author: FARIS, J.

text:
    THE STATE v. GROVER SHAFFER, Appellant.
    Division Two,
    December 9, 1913.
    1. CHANGE OF VENUE: Prejudice of Inhabitants: Must be Against Defendant, Not Relatives. To authorize a change of venue on account of the prejudice of the inhabitants of the county the prejudice should be shown to be against defendant himself, not simply against his relatives. A showing that twenty years before the trial, when defendant, charged with stealing hogs, was only five or six years old, a brother and cousins of defendant were implicated in and tried for a notorious murder committed in the same neighborhood in which defendant resides, and that an abiding- prejudice against them had grown up, which appears to extend itself to anyone bearing defendant’s name, is not sufficient to convict the trial court of an abuse of its sound discretion in refusing a change of venue, especially where the jurors were selected from another part of the county, and none of the talesmen on their voir dire revealed any prejudice.
    2. MOTION TO QUASH PANEL: No Exception: Not Selected as Directed by Court. If no exception was saved to the overruling of defendant’s motion to quash the panel of jurors, any error in the ruling is not for consideration on appeal; nor does such a motion prove its allegations, and if there is no showing in the record, except a bare statement in the motion, that an order was made by the court to obtain the jury from one part of the county, and he obtained it from another, such assertion cannot be accepted as one of a fact in the case.
    3. ACCOMPLICE: Corroborated by Circumstances. An instruction telling the jury that the testimony of an accomplice in crime “when not corroborated by some person or persons not implicated in the crime or corroborated by circumstances given in evidence as to matters material to the issues,” ought to be received with great care and caution by the jury, is not reversible error. The testimony of such a witness may be “corroborated by circumstances given in evidence as to matters material to the issues,” as well as by the direct testimony of another witness.
    4. INSTRUCTION: Refusal: Already Given: Reasonable Doubt. It is doubtful whether an instruction defining reasonable doubt tends to clarity or the reverse; but where the court has already given at defendant’s request an instruction sufficiently defining reasonable doubt, it is not error to refuse another telling the jury that “if the whole evidence in this case leaves their minds in such a condition that they are neither morally certain of defendant’s innocence, nor morally certain of his guilt, then a reasonable doubt exists, and the jury must acquit him.”
    5. -: Singling Out Fact. An instruction which singles, out an isolated fact, and comments thereon by telling the jury that unless they find it to exist beyond all reasonable doubt then it is no evidence of defendant’s guilt, thereby accentuating and calling special attention to that fact, should not be given for either the State or defendant.
    6. -: Defendant and Wife as Witnesses: Interest in Result. An instruction in a criminal case telling the jury that “the defendant is a competent witness in his own behalf, and the jury should fully and fairly consider his testimony, together with all the other testimony in the case, but the jury may take into consideration the fact that the defendant is testifying in his own behalf, and the interest he has in the result of this trial, as affecting his credibility as a witness,” while improper in a civil case, and unnecessary in a criminal case, is not reversible error in a criminal case, for the reason the statute (Sec. 5242, R. S. 1909), in conferring on defendant the right to testify, has limited such right by permitting a showing of the fact that the witness is the defendant and on trial, for the purpose of affecting his credibility. And for the same reason the usual instruction as to the defendant’s wife’s interest is not reversible error. '
    Appeal from Clark Circuit Court. — Eon. Samuel Davis, Judge.
    Affirmed.

      John A. Whiteside and T. L. Montgomery for appellant.
    (1) The application for change of venue on account of prejudice of the inhabitants of the county should have been sustained. State v. Goddard, 146 Mo. 181; State v. Burgess, 78 Mo. 234; Randle v. State, 28 S. W. (Tex.) 953; Higgins v. Com., 94 Ky. 54; Draughan v. Com., 45 S. ~W. 368; Ex parte Chase, 43 Ala. 303; Birdson v. State, 47 Ala. 74; People v. You-1mm, 53 Cal. 566; State v. Billings; 77 Iowa, 417; Gallaher v. State, 40 Tex. Or. App. 296; Saffold v. State, 76 Miss. 258 ; Peoples v. Suesser, 132 Cal. 631; Barnes v. State, 14 Am. Cr. Rep. 229; Owens v. State, 82 Miss. 31. . (2) Defendant’s motion to quash the panel of jurors should have been sustained. State v. Wright, 161 Mo. App. 597, and authorities, supra. (3) Plaintiff’s instruction number two given on part of the State is not the law as declared by numerous decisions of this court, with reference to the testimony of an accomplice, in that it includes the words “or corroborated by circumstances given in evidence as to matters material to the issues.” State v. Shelton, 223 Mo. 137; State v. Daly, 210 Mo. 687; State v. Tobie, 141 Mo. 561; State v. Crab, 121 Mo. 565; State v. Black, 143 Mo. 171; State v. Sprague, 149 Mo. 423. (4) The court erred in giving plaintiff’s instructions numbered three and four, in which the jury were instructed to» take into consideration the interest of defendant and Ms wife in the result of the verdict. Secs. 5242 and 5244, R. S. 1909; State v. Starr, 244 Mo. 161; State v. Kilgore, 70 Mo. 559; Hickey v. United States, 160. U. S. 408,16 S. Cal. 327; State v. Barrington, 198 Mo. 126. (5) The court should have given defendant’s refused instruction marked “E.” State v. Clark, 147 Mo. 20; State v. Talmage, 107 Mo. 550; State v. Feeley, 194 Mo. 324; State-v. Neissline, 25 Mo. 124; State v. Clein, 154 Mo. App. 686; State v. Crabtree, 170 Mo. 127. (6) The court should have defendant’s refused instruction marked “G,” State v. Anderson, 86 Mo. 309; State v. Partlow, 90 Mo. 608; McNealey v. State, 36 Pac. (Wyo.) 827; Smith v. State, 10 Wyo. 157.

      John T. Barker, Attorney-General, and W. Hi. Fitch, Assistant Attorney-General, for the State; 8-P. Howell of counsel.
    (1) The defendant filed his application for a change of venue on account of the prejudice of the inhabitants of the county against him. There was no showing made as to when the defendant was advised or when he obtained knowledge of such prejudice. Such showing should be made to entitle the application to a hearing at that time. State v. Blitx, 171 Mo. 530; State v. Lehman, 182 Mo. 424; State v. Callaway, 154 Mo. 91. It is also the duty of the applicant to show that he has acted promptly on learning the facts. Cases above; State v. Davis, 203 Mo. 616; State v. Clevinger, 156 Mo. 190; State v. Sharp, 233 Mo. 269. The court, properly overruled the application. It should be borne in mind that it is the right of both the people and the accused to have the trial in the county where the crime is committed; upon an application for a change of venue on the ground of prejudice of the people, the court should see that the law providing for such change, has been substantially complied' with before a change is granted. (2) Corroboration may be by facts and circumstances, as well as by the testimony of witnesses. I't is not necessary to have the accomplice corroborated by a living witness because the facts in the case, which are substantiated by other witnesses, may be as conclusive on the point involved as would be the testimony of a living witness. (3) Instruction 3 is a time-honored and approved instruction which cautions the jury to carefully weigh the testimony of the defendant and advising them that they may take into consideration the fact that he is defendant and testifying in his own behalf, and the interest he may have in the result of the case. This instruction in substantially the same form as given here has had the approval of this court many times. State v. Fox, 148 Mo. 517; State v. Dilks, 191 Mo; 674. Likewise instruction 4 has often had the approval of this court and especially when used in connection with instruction 3. Ordinarily we find these instructions combined and both given as one. State v. McDonnell, 232 Mo. 219; State v. Napper, 141 Mo. 407; State v. Stratman, 100 Mo. 547; State v. Ringle, 128 Mo. 538.
   FARIS, J.

There was filed on the 21st day of March, 1912, in the circuit court of Clark county, an amended information charging defendant and one Guerdon Best with having on the 8th day of February preceding, committed grand larceny, for that they had stolen certain hogs in said information described. Guerdon Best pleaded guilty on April 1,1912, was duly sentenced to the penitentiary on such plea and thereafter paroled pursuant to statute. The defendant, upon his trial, was found guilty and had assessed against him as punishment imprisonment in the penitentiary for a term of two years.

