text:
    THE STATE v. LONG, Appellant.
    Division Two,
    March 5, 1907.
    1. INFORMATION: First Degree Murder. An information charging murder in the first degree, set out in the statement, held sufficient.
    2. --: -: Úse of Word “With." The unneccessary use oi of the word “with” in connection with the words “a certain shot gun then and there charged,” etc., in an information for first degree murder, did not render the information had, nor prejudice any substantial right of the defendant.
    3. STATEMENT BY DEFENDANT: Self-Serving: Res Gestae. Self-serving statements of defendant, after the shooting, as to why he shot the deceased, which were in no sense a part of the res gestae, were properly excluded.
    4. WITNESS: Impeachment: Commission of Crime: Failure to Claim Exemption. A witness for defendant was asked, on cross-examination, if prior thereto he had not committed a detestable crime; the witness himself made no claim of privilege, and when the court overruled defendant’s objection, the witness promptly denied the charge. Held, that the mere asking of the question was not error.

      5. INSTRUCTION: Defining Phrases. A failure to define the phrases “provoked the difficulty” and “began the quarrel,” employed in an instruction, was not error, since those phrases are self-explanatory.
    6. JUROR: Impeaching Verdict: Misconduct. Jurors cannot impeach the validity of their verdict by testifying to their own misconduct — the alleged misconduct in this case being the arriving at a verdict by drawing slips of paper from a box.
    7. MURDER, FIRST DEGREE: Sufficiency of Evidence. Evidence held ample to support the verdict finding defendant guilty of murder in the first degree.
    Appeal from Pemiscot Circuit Court. — Now Henry G. Riley, Judge.
    Affirmed.

      Pierce <& Reeves for appellant.
    (1) The information is defective because it fails to state that the mortal wound was inflicted feloniously, wilfully, deliberately, premeditatedly, on purpose, and of malice aforethought. State v. Johnson, 90 S. W. 89; State v. Woodard, 90 S. W. 90. (2) The circuit court erred in permitting the prosecuting attorney, over the objection and exception of defendant, to ask defendant’s witness Winsett if he had not committed a detestable crime. This is certainly not the proper way to impeach the credibility of a witness, and we take it that the question is no longer an open one in this State since the decision by this court in the case of State v. Wigger, 93 S. W. 390; State v. Howard, 102 Mo. 148. (3) The court erred in giving instruction 3 without defining in that or some other instruction the meaning of the words “provoked the difficulty” and “began the quarrel.” (4) This cause should be reversed for the further reason that the verdict returned by the jury convicting defendant was a gambling or chance verdict. Without objection on the part of the State the affidavit of Geo. A. Lamb was admitted as evidence to sustain the motion for a new trial. This affidavit conclusively shows the chance or gambling character of the verdict. We submit that the manner and conduct of the jury in arriving at their verdict was most reprehensible, and for this misconduct the verdict ought to have been set aside by the circuit court and a new trial granted.

      Herbert 8. Hadley, Attorney-General, and Frank Blake, Assistant Attorney-General, for the State.
    (1) The information is sufficient. The words “feloniously,” etc., run through all subsequent allegations where the words “then and there” are used and connect them with the mortal stroke. • State v. Williams, 184 Mo. 261; State v. Woodward, 191 Mo. 629. (2) There is abundant authority sustaining the court in permitting the prosecuting attorney, on cross-examination of the witness Winsett, to ask him whether or not, in the month of May, 1905, he committed a certain detestable crime. Wherever such a question is asked, however, the State is concluded by the answer. 2 Wig-more on Evid. sec. 981, p. 1108; Muller v. St. L. Hospital Ass’n, 5 Mo. App. 401, 73 Mo. 242; State v. Hack, 138 Mo. 92; State v. Taylor, 118 Mo. 159; State v. Miller, 100 Mo. 606; State v. Heusack, 189 Mo. 312; New-comb v. Griswold, 24 N. Y. 299; People v. Jackson, 3 Park. Or. 395; Oxier v. United States, 38 S. W. 331. Since an unfavorable answer was received the tendency of the question was to injure the State and establish the fact that the witness was not guilty of such a crime. State v. Heusack, 189' Mo. 312. (3) It is not necessary to define the terms “provoke the difficulty,” or “began the quarrel,” or “bringing on the difficulty.” They are self-explanatory. Besides, no request was made by the defendant to instruct concerning these terms, and no exception saved on account of the failure of the court to instruct thereon. State v. Sharp, 183 Mo. 715; State v. Bailey, 190' Mo. -291. (4) On motion for a new trial, affidavits and testimony of jurors going to impeach the validity of their verdict, on the ground of their own misconduct, are not admissible. Jurors speak through their verdicts, and they cannot be allowed to violate the secrets of the jury room or disclose the methods which operated to produce the verdict. State v. Coupenhaver, 39 Mo. 430; State v. Underwood, 57 Mo. 40; State v. Branstetter, 65 Mo. 156; State v. Dunn, 80 Mo. 694; State v. Cooper, 85 Mo. 261; State v. Rush, 95 Mo. 205; State v. Wood, 124 Mo. 417.
   GANTT, J.

On October 3, 1905, the prosecuting attorney of Pemiscot county filed an information charging the defendant with murder in the first degree of one ' C. C. Still, on the first day of October, 1905. The defendant was duly arraigned on the 22nd day of November, 1905, and a plea of not guilty entered. A trial was had on the 24th of November, 1905, and the jury returned a verdict of murder in the first degree. The defendant was sentenced according to the verdict and ■from'that sentence has prosecuted his appeal'in due form. The information, omitting caption, is in the following words:

“State of Missouri v. Dave Long.
“L. L. Collins, prosecuting attorney within and for the county of Pemiscot, in the State of Missouri, upon his official oath informs the court, that Dave Long, late of the county of Pemiscot and State of Missouri, at and in the county of Pemiscot and State of Missouri, on the 1st day of .October, 1905, did then and there in and upon the body of one C.' C. Still then and there being, feloniously, wilfully, deliberately, premeditatedly and of his malice aforethought make an assault, and that the said Dave Long/ with a certain shot gun then and there charged with gunpowder and leaden bullets, which said shot gun he, the said Dave Long, in his hands, then and there had and held, then and there, feloniously, wilfully, deliberately, premeditatedly, and of his malice aforethought did discharge and shoot ofE, to, against and upon the said C. O'. Still, and that the said Dave Long, with the leaden bullets aforesaid, out of the shot gun aforesaid, then and there, by force of the gunpowder aforesaid, by the said Dave Long discharged and shot off as aforesaid, then and there feloniously, wilfully, deliberately, premeditatedly and of his malice aforethought did strike, penetrate and wound the said C. C. Still, in and upon the abdomen and near the navel of him, the said C. O. Still, giving to him, the said C. C. Still, then and there, with the leaden bullets aforesaid, so as aforesaid discharged and shot out of the shot gun aforesaid by the said Dave Long in and upon the abdomen and near the navel of him the said C. C. Still, one mortal wound of the depth of eight inches and of the width of three inches, of which said mortal wound he the said C, C. Still then and there instantly died.
“And so L. L. Collins, prosecuting attorney as aforesaid, upon his official oath as aforesaid, doth say that the said Dave Long him the said C. C. Still, in the manner and by the means aforesaid, feloniously, wilfully, deliberately, premeditatedly and of his malice aforethought did kill and murder, against the peace and dignity of the State.
“L. L. Collins.
“L. L. Collins, prosecuting attorney, makes oath and says that the facts stated in the above and foregoing information are true according to his best knowledge, information and belief.
“L. L. Collins.
* Subscribed and sworn to before me this, the 3rd day of October, 1905.
“J. W. Green,
“Clerk of the Circuit Court.”

