Unless the State is able to introduce more satisfactory evidence of the guilt of the defendant of the offense charged in the information than is disclosed by this record, the trial court should promptly order the discharge of the defendant.

Entertaining the views concerning the sufficiency of the testimony to support the verdict of the jury as heretofore indicated, the judgment should be reversed and the cause remanded. It is so ordered.

All concur.


text:
    THE STATE, Appellant, v. J. W. WALLACE et al.
    Division Two,
    February 18, 1908.
    1. WRIT OF ERROR CORAM NOBIS: Function: Limitations. The office of a writ of error coram nobis is to bring to the court’s attention and to correct some error of fact which did not appear in the record, and which was unknown to the court. Such writ is not barred by the Statute of Limitations, but may be issued at any time after error committed.
    2. -: Discretion: Facts Considered. The writ of error coram nobis is not a writ of right, but is granted or refused in the discretion of the court on affidavits presented or evidence adduced; but the court, in passing upon the application for the writ, should not consider any facts which might have been put in evidence by defendant had he been put upon trial in the case.

      3. -: Recognizance: Death of Principal: Vacating Judgment: Discharging Sureties. Where, after judgment entered against the sureties on a recognizance, the sureties filed a motion in the nature of a writ of error coram nobis, praying the court to vacate its judgment on the ground that the principal in the recognizance was dead at the time of the rendition of the judgment, and the court, after considering the motion and affidavits filed in support thereof, sustained the motion and set aside the judgment, it could not go further and enter final judgment in favor of the sureties, discharging them from liability on the recognizance. After vacating the judgment, the proceeding on the recognizance should have been conducted just as if no judgment had ever been rendered thereon, and the question whether the principal in the recognizance was dead at the time of the rendition of the judgment could be put in issue by answer to the scire facias, and tried by a jury, if necessary, as in other jury cases.
    Appeal from Greene Criminal Court . — Hon. Jas. T. Neville, Judge.
    Reversed and remanded.

      Herbert 8. Haclley, Attorney-General, and Rush C. Lake, Assistant Attorney-General, for the State.
    The court erred in setting aside the judgment of forfeiture, (a) No motion for new trial or in arrest of judgment was filed by the respondents during the term at which the judgment was rendered and within four days from the date thereof, (b) A judgment upon a writ of scire facias is like any other judgment entered in a cause; and becomes final unless a motion for a new trial or in arrest of judgment is filed within the time prescribed by the statute and during the term at which such judgment is rendered, (c) All the proceedings had by the court in this cause, after the adjournment of the court for the term at which the judgment was rendered, were void, (d) There is no discretion lodged in the court which permits it to take cognizance of the motion filed by the respondent on the 7th day of May, 1904. Owens v. Ingram, 74 Mo. 193; Orvis v. Elliott, 65 Mo. App. 96; State v. Gartrell, 171 Mo. 504; State ex rel. v. Fort,-178 Mo. 518. The judgment in this cause was rendered August 12, 1903; the motion seeking to set aside such judgment was filed May 7, 1904, The term of court at which such judgment was rendered having expired, it became a finality, and the order setting aside the judgment should be reversed, with directions to the circuit court to enter judgment against the defendants for the amount of the bond.