The appellant (whom we shall hereafter call the defendant) filed on the first day of April, 1912, which was the date upon which the circuit court of Clark county convened in regular term, his application for a change of venue on account of the prejudice of the inhabitants of Clark county against him. Thereafter and on the same day defendant filed a second application for a change of venue on account of the alleged prejudice against him of Judge Stewart, the regular judge of the Clark County Circuit Court. The latter application, coming on to be heard first, was sustained, and thereupon Judge Stewart called in Judge Samuel Davis, judge of the 15th Judicial Circuit, to try the case, and reset the same for trial at an adjourned term to be convened on Tuesday, April 23,1912.

The case coming on for hearing before Judge Davis on the date last above mentioned, defendant refiled his application for a change of venue. This application, omitting caption and verification by defendant and his compurgatories, all of which latter things are formal, is in the following form:

“Now comes Grover Shaffer, one of the defendants in the above entitled cause, and states that the minds of the inhabitants of said county of Clark are so prejudiced against him that he cannot have a fair trial in the above cause in said county,- wherefore he asks that the venue of said cause be changed to the circuit court of some other county in this circuit where such prejudice does not exist.”

Upon a hearing had, defendant, to support the alleged prejudice which he averred existed against him, called, including himself, some thirteen witnesses, residing for the most part in the neighborhood, or within two or three miles of the place, where the alleged offense of the defendant was committed, and of whom at least three, if not more, were related to defendant, who swore to the existence of certain prejudice against him, which prejudice largely grew out, as was vaguely hinted in the record, of a murder and a trial therefor, in which murder a brother and certain cousins of defendant, as we are told in defendant’s brief, had a part. This murder seems to have occurred more than twenty years before the instant case was tried and at a time when defendant was only some four or five years of age.

There was offered to combat the case thus made, some seventeen or more witnesses for the State, coming for the most part from the central and southern part of Clark county, and coming from divers avocations and walks of life. These witnesses for the State testified practically with unanimity that they knew of no prejudice existing in their several neighborhoods against defendant and had heard no prejudice expressed against him whatever. The court thereupon overruled the application for a change of venue and defendant saved his- exceptions.

After the trial a jury of twelve men was chosen and sworn to try the case, and defendant filed a motion to quash the panel for that, as was averred in his said motion, the jurors had been selected from the central part of the county, the elisor who acted in this behalf having been, as was averred, directed by the court to select them from, the southern part of said Clark county. This motion was overruled, but defendant took no exceptions to the action of the court in this behalf, nor does the record show that any order was made by the court that the jurors be gotten from the southern part of the county.

The testimony offered by the State tended to show that defendant, who resided in the little village of Peaksville in Sweet Home township, in said Clark county, was at and prior to the date of the alleged theft of the hogs in question, contemplating engaging in the .business of va butcher, and that, to this end he had rented and had had partly fitted up a. shop in the village of Revere, and that he had tentatively arranged with one Painter, who was a witness for the State, to have charge of this shop for him. The testimony of Guerdon Best, the accomplice of defendant, who, after his plea of guilty, sentence to the penitentiary and parole,' was offered as a witness by the State, tended to show that Best began working for the defendant on the 5th of February, and that defendant communicated to Best his intentions of • setting up a butcher shop and asked Best to go with him and get some hogs; that defendant and Best started at night, at about the hour of half-past ten and went along the public road a distance of a mile and a quarter from, and in a direction northwest of, defendant’s residence to the premises of one Ben Best, who was the grandfather of the said Guerdon, and who is alleged in the information to have been the owner of the hogs stolen. Defendant and his accomplice Best drove seven hogs from Ben Best’s premises back along the way in which they had come and to a point about a quarter of a mile from defendant’s residence, when one of the hogs becoming unruly, objecting to going further, and showing a desire to return, defendant shot and killed it with a small 22-calibre rifle. Thereafter defendant and Best proceeded with the remaining hogs to defendant’s bam, returning shortly thereafter with a sled for the one they had killed. After placing the hog which was killed in the road upon the sled, straw was thrown over the blood and burned so as to destroy the blood signs which existed there in the road upon the snow. Thereafter they killed five of the remaining hogs in defendant’s barn, took them to the kitchen, skinned them, removed the offal, cut them in halves or quarters and hung them in the attic of defendant’s residence upon nails driven in the rafters. On the night following, the entrails and skins of the hogs were taken by Best and the defendant to a small creek and thrown into said creek under a culvert. One of the hogs stolen, which was deemed at the time too small to kill, was subsequently on the following night, ¡or morning, killed' by Best and the defendant, and skinned and the skin and entrails were hidden by Best, at defendant’s suggestion, in an ice house at a place subsequently pointed out by Best and at a place where the same were afterwards found by the sheriff and. others. Another, witness, one Elmer Ritchey, an ex-convict, testifying for the State, says that he saw the meat of the hogs in question hanging in the attic of the defendant. Testimony was also offered that the attic of the defendant’s house was examined and while no nails were found in the rafters, the broken parts of nails, having the appearance of having been recently broken off,' were found, as well as marks indicating grease and blood on the floor, under the spot from which the nails had been broken. Other testimony offered by the State tended to show the identity of the hogs and the ownership as laid in the information.

Testimony offered on the part of defendant tended to show that his near neighbors, one of whom at least was his near relative, saw nothing of the facts of the killing of the hogs, nor heard anything thereof, or heard any noise of the shooting of the same on the premises of defendant, as detailed by his accomplice Best. -. It was also shown that defendant’s alleged accomplice and one Quinn Ritchey were very much together, loafing about town about the time of the theft of these hogs. The relevancy of this testimony is difficult to see, because the record discloses no definite connection of Quinn Ritchey with the matter otherwise in any way. We cannot find that Quinn Ritchey was ever sworn as a witness. By large inference he is identical with Elmer Ritchey who was a witness for the State and who, it was shown by the defense, had served a term in the penitentiary of South Dakota for grand larceny. The record, without any explanation of the discrepancy which we have been able to find, does show that one “Quinn Ritchey was recalled” and admitted that he had come back and tried to get defendant to pay him money, inferentially to refrain from testifying against him.

The defendant and his wife both testified briefly in the case, denying categorically the salient facts testified to by the witness Best. Defendant’s wife denied that said Best had ever worked for the defendant at the time, or about the time of the theft of the hogs, or at any time; while defendant himself, without saying so in words, in effect corroborated Best in this detail and contradicted his wife on this point.

There was some effort made by the State to show that defendant had endeavored to hire the witness Elmer Ritchey to stay out of the State and not testify in the case. There was proof (which was not denied either by or for defendant) that defendant had given him at one time the sum of five dollars and that counsel for defendant had sent him on another occasion ten dollars, and on another had written him with the suggestion in substance that the witness would better go home and stay there; that he need not trouble himself about returning to Missouri, unless he were arrested, and that he could not be legally subpoenaed in Iowa.

Upon the trial the court gave of his own motion a cautionary instruction to the jury touching the testimony of an accomplice. This instruction is bitterly assailed by defendant on the ground that the portion of it set out in italics is an innovation producing error meet for reversal. This instruction is as follows:

“The court instructs the jury that an accomplice is one who participates with another person in the commission of a crime and that the testimony of an accomplice is admissible in evidence against or in behalf of the party on trial, but, the jury are further instructed that the testimony of an accomplice in crime when not corroborated by some person or persons not implicated in the commission of the crime or corroborated by circumstances given in evidence as to matters material to the issues, that is, as to matters connecting the defendant with the commission of the crime charged against him, ought to be received with great care and caution by the jury, and the jury ought to be fully satisfied of its truth before they should convict the defendant on such testimony.

“In this connection, however, the-jury are further instructed that they may convict the defendant upon the uncorroborated testimony of an accomplice, if they believe the testimony given by the accomplice, if he be an accomplice, to be true, and if the jury also believes the testimony given by the accomplice establishes the guilt of the defendant.”

The court also gave of his own motion to the jury touching the testimony of defendant and his wife, instructions 3 and 4, which we set out below, to-wit:

“3. The court instructs the jury that the defendant is a competent witness to testify in his own behalf in this case, and the jury should fully and! fairly consider his testimony, together with all of the other testimony in the case, hnt the jury may take into consideration the fact that the defendant is testifying* in his own behalf, and the interest he has in the result of this trial, as affecting his credibility as a witness.

“4. The court instructs the jury that the defendant’s wife is a competent witness to testify in behalf of her husband, the defendant, and the jury should fully and fairly consider her testimony, together with all of the other testimony in. the case, but the jury, in determining what credit and weight they should give to the testimony of the defendant’s wife, may take into consideration the fact that she is the wife of the defendant, and the interest she has in the result of this trial.”

The defendant offered and the court refused to give instructions E and Gr, which are as follows:

“E. The court instructs the jury that if the whole evidence in this case leaves their minds in such condition that they are neither morally certain of the defendant’s innocence, nor morally certain of his guilt, then a reasonable doubt exists, and the jury must give the defendant the benefit of such doubt and acquit him.

“Gr. Even though the jury may find from the evidence that the entrails of one of the hogs alleged to have been stolen was found in an ice house in the possession of the defendant, yet unless the jury find beyond all reasonable doubt, that the said entrails were placed there with the knowledge and consent of the defendant said fact is no evidence of defendant’s guilt.”

Upon all of these instructions, either for the giving thereof or for the refusal to give the same, defendant hangs his most strenuous contentions for reversal, and we have set them out herein at the expense of brevity in order that the full force of his contentions may be seen.

This statement includes, we think, enough of the facts both as to the evidence adduced and the proceedings had in the trial to render olear the points discussed in the many contentions lodged with us in the case by the defendant. Such other facts, as it shall become necessary to state, if any, will be found in the subjoined opinion.

There are lodged with us by the learned counsel a number of strenuous contentions, which have been briefed and are urged with much earnestness, learning and ability. Among these, defendant urges upon us that the learned court nisi erred (1) in refusing to grant to defendant upon his application a change of venue on account of the bias and prejudice of the inhabitants of Clark county; (2) that defendant’s motion to quash the panel of jurors after they had been selected and sworn to try him, should have been granted; (3) that instruction 2, given by the court of his own motion, as to the necessity of corroboration, of the testimony of an accomplice, was erroneous, and (4) that the court committed error in (a) refusing to give on the part of the defendant and as requested by him, instruction marked E, and (b) that the court similarly erred in refusing to give at the request of defendant instruction marked Gr. Both of these instructions refused by the court, as well as the instruction numbered 2 given by the court, are set out in the statement of the case for a better understanding of the points involved.

I. Returning now to the contention of defendant as urged by him with much of zeal, that the court ought, upon the proof, to have granted defendant a change of venue on the ground of the prejudice of the inhabitants of Clark county, to some other county where such prejudice did not exist, we find that so far as the evidence offered pro -and con upon the hearing was concernec^ defendant on his behalf, including himself, offered thirteen witnesses who resided, for the most part in the northern part of Clark county, and for the most part also in the immediate neighborhood where the offense of defendant is said .to have been committed, and some of whom, as already stated, were related to defendant. The testimony of these witnesses tended to show the existence of some prejudice against defendant in their respective and immediate neighborhoods. The grounds for this prejudice, as learned counsel for defendant sought to prove, seem to have been in a sense inherited, and to have arisen from the fact that more than twenty years before the trial and while the defendant was but a child of some five or six years, a brother of his and three cousins were charged with a notorious murder, the victim being a member of a very prominent family of Clark county. We may say in passing that the court sustained objections to testimony which the defendant sought to offer as to the fact of this murder and to the fact that his relatives were charged therewith and tried therefor, as showing a foundation for the alleged prejudice which existed against defendant. This testimony to which the court sustained objections made by the State, would, it sufficiently appears, have tended to show that there was prejudice arising from the facts stated, against anyone bearing the name of Shaffer. The action of the court in refusing to hear this testimony is urged as error. We go out of the way and wander somewhat from the point before us to say that in our view the learned trial court was correct in its refusal. The point before the court was whether there was prejudice against defendant himself; not whether there was prejudice more than •twenty years of age against his relatives. We must credit the citizens of Clark county with too much intelligence to say of them that they would visit blame upon and hold prejudice against defendant, who was but a toddling child when the facts occurred upon which the alleged prejudice was founded, for acts in which he had no part and of which he was as innocent as the unborn babe.' We cannot believe that so little of fairness and so little of intelligence would be used by the citizens of that county in distinguishing between the things done almost a generation ago by! defendant’s relatives and the circumstances of the life, and citizenship of the defendant himself.

Returning to the main question under discussion here we may state that some seventeen witnesses were, offered by the State as to whether there existed such prejudice against defendant in Clark county as would prevent him from obtaining a fair and impartial trial. These witnesses came, for the • most part, from the central and southern part of Clark county; from the part of that county, we may here say, from which the, trial jury afterward came. Many of these witnesses, perhaps a majority of them, did not know defendant, nor had they ever heard of him, and none of them either knew of the existence of any prejudice against him, or had they heard that any such prejudice existed. Some of them, it is true, said that such prejudice might exist and they might not be advised of it.But clearly such a statement as this elicited on cross-examination proves little of pith or value. ■

The record further shows that comparatively little difficulty was had in the selection of a jury. Five jurors only, if we take the letter of the record for it, disqualified themselves, and each of them for the reason, not that he was prejudiced, but because he had talked with the parties or the witnesses and had formed an opinion. Some three others, whose names do not appear in the panel of twenty-four, from which the jury was ultimately selected, were examined upon their voir dire, but what became of these three the record does not show.

We have had this point before us on many occasions and we have uniformly held, since the adoption of the present statute on this subject, that the matter of granting a change of venue is bottomed upon the sound discretion of the trial court, and that it is only when the trial court so far palpably violates the discretion lodged in him, as to preclude to the defendant a fair and impartial trial, that this court will interfere. [State v. Anderson, 252 Mo. l. c. 101; State v. Barrington, 198 Mo. 23; State v. McCarver, 194 Mo. 717; State v. Rasco, 239 Mo. 535; State v. Sharp, 233 Mo. l. c. 283.] Especially is this true, when, as in the instant case, the testimony is conflicting, with the weight of it, as the record shows it, in favor of the absence of a sufficient quantum of prejudice to prevent a'fair and impartial trial. We would hold the same view if upon the record the- testimony seemed to be evenly balanced, thus deferring to the view of the learned trial court who had the witnesses before him and to the discretion which the statute and the cases cited lodge in him (Sec. 5180, R. S. 1909); a fortiori do we. so hold where the weight of the testimony seems clearly against the position of the defendant. Hence, we disallow this point.

II. The record shows that after the trial jury of twelve had been impaneled and sworn to try the cause the defendant filed a motion to quash the panel for that, as he averred in his motion, the e^sor, whose appointment upon motion he had procured, had violated the ordier of the court in summoning the venire from which the trial panel was obtained, from the central part of Clark county, instead of from the southern part thereof. There is no showing whatever in the record, except from the bare statement in this motion, that any order was made by the court to the elisor to obtain this jury from the southern part of Clark county. A map of Clark county showing the municipal townships thereof was introduced, and from this map and the information afforded us by tbe voir dire examination of tbe venire, we are informed that tbe jury came from the central and southern townships of the county, and not from the northern townships adjoining (except as to a corner) that in which the offense is alleged to have been committed, or from that township itself. No exception was saved to the ruling of the court in overruling the motion to quash this panel. For this reason, if for no other, the point is not properly before us for decision. We reserve our ruling as to-whether it would be error sufficient for reversal, for a sheriff to violate the order of the court as to the part of the county from which a trial panel should be summoned, until this point shall be a live one in a case before us. It is not in this case for both of the reasons suggested above.

III. Defendant concedes that instruction numbered 2, which we set out in full in the statement, is in the main the usual cautionary instruction which the law warrants the giving .of touching the testimony of an accomplice, and that no error can be based upon the giving of the same, except as predicated upon the words which we have italicized, that is to say that clause which permits corroboration of an accomplice’s testimony to be made “by circumstances given in evidenceThe books are full of authorities holding that the instruction as given, without the words “corroborated by circumstances given in evidence, ” is a good and proper one. It has been repeatedly in that form passed on and held good by this court. [State v. Crab, 121 Mo. l. c. 565; State v. Shelton, 223 Mo. l. c. 137; State v. Daly, 210 Mo. 664; State v. Tobie, 141 Mo. l. c. 561.] So much being conceded, the narrow and exact question is whether the use of the term “corroborated by circumstances given in evidence,” makes this instruction bad and is so far error hurtful to the defendant as to bring about a reversal of this case. It will be borne in mind that this instruction is without any sort of doubt merely a cautionary instruction given by the court solely for the benefit of the defendant and not for the benefit of the State. For it is the law and this instruction so tells the jury, that a conviction may be had upon the uncorroborated testimony of an accomplice, if the jury find and believe such testimony to be true, and that the same establishes the guilt of the defendant. [State v. Daly, supra; State v. Shelton, supra.] If these words which we have quoted make this instruction bad such condition arises because the thought conveyed is untrue either as a matter of fact, or as a matter of law, or both. We do not think it is necessary to cite authorities upon this point. Can there be any manner of doubt in common sense that corroboration may arise as well from circumstances as from the direct testimony of a witness? It is just as true that ‘ ‘ confirmation strong as proof of Holy Writ” may come from circumstances arising in the case and shown by the evidence as from the testimony of one or many witnesses. No greater reason exists for the refusal of such corroboration of an accomplice’s testimony by circumstances than for the refusal of circumstantial evidence in the ordinary trial. No one will doubt for a moment, in truth all of us know, that convictions may be had, and have been had, and will yet be had, upon circumstantial evidence alone. Then if one may be convicted solely and wholly upon circumstantial evidence, may not the testimony of an accomplice likewise be corroborated by such evidence? We think so, and so thinking hold that in a proper case, where competent proof is offered of corroborating facts and circumstances, the court may very properly instruct, and should in the interest of justice instruct, that the necessary quantum of corroboration of an accomplice’s testimony may be drawn from the circumstances of the case shown in evidence.

IV. Defendant upon the trial requested the court to give instruction E, which we have for information’s sake set out in the statement. Upon the refusal of the court so to do the defendant saved his exceptions. This instruction as offered by defendant, was clearly an attempt to more nearly and clearly define reasonable doubt. It is doubtful, as this court has repeatedly held, whether the defining of reasonable doubt tends toward clarity or the reverse thereof. [State v. Nerzinger, 220 Mo. l. c. 49; State v. Bond, 191 Mo. 555; State v. Leeper, 78 Mo. 470; State v. Robinson, 117 Mo. l. c. 661; State v. Wells, 111 Mo. l. c. 537.] It is just a little like the gilding of fine gold. In addition to all this, the court had already given at the request of defendant an instruction sufficiently defining the nature of such doubt in order to warrant an acquittal. For this reason, if for no other, this objection of defendant must be disallowed.

The court also refused to give instruction marked “ G, ” which we have set out in the statement. It is clear that this requested instruction was but a comment upon one phase of the testimony offered in the case. The defendant singled it out in this instruction and asked that, touching it, the jury be instructed that unless they found the single fact set out therein beyond all reasonable doubt, the same was no evidence of defendant’s guilt. If the court had given it sua sponte, then it is very likely the defendant would be here urging that it was error, because it is a comment upon the evidence and a singling out of one isolated fact and accentuating and calling special attention to it. This is a thing forbidden by the decisions, and the learned trial court was correct in refusing this instruction. [State v. Wertz, 191 Mo. 569.]

V. It is also contended by defendant that the court erred in giving instructions numbered 3 and 4, which we have set out in the statement, and which deal with the weight and credibility of the testimony of the defendant and that of defendant’s wife. Learned counsel cite us to a very late holding in a civil case, that of Benjamin v. Railroad, 245 Mo. 598, in which suit a similar comment upon the testimony of the plaintiff was held to be error. We have no fault to find with the holding of the court in that case. But learned counsel overlook the fact that the statute itself in conferring upon the defendant and defendant’s spouse the right to testify, has seen fit to limit such right by permitting a showing of the fact that the witness is the defendant and on trial, and the fact of marriage to the spouse offered as a witness, for the purpose of affecting the credibility of either or both of them. [Sec. 5242, R. S. 1909.] We have no such statute touching the testimony of a plaintiff in a civil case, or of a defendant in such case; hence the difference between the two holdings. If the statute permits the showing of the fact of interest on account of the witness being a defendant or the spouse of a defendant, why may not the jury be likewise advised of the existence of 'the la,w applicable to such status by an appropriate instruction? We concede, however, that there is not much excuse for the giving of such instructions as these where the court instructs generally as to the credibility of witnesses and as to the fact that the interest of any witness or witnesses in the case may be considered by the jury for the purpose of affecting the credibility of such witness. But while these instructions have been many times given, and while in the view of the writer they ought not to be given, yet when we consider the statute which we cite above, and when we have reference to the many holdings of this court that the giving of instructons such as these do not constitute reversible error, we are not disposed to go farther than to say, as has been many times said before by this court, that in our view the giving of such instructions as these subserves no useful purpose, and would as well be omitted and the labor of preparing the same saved. Similar instructions have been before us in many cases. [State v. Napper, 141 Mo. l. c. 407; State v. Fox, 148 Mo. 517; State v. Dilts, 191 Mo. 673; State v. McDonough, 232 Mo. 219; State v. Lingle, 128 Mo. 528; State v. Newcomb, 220 Mo. l. c. 66.] And while the giving thereof has often been criticized as unnecessary, we have not been able to find a single case reversed on account of these instructions.

There was sufficient evidence in the case, if the jury believed it, and they evidently did believe it, to warrant the verdict which they rendered. In our view every inference to be drawn from the facts shown in testimony, notwithstanding the attack made upon the different witnesses for the State, and notwithstanding the attempt to impeach them, is in favor of the theory of the State rather than that of the defendant. It is impossible to reach any other conclusion than that the .verdict of the jury was correct and fully warranted by the facts shown. Compelling in this yiew is the fact that defendant, as neither he nor anyone for him denies, paid money to one of the witnesses for the State, and made other strenuous efforts, to keep this witness out of the State and thus prevent him from appearing against defendant. Thus viewing the facts, and finding after a most careful investigation. of the record, no error which will justify a reversal, we think that the judgment should be affirmed. Let this be done.

Brown, P. J., and Walker, J., concur.


source: Caselaw Access Project

author: WALKER, J.

license: Public Domain

text:
    THE STATE v. WILLIAM C. HUMFELD, Appellant.
    Division Two,
    December 9, 1913.
    APPELLATE JURISDICTION: Misdemeanor: Constitutional Question: Motion to Quash: No Exception. A motion to quash au information on the ground that a conviction thereunder would deprive accused of a constitutional right, is no part of the record proper, and can be preserved for review only by a bill of exceptions; and where no effort has been made to preserve the constitutional question in the record, and the information charges a misdemeanor, the Supreme Court does not have appellate jurisdiction.
    Appeal from Franklin Circuit Court. — Eon. R. A. Breuer, Judge.
    Transferred to St. Louis Court of Appeals.

      Jesse E. Sdiaper and Morris S Hartwell for appellant.

      John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for the State.
   WALKER, J.

Appellant was convicted of a misdemeanor, in the circuit court of Franklin county, on an information charging him with a violation of section 8315, Revised Statutes 1909, regulating the practice of medicine and surgery.

The ease is brought here on appeal on the ground that a constitutional question is involved; the manner in which this question was raised was by a m0^011 1° quash the information, and no effort was made thereafter to preserve the question in the record.

It has been held in a number of cases that a motion-to quash an indictment or information is no part of the record proper, and the error of the court in overruling same must be preserved .in the bill of exceptions. [State v. Coleman, 199 Mo. 112; State v. Finley, 193 Mo. 232; State v. Tooker, 188 Mo. 438.]