The testimony tended to develop the following facts: The deceased, C. C. Still, and the defendant, Dave Long, lived on adjoining premises in the suburbs of a town named Steele in Pemiscot county, Missouri, their houses being about one hundred and fifty yards apart and separated by a fence and a barn. On Sunday, October 1, 1905, at six o ’clock in the morning, the deceased was out in his yard milking his cow, and the defendant was in his own yard. For some six months previous to this time, a bad state of feeling existed between these two, growing out of the fact that the defendant’s pigs would wander over the premises of the deceased and the defendant claimed that the deceased was constantly abusing and chunking them. Many threats were made by the defendant against the deceased. Ben Adams testified that about a week or two before the homicide, the defendant was talking about the deceased lolling his hogs and clubbing them, and said he had been aggravated enough about it, and he would rather shoot his (deceased’s) heart out than to eat chicken pie. Wesley Earp testified that along in May, 1905, he and the defendant were talking about some hay the deceased had thrown over in his cow lot, and defendant said, “I am going to kill the G-d-son of a b-, he has been bothering me all spring, and I will kill him before the year is out. ’ ’ Witness said to him that that was wrong, and would get him into trouble, and he said he did not care if it did. On the other hand, Win-sett, a brother-in-law of the defendant, and the defendant’s son and the defendant himself, testified to threats by the deceased; Winsett stated that early on the morning of the difficulty, the defendant spoke to the deceased in a modest, low tone of voice, and told the deceased that it looked like he (the deceased) was determined that defendant should not raise any stock of pigs, and to this the deceased replied, “All right, I will blow your G— d— brains out before the sun goes down.” The son testified that at the time of the killing of the deceased/' the defendant, who was walking out in the road with a shot gun, told deceased that he was ready to settle their difficulty and deceased replied, “All right, I am going to blow your G-d- brains, out,’-’ at the same time running his hand into his pocket and! continued to walk along. The defendant testified in- his own behalf and stated that deceased bothered his (defendant’s) hogs and would beat them when they got into his yard, he told him to keep them out, and I said keep, your gate shut and they will not bother you; that was in April, The trouble over the stock continued and was renewed about once a month. I then fixed the fence pig proof and afterwards took a plow and threw the dirt against the fence to keep the hogs from getting under it. I could not say for certain that the deceased killed any of my hogs. One was thrown over in my lot, and it must have been thrown there for I have never seen a hog with wings yet; this was about a month before the killing. Deceased made an effort to fix the fence. Early on the morning of the difficulty, I saw the deceased with a claw hammer after a pig and I said to him, “It seems you do not intend for me to raise or have anything to support my family with. ’ ’ He pushed the gate wide open and said, ‘ G— d— you, I will kill you before the sun sets, ’ ’ and raised his right hand with the hammer and waved it in the air. I replied, maybe you will, and walked off. I thought he would carry out his threats. One day when I was in the barn, a gun was fired, and the shot came within a foot and a half of me. I did not know what the deceased shot in the bam for; this was a month or six weeks before the killing. At the time of the difficulty, I went out to where he was armed to protect myself and my family, I went out to have some decision about the thing and to settle it. Along about the time dinner was ready, I saw the deceased coming somewhere about the comer of the fence. Deceased was walking down the road from town towards Ms home, and I jnst picked np my gun and stepped out in the yard and across the fence, going kind of meeting him, and said to Mm, I would like to have that difficulty settled, and he just remarked! — he never stopped entirely — “G— d— you, you raise your hand and I will blow your brains out. ’ ’ He fell with his hand in his pocket; I shot for protection. I did not tell Goff that I had done what I intended to do; when he asked me about the killing, I said, “You will find out when I have to tell it.” I did not tell Wallace that I had done what I intended to do. Some six witnesses testified to the good reputation of the defendant for peace and quietude and for truth and veracity.

On the part of the State, Ira Wade testified that he was a young man about twenty-one years of age, and was living at the defendant’s house at the time of the’ homicide and saw the defendant kill the deceased with a shot gun on Sunday, October 1,1905, between ten and eleven o’clock that morning. At six o’clock that morning they had had the trouble. Witness heard the defendant tell the deceased that anybody that would do a fellow’s hogs that way would slip around and shoot him after night. They were in a racket after this racket. I saw the defendant in the house getting his gun, but he did not use it then because his wife and I and his brother-in-law got him out of the notion. When the killing occurred I was behind the deceased about thirty yards, and the killing occurred in front of defendant’s house. When killed, the deceased was in his shirt, sleeves; he was going towards his home, going up the road by the defendant’s house; he was on the side of the road next to defendant’s fence, but near to the middle of the road. At the time he was shot, the deceased’s hands were just swinging along, and when the defendant went to shoot, it looked like he threw them up this way. I was behind the deceased and could see his hands. Henry Williams also saw the shooting; he was eight or ten steps behind me; deceased’s back was towards us and the defendant’s face was towards us. I saw the defendant coming out of his house with his gun and coming over the fence. He has a gate and steps at his fence; he was getting over some steps there. Deceased was walking down the road towards his home; defendant was looking at the deceased, and said something to him, and the deceased said something back, whereupon defendant threw up his gun and shot. Before he shot, the defendant walked about six steps before he stopped. When deceased' was. shot he cried out, “Oh, Lordy!” and fell instantly. The motion he made with his hands was made after he was shot, and that was the first movement he made with his hands. I did not see any weapon on the deceased; I saw him searched and he had only a little pocket knife. Deceased was wounded in the top of his stomach.

Henry Williams corroborated the testimony of Wade, and in addition testified that after the defendant shot the deceased, he took his gun and walked back into' his house and then came outside again and said, “You boys turn him around down the road.” Defendant then went down towards town a little ways and hollowed, “Come up, men, I have killed a man.” I was about fifty yards from the deceased when he was killed. Ira Wade was in front of me on the road; the deceased was walking along towards his home right in the road. The defendant was not over twenty feet from the deceased at the time of the shooting. Defendant said something to him, but I could not tell what it was. Deceased made no motion with his hands at all until after he was shot. The defendant was cool, not excited. The deceased did not put Ms right hand in his pocket just before he was shot; his hands were swinging down by his side up to the time he was killed.

A. L. Goff testified that he arrested the defendant and asked him, what does this mean, and defendant said, “Well, we just had hell all summer and I got my load and went out there to kill the G-d- son of a b-, and I did exactly what I aimed to do, and would do it again if it should turn just as it has turned.” The defendant said he wanted to eat his fish before he was locked up, and I let him eat his fish.

Macklin testified that about nine or ten o’clock on the morning of the homicide, he saw the deceased passing by defendant’s house, with Joe Anderson, on his way to the store. Witness said to defendant, “Catch your horse, I am going to take you off this morning;” defendant said no, “hell’s in me this morning,” and witness said, “Hasn’t it always been in you?” and he said, “Yes, a little. ’ ’ After deceased had gone, defendant said, “That man threatened to kill me this morning before the sun went down, and he has got to do it.” I said, “Don’t think of that trouble; think of your wife and children,” but he said, “I have stood as much of it as I can, I have got my gun standing right there for that purpose, and I would have killed him as he went down if it had not been for you and Anderson. I will get him as he comes back. ’ ’

The foregoing is a synopsis of the principal evidence in the ease. Other facts will be noted in the course of the opinion as occasion may require.

I. Various grounds are assigned for the reversal of the judgment and they will be examined in the order of the defendant’s brief. The information is entirely sufficient. In all essentials it is identical with the indictment which was approved by this court in State v. Wilson, 172 Mo. 420, and State v. Gray, 172 Mo. l. c. 434. The pleader in this case, it is true, used the unnecessary word “with” in connection with the words “a certain shot gun then and there charged,” etc. It was pointed out, however, in State v. Wilson, 172 Mo. 428, that the use of the word “with” in this connection did not render the indictment had, hut was a needless insertion, which did not prejudice any substantial right of the defendant. [State v. Turlington, 102 Mo. 651.]

II. It is urged that the court érred in excluding the evidence of Mrs. S. M. Foster and James Foster, as to certain statements made to them by the defendant, after the shooting, as to why the defendant shot the deceased. The court very properly refused to let this self-serving statement of the defendant go to the jury. It was in no sense a part of the res gestae.

III. It is assigned as error that the circuit court erred in permitting the prosecuting attorney to ask Silas Winsett, a witness for the defendant, on his cross-examination, if he had not in the month of May, 1905, committed a detestable crime. "When the question was asked, the witness himself made no' claim of privilege, and when the court overruled the defendant’s objection, the witness promptly denied the charge. There can be no doubt that, under the decisions of this court, the State was concluded by the witness’s answer, and indeed no effort was made to show anything to the contrary. But the contention here is that notwithstanding the witness promptly denied the disgraceful matter, and notwithstanding the State was concluded by the witness’s answer, it is insisted that the very fact of permitting such a question to be asked was erroneous, and we are referred to State v. Wigger, 196 Mo. 90. This case, however, has no application to the question here presented. It was ruled in State v. Wigger that it was hot allowable for the prosecuting attorney to ask a witness for the defendant whether hehadbeenchargedwith a crime, or whether an information or indictment had been preferred against him. There is an obvious distinction between asking one.if he had been charged with "a crime and asking if he had committed an offense. The point presented by the defendant is not a new one. In Muller v. St. Louis Hospital Assn., 5 Mo. App, l. c. 401, the rule as announced in Stephen’s Digest on the Law of Evidence, 123, as follows: “ ‘When a witness is cross-examined, he may, in addition to the questions hereinbefore referred to, be asked any questions which tend to test his accuracy, veracity, or credibility, or to shake his credit by injuring his character. He may be compelled to answer any such question, however irrelevant it may be to the facts in issue, and however disgraceful the answer may be to' himself, except, ’ where the answer might expose him to a criminal charge,” was adopted by that court and on appeal to this court, the opinion of the court of appeals was reaffirmed. [73 Mo. 242.] This rule had been followed in State v. Grant, 79 Mo. 113; State v. Miller, 100 Mo. 606; State v. Hack, 118 Mo. l. c. 99; State v. Taylor, 118 Mo. l. c. 159, 160, and cases there cited. The better doctrine would seem to be that, while such questions may be asked the witness on cross-examination, it is a matter largely within the discretion of the court before whom the case is to be tried. Had the witness in this case claimed his own exemption on the ground that his answer thereto might tend to incriminate him, unquestionably he should have been excused from answering it. He asked no exemption and promptly answered the question, and the authorities cited show that it was not error to permit the question to be asked.

IV. The third instruction given in behalf of the State was as follows: “The court instructs the jury that if you believe from the evidence that the defendant provoked a difficulty or began the quarrel with the purpose of taldng advantage of Still, the deceased, and of taking his life, or doing him some great bodily harm, then there is no self-defense in the case, however imminent the peril of the defendant may have become or appeared to him in consequence of an attack made upon him.' by Still; and if in sncb circumstances the jury believe tbe defendant shot and killed Still, then tbe defendant is guilty of murder in tbe first degree and tbe jury should so find.” It is insisted that the court should have defined the phrases “provoked the difficulty” and “began the quarrel,” in this instruction. We think there is no merit in this contention. This language is self-explanatory and an attempt at definition would1 have-simply tended to obscure language which every man of good sense and competent to sit on a jury understands without any further explanation.

V. Complaint is also made of the sixth instruction, but that instruction is not open to the objections urged against it, and was exceedingly liberal to the defendant. The decision in State v. Gordon, 191 Mo. 114, was based upon entirely different state of facts.

VI. For the reasons already given, the objections to the eleventh instruction given by the court are not tenable.

VII. The twelfth instruction is a correct and exceedingly liberal instruction on the law of self-defense, and nothing which the defendant could have desired or asked, under the evidence in the case, was omitted. The defense was self-defense, and the defendant’s own testimony established that he shot and killed the deceased, and there was no issue as to that fact.

VIII. Finally, it is insisted that the court erred in not granting a new trial because the verdict of the jury was the result of misconduct on the paid of the jurors in arriving at their verdict, in that they agreed to take forty slips of paper, and mark the figure one on twenty of them, and the figure two, on twenty of them, and place these forty slips in a box and each juror draw one slip therefrom, and if the majority of said slips thus drawn out of the box were marked with the figure one, then the defendant was to he found guilty of murder in the first degree, and if the majority of said slips were marked with the figure two, then the defendant was to be found guilty of a degree of homicide less than murder in the first degree. To sustain this charge in the motion for new trial, the defendant offered the affidavit of the juror Lamb; and the testimony of another juror. This evidence the circuit court excluded, and unquestionably correctly did so, for the reason that it is the settled law of this State that jurors will not be allowed to impeach the validity of their verdicts by testifying to their own misconduct. [State v. Coupenhaver, 39 Mo. 430; State v. Underwood, 57 Mo. 40; State v. Rush, 96 Mo. 205; State v. Wood, 124 Mo. 417.] After a careful consideration of all the grounds assigned for a reversal of the judgment in this case, we are of the opinion that neither singly nor collectively do they furnish, any reason for the reversal of the judgment. The testimony in b ehalf of the State, and, indeed, we might add that of the defendant, in a large measure, tended to show a willful, deliberate and premeditated murder without any just or lawful provocation whatever, and the verdict of the jury is amply supported and the judgment of the circuit court is affirmed! and the sentence which the law pronounces is directed to be carried into execution.

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


source: Caselaw Access Project

author: BURGESS, J.

license: Public Domain

text:
    THE STATE v. BUTLER, Appellant.
    Division Two,
    March 5, 1907.
    NO BILL OF EXCEPTIONS. Where no bill of exceptions is filed, there is nothing before the appellate court except the record proper, and if that is free from error, the judgment will be affirmed.
    Appeal from Jasper Circuit Court. — film Hugh Dabbs, Judge.
    Affirmed.

      Herbert 8. Hadley, Attorney-General, and N. T.' Gentry, Assistant Attorney-General, for the State.
   BURGESS, J.

At the January term, 1906, of the Jasper County Circuit Court the defendant was convicted of murder in the second degree, and his punishment fixed at fifty-five years in the penitentiary, under an information filed by the prosecuting attorney of said county charging him with murder in the first degree, in having shot to death with a pistol, at said' county, on the 31st day of December, 1904, one Claud Brice. After filing motions for a new trial in arrest of judgment, which were overruled, defendant appealed.

Defendant is not represented in this court, nor was there a bill of exceptions filed in the cause, so that there is nothing before this court for review except the record proper.

The information is in due form, and the record in all respects free from error.

The judgment is affirmed.

All concur.


author: FOX, P. J.

text:
    THE STATE v. CLAY, Appellant.
    Division Two,
    March 5, 1907.
    1. MURDER: First Degree: Indictment. Indictment for murder in the first degree, set out in the statement, held, to embrace every allegation necessary to constitute the offense. '
    2. -: Reducing Grade of Homicide: Apprehension of Assault: Reasonable Cause: Instruction. In order to reduce a homicide from murder to manslaughter, it is not only essential that defendant believed he was in danger when he fired the fatal shot, but the facts must furnish a reasonable cause for his so believing; and whether or not such reasonable cause existed is a question for the jury. And an instruction is properly refused which tells the jury that though they might believe from the evidence defendant did not have reasonable cause to believe deceased was about to assault him, or do him some great bodily harm, yet if the defendant honestly believed deceased had such design, and shot to prevent its accomplishment, they could not convict him of either degree of murder.
    8. -’: -: Manslaughter: No Evidence. The trial court properly refused to instruct on manslaughter in the fourth degree, for the reason that there was no evidence to authorize such an instruction.
    Appeal from Boone Circuit Court.— Hon. A. H. Waller, Judge.
    Affirmed.

      H. D. Murry, J. J. Spriggs and E. W. Hinton for appellant.
    (1) The court erred in overruling the motion to quash the indictment because of its failure to charge that the mortal wound was feloniously and maliciously inflicted. State v. Hérrell, 97 Mo. 105; State v. Woodward, 191 Mo. 617; State v. Birks, 97 S. W. 578. (2) The court erred in refusing defendant’s instruction 8 to the effect that if defendant honestly believed that deceased was about to assault him with a knife and shot to prevent the accomplishment of such design, he could not be convicted of murder in either degree, though he may not have had reasonable grounds for such belief, because in that event the crime would be manslaughter. Wharton on Homicide, sec. 527; Kerr on Homicide, sec. 169; Rex v. Hall, 3 O. & P. 409; Part-low’s Case, 90 Mo. 608.

      Herbert S. Hadley, Attorney-General, N. T. Gentry, Assistant Attorney-General, and F. G. Harris for the State.
    (1) The indictment charges the defendant with murder in the first degree, and is sufficient in form and substance. It alleges all of the statutory elements necessary to constitute that crime, and follows the ap>proved forms. R. S. 1899, sec. 1815; State v. Kindred, 148 Mo. 279; State v. Bums, 148 Mo. 172; 3 Ghitty’s Crim. Law, 752; State v. Privitt, 175 Mo. 224; Wharton’s Precedents, 117a and 117b; Bishop’s Directions and Forms, sec. 520; State v. Rice, 149 Mo. 465. (2) Defendant’s instruction 8, which the court refused, was clearly not the law and was properly refused. State v. Westlake, 159 Mo. 679. This court has always held that defendant must not only believe that he is in danger when he kills his adversary, but he must have reasonable cause to so believe; and whether or not he has reasonable cause is a question for the jury to pass on. State v. Frazier, 137 Mo. 333; State v. McKenzie, 177 Mo. 714; State v. Stockton, 61 Mo. 382; State v. Parker, 106 Mo. 224; State v. Eaton, 75 Mo. 592.
   FOX, P. J.

This cause is now pending in this court upon appeal by the defendant from a judgment of the circuit court of Boone county, Missouri, convicting the defendant of murder of the first degree. On October 14, 1905, the grand jury of Boone county returned an indictment charging the defendant with murder in the first degree. As the sufficiency of the indictment is challenged, it is well to here reproduce it. It is as follows:

“State of Missouri, County of Boone.
“In the Circuit Court, October Term, 1905.
“The grand jurors for the State of Missouri, summoned from the body of the inhabitants of Boone county, being duly empaneled, sworn and charged to inquire within and for the body of the county of Boone aforesaid, on their oaths present and charge that Tom Clay, at Boone county, Missouri, on the tenth day of October, 1905, in and upon one Warren Merideth, in the peace of the State there being, feloniously, wilfully, deliberately, premeditatedly and of his malice aforethought, did make an assault, and that the said Tom Clay, a certain pistol then and there charged with gunpowder and leaden balls, which said pistol he, the said Tom Clay, in his hands then and there had and held, then and there feloniously, wilfully, deliberately, premeditatedly and of his malice aforethought, did discharge and shoot off, to, against and upon the said Warren Merideth, and that the said Tom Clay, with the leaden balls aforesaid, out of the pistol aforesaid, then and there by force of the gunpowder aforesaid, by the said Tom Clay discharged and shot off as aforesaid, then and there feloniously, wilfully, deliberately, premeditatedly and of his malice aforethought, did strike, penetrate and wound him, the said Warren Merideth, giving to him, the said Warren Merideth, in and upon the left side, and front part of the head of him, the said Warren Merideth, one mortal wound of the depth of about four inches and the breadth of about one-half inch, of which mortal wound he, the said Warren Meri-. deth, at the said county of Boone and State of Missouri, on the said tenth day of October, 1905, then and there instantly died. And so the grand jurors aforesaid, upon their oaths aforesaid, do say: That the said Tom Olay, him, the said Warren Merideth, then and there by means aforesaid, at the county and State aforesaid, on the day aforesaid, feloniously, wilfully, deliberately, premeditatedly, and of his malice aforethought, did kill and murder; against the peace and dignity of the State.
“F. Gr. Harris,
“Prosecuting Attorney.
“A True Bill.
“J. W. Read,
“Foreman of the Grand Jury.”

The defendant entered his plea of not guilty and at the October adjourned term, 1905, of said court he was put upon his trial. At the trial the following state of facts was developed:

The State’s evidence substantially tended to prove that on the 10th of October, 1905, Mr. Wigginton was acting as bartender in the Blue Front saloon in Columbia, and that Alex Hicks.had charge of that portion of the bar which was used by colored persons. The defendant and deceased and most of the State’s witnesses are negroes, and the shooting occurred in the west part of the saloon. The Blue Front saloon was operated by Mr. Kreutz, formerly by Mr. Victor, and faces east on Ninth street, in Columbia; it has an alley on the north and west sides of it. The front door opens to the east; the side door opens to the north and the back door opens to the west; the bar is on the south side of said saloon. About four o’clock on the afternoon of said day, the deceased was standing at the bar talking to a relative of his and smoking. The defendant came in the north door of said saloon, spoke to Alex Hicks, who was behind the bar, said something about going on a fishing trip, lighted a cigar and went out the west door. At that time John Grant, Turner Bass, Lawrence Diggs, John Emerson, Walter Hunt and Emmet Kimbrough were in said saloon, some talking, some drinking, and others smoking. In a short time, variously estimated at from five to ten minutes, the defendant returned with a pistol in his right hand, hanging down by his side; deceased was still standing in the same position at the bar. Defendant walked within about four feet of the deceased, leveled the pistol at him and fired two shots; the deceased fell to the floor, and the defendant fired a third shot. All three of said shots took effect in deceased and death was almost instantaneous. The defendant endeavored to fire his pistol a fourth time, but for some reason it was not discharged. The defendant then went out the west door, walked around to the north alley and on toward Ninth street. The coroner, M. P. Parker, was called and the body of deceased examined and removed. Dr. J. E. Thornton, who held the post-mortem examination, testified that he found three wounds on the body of deceased. The wounds indicated that one bullet entered about the middle of the bade, one bullet entered about an inch below the right ear, and the third bullet entered about an inch above the left eye. Either wound was sufficient, in the opinion of the physician, to have produced instant death. In deceased’s pockets the coroner found some tobacco, a memorandum book and an old knife; the knife was shut up. All the State’s witnesses testified that not a word was spoken by the defendant nor by deceased at the time of nor just prior to the shooting, and the deceased never moved from the position he was in when defendant was in the saloon the first time till deceased’s body fell to the floor. The State’s evidence further showed that some time in the afternoon the defendant was at a colored barber shop and showed a pistol to Robert Bannister, stating that he had had trouble with the deceased that morning and that if it had not been for Mr. Victor, deceased would have killed him. Defendant further said: “I left there this morning to keep out of trouble; but I am going back this afternoon, and if Warren looks like he wants to do anything to me, I will pull out my gun and fill him full of holes.”