      Hamlin, Delaney & Delaney for respondents.
    (1) At common law, if matters exist which were not brought into the issue (such as affect the validity and regularity of the proceeding itself) the writ of error coram nobis was issued in order to gain justice. The most- common instances of its use are in cases of following character: To show the death of a party at the date of the institution of the suit; to show the death of a party at the date of judgment; to show that party defendant was an infant and appeared by attorney instead of by guardian; to show that party was a. married woman and husband not joined, etc., etc. Hurst v. Fisher, 1 Watts & S. (Pa.) 438; Kemp v. Cook, 18 Md. 130'; Land v. Williams, 12 Smed. & M. (Miss.) 362; Boughton v. Brown, 8 Jones (N. Car.) 393; Teller v. Wetherell, 6 Mich. 46; Day v. Hamburgh, 1 Brown (Pa.) 75; Powell v. Gott, 13 Mo. 458; Ex parte Toney, 11 Mo. 661; Latshaw v. McNees, 50 Mo. 381; State ex rel. v. Heinrich, 14 Mo. App. 146; Dugan v. Scott, 37 Mo. App. 662; State ex rel. v. Horine, 63 Mo. App'. 1; Marble v. VanHorn, 53 Mo. App. 361; Ex parte Gray, 77 Mo. 160'; State ex rel. v. White, 75 Mo. App. 257. (2) Tn sustaining a writ of error coram nobis, or a motion in the nature of such writ, the judgment- of the court is not reversed; it is simply revoked or recalled. The error in fact is not the error of the judges. Fellows v. Griffin, 9 Smed. & M. (Miss.) 362; 2 Tidd’s Practice, 1191; 1 Manning, 490. (3) Every court has the inherent power to review errors of fact. Facts affecting the validity and regularity of the legal proceeding itself, however late discovered and alleged, are sufficient to recall and set aside a judgment by writ of error coram nobis or by motion in the nature of such a writ. Bank v. Wistar, 3 Peters 431; The Palmyra, 12 Wheat. 10; Sibbald v. United States 12 Peters 492;-Bronson v. Schulten, 104 U. S. 410; Philips v. Negley, 117 U. S. 665; Powell v. Gott, 13 Mo. 458. (4) The old formal writ of error coram nobis has fallen into disuse and its place is taken by motion heard in a summary manner upon affidavits. Such was the course pursued in this case. Pickett’s Heirs v. Ledgerwood, 7 Pet. 144; Freeman on Judgments (1886), sec. 93; Life Assn. v. Fassett, 102 HI. 315; Powell v. Gott, 13 Mo. 458; Ex parte Gray, 77 Mo. 160. (5) In addition to this inherent power to vacate the judgment, our statute expressly confers upon the court the power to vacate its judgment in cases of forfeited recognizance. The court acts for cause shown. No limitation of time is named within which the court must act. In fact, it is distinctly announced in Powell v. Gott, 13 Mo. 458, that neither the general Statutes of Limitation nor the special one apply in such proceedure. The court may remit such forfeiture not only for legal reasons — errors of fact made known by a motion in the nature of a writ of error coram nobis — but also for any reason appealing to the conscience of the court as provided by section 2554, Eevised Statutes 1899. State v. Clifford, 124 Mo. 501; State v. Taylor, 136 Mo. 462.
   BUEGESS, J.

On July 26, 1901, at the July term, 1901, of the criminal court of Greene county, the prosecuting attorney of said county filed an information against Walter Wallace, charging him with stealing a horse. The accused was arrested on the 23th day of July following, and gave a recognizance bond in the sum of five hundred dollars, with J. W. Wallace and A. J. O’Neal, respondents in this case, as sureties. Upon application of the defendant, Walter Wallace, the cause was continued until the next regular term of court. The cause was called for trial December 10, 1901, but the defendant failed to appear, whereupon a forfeiture of the bond was taken, and a writ of scire facias issued, which writ was duly served upon J. W. Wallace and A. J. O’Neal, respondents herein, and a •non est return made as to Walter Wallace. On April 15, 1902, the forfeiture proceeding as to Walter Wallace was dismissed by the State, and the court rendered judgment of forfeiture against J. W. Wallace and A. J. O’Neal. Thereafter, on December 6, 1902, a motion to quash the scire facias was sustained by the court and the judgment of forfeiture set aside.

On December 19,1902, a second writ of scire facias was ordered issiied and served upon said parties, returnable March 23, 1903. Service was duly had upon J. W. Wallace and A. J. O’Neal on the 24th day of January, 1903, Walter Wallace not being found. On April 17,1903, an application for change of venue was filed, which was sustained, and it was agreed by the parties that Hon. James T. Neville, judge of the circuit court of the Twenty-third Judicial Circuit, be elected special judge to sit on the trial and proceedings in the cause, which was set for June 10,1903. Thereafter, on August 12, 1903, after various continuances, the cause was heard and judgment was rendered by default against J. W. Wallace and A. J. O’Neal, the proceeding as to Walter Wallace being dismissed by the State. A stay of execution was thereafter granted to respondents to the first day of the March, 1904, term of court.

On the 7th day of May, 1904, the defendants, respondents herein, filed a motion to set aside the judgment rendered against them, and in support of said motion filed their affidavits to the effect that, without their connivance or consent, defendant, Walter Wallace, had disappeared before called for trial on the 10th day of December, 1901; that they had in good faith, but without avail, exhausted all means in their power to locate and capture said defendant, and that they believed that defendant was dead before judgment of forfeiture was rendered against them on August 12, 1903. W. G-. Criswell and defendants’ counsel also filed affidavits stating that they believed that the matters and things stated by the respondents in their affidavit were true. The hearing of said motion was continued from time to time until the 12th day of December, 1906, when the attorney for defendants filed an affidavit in the nature of a petition for a writ of error coram nobis, and the court, after considering the same and the motion theretofore filed, sustained said motion, and made an order that the judgment rendered against the defendants be set aside and that the defendants pay the costs accrued' in the prosecution, to which action of the court in sustaining said motion and setting- aside the judgment the State excepted at the time. Within four days thereafter the State filed a motion to set aside the order of the court vacating said final judgment, for the following reasons:

“1. Because the court had no jurisdiction to make; said order setting aside the said judgment at the November term, 1906, said judgment having been rendered at the July term, 1903, of said court, and no motion for a new trial or in arrest of judgment was filed at the said July term, 1903, of said court, and no appeal was taken at said term of court.
“2. Because the judgment rendered at the July term, 1903, of said court in favor of the plaintiff against the defendants was rendered pursuant to an agreement made between tbe attorney for the plaintiff and the attorney for the defendants.
“3. Because there was no competent evidence whatever introduced or offered by defendants in support of their said motion to set aside the judgment, and no evidence of any character introduced or offered by the defendants proving that said W. T. Wallace, for whose appearance the recognizance was given, was dead at the time judgment of forfeiture was taken, and the presumption is that he is still living. ’ ’

The court overruled said motion, and the State excepted. In due time an affidavit for appeal to this court was filed, and the appeal granted.

While the writ of error coram nobis does not lie to correct an error of law, it does lie in the same court which renders a judgment to correct an error of fact, to show, for instance, the death of a party at the time of the rendition of a judgment against him, or that a party defendant was insane or was an infant, or to show the coverture of a defendant at the time of the rendition of a judgment against her; and such writ is not barred by the Statute of Limitations, but may be issued at any time after error committed. [Powell v. Gott, 13 Mo. 458.]

Latshaw v. McNees, 50 Mo. 381, was a suit brought against a married woman without joining her husband, and judgment was rendered against her alone, and the error did not appear on the face of the proceedings. It was held' that the error could only be brought to the attention of the court by a proceeding" in the nature of a writ of error coram nobis, and that the usual way is by motion, supported by affidavit or evidence.

In Ex parte Gray, 77 Mo. 160, it is held that for an error of fact in the proceedings of a court of record a writ of error coram nobis will lie to revoke a judgment, whether it be a court of civil or criminal jurisdiction.

In Dugan v. Scott, 37 Mo. App. 663, it is held that the office of a writ of error coram nobis is to bring the court’s attention to and to correct some error of fact which did not appear in the record, and which was unknown to the court, such as that one of defendants was dead at the time of entering the judgment. It is not, however, a writ of right, hut is granted or refused in the discretion of the court on affidavits presented or evidence adduced; and it has been held that the action of the court in granting the writ will not be reviewed upon appeal. [Higbie v. Comstock, 1 Denio 652; Tyler v. Morris, 20 N. C. 487.] But the court in passing upon the application or motion for the writ should not consider any facts that might have been put in evidence by defendant had he been put upon trial in the case. [23 Cyc., p. 884; Dobbs v. State, 63 Kan. 321; Hadley v. Bernero, 103 Mo. App. 549.]

As the issuance of the writ, as has been said, was discretionary with the court, its action in that respect is not reviewahle on this appeal. But the judgment shows upon its face that the court not only set aside and vacated the judgment in favor of the State upon the recognizance, but made it final in favor of the defendants, by adjudging that plaintiff take nothing by its action and proceeding herein, and that defendants he discharged and go hence without day, while all that the court had authority to do in the premises was to revoke or set aside said judgment in favor of the State, in which event the question presented by the application for the writ, that is, whether.the principal in the recognizance bond was dead at the time of the rendition of said judgment, could be put in issue by answer to the scire facias, and tried by a jury, if necessary, as in other jury cases. [Cook v. Conway, 3 Dana (Ky.) 454; Fellows v. Griffin, 9 Sm. & M. (Miss.) 362.] But only such point as presented by the pleadings, i. e., the scire facias and answer thereto, can he considered on the trial.

The court was without authority to render judgment discharging the defendants from liability upon the recognizance bond. 'When it set aside the judgment on the bond, or upon the scire facias issued thereon, its authority over the matter ceased, and its judgment, that “the judgment rendered against said defendants in this case at the July term of this court be set aside, vacated and held for naught,” put the proceedings on the recognizance in the same situation as when the judgment upon the scire facias issued upon the recognizance was rendered (Holford v. Alexander, 12 Ala. 280); so that the proceeding on the recognizance should be proceeded with just as if no judgment had ever been rendered thereon.

For these intimations the judgment is reversed, and the cause remanded, to be proceeded with in accordance with the views herein expressed.

All concur.