A’ later case directly in point holds that where the record on appeal from a conviction for a misdemeanor, shows that no constitutional question was raised save by a motion to quash the indictment, and defendant in his motion for a new trial does not call the attention of the trial court to the alleged error in overruling the motion to quash, no constitutional question is presented, and the Supreme Court has no jurisdiction on appeal. [State v. Finley, 234 Mo. 603.]

In view of the foregoing authorities and the facts in this case, it is evident that there is no constitutional question before the court on this appeal, and the case should, therefore, be transferred to the St. Louis Court of Appeals for determination. It is so ordered.

Brown, P. J., and Paris, J., concur.


author: BROWN, P. J.

text:
    THE STATE v. RICHARD BURNETT, Appellant.
    Division Two,
    December 9, 1913.
    1. PERJURY: Testimony Before Grand Jury. Testimony material to the investigation of a matter, of inquiry pending before a grand jury which they are by statute authorized to investigate, if knowingly false, constitutes willful and corrupt perjury.
    2. -: -: Panderer for Bawdyhouse. Defendant was called by a grand jury to testify as to his knowledge of the guilt or innocence of one Watts, who was suspected of keeping a bawdyhouse. Before the grand jury he testified that he had acted as a porter for a hotel kept by Watts, but denied that . he had done anything towards bringing men and women together in said hotel for the purpose of enabling or encouraging them to engage in sexual intercourse. At his trial for perjury, two witnesses testified that he did act as a panderer in bringing together lewd men and women for immoral purposes in a hotel kept by said' Watts, and that when brought thus together said men and women indulged in illicit sexual intercourse with each other in said hotel. There was also evidence that, in his capacity as porter, he represented to prospective patrons of the hotel that, if they would come to the hotel, he would arrange to bring “girls” to their rooms for immoral purposes. When sworn as a witness before the grand jury defendant testified positively that he had never taken any woman to the rooms of guests of the hotel for immoral purposes. Held, the evidence was sufficient to support a verdict finding defendant guilty of having committed perjury in his testimony before the grand jury.
    Appeal from Greene Criminal Court. — Now. G. N. Skinker, Special Judge.'
    Affirmed.

      George Pepperdine and Val Mason fo.r appellant.

      John T. Barker, Attorney-General, and Ernest A. Green, Assistant Attorney-General, for the State.
    (1) The form of this information has been expressly approved. State.v. Faulkner, 175 Mo. 546; State v. Walker, 194 Mo. 367; State v. Cave, 81 Mo. 450; State v. Ruckeby, 87 Mo. 414; State v. Powers, 136 Mo. 194. An information, is not bad for duplicity because several distinct assignments of perjury are contained therein. The proof of any one of them which formed an apparent link in the connection of the Den-ton Hotel with a bawdyhouse would be sufficient. .State v. Day, 100 Mo. 249'; State v. Wakefield, 73 Mo. 549; Commonwealth v. Smith, 11 Allen, 250. (2) The defendant complains in his motion for a new trial of the admission of only two items of testimony on the part of the State. This being true, all other exceptions taken to the trial court’s rulings in the admission of evidence are waived and are not before this court for review. State v. Yandell, 201 Mo. 662; State v. Brown, 209 Mo. 419; State v. Crites, 215 Mo. 91; Dreyfus v. Railroad, 124 Mo. App. 591. Going now to the rulings specifically complained of, there was no error on the part of the trial court in admitting the testimony of T. H. Gideon. This testimony was corroborative of that of the other State witnesses, and went to show that the defendant was in the habit of taking women to rooms occupied by men for unlawful and immoral purposes. This testimony tended to show that the testimony given by defendant before the grand jury was untrue. It was entirely competent to admit this testimony for the purpose of showing that.Burnett’s testimony before the grand jury was false and untrue. State v. Hunter, 181 Mo. 335; State v..Blize, 111 Mo. 464; State v. Faulkner, 175. Mo. 579; State v. Lehman, 175 Mo. 627. Any testimony that tended to show that the evidence of defendant given when a witness before the grand jury, was untrue was entirely competent. (3) The testimony was amply sufficient to prove every essential element of the charge filed against defendant. The evidence offered by the State showed: First, that the perjury occurred before a public body, to-wit, the grand jury; secondly, that the witness, Richard Burnett, made oath before a person competent to administer oaths before giving false testimony; thirdly, that the witness was duly sworn; fourthly, that he gave testimony material to the issues in a matter then pending before the grand jury; fifthly, which testimony was false; and sixthly, that defendant knew the testimony to be false. Sec. 4344, R. S. 1909; State v. Lavalley, 9 Mo. 834; State v. Ackerman, 214 Mo. 325 ; State v. Moran, 216 Mo. 550; State v. Terry, 30 Mo. 368.; State v. Faulkner, 175 Mo. 546; State v. "Wakefield, 73 Mo. 549; State v. Bay, 100 Mo. 242; State v. Lehman, 175. Mo. 619; State v. Hun-» ter, 181 Mo. 335.
   BROWN, P. J.

Convicted in the criminal court of Greene county of the crime of perjury, defendant appeals from a judgment fixing his punishment at two years in the penitentiary.

He was charged with having sworn falsely before the grand jury of Greene county when called by said grand jury on December 4, 1911, to testify as to his knowledge of the guilt or innocence of one M. K. Watts, who was suspected of keeping a hawdyhouse in said county.

Before the grand jury defendant admitted, that he had in the months of October and November, 1911, acted as a porter for a hotel kept by said Watts, but denied that he had done anything towards bringing men and women together in said hotel for the purpose of enabling or encouraging' them to engage in sexual intercourse.

• Two witnesses testified positively that defendant did act as a panderer in bringing together lewd men and women for immoral purposes in a hotel kept by said Watts, and that when so brought together by defendant said men and women indulged in illicit sexual intercourse with each other in said hotel. It was also proven that defendant, in his capacity as porter, represented to prospective patron® of the hotel, that if they would come there he would arrange to bring “girls” to their rooms for immoral purposes.

This evidence tended to prove that Watts was running a bawdyhouse, and that defendant, as his porter, had knowledge of that fact. When sworn as.a witness before the grand jury defendant testified positively that he had never taken any women to the rooms of guests of the hotel for immoral purposes; consequently, if the witnesses on behalf of the State testified truthfully' upon the trial, then he (defendant) undoubtedly swore falsely when giving his evidence before the grand jury.

Defendant’s testimony before the grand jury was material to the investigation of the matter of inquiry then pending before that body, and if knowingly false it constituted willful and corrupt perjury, as denounced "by section 4344, Revised Statutes 1909. [State v. Faulkner, 175 Mo. 546.]

. The defendant has not furnished us with a brief pointing out the alleged errors upon which he. relies for reversal, but we have examined the whole record for errors assigned in his motion for new trial and motion in arrest of judgment, but find no errors that warrant a reversal. Upon his trial defendant strenuously contended that his testimony as given before the grand jury was true, but a petit jury of his county disbelieved him and believed the witnesses who testified for the State. He was represented by able counsel and had a fair trial. The judgment should be affirmed. It is so ordered.

Faris and Walker, JJ., concur.


text:
    THE STATE v. JABE WADE, Appellant.
    Division Two,
    December 9, 1913.
    APPEAL: Not Timely Perfected. The statute allows but twelve months in a second degree murder case in which to perfect an appeal by the filing of a transcript of the record in the Supreme Court, and if more than that time expired after the appeal' was taken before it was perfected, the appeal will be dismissed, in the absence of a showing of good cause for the delay.
    Appeal from Boon© Circuit Court. — Hon. David H. Harris, Judge.
    Appeal dismissed.

      Don C. Garter .and Harris & Finley for appellant.

      John T. Barker, Attorney-General, and William M. Fitch, Assistant Attorney-General, for the State.
   FARIS, J.

Defendant was convicted in the circuit court of Boone county, of murder in 'the second degree, for that, as it was charged in the information, he had stabbed and-killed one James Franklin White. The appeal of defendant herein was granted by the circuit court on the 27th day of October, 1911, but such appeal was not perfected by filing in this court a transcript of the record till April 1, 1913, as is clearly disclosed by the file-mark of the clerk of this court.

The State has filed a motion to dismiss the appeal of defendant for the reason that it was not perfected within one year after the same was granted by the trial court. This motion was taken with the ease when the same was argued and submitted.

The facts are plain and undisputed. More than seventeen months elapsed after the appeal was taken till it was perfected. The statute allows but twelve months in this behalf in such a case as this, absent a showing of good cause for the delay. [Sec. 5313, R. S. 1909.] No such showing has been made in the case, and under the authority of the statute above cited, as construed in the case of State v. Pieski, 248 Mo. 715, we are constrained to hold tire motion to dismiss well taken. We may say in passing, dehors the record, that, lest the rigid enforcement of a recent ruling mayhap not yet fully understood (though soundly bottomed upon a fairly ancient statute), might seemingly work an undeserved hardship, we have gone over th© record with care and found naught of error therein which would cause reversal were we required to pass upon the whole of it. Let the appeal be- dismissed.

-Brown, P. J., and WalJcer, J., concur.


text:
    THE STATE v. LINZY BUNYARD, Appellant.
    Division Two,
    December 9, 1913.
    1. MAYHEM: Information. An information charging that Linzy Bunyard “on the 2nd day of Nov., 1912, in the county of Douglas and State of Missouri, in and upon one Emmet Yoeman, on purpose and of his . malice aforethought, unlawfully and feloniously did make an assault, and the said Linzy Bunyard with a knife, the nose of the said Emmet Yoeman, on purpose and of his malice aforethought, then and there unlawfully and feloniously did cut and slit with intent him the said Emmet Yoeman, then and there and thereby to maim and disfigure,” uses all the essential statutory words, with other allegations, necessary to charge the offense of mayhem.
    2. -: Instruction: Broader Than Charge. An instruction in a mayhem case telling the jury that if the defendant did cut the other party with “the intent to kill, maim and dis figure” him, etc., is broader than the information charging that defendant did assault him with “intent to maim and disfigure” him; but the addition of the word “kill” did not affect the substantial rights of the defendant; in fact, it placed an additional burden upon the State; and that the jury was not misled by it is shown by their verdict finding “defendant guilty as charged in the information.”
    S. -: -: -: When Error. The rule that instructions must not be broader than the indictment is limited to cases in which it appears that the added words either misled the jury, or by their terms were calculated to mislead them, or were used in an attempt to cure a defective indictment. Where the expanded instruction places .a greater burden upon the State than the law requires to sustain a conviction, the rule cannot be successfully invoked by defendant; nor can it be invoked as prejudicial in those cases in which the added words may be rejected as surplusage because inapplicable under the charge.
    4. -: -: On Self-defense. If there is any evidence authorizing instructions on self-defense in a mayhem case, such instructions should be given; and if given, and found to be prejudicial, they will authorize a reversal. But if, on the contrary, the facts do not justify an instruction on the subject, appellant will not be heard to complain that, the instruction was improperly framed, if he was not thereby injured. And in this case,, although an instruction telling the jury in effect that if defendant sought or brought on the difficulty or voluntarily entered into it, lie cannot justify himself under the law of self-defense, was erroneous in not stating the intention with which he entered into the difficulty, it was not reversible error, because there is no substantial evidence to sustain the theory of self-defense.
    6. SCHOOL TEACHER: Preservation of Order at Entertainment. A school teacher, in charge of an entertainment held in the schoolhouse, at night, for the entertainment of the people of the neighborhood, in the absence of any showing that a director was present, was clothed with sufficient power at least to eject from the house a ruffian who sought to enter for the avowed purpose of disturbing the meeting.
    Appeal from Douglas Circuit Court. — Hon. John T. Moore, Judge.
    Affirmed.

      J. S. Clarke for appellant.
    (1) Defendant is charged with the specific offense of mayhem with the intent to maim and disfigure, and not with the intent to kill, maim and disfigure under Sec. 4480, R. S. 1909. One could be convicted of mayhem with intent to kill, and without any intent to maim and disfigure, and vice versa; so the statute creates, in a sense, two separate and distinct offenses. And in this case it was improper to give to the jury instruction numbered one. State v. West, 12 Mo. App. 309 ; State v. Wilson, 88 Mo. 13; State v. Lewis, 118' Mo. 79; State v. Kyle, 177 Mo. 659; State v. Scullin, 185 Mo. 709; State v. Meadows, 106 Mo. App. 604; State v. Moore, 178 Mo. 348. (2) The instruction on the law of self-defense, given by the court is erroneous, and is not the law of self-defense. It is not broad enough, and is otherwise unfair to the defendant. Nichols v. Winfrey, 90' Mo. 403; State v. Tooker, 188 Mo. 446; State v. Shoutz, 25 Mo. 152. If it can be- said from the evidence that defendant sought and brought on the difficulty, by walking up the steps cursing “ promiscuously ” as Toeman saysi, this cannot be construed to mean that defendant was about to assault Yoeman or do him some great bodily harm, and does not authorize the giving of instruction number 9 as to the fact of defendant seeking and bringing on the difficulty. State v. Walker, 196 Mo. 85; State v. McDaniel, 94 Mo. 301; State v. Tabor, 95 Mo. 585; State v. Goddard, 146 Mo. 177; State v. Patterson, 159 Mo. 560; State v. Edwards, 203 Mo. 539; State v. Smith, 125 Mo. 2; State v. Stiltz, 97. Mo. 20. (3) It was error for the court to give instruction number 11, on the theory that the prosecuting witness had a right to use such force as he deemed necessary to preserve the order of the meeting. This would give the prosecuting witness more power than he could lawfully exercise over his pupils as their licensed and employed’ teacher of the school. No such power exists in the teacher of a school holding a box supper at the schoolhouse ;at night when there is no school in session. By holding a box social a school teacher could constitute himself a peace officer. Cook v. Neeley, 143 Mo. App. 632.

      John T. Barker, Attorney-General, and Thomas J. Higgs, Assistant Attorney-General, for the State.
    (1) The information follows the statute and is in form approved by this court. Sec. 4480, E. S. 1909; Kelly’s Criminal Law and Practice (3 Ed.), sec. 563; State v. Kyle, 177 Mo. 659; State v. Nerzinger, 220 Mo>. 36. (2) Instruction number 1 follows the statute and the information, and is in form approved by this court. Sec. 4480, E. S. 1909; State v. M:a Poo, 110 Mo. 13; State v. Nerzinger, 220 Mo. 52. (3) Instruction number 10 is an instruction as to> self-defense. It is in a short and concise form, yet contains all the necessary •elements of self-defense when considered with the other instructions, and has been often approved in substantially the same form. State v.. Gee, 85' Mo. 647 ; State v. Grant, 152 Mo. 56; State v. Maupin, 196 Mo. 17'5. (4) Instruction numbered 9 is good when taken in connection with the other instructions, and in form has been substantially approved by this court. State v. Partlow, 90 Mo. 608; State v. Davidson, 95 Mo. 156; State v. Hardy, 75 Mo. 457; State v. Thomas, 78 Mo. 339; State v. McCullum, 119 Mo. 469; State v. Harold, 133 Mo. 76; Kelly’s Criminal Law and Practice (3 Ed.), 521. A similar instruction has been given in a case fo,r assault and battery in the State of Wisconsin. Holmes v. State, 124 Wis. 133. A similar instruction has been given in the State of Alabama. Johnson v. State, 136 Ala. 76. However, it has generally been held in cases of murder that this instruction, to be effective, should state that the defendant brought on the difficulty for the purpose of “taking advantage of the deceased” or “taking his life” or of “doing him great bodily harm” or “committing a felony.” State v. Gieseke; 209 Mo. 345; State v. Goddard, 146 Mo. 191; State v. Sharp, 233 Mo. 269; State v. Heath, 237 Mo. 255. While the above phrases, or similar ones, may be necessary to make the instruction good in cases of murder, in cases of assault and battery, assault with intent to kill, manslaughter and mayhem, no cases can be found that insist upon the above words being inserted in the instruction. The evidence to sustain the above instruction was ample. It was sufficient to warrant the giving of the instruction. (5) The evidence tended to show that the prosecuting witness wias in charge of the meeting, was in fact assisting in conducting the program and participating in it. The meeting was held in the county sehoolhouse in which the prosecuting witness was the teacher and of which he had charge. Under the circumstances, he had the duty placed upon him of keeping order and could use the necessary force in so doing. Ickenroth v.- Transit Co., 152 Mo. App. 597; State v. Roan, 122 Iowa, 136.
   WALKER, J.

On an information filed by the prosecuting attorney of Douglas county, charging the appellant with, mayhem under the provisions of. section 4480, Revised Statutes- 1909, he was convicted and sentenced to five years’ imprisonment in the penitentiary, from which he appeals; upon the perfecting of his appeal, he entered into a recognizance which was approved by the trial court.

The evidence on behalf of the State was substantially as follows:

During the month of November, 1912, a young man named Emmet Yoeman was teaching school at Walnut Grove sehoolhouse, a few miles from Ava, in Douglas county. On the night of the 2d of November an entertainment was given at the sehoolhouse, which was conducted by Yoeman, the appellant, a large number of others being present. The appellant was heard to say at a livery bam in Ava the afternoon- before the entertainment that he was going there that night and * ‘ tear it up. ” After the entertainment had commenced, while two little girls were singing, accompanied by Yoeman on the violin, appellant went upon the stage in -‘the rear of the singers and began to sing; upon Yoeman’s looking at him he went off the stage shaking his fist at the latter; later while the selling of boxes, a part of the entertainment, was in progress, a disturbance occurred in the rear of the sehoolhouse, among some boys, and several of them were ejected from the room. As Yoeman went towards the rear door, appellant came up the steps cursing, and took hold of Yoeman and the latter gave him a shove, shutting the door. After the door was closed, a brother of appellant, who had been guarding the door with Yoeman, said, “Lot’s open the door, we can keep them out with it open.” Yoeman then opened the door and stepped back. The appellant came up the steps the second time, cursing as he came, saying, “Is that yon, Yoeman?” or “G — d—n you, Yoeman,” and as he said this he cut Yoeman across the face. The cut extended across Yoeman’s nose and one cheek, severing his nose from his face with the- exception of a little skin on one side, causing his nose to drop' over on his cheek. Yoeman and the appellant then clinched.and fell between some desks at the rear of the school room, Yoeman being on top; as they clinched, Yoeman gripped the wrist of the hand in which appellant held the knife with which the latter had done the cutting, and did not release his hold thereon until they were separated. Yoeman was then taken to the front of the school room bleeding profusely; appellant, who was being held, again sought to reach Yoeman, saying with an oath, “Gr— d — n Yoeman, I will finish him while I am at it.” Appellant was restrained, however, from further assaulting Yoeman, by one Alt Turner and his brother. Turner testified that he saw the appellant have a knife in his hand at the time, which he took away from him. Turner kept the knife and it was exhibited in evidence at the trial. A witness for the defense, named Homer Martin, saw appellant start into the schoolhouse with his knife open, when witness said to him, “Linzy, don’t go in there with your knife open, I am a friend to you and you had better not do that.” To which appellant replied, “I know you are my friend but I am going in there — I am going in there to stop that thing.” This witness says he saw appellant fall off of the steps on his back; that after falling appellant arose and again went up the steps and entered the schoolhouse.

Two doctors, who arrived several hours after the •cutting, found Yoeman in the care of some young ladies; he was very weak from the loss of blood, and his wounds are described as one across the face ¡and nose, another above the ear, and another on the back of the head. His nose lacked but little of being cut off, being held on by a quarter of an inch of skin on the right side. These doctors also testified that there were no large arteries severed by the cut across the face, and that blood would not flow therefrom immediately after the infliction of the wound; that probably twenty seconds nr more- might elapse before the wound would commence to bleed.

The evidence on the part of the defense is to the effect that when Yoeman went to quiet the disturbance in the rear of the schoolhouse appellant was pushed out of the door and fell; that it was Yoeman who pushed him out, saying, ‘ ‘ Get out; we are going to have this stopped;” that immediately after appellant struck Yoeman across the face; that before they clinched, no blood was seen on Yoeman’s face and no knife in the hand of the appellant; that after they clinched and fell, appellant yelled, “Pull him off, he is cutting me;” that while certain witnesses were separating the two, one of them was struck over the eye by one of Yoeman’s hands and he received a cut, whether it was by the hand that was holding appellant’s wrist is not stated; this same witness, however, testified' that he saw a knife in appellant’s hand at the time and that Yoeman was holding the wrist of that hand when they separated them; that' after they were separated and Yoeman had been taken to the front part of the house, a woman testified that she took hold of the appellant and he told her to get back, that he meant to cut him; that some one s:aid about this time, “Emmet [Yoeman] is cut mighty bad,” and another said, “He is cut all to hell;” whereupon appellant said, “I am the man that done it.” There was testimony that appellant was under the influence of liquor. He denied making any statements at the livery barn in regard to going to the schoolhouse, and that he had had any words or difficulty with Yoemian before the latter pushed him out of the schoolhouse; that when he fell Yoeman said, “I am putting all the drunk men out of the house; ’ ’ that Homer Martin told appellant not to go into the house with his knife open, and he put it in his pocket; that when he started into the house the second time he said to Yoeman, “Emmet, you are the man that pushed me out of the door;” to which the latter replied, “Yes, I am;’ that it looked as though Yoeman was going- to give him another shove and appellant then struck him; that they clinched and went down, and' immediately Yoeman began cutting the appellant, and the- latter yelled to- take him off; that appellant did get his knife out of his pocket while down, and opened the knife with his teeth and cut Yoeman in the face; that they then began to pull Yoeman off of him; that appellant's finger was marked up with four or five slashes; that he was cut on the ear, and there were four or five stabs on his head, and that these wounds were bleeding so he could hardly see. Appellant further testified that he was a man thirty-five years old; that he had been convicted of and pleaded guilty to gambling so many times that he could not remember them all; that he had procured a pint of whiskey (by other witnesses stated to be a quart), and had been drinking in the barn at Ava, and when he left town he had a half pint and was a little full. He admitted he did the cutting and did not know anyone who saw Yoeman have a knife before or during- the difficulty.

In rebuttal it was shown that Yoeman had no-knife ; that no one saw any wounds on the appellant that night; and that the only person wounded was Yoeman. It was also shown that a few days after the difficulty one of the witnesses saw appellant and said, “Where are your wounds?” to which appellant said, “I got a cut or two,” but none were to be seen.

The jury has determined ias to the weight of the evidence, which we have no- hesitancy in saying is ample to sustain the verdict. The foregoing somewhat prolix statement of the facts has, therefore, been made only that the color and current of the entire transaction may be fully set forth.

I. The Information. The sufficiency of the.information is questioned. Omitting the formal parts, it is as follows: -

“That Linzy Bunyard on the 2, day of Nov. 1912, in the county of Douglas and State of Missouri, in and upon one Emmet Yoeman, on purpose and of his malice aforethought, unlawfully and feloniously did make an assault, and the said Linzy Bunyard with a knife, the nose of the said Emmet Yoeman, on purpose and of his malice aforethought, then and there unlawfully and feloniously did cut and slit with intent him the said Emmet Yoeman, then and there and thereby to maim and disfigure, against the peace and dignity of the. State.”

The information is not subject to valid objection. It uses all the essential statutory words, with other allegations, necessary to clearly charge the offense of mayhem. This is all that is required. [Sec. 4480, R. S. 1909; State v. Nerzinger, 220 Mo. 36, 47; State v._ Kyle, 177 Mo. 659, 661.] The rulings of courts of last resort in other jurisdictions upon indictments framed under similar statutes are of like import. [Kitchens v. State, 80 Ga. 810; Guest v. State, 19 Ark. 405; State v. Absence, 4 Port. (Ala.) 397.]

II. Evidence. The court’s rulings on the admission and exclusion of testimony disclose no error upon which can be based a substantial claim of prejudice; in fact, appellant does not so* contend, his assignments being confined, aside from an objection to the sufficiency of the information, to alleged errors in the instructions.

III. Instruction: Broader than Charge. Instruc-' tion numbered 1, given by the court, is complained of as being broader than the information. The instruction is as follows:

“1. If you find from the evidence that Linzy Bun-yard, in the county of Dbuglas and State of Missouri, at the time and place mentioned in the information, did feloniously, on purpose and of his malice aforethought make an assault on one Emmet Yoeman with a knife, a dangerous and deadly weapon and cut the nose of the said Emmet Toeman with the felonious intent to kill, maim or disfigure the said Emmet Toeman, you will find the defendant guilty of mayhem and assess his punishment at a term in the state penitentiary not less than two years nor more than twenty-five years. ’ ’

Comparing this instruction with the information it will he seen that the former is framed in the language of the statute, in charging the assault as having been committed with the intent to “kill, maim or disfigure,” while in the information the offense is limited in its terms to an assault with intent to “maim and disfigure.” Appellant’s contention is that the jury was misled by the instruction and as a consequence the defendant was found guilty of an assault with intent to kill, instead of an assault with intent to maim and disfigure.

It is apparent that 'the instruction is broader than the information; but, were the substantial rights of the appellant thereby affected? If this cannot be readily determined, then appellant has not been tried as the law directs, and injury must be presumed unless the record shows to the contrary; if, however, the record does so show, the judgment should not be disturbed for the law gives no redress for a wrong not resulting in an injury. The best record test as to the manner in which this instruction was considered by the jury is the verdict. It is .as follows: “We, the jury,-find the defendant guilty as charged in the information and assess his punishment at five years ’ imprisonment in the State penitentiary.” It will be noted that the verdict by its express terms finds the appellant guilty as “charged in the information,” from which it is evident that the jury either interpreted the words “to kill” in the instruction as placing an additional burden on the State before the appellant could be found guilty of an assault to maim and disfigure, or that the words in question were rejected as surplusage. Upon either theory the jury was not misled and appellant has suffered no injury in this regard. ' The rule that instructions must not be broader than the indictment or information is limited to cases in which it appears that the added words either misled, or, by their terms, were calculated t:o mislead the jury; or, in which it was attempted by the added words to cure a defective indictment or information, as in State v. Kyle, 177 Mo. 659, 664, and State v. Smith, 119 Mo. 439, 447, and not as in the case at bar and in State v. Wakefield, 73 Mo. 549, 552, and State v. Chauvin, 231 Mo. 31, 37, in which the instructions placed a greater burden on the State than the law required to sustain a conviction, and hence were not prejudicial.

Another class of cases, in which the instructions may be broader than the indictment or information and yet not prove prejudicial, are those in which the added words may be rejected as surplusage because inapplicable under the charge, and, therefore, not tending to mislead the jury. To this class belong State v. Faulkner, 185 Mo. 673, 707, and State v. Scullin, 185 Mo. 709, 712.

•IV. Instruction: Self-Defense. Preliminary to a consideration of instruction numbered 9' in regard to appellant’s entering into the difficulty, and instruction numbered 10 in regard to self-defense, to the giving of which appellant complains, we are confronted with the inquiry as to whether an instruction on the theory of self-defense and its correlative instruction may properly be invoked by the defense in a case of this character. In the few cases in which the matter has been considered, the plea of self-defense has been held to be permissible in a prosecution for mayhem as in cases of homicide, but, in order to-be available in justification of the act, the resistance must be proportionate to the injury offered. [Green v. State, 151 Ala. 14, 15 Am. & Eng. Ann. Cases 81; State v. Skidmore, 87 N. C. 509; Hayden v. State, 4 Blackf. (Ind.) 546; People v. Wright, 93 Cal. 564.]

This court has impliedly, at least, held in State v. Bidstrup, 237 Mo. 273, that upon evidence having been introduced in regard to self-defense by either the State or the accused, that instructions in regard thereto are proper in cases of manning, upon the theory that self-defense is an affirmative defense and the: court is required under the statute (Sec. 5231, R. S. 1909) to instruct the jury in writing upon all questions of law arising in the case necessary for the information of the jury in giving their verdict.

If, therefore, it appears that there was any evidence in this case, authorizing instructions in regard to self-defense, the same should have been given, and when given, if found to be prejudicial, they will justify a reversal; but if, on the contrary, the facts do not justify the giving of the instructions, although they may have been improperly framed, if the appellant did not suffer injury therefrom, he should not be heard to com-. plain.

Instruction numbered 9 is to the effect that if the appellant sought or brought on the difficulty or voluntarily entered into same, he cannot justify himself under the law of self-defense. This instruction is erroneous in not stating the intention with which the appellant entered into the difficulty. [State v. Pennington, 146 Mo. 27; State v. Goddard, 146 Mo. 177.]

Instruction numbered 10, while inartificially drawn, correctly states the law in regard to self-defense, and is, therefore, not subject to valid criticism on this account. But the appellant should not be heard to complain on account of the giving of these instructions although improperly worded, because there was no sub • stantial evidence to sustain the theory of self-defense.

A brief review of the testimony will demonstrate the correctness of this conclusion. Appellant was, according to his own statement, under the influence of liquor when lie went to tlie schoolhouse. Upon his .arrival there he assumed an offensive attitude towards the orderly proceeding of the entertainment, by going apon the stage and interrupting the exercises, and' when admonished to desist, by a look from Yoeman, he left the stage shaking his fist at the latter. Subsequently when Yoeman and others were attempting to quiet a disturbance in the school room, caused by some boys, appellant hearing the noise, started into the building with his knife open, and when Homer Martin, one of his witnesses, remonstrated with him, .appellant replied, “I know you are my friend, but I am going in there; I am going in there to stop that thing.” Yoeman, continuing in his endeavors to preserve order, pushed the appellant off of the schoolhouse steps as he attempted to enter the room; the latter immediately again sought to enter, cursing Yoeman as he went up the steps, and upon reaching him cut him across the face, inflicting the wound charged in the information. Up to the point of the infliction of this injury there is no testimony for the State or the defense that Yoeman was attempting to do more, or, in fact, that he subsequently did more, than attempt to prevent appellant from entering the school room; this being true, there was no authority for the giving of an instruction on self-defense or of a statement of the law in regard to the accused entering into the difficulty, the latter being permissible only when there is testimony to authorize the giving of an instruction on self-defense. Under this state of facts, it is difficult to see how the appellant could have been injured by the giving of the instructions complained of, conceding that they may have been defectively framed. We hold, therefore, that there is no substantial merit in appellant’s contention in regard to these instructions.

Y. Instruction: Teacher May Preserve Order. Appellant contends that error was committed in the giving of the following instruction:

“11. If you find from the evidence that the prosecuting witness, Yoeman, was a teacher in the district where the alleged crime was committed, and as such teacher had charge" of the entertainment in said schoolhouse in said district, then, in that case, the teacher had a right to keep order at said meeting, and use what force that was necessary to preserve order and keep peace within said meeting place. ’ ’

The meeting at the schoolhouse the night the offense was committed,, as shown by the record, was held for the commendable purpose-of affording entertainment for the people of the neighborhood and incidentally, no doubt, to increase their interest in the school. While not unmindful of the provisions of section 10784 as construed in Dorton v. Hearn, 67 Mov 301, regulating the use of public school buildings, the meeting beingUn other respects authorized, we assume, nothing appearing to the contrary, that the statute referred to had been complied with. This being true, in the absence of any showing that a director was present, the teacher then erupted in the district and who was conducting the entertainment, was clothed, from the very necessities of the case, with sufficient power to at least eject a ruffian who sought to enter the school room fo.r the avowed purpose of disturbing the meeting. This was all that the instruction declared the teacher was empowered to do, and it was all, as the evidence clearly shows, that he did. The instruction, therefore, although awkwardly expressed, correctly declares the law applicable to this case, and we overrule appellant’s contention.

From all of the foregoing, the judgment of the trial court should be affirmed, and'it is so ordered.

Brown, P. J., and Paris, J., concur.