text:
    THE STATE v. SPEYER, Appellant.
    Division Two,
    March 6, 1906.
    1. INFORMATION: Amendment: Verification: Re-Arraignment. No error was committed in permitting the prosecuting attorney to amend an information by adding the proper verification; nor was it necessary to re-arraign the defendant after the information had been so amended.
    2. INSTRUCTIONS: Insanity: Previously Covered. Where the subject of insanity has been fully covered by instructions given by the court, no error is committed in refusing instructions requested by defendant on that subject.
    3. EVIDENCE: Letters Written by Defendant: Insanity. Where defendant was charged with killing his six-year old son, and his defense was insanity, no error was committed in excluding letters written by defendant to his wife prior to the killing, when such letters had no tendency to prove his insanity, but went only to show his affection for the child.
    4. -, — : Defendant’s Insanity: Opinion of Wife: Basis of Opinion. Defendant’s wife testified that she knew defendant was insane on two occasions prior to the killing of his son; that “he was insane when he tried to jump out of the window with the little boy, and he was insane when he had the delusion that the Indians were after him. My knowledge is based upon the change which suddenly took place. I saw the awful change that had taken place in his' every expression. He had delusions,. because there were no Indians in that part of the State of Louisiana.” Held, that the court committed reversible error in excluding that part of the witness’s testimony in which she gave her reasons for her opinion that defendant was insane, since it was her observations of defendant and the statement of facts upon which her conclusion was based that rendered her opinion as to his insanity admissible.
    5. -: Occurrences Prior to Crime: Incompetent. Where the testimony of a witness as to what occurred between her and defendant prior to the commission of the crime has nothing to do with the case, and its only tendency is to unjustly prejudice the minds of the jury against the defendant upon an issue not involved in the trial, it should he excluded, notwithstanding it may have been partially brought out by defendant on cross-examination of the witness.
    6. -: Expert Witness: Insanity. Where the defense is insanity, questions propounded to experts as to whether or not excessive fright, pain, sorrow, pleasure, or joy would prevent thought from taking place and produce insanity, are independent, preliminary questions, and it is not necessary that a foundation, be laid or testimony be introduced to authorize the asking of them.
    Appeal from Jackson Circuit Court. — -No». Jno. W. Wo ford, Judge.
    Reversed and remanded.

      W. F. Biggs for appellant.
    (1) The right to attach an affidavit made on information and belief, without venue or seal, without notice to defendant, and without re-arraignment, which is the only way to inform a defendant, is most seriously questioned. (2) The court erred in ruling out the question asked Dr. McDonald, bn cross-examination. State v. Speyer, 182 Mo. 92; 3 Witt. & B. Med. Jur., p. 189.

      Herbert 8. Hadley, Attorney-General, and John Kennish, Assistant Attorney-General, for the State.
    (1) The verification is not ‘£ a part of the information, but a step directed to be taken in aid of it, . . neither is the sufficiency of the information affected by it.” State v. Brown, 181 Mo. 232. The prosecuting attorney in open court, and the presence of the defendant and Ms counsel, was permitted by leave of court to verify the information, and being no part of the information, such verification did not necessitate the rearraignment of the defendant. (2) The court did not err in sustaining an objection to the question propounded to witness Dr. McDonald on cross-examination. No evidence had been introduced tending to prove any one of the conditions of mind in the defendant, assumed in the question. The law is well settled that an expert witness should not be asked his opinion on hypothesis, including facts not shown by the evidence. State v. Palmer, 161 Mo. 152; State v. Dunn, 179 Mo. 95; State v. Brown, 181 Mo. 192; Rogers on Expert Testimony (2 Ed.), 67. (3) Appellant complains of error in the rulings of the court in sustaining objections to questions propounded to expert witnesses by defendant. It will be found that the questions to which objections were sustained were questions based upon abstract propositions of mental science and not upon the facts in evidence, and, therefore, were objectionable. State v. Palmer, 161 Mr. 152; State v. Welsor, 117 Mo. 570'; State v. Dunn, 179 Mo. '95; Rogers on Expert Testimony, sec. 27..
   FOX, J.

This cause is here by appeal from a judgment in the criminal court of Jackson county, Missouri, convicting the defendant of murder of the first degree. The indictment upon which this judgment of conviction rests charges the defendant with feloniously, willfully, premeditatedly, deliberately and with malice aforethought killing one Freddie Speyer, a son of the defendant, aged about five or six years, on thé 16th of July, 1902, at Kansas City, Missouri.

This is the second appeal of this ease and it is conceded by both appellant and respondent that the facts as developed at the trial of this cause are practically and substantially the same as were shown by the record upon the former appeal. The result of the first appeal in this cause will he found reported in the 182' Mo. 77. In that volume the facts as to the tragical killing by the defendant of his son Freddie Speyer are carefully and fully set forth, hence we deem it unnecessary to burden this opinion with the reproduction of the facts as stated upon the former appeal.

Upon this trial, at the close of the evidence, the court instructed the jury upon murder in the first degree, on appellant’s defense of insanity, together with instructions on the credibility of witnesses, reasonable doubt and. other general instructions applicable to the issues presented. The cause being submitted to the-jury upon the evidence and instructions of the court, a verdict finding the defendant guilty of murder of the first degree was returned. Motions for new trial and in arrest of judgment were timely filed and after being-taken up by the court were overruled. Sentence and judgment followed in accordance with the verdict returned and from this judgment defendant in proper-form prosecuted his appeal to this court and the record is now before us for consideration.

OPINION.

The record before us discloses the assignment of numerous errors as a basis for the reversal of this judgment. We will give those which we deem of sufficient, importance such consideration as their importance merits and demands.

I. It is insisted by counsel for appellant that the court committed error in overruling the defendant’s motion to quash the information.

Upon the former appeal the information in this cause was not verified as required by the provisions of' the statute; however, it was held upon that appeal that,, since appellant failed to take advantage of the failure to verify by an appropriate motion to- quash, the question of want of verification was not open to review in this court. Upon the cause being remanded for a new trial the prosecuting attorney, in open court, in the presence of the defendant and his counsel, was permitted to amend the information by adding the necessary verification, and it is to this action of the court, and its failure to re-arraign the defendant upon the information as amended, that appellant’s complaint is directed. There was no error in the action of the court in its overruling of the motion to quash. The information was in proper form and charged the offense in such terms as have repeatedly met the approval of this court.

It was ruled by this court in State v. Brown, 181 Mo. l. c. 232, that the verification provided by the statute is not a part of the information, and its purpose is to afford the defendant a guarantee of the good faith of the prosecution and to prevent a careless and reckless prosecution of a citizen, and there was no error in permitting this information to be amended by adding the proper verification. It was not an amendment that in any way affected the substance of the information, but was simply sought for the purpose of having it comply with the formal requirements .of the statute. By express provision of the statute informations may be amended at any time before the trial as to matters of form or substance. [Sec. 2481, R. S. 1899.]

The defendant had previously entered his plea of not guilty to the information which charged the commission of the offense, and there was m> necessity for his rearraignment to . it after an amendment as to. a mere matter of form.

II. Appellant complains of error at the action of the court in refusing instructions requested by the defendant numbered 1, 2 and 3, which were as follows:

“1. The court instructs the jury that if you shall find and believe from the evidence that the defendant cut the throat of Freddie Speyer with a pocket knife, and from such wound the said Freddie Speyer died, and shall further find and believe from the evidence that immediately before such act the defendant had been accused of crime and placed under arrest, and that threats and demonstrations were made in his presence which led him to believe that he was in imminent peril of being immediately hanged, or suffering great bodily injury, and such belief, coupled with fear of leaving his son alone in the world, suddenly caused and produced a condition of fright in the mind of defendant, which fright suddenly arrested his powers of reflection to such an extent that at the time and immediately before he struck the homicidal blow he was incapable of deliberation and in fact did not deliberate, as that term is defined in the other instructions, and was incapable of distinguishing right from wrong’ in reference to such act, then you will find the defendant not guilty of murder in either degree.

“2. The court instructs the jury that fright, or excessive pain or sorrow, pleasure or joy, can prevent thought from taking place, and that such condition exists in the insane; the self-consciousness being so changed or affected that the usual response to impressions no longer takes place, leading thus in an abnormal way to abnormal feeling, thought and volition. If, therefore, the jury shall believe and find from the evidence that immediately before, and at the time the defendant cut the throat of Freddie Speyer with a pocket knife, if he did so, the mind of defendant was in an insane condition caused and produced by fright, or excessive mental pain or sorrow, to such an extent that the self-consciousness of defendant was so changed or affected by such mental shock that the usual response to impressions received into consciousness no longer took place, leading thus in an abnormal way to abnormal feeling, thought and volition, and that the homicide was committed while defendant was in such abnormal condition, if the jury find he was in such abnormal condition, then you will find the defendant not guilty of murder in either degree.

“3. If the jury believe and find from the evidence that the homicide was the result of fright or mental shock, and not the result of malice, then you are instructed that what caused this fright or mental shock is immaterial, and although you may believe that others would not have been so shocked or frightened under similar circumstances cannot be considered as evidence •against this defendant. ’ ’

There was no error committed by the court in the refusal of the instructions herein indicated, requested by defendant, for the reason that the subject of insanity, to which those instructions were directed, was fully covered by instruction 12 on that subject, given by the court, and, as was said by this court upon the former appeal, ‘ ‘ The instructions on insanity were correct and full and such as have been approved by this court in numerous cases. ’ ’ The instructions given by the court upon the subject of insanity embraced every phase of that dread disease, and the jury were required to consider all the evidence upon the subject of the insanity of the defendant, whether such insanity was caused by fear., pain, sorrow, pleasure, joy, or by any other cause. Instructions should be of a general nature covering all the facts, and directions to the jury which make prominent any particular state of facts developed in the trial have not met with the approval of this court. The jury were expressly directed in instruction 12, on the ■question of the sanity or insanity of defendant, to consider all the evidence offered in the case, the homicide Itself and the attending circumstances, the life, habits •and conduct of the defendant, as well as his mental ■capacity or perverseness, if any, from his birth up to the present time. The instructions given fully covered the feature of the testimony applicable to the insanity ■of the defendant.

III. Appellant most earnestly complains at the action of the trial court in excluding testimony offered by tbe defendant. There was no error in the exclusion of the letters written by defendant to his wife in New Orleans prior to the commission of the offense with which he-is charged. We have carefully considered the contents of those letters, and while in cases involving the question of insanity a wide latitude is permitted by the courts in matters of the proof of the acts, conduct and statements of such persons, yet such declarations and statements must have some bearing upon the issue presented, that is, of the condition of the mind of the person undergoing investigation. These letters had no tendency to prove the insanity of the defendant, but clearly the only purpose of them was to show his devotion, fondness and affection for his child that he after-wards killed, thereby negativing any motive in the commission of the act. As was said in State v. Kring, 64 Mo. l. c. 594: ‘ ‘ Such letters could be no evidence of the facts stated in them, and the court should so instruct the jury; ’ ’ and if the letters offered in evidence in this cause were not to be considered as evidence showing his fondness and affection for his child, and their tendency was simply to show that fact, we are unable to conceive what other purpose they could serve. It must not be understood, by the conclusions reached as to these letters, that we mean to say that the letters of a defendant, whose mental condition is under investigation, are not competent evidence, but we simply hold that the contents of the letters offered in evidence must have a tendency to show mental unsoundness. So far as affection, fondness and devotion of the defendant to his child are concerned, such facts were susceptible of proof in the ordinary way, and were established by the testimony of the wife of the defendant, but we are unwilling to go to the extent of saying that such a fact is susceptible of proof by the defendant himself simply writing a letter disclosing such fondness, etc., for his child. It is clear in the Kring case that the letters treated of by Judge Napton, written by the defendant to Mrs. Broemser, were of such á character as tended to throw light on the mental incapacity of the defendant.

There is no dispute on the legal proposition that letters written by a defendant which show signs of mental weakness, upon an investigation of his mental condition, are competent evidence. Upon an investigation of the mental soundness of a person his oral declarations are frequently, offered in evidence, and declarations made in letters may also be shown, but it must be remembered that the qrucial test as to the admissibility of either oral declarations or declarations in the shape of letters written by a defendant is, whether or not they have any bearing upon the subject under investigation, that is, the insanity or mental incapacity of the person undergoing investigation. The letters offered in evidence in this cause had no such tendency, hence there was no error in their exclusion.

The most serious ground for the reversal of this judgment and sentence, embraced in the contention of appellant of improper exclusion of testimony, is the exclusion of a part of the answer of Mrs. Speyer in which she undertook to give the reasons for her conclusion or opinion that the defendant was at certain times insane. That this alleged error complained of may be fully appreciated, we here reproduce the question propounded to Mrs. Speyer and her answer to the question, and the portion of the answer excluded by the court to which the appellant duly excepted: “Q. Do you know whether or not the defendant has ever been insane? And if you answer affirmatively, state upon what your knowledge is based? A. I know that he has been positively insane on two occasions. He was insane when he tried to jump out of the window with the little boy, and he was insane when he had the delusion that the Indians were after him. My knowledge is based upon the change which suddenly took place. I saw the awful change that had taken place in his every expression. There was the change in the personality; He had delusions, because there were no Indians in that part of the State of Louisiana.

“Mr. Taylor: We object to that part of the answer — ‘my knowledge is based upon the change which suddenly took place. I saw the awful change that had taken place in his every expression. There was the change in the personality. He had delusions, because there were no Indians in that part of the State of Louisiana.’

“The Court: Sustained.

‘ ‘ To which ruling of the court defendant at the time duly excepted.”

'It is clear upon this proposition that the witness, Mrs. Speyer, who was a non-expert witness, had the right to give her opinion as to the insanity of the defendant prior to the killing of his son, Freddie Speyer. It is now no longer an open question in this State that ordinary witnesses may give such opinions, but in addition it must appear that such opinions are predicated upon observations, and the witnesses must state the facts upon which such opinion is based. [3 Rice on Evidence, sec. 21, p. 28; Ford v. State, 71 Ala. 385; State v. Bryant, 93 Mo. 273; Appleby v. Brock, 76 Mo. 314; State v. Klinger, 46 Mo. 224; Crowe, Admr., v. Peters, 63 Mo. 435; Moore v. Moore, 67 Mo. 192; State v. Erb, 74 Mo. 199; State v. Soper, 148 Mo. 217.]

While the question and answer herein indicated are perhaps a little irregular in form, yet we think it is clear that the question must be treated as simply asking the opinion of the witness as to' the insanity of the defendant, and the answer must also be treated as giving the opinion of the witness in response to the question as to the insanity of the defendant, for it is manifest that the witness could only give her opinion upon that subject.

It is perfectly apparent that in the opinion of Mrs. Speyer the defendant was insane on two occasions prior to the commission of the act with which he is now charged, and she so states. The record discloses that there was no objection to her stating that the defendant was insane on two prior occasions, bnt when she comes to give the basis for such opinion there is an objection, and the court excludes that part of her answer. This simply confronts us with the question as to whether, under the well-settled rules of law in this State, the exclusion of that part of the answer constituted reversible error. We are of the opinion that it did. It was her observations of the defendant and the statement of facts upon which her conclusion that the defendant was insane was based, that rendered her opinion as to his insanity admissible. It was the statement of reasons and facts upon which her opinion as to his insanity was predicated, which gave any force or vitality to that opinion, and. when the court excluded that part of her answer it left her opinion as to the defendant’s insanity standing without any basis upon which it could rest, and excluded from the jury the most essential feature of her opinion upon the subject of her husband’s insanity, and deprived them from considering the reasons assigned for such opinion in determining the weight to be attached, to the expression of opinion by Mrs. Speyer that her husband was on two prior occasions insane. Mrs. Speyer, as a reason for her conclusion that the defendant was insane, states: “I saw the awful change that had taken place in his every expression. There was the change in the personality. He had delusions, because there were no Indians in that part of the State of Louisiana.” She was intimately associated with the defendant as his wife, and the reasons she assigned for her opinion as to his mental condition were certainly a sufficient basis upon which to predicate the opinion expressed.

It was said in Appleby v. Brock, supra, in discussing the subject of the admissibility of the opinion- of witnesses upon the subject of insanity, that “the opinion of an intelligent witness, having adequate opportunity of observing and judging, is the best testimony which can be adduced.”

Under the law of this State the jury were clearly entitled to such reasons assigned in determining the weight to be given to the opinion expressed by the witness. This part of the answer excluded by the court was highly important to the defense of the appellant interposed in this case. It was the reasons and facts upon which the opinion of this lay witness was predicated, which gave it force and vitality and it was error on the part of the trial court to exclude it. •

Mrs. Speyer further testified that “one time he was sitting on the edge of the bed playing with the baby, when all of a sudden he grabbed the child and tried to jump out of the window with him. I screamed and grabbed hold of the child and took him away from him.- and had to shake Mr. Speyer before he seemed to recognize me. I noticed his face appeared flushed, his eyes had a wild look. I became frightened, and for the safety of the child had to take him1 home to my people. After that he never looked the same. Looked wild in his eyes. In 1898 he imagined the Indians were after him. He got up in the night, saddled his horse and rode 20 miles, and came back all wet, and the horse covered with sweat and exhausted. He said thelndians were-after him.” The court, over the objection and exception of the defendant, excluded from the consideration of the jury that portion of the foregoing statement in which she stated, “I became frightened and for the safety of the child had to take him home to my people. ’ ’ While the exclusion of this part of her statement may not constitute reversible error, and as a general rule the conduct and action of the witness in any particular transaction is incompetent, yet upon this investigation, involving the ascertainment of the mental condition of the defendant, we can see no serious or valid objection to the admission of that part of her statement. As before stated, in cases in which the mental condition of a person at the time of a certain act is in issue, a wide, latitude is permitted by the court in the matter of proof. In the statements of this witness it will be observed that she was describing a scene which occurred in which the defendant was the particular actor, about which she was subsequently asked her opinion as to his sanity or insanity, and the part of the statement excluded by the court was nothing more than a statement indicating how his conduct impressed her, which at least the jury had a right to consider in determining the weight to be attached to her opinion, which was subsequently expressed, that the defendant was insane at that- time.

■Appellant complains of the examination by the State’s counsel, as disclosed by the record, of Marguerite Tennis. It is sufficient to say of this examination complained of that the learned trial judge permitted the re-direct examination for the only reason that can be urged in support of its admissibility, that is, that the defendant, by his improper cross-examination, at least gave some warrant to the prosecuting attorney in conducting the re-direct examination as disclosed by the record. We will say that any testimony by this witness as to what occurred between her and the defendant prior to the killing of Freddie Speyer has absolutely nothing to do with this case. The effect of such testimony can only have- the tendency to unjustly prejudice the minds of the jury against the defendant upon an issue-not involved in the trial of this case, and upon its retrial all references of this witness having met the defendant prior to the time of the killing, and the length of time that she was with him, should be promptly excluded. While this witness, Marguerite Tennis, in her examination in chief, cross-examination and re-direct examination says but little which has any bearing upon the issues involved in this case, yet there is in her testimony some insinuations or statements from which the jury might draw inferences that the defendant had committed some unlawful act in respect to this witness, and it is not uncommon that a mere insinuation of the commission of a wrong is about as injurious as a positive and broad statement that the wrong was committed; therefore, it is highly important that no such testimony be permitted to go to the jury.

Again, it is not inappropriate to suggest that the questions propounded to the experts, Drs. Burnett and Hanawalt, as to whether or not excessive fright, pain, sorrow, pleasure or joy would entirely prevent thought from taking place, were proper questions to be propounded to experts who were introduced by the State or the defendant to testify upon the subject of insanity. The propriety of these questions does not rest upon the theory that a foundation must be laid in order to authorize the propounding of them, nor are they to be regarded as hypothetical questions requiring testimony to be introduced as a basis for the asking of them. These questions stand as independent preliminary questions to experts, and the appellant had the right to fully inquire in respect to their knowledge of the subject about which they proposed to testify, and if the appellant’s theory of this case was that he was insane by reason of excessive fright, pain, sorrow, or any other cause, even before any testimony had been introduced along that' line, he had a perfect right to make inquiry of the experts as to what their knowledge was as to the causes which would produce insanity. It certainly will not be seriously contended that when an expert is first placed on the stand it would be incompetent to ask him the question as to what are the usual and most frequent causes of insanity, and on the same principle it is not objectionable to ask an expert when on the stand if certain conditions surrounding an individual have a tendency to prevent thought or produce mental incapacity.

No one can review the evidence in this cause, fully considering the circumstances and conditions surrounding the defendant at the time that he destroyed the life of his six-year-old boy, without being convinced that, upon the subject of the mental condition of this defendant at the time of the killing, this is not a one-sided case. As was said by this court upon the former appeal in this case, ‘ ‘ This record presents a case exceptional in all its features. A father is charged with the murder of his innocent, unoffending and sleeping child. That he cut the little boy’s throat with a knife is conceded. The evidence discloses that up to the fatal moment when he plunged the knife into the little one’s throat he had cherished the warmest affection for his child and had scrupulously cared for all his wants. There is not the slightest evidence of any criminal purpose in taking the child’s life beyond that which the law will presume from the act itself. The very enormity of the act suggests a doubt of the sanity of the defendant. The child himself did not and could not have been guilty of anything which the law would regard as a provocation either just or unlawful. The evidence tends to show that the warmest affection existed between the father and the little one. We are compelled to look for an explanation of this most unnatural deed in the circumstances detailed by the witnesses. The killing of the child is traceable to the circumstances surrounding the defendant at the time and just prior to the fatal act. ”

It is always with reluctance that this court disturbs the judgment of the trial court; and if the defendant in this cause was sane and feloniously, willfully, deliberately, premeditatedly and with malice aforethought killed his innocent, unoffending six-year-old boy, he justly merits the punishment imposed by this judgment; on the other hand, if he was insane and his mental condition was such at the time of such killing that he did not realize the criminal act he was committing, then it is equally clear that the penalty of this judgment should not be inflicted upon him.

The infliction of the death penalty can only be justified by a trial of this cause free from any error which tends to prejudice the rights or interests of the party accused. With all due respect for the learned judge presiding at the trial of this cause, we are of the opinion, as herein indicated, that errors were committed which deprived the defendant of that full and thorougli showing he was entitled to make under the law upon the subject of his insanity, which was interposed as a defense to this criminal prosecution.

We have thus given expression to our views upon the record before us, which results in the conclusion that the judgment in this cause should be reversed and the cause remanded, and it is so ordered.

All concur.


source: Caselaw Access Project

author: GANTT, J.

license: Public Domain

text:
    THE STATE v. KING, Appellant.
    Division Two,
    March 6, 1906.
    1. INSTRUCTIONS: No Exceptions. Where the record shows that none of the defendant’s instructions were refused, and the motion for new trial does not allege any error in the instructions given by the court, and there is no exception to the failure of the court to declare all the law of the case, and the failure of the court to instruct on any point is not at the time called to its attention, an assignment in the motion for new trial that “the court erred in not instructing the jury on all points in the case under the evidence,” is not sufficient to require the appellate court to pass upon the instructions which w.ere given.
    2. NEW TRIAL: Newly-Discovered Evidence: Affidavit. A motion for new trial on the ground of newly-discovered evidence is properly overruled where it appears that the evidence would be merely cumulative, and due diligence has not been used to procure the testimony at the trial, and where defendant files no affidavit in support of the motion.

      3. VERDICT: Sufficiency. Tlie verdict was in the following form-: “We. the jury find the defendant guilty of murder in the second degree, and assess his punishment at teen years. (10).“ Eeld,, not reversible error. And even if it were, since the court sentenced defendant to the minimum punishment fixed by statute, he can not complain.
    Appeal from Christian Circuit Court.— Hon. John'T. Moore, Judge.
    Affirmed.

      Troy Pace and E. G. Mitchell for appellant.

      Herbert 8. Hadley, Attorney-General, and N. T. ■ Gentry, Assistant Attorney-General, for the State.
    (1) The' instructions fully and fairly presented the case to the jury, hut, as defendant failed to make any objections to. same in his motion for a new trial, that point has been waived. State v. Whitsell, 142 Mo. 474; State v. Headrick, 149 Mo. 396. (2) In his motion for a new trial defendant alleges that he had discovered new and material evidence. The failure to bring out the desired evidence was due to no fault of the State, but to the neglect of defendant’s counsel, for which defendant should suffer. State v. Cantlin, 118 Mo. Ill; Cook v. Eailroad, 56 Mo. 383. On the subject of the affidavit in support of the newly-discovered evidence, this court said: “Moreover, the motion for a new trial was not accompanied by the affidavit of defendant, as it should have been.” State v. Campbell, 115 Mo. 393; State v. McLaughlin, 27 Mo. Ill; State v. Lucas, 147 Mo. 72; State v. Miller, 144 Mo. 29; Graham & Waterman on New Trials, p. 1067. (3) The alleged failure of the trial court to fully instruct upon all the law applicable to the case cannot be considered, because no exceptions were saved at the time to such alleged failure. State v. Cantlin, 118 Mo. Ill; State v. Albright, 144 Mo. 638. The verdict is not insufficient by reason of the failure of the jury to use the words “in the penitentiary.’’ The jury, by said verdict, did find defendant guilty of murder in the second degree, which was sufficient. Defendant can not complain because the jury misspelled the word “ten,” for the same reason. R. S. 1899, secs. 2649 and 2650.
   GANTT, J.