The defendant’s evidence tended to prove that he had had trouble with the deceased that morning; that deceased drew a knife and put it in his pocket and looked like he was mad at the defendant, and at the time of the shooting the defendant says that the deceased suddenly turned toward him and at the same time reached his hand in his trousers pocket, and believing from the actions of deceased that he, the deceased, was about to attack him with a knife, which he had previously seen, he immediately began to shoot. The defendant made complaint of the first trouble to the city marshal, Mr. Rogers, who advised him to keep out of deceased’s way, and I .told him he had a right to protect himself, if necessary. The defendant also introduced evidence tending to show that some twenty years before the deceased had served a term in the penitentiary for burglary and larceny, and also that nine years before a coroner’s jury found that one George Candy came to his death by reason of having been shot by the deceased, Warren Merideth.

In rebuttal, the State proved that the deceased was never indicted nor prosecuted for the murder of George Candy.

At the close of the evidence the court very fully and fairly instructed the jury upon every possible phase of the case to which the testimony was applicable. The instructions for the State covered murder in the first and second degrees, appropriately and correctly defining the essential elements of those grades of crime, and those for the defendant presented with extreme liberality the law upon self-defense, reasonable doubt, credibility of witnesses and of the weight to be given to their testimony. Learned counsel for appellant neither in their brief nor oral argument challenge the correctness of the instructions as given, therefore we deem it unnecessary to burden this opinion with a reproduction of them; counsel for defendant did, however, request the court to give the following instruction:

“The court further instructs the jury that, although they may believe from the evidence that the defendant did not have reasonable cause to believe that Merideth was about to assault him with a knife, or do him some great bodily harm, still if the defendant honestly believed that the deceased had such a design and shot to prevent its accomplishment, then the killing was not done of his malice aforethought, and he cannot be convicted of murder in either degree, though he cannot be entirely justified. ’ ’ Which instruction was by the court refused, and to the action and ruling of the court the defendant, by his counsel, then and there at the time duly excepted and saved his exceptions.

In addition to the specific instructions asked and requested by the defendant, the defendant prayed the court to instruct the jury fully on all questions of law involved in this case, but the court refused to give any other instructions for the defendant except the specific instructions asked by the defendant, and given by the court, and to the failure and refusal of the court to further and fully instruct the jury, as requested by defendant, the defendant then and there, by his counsel, at the time duly excepted and saved his exceptions.

The cause was submitted to the jury upon the evidence and instructions of the court and they returned their verdict finding the defendant guilty of murder of the first degree. Sentence was pronounced in accordance with the verdict, and from that judgment the defendant in due time and proper form prosecuted his appeal to this court, and the record is now before us for consideration.

OPINION.

There are but two legal propositions presented by learned counsel for appellant for the consideration of this court:

1st. The sufficiency of the indictment is- challenged.

2d. It is earnestly insisted that the court committed error in refusing instruction numbered 8 as indicated in the statement of this cause, and in failing to instruct the jury upon manslaughter in the fourth degree.

We will treat of these propositions in the order as above indicated.

I.

We have carefully analyzed every allegation embraced in the indictment in which the defendant is charged with the highest crime known to our law. We have carefully examined the precedents in cases of this grade and character which have repeatedly met the approval of this court, as well as the precedents by such distinguished authors as Chitty, Wharton and Bishop, and find that the indictment in this case in every essential particular conforms to those precedents. In State v. Kindred, 148 Mo. 270, the indictment was in precisely the same form as in the case at bar; in fact, no one can read the indictment in the case now before us and escape the conclusion that the pleader was following' the precedents as laid down in the Kindred case. Gantt, <7., in responding to the challenge of appellant to the indictment in that case, said: “No more certain and specific charge of a deliberate and felonious wounding is to be found in the well-considered precedents in criminal pleading. It fully measures up to the standard approved by Chitty, Wharton and Bishop-, ’ ’ citing, in support of this announcement, 3 Chitty’s Criminal Law, margin page 752; Wharton’s Precedents of Indictments and Pleas, 117a and 117b; State v. Snell, 78 Mo. 240; Com. v. Costley, 118 Mass. 1; State v. Coleman, 5 Porter (Ala.) 32; Kelley’s Crim. Law, sec. 474; State v. Thomas, 99 Mo. 235; State v. Herrell, 97 Mo. 105; State v. Steeley, 65 Mo. 218; State v. Green, 111 Mo. 585; 2 Bishop’s New Crim. Proc., sec. 541, note 1.

In our opinion this indictment clearly embraces every essential allegation necessary to constitute the offense of murder of the first degree and is in such form as has repeatedly met the approval of this court. [State v. Privitt, 175 Mo. 224; State v. Rice, 149 Mo. l. c. 465-66.]

Our attention has been directed by learned counsel for appellant to the cases of State v. Herrell, 97 Mo. 105; State v. Woodward, 191 Mo. 617; State v. Birks, 199 Mo. 263; and State v. Williams, 184 Mo. 261. It is sufficient to say of those cases that a careful analysis of the indictments or informations which were condemned by this court and held insufficient, discloses that they in no way conflict with the conclusion reached in this case. We are unwilling to overturn the rules announced in the cases as herein indicated, which have so clearly pointed out the essential allegations in charging, murder in the first degree, and see no good reason for departing from such rules.

rr.

We are unable to agree with learned counsel for appellant upon their second contention, that the court erred in the refusal of instruction numbered 8, and also erred in failing to embrace in its instructions manslaughter in the fourth degree. It is- only necessary to analyze the facts as developed at the trial of this cause to reach the conclusion that such facts did not authorize the court in giving an instruction on mam slaughter in the fourth degree. There is an entire absence of any of the elements of that grade of crime; there was no personal violence and no part of the evidence had a tendency to arouse such a sudden passion as would reduce the killing from murder in the first or second degrees to manslaughter in any degree. But counsel insist that even though the defendant may not have had reasonable ground for the apprehension of danger and that the deceased was about to do Mm some great personal injury, yet if the defendant honestly believed that the deceased was about to inflict upon him some great personal injury, this was sufficient to reduce the Mlling from murder in the first or second degrees to manslaughter. It is only necessary to say upon this insistence that the law upon that subject has frequently had the careful attention of this court, and the ruling has been uniformly announced that a person in Mlling Ms adversary must act at his peril. It is not only essential that he must believe he is in danger when he fires the fatal shot, but the facts must furnish a reasonable cause for so believing; and it has always been held that whether or not such reasonable cause in fact existed, was a question to be determined by the jury. In State v. Westlake, 159 Mo. l. c. 679, Burgess, J., in discussing this question, expressly ruled that the mere fact that deceased may have threatened violence against the defendant did not justify the defendant in assaulting and Mlling him, but in order to■ have done so there must have been an actual attempt at assault or defendant must have had good reason to believe that deceased was about to assault him or to do him some great bodily harm. It was further ruled in that case that the facts disclosed by the record did not justify an instruction for manslaughter in any degree. If the evidence was believed the defendant was guilty of murder either in the first or second degree.

In State v. Frazier, 137 Mo. l. c. 333, and State v. McKenzie, 177 Mo. l. c. 713-14, instructions which required that the facts should furnish a reasonable ground for the belief that the party Mlled was about to inflict some personal injury upon the person who did the killing, were unqualifiedly approved. In State v. Parker, 106 Mo. l. c. 224, the defendant strenuously objected to an instruction which required that the facts should furnish a reasonable ground for the belief that some great personal injury was about to be inflicted upon him, and this court thus clearly stated the law upon that subject: “The objection defendant urges to this part of the instruction is that it did not give him the right to act upon an honest belief that danger was impending, though there was, in reality, no reasonable ground for his apprehensions. To adopt such a rule would open a way of escape to every one charged with murder. How could the belief and apprehensions of a murderer be interpreted? ‘He must decide at his peril upon the force of the circumstances in which he is placed. ’ [State v. Sloan, 47 Mo. 612.] The statute requires in justification of a homicide on the ground of self-defense, that reasonable cause to apprehend should have existed. [R. S. 1889, sec. 3462; State v. O’Connor, 31 Mo. 389; State v. Johnson, 76 Mo. 121; State v. Gonce, 87 Mo. 627; State v. Eaton, 75 Mo. 586; State v. Wilson, 98 Mo. 442.] ”

In State v. Eaton, 75 Mo. 586, this court, in discussing the propriety of giving an instruction on self-defense, said: “On the evidence introduced for the defense, that instruction should have been given. [2 Wharton, Crim. Law, sec. 1026.] We do not mean to say that a mere supposititious or conjectural danger— a danger existing only in the imagination of the deceased, will excuse or justify a homicide. There must be an apparent danger affording a reasonable ground for apprehension on the part of the slayer, that unless he kill or disable his adversary, his own life or limbs are in imminent peril. Whether the appearances of danger to the accused were such as to afford such reasonable ground of apprehension, is a question for the jury.”

The foregoing cases clearly indicate that in order to' make a homicide justifiable it is essential that the defendant who interposes such' defense show not only that he believed that his adversary was about to inflict' some great personal injury upon him, but as well that he had reasonable grounds for so believing. It is equally clear that he must decide at his peril upon the force of the circumstances in which he is placed, and the mere fact that he believed he was in danger of having some injury inflicted upon him, without reasonable grounds for basing such belief, certainly cannot have the effect to reduce the grade of the crime; to so hold would, in our opinion, recognize and announce a principle in criminal jurisprudence which would materially interfere with the infliction of punishment commensurate with the crime committed, as well as the proper administration of justice. The mere belief by defendant that he was in danger of having some injury inflicted upon him, without any reasonable grounds for entertaining such belief, has never been recognized by the courts of this State, or any other State to which our attention has been called, as being sufficient to reduce the grade of the crime from murder in the first or second degree to manslaughter, and we are unwilling to make this advanced step and announce this new rule in our criminal jurisprudence.

We have indicated our views upon the only two legal propositions presented in the brief of counsel for appellant, but in addition to that we have carefully considered the entire record, the evidence as well as all of the instructions of the court. An examination of this record clearly discloses that the defendant has had an exceedingly fair' and impartial trial, in fact, the only errors disclosed in the record were committed against the State. The trial court was extremely liberal in the admission of testimony on the part of the defendant, and the instructions of the court were equally extremely favorable to the defendant. He has had the full benefit of able counsel, who have, as disclosed by the reeord, fearlessly and conscientiously discharged the duties imposed upon them by the court, and if this unfortunate defendant is to suffer the extreme penalty of the law, the result of such punishment can only be attributed to his own unlawful and unjustifiable act in taking the life of his fellow man. This is a serious case, and in the discharge of our duty as an appellate court, we have carefully scrutinized in detail the entire record to ascertain if the defendant had in the trial court, as he was entitled to, a fair and impartial trial. We find that he has, and being unable to discover any error prejudicial to his rights, there is nothing left to be done except to announce that the judgment of the trial court should be affirmed, and it is so ordered.

All concur.


author: GANTT, J.

text:
    THE STATE v. MURPHY, Appellant.
    Division Two,
    March 5, 1907.
    1. WITNESS: Impeachment: Immaterial Matters: This Case. A witness can not be impeached on immaterial matters. In this case — a prosecution for robbery — the theory of the defense was that the prosecuting witness, a married woman, had on previous occasions been intoxicated and had lost money belonging to her husband. When her husband was on the stand, he was ashed if his -wife had not lost money before and if he had not told her that if she did not stop drinhing and going out and losing his money, he would leave her, which he denied. He was then ashed, “Did you not tell Mrs. Baher that?” which he denied. Mrs. Baher was then called as a witness for defendant and was ashed if some months prior to the robbery she had a conversation with the husband about his wife. Meld, that the court properly sustained an objection to the testimony, since It was an attempt to impeach a witness on an immaterial matter.
    2. REMARKS OF COUNSEL: No Exceptions. Where defendant does not except to alleged improper remarhs of the prosecuting attorney in his argument to the jury, nor to the failure of the court to reprimand him severely enough, the alleged improper remarhs cannot be reviewed.
    Appeal from St. Louis City Circuit Court. — How. Matt. G. Reynolds, Judge.

      Affirmed.

      Claiborne £ Fish for appellant.
    (1) If the prosecuting witness had been drunk before and had lost her husband’s money, it was proper for the jury to know what kind of witness she was and whether she was to be believed in this case.' This evidence should have gone to the jury, not only to impeach the husband, Robert Craig, but to also show the character and habits of the prosecuting witness. (2) The remarks of the circuit attorney, and the declaration of the court as to the law governing his remarks, were such as to seriously prejudice the rights of this defendant. State v. Weaver, 165 Mo. 1; People v. Hendrickson, 53 Mich. 535.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) In the direct examination of Mrs. Ella Baker defendant’s counsel asked certain questions about what Mr. Craig said about'his wife. On the State’s objection, this irrelevant evidence was excluded; and the defendant saved his exceptions. Defendant’s counsel did not malee any statement of what he expected to prove by this witness; neither did he make any offer of proof; hence, the alleged error cannot be considered. State v. Martin, 124 Mo. 514; State v. Hodges, 144 Mo. 50. (2) The assistant circuit attorney was not guilty of misconduct in his closing argument, when he referred to the failure of the defendant to place John Moore on the witness stand. The trial court withdrew from the jury, and stated that he had no right to state where Moore was,- but permitted the remark to be made that Moore was not used as a witness by the defense. This was perfectly proper argument, as this court has often held. State v. Emory, 79 Mo. 463; State v. Parker, 172 Mo. 191; 1 Thompson on Trials, sec. 680.
   GANTT, J.

At the October term, 1905, of the circuit court of the city of St. Louis, the defendant and one. John Moore were charged by information of the circuit attorney, duly verified, with robbery in the first degree of Mrs. Henrietta Craig. The information is in the form approved by this court in State v. Lamb, 141 Mo. l. c. 301. A severance was granted and the defendant was duly arraigned and tried by a jury and convicted, and his punishment assessed at five years in the penitentiary. After unsuccessful motions for a new trial and in arrest, the defendant was sentenced in accordance with the verdict, and from that sentence appealed.

On the part of the State the testimony tended to prove that the prosecuting witness was the wife of Robert Craig, and lived with her husband at No. 6113 Pennsylvania avenue, St. Louis. The defendant was .a white man, and Moore was a negro; Mrs. Craig knew both of them. On the 20th of November, 1905, Mr. Craig received his pay from the St. Louis Blast Furnace Company, and went home about dark, and gave his wife $18.85, with which to pay some store accounts. She went out alone, paid some of her bills, purchased a little gin for her husband, and started home with $9.85 in her pocket. As she neared home, she saw two men in the darkness, following her; and when she got into her yard they grabbed her. They grabbed her by the arms, put their hands over her mouth, and took her towards the closet in the back yard. After a scuffle with her, she was thrown to the ground and one of her assailants got his hand in her pocket and took out her pocket book, in which she had a five-dollar bill, two two-dollar bills and eighty-five cents in money. Hearing the noise, her husband was aroused from his bed, between nine and ten o’clock, opened the door and came out. Mrs. Craig was so badly frightened that she could not speak for a while, and did not know what became of the two men. When Mr. Craig opened the door, he saw his wife lying on the ground, and the negro John Moore standing near her feet, and saw the defendant running out of the closet. Both Moore and the defendant ran rapidly out of the yard, one of them saying, “Mr. Craig, we have come to bring your wife home.” Mrs. Craig immediately complained to her husband that she had been robbed of her pocket book, and the next morning he found the empty pocket book in the closet. Mrs. Foster, a neighbor, testified to seeing Mrs. Craig start home that night, and then saw the defendant and John Moore walking after her about a half block behind her. A short time after the alleged robbery, John Moore was arrested at the Wallingford saloon. The defendant was arrested at the Wauge saloon, and had twenty-five cents in his pocket; he stated to the officer that he did not take any five-dollar bill off of Mrs. Craig, but the bill he had that evening was given to him by Jim Pettus to have it changed. Wallingford testified that the defendant was in his saloon that evening and wanted to buy two drinks on credit; that defendant left the saloon a little before ten o’clock, and about eleven o’clock he and Moore returned together, ordered beer, and the defendant paid for it, handing Mr. Wallingford a five-dollar bill.

The defendant’s evidence tended to show that Mrs. Craig was intoxicated on the evening in question; that she stopped in front of a saloon and sent word by one Breckenridge to the defendant to come out; that she told defendant that she was drunk and wanted him to take her home; that defendant, being well acquainted with her, took hold of her and started with her, but soon found that he could not take her by himself; that he called to some negroes to help him, and that John Moore came; that Mrs. Craig fell in the yard and Moore picked her up to carry her, but she objected to going home, saying she was afraid her husband would beat her if she came home in that condition; that when they reached her home Mr. Craig opened the door and asked who was there, and defendant said, “We brought her home; she is drunk. ’ ’ To which Mr. Craig replied, ‘£ All right, boys, thank you; I ’ll treat you all for that. ’ ’ Defendant denied taking any money from Mrs. Craig and denied that Moore took any from her. Moore did not testify. There was evidence to the effect that the defendant was a dairyman and enjoyed a good reputation for industry and honesty; there was also evidence that Mrs. Craig was badly intoxicated that night.

In rebuttal, two police officers, who saw Mrs. Craig at eleven o’clock that night, and to whom she made complaint of the robbery, testified that she was perfectly sober, and there was no evidence whatever of intoxication. Mr. Craig, Mr. Wallingford and Mrs. Foster also testified that Mrs. Craig was not intoxicated.

The court instructed the jury of its own motion und the defendant asked no instructions. No objections were taken and saved to the instructions given by the court and they are not before us for review. Two grounds, only, are relied upon for the reversal of the judgment. These are, first, that the court refused to allow legal and competent evidence on the part of the defendant to be introduced, and, sécond, improper remarks to the jury by, the assistant circuit attorney in his argument.

I. It was a theory of the defense that Mrs. Craig had on previous occasions been in an intoxicated condition, and had lost money belonging to her husband. When Robert Craig, her husband, was on the stand, he was asked if his wife had not lost his money on several occasions before this, and he denied that she had. He was then asked if it was not a fact that in May prior to the robbery she had lost money, and if he did not tell her that if she did not stop drinking and going out and losing his money he would leave her and go to the “ Soldier’s Home,” and he flatly denied that she had lost his money, or that he had so told her. He was then asked, “Did not you tell Mrs. Baker that?” and he denied doing so. He was then asked if he had not told other witnesses the same thing, and he denied doing so. On the part of the defendant, Ella Baker was called as a witness, and was asked if in May last she had a conversation with Mr. Craig about his wife; to this the prosecuting attorney objected on the ground that it was immaterial and that impeachment could not be had upon an immaterial matter; the objection was sustained and the defendant excepted. And it is this ruling that is made the basis of the motion for. new trial on the ground that legal testimony was excluded on behalf of the defendant. We think the ruling of the court was correct. What Craig might have said to- his wife six months before the alleged robbery, or what he said to Mrs. Baker in regard to his wife, was wholly irrelevant to the issue on trial. It is too clear for the citation of authority that a witness cannot be impeached on immaterial matters.

II. It is assigned as error that the prosecuting attorney, in the course of his argument, said, “Where is Moore? Moore is in this building.” To which remark counsel for the defendant objected, and asked that the counsel be admonished; thereupon the prosecuting attorney said, “I say it for this reason, because the defendant, Murphy, says that he got that five dollars from Moore. Moore is within reach of process, and here in this building, and could have been placed on the stand. ’ ’ The court thereupon said, “That point is objectionable, you may draw such inference as you please as to- why they did not put him on the stand to explain why he gave this money to this man, but where Moore is, or what his condition may be, is not to be given to the jury, because it is not in evidence. ’ ’ This ended the colloquy between the court and the counsel, and no exception was taken to the ruling of the court on the ground that his reprimand to the prosecuting attorney had not been severe enough, or his caution to the jury more pointed. For aught that appears the counsel for the defendant was entirely satisfied with the ruling of 'the court. Certain it is that no exceptions were taken or saved at the time, either to the remark of the prosecuting attorney or to the action of the court, and consequently there is nothing before us for review on this point at this time. The question of the defendant’s guilt under the instructions of the court was one for the jury, and we find no reversible error in the record and the judgment is accordingly affirmed.

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


text:
    THE STATE v. TERRY, Appellant.
    Division Two,
    March 5, 1907.
    1. ASSIGNING COUNSEL TO DEFENDANT: Requisites: Ability to Employ. It does not become the duty of the trial court to assign counsel to a defendant until the court has found, first, that he is without counsel; second, that he is unable to employ counsel; and, third, that he has requested that counsel be assigned to him. And where the court finds that defendant is able to employ counsel, it is not its duty to assign counsel to him, even though he requests it.
    2. -: Failure to Request: Waiver. The failure of a defendant to request the court to assign counsel to him is a waiver of this statutory right.
    3. FELONIOUS ASSAULT: Sufficiency of Evidence. Evidence held sufficient to support the verdict finding defendant guilty of felonious assault.
    Appeal from Christian Circuit Court. — Hon. John T. Moore, Judge.
    Affirmed.

      Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
   BURGESS, J.

Upon ah information filed by the prosecntiong attorney of Christian county, the defendant was, at the February term, 1906, of the circuit court of said county, convicted of a felonious assault upon one William Bilyeu, and his punishment fixed at two years in the penitentiary. After filing motions for a new trial and in arrest of judgment, which were overruled, defendant appealed.

The State’s evidence tended to prove that bad feeling had been existing between the defendant and the prosecuting witness, William Bilyeu, due to the fact that Bilyeu and others had been using a road or pass-way said to have been across a portion of defendant’s land. Some of the witnesses claimed that this was a public road, and others thought that the same was on defendant’s ground, but all admitted that the ground and roadway were uninclosed and used by the public as a passway. Some days prior to the date of the commission of the alleged offense, the defendant stated to one Proctor that he wanted Bilyeu to keep' off of his, defendant’s, premises, and that if he didn’t he would cut his liver out. To one Spradley, the defendant stated that if he ever caught Bilyeu down there again he “aimed to paralyze him;” this was some two weeks before the difficulty. The State’s evidence tended to prove that Bilyeu, on Sunday morning, April 91, 1905; was going to church and passing along this road on horseback. He met defendant walking .towards him, in company with a woman whom he afterwards recognized as defendant’s first wife. Wien only a short distance from Bilyeu, the defendant threw two rocks at him; the first rock missed him, and the second rock struck Bilyen on the hand. Defendant then ran up with a knife in his hand and cut Bilyeu on the arm and hand. Bilyeu was holding his bridle reins in his hand and the bridle reins and gloves, which were offered in evidence, were also cut in one or two places. Defendant, after striking Bilyeu five times and cutting him three times, followed him about one hundred yards and used abusive and profane language. As a result of this cutting, Bilyeu was confined to his house some two weeks. Bilyeu was positive that he said nothing to defendant at the time of and just prior to the assault and made no efforts to throw rocks at defendant or to ride his horse over defendant, nor threaten to kill defendant. Bilyeu also testified that defendant had never ordered him to keep off of that roadway, nor sent him word by anyone to that effect. Shortly after this difficulty, defendant met James Bilyeu near Bull Creek, and told him of a fight he had had with William Bilyeu, and asked the witness to go up and see if William was badly hurt. Defendant stated that he had cut him on the arms and stomach and that at the time of the cutting William Bilyeu was on his horse. To Marion Clevinger defendant stated that he guessed he had cut one, and if there had been two or more, he would have been whittling yet. Defendant exhibited his knife and went over to' the grindstone to sharpen it some. In further speaking of the difficulty, defendant said that he had let his knife into him and showed the distance on the knife blade that it stuck in Bilyeu. He further said Bilyeu was on horseback during the difficulty. Defendant made no complaint to this witness of any bruises or scratches on his body. To the witness William Dye, defendant said that he had just had a little racket or scrap, and if he had had a gun he would have killed two more.

The defendant’s evidence tended to show that he met Bilyeu on the roadway which crosses defendant’s land, and that defendant was walking in company with his first wife, who was then going to defendant’s house to wait on his children. The evidence further tended to show that defendant’s present wife was concealed close by and was watching; that Bilyeu threw rocks at defendant and threatened defendant; that one' of the rocks struck defendant on the arm, bruising it considerably; that Bilyeu at first tried to ride his horse over defendant, and then got off his horse when defendant struck him. Defendant admitted striking Bilyeu with a rock and also cutting him two or three times with his knife, but said it was an ordinary pocket knife and that he was whittling with it when he met Bilyeu. Defendant ’s evidence further tended to show that Bilyeu had endeavored to get defendant’s present wife to leave him; had said many ugly things in regard to defendant, and that defendant had notified him never to use that pass-way or roadway again. In response to such notice, the defendant’s evidence further tended to show that Bilyeu said that he intended to use that passway as long as he was there, and that defendant did not look bad or scary to him. The defendant also introduced evidence tending to. show that, prior to this difficulty, he enjoyed a good reputation as a peaceable man.

In rebuttal, the State proved that defendant’s first wife, who was a witness for defendant, stated to Mrs. Anderson that she was not noticing the defendant at the time the difficulty commenced between him and Bilyeu ; that she was talking to someone else and did not know how the fight started. Bilyeu also denied making any threats against the defendant, or making any effort to induce his second wife to leave him.

Defendant is not represented in this court; but in the motion for a new trial several grounds are assigned therefor, but only such as seem meritorious will be noticed. The first of these is the action of the court in requiring the defendant to plead to the information and to be placed on trial without first having appointed some attorney at law to represent Mm in the trial of the cause.

Section 2560, Revised Statutes 1899, provides: “If any person about to be arraigned upon an indictment for a felony be without counsel to conduct Ms defense, and be unable to employ any, it shall be the duty of the court to assign him counsel, at his request, not exceeding two, who shall have free access to the prisoner at all reasonable hours.”

It will be noticed from this statute that three things are necessary to be found by the trial court before appointing or assigning counsel for a defendant charged with felony: first, that the defendant is without counsel; second, that he is unable to employ counsel; third, that the defendant has requested that counsel be appointed for him. This record does not show that defendant requested the court to appoint counsel for him, but it does disclose that the court found that he was able to employ counsel. Defendant being able to employ counsel, it was not the duty of the court to appoint counsel for him, even though he had requested it. Besides, his failure to make such a request was a waiver of this statutory right. In the case of State v. DeSerrant, 33 La. Ann. 979, it was held, under a statute which provides that “Every person shall be allowed to make his full defense by counsel learned in the law, and the court before whom he shall be tried shall immediately, on his request, assign to him such counsel as he shall desire,” that as it did not appear that any request was made by the accused of the court for the appointment of counsel to defend him, the court was not required to make the appointment. “If he fails to request the appointment of counsel, he cannot afterwards complain of being unrepresented.” [Wharton’s Crim. Pl. and Pr., (9 Ed.), see. 558.]

An attorney appointed by the court to defend a person charged by indictment or information with a felony renders his services without any compensation therefor, and it is only when the defendant is unable to employ counsel, and makes the necessary request, that it becomes the duty of the court to assign him counsel. It would manifestly be an injustice to require an attorney to defend without compensation a person under indictment or information for felony, when such person is able to employ counsel, or to force counsel upon the defendant without his consent. Occasionally the accused prefers to conduct his own defense rather than employ counsel or have the court employ counsel for him.

The instructions seem to cover every phase of the case, and appear very fair to-the defendant; nor did the court commit error in failing to instruct upon any lower offense than the one charged, because there was no evidence upon which to predicate such an instruction. [State v. Harris, 199 Mo. 716.]

The verdict was well warranted by the evidence, and, finding-no reversible error in the record, the judgment is affirmed.

All concur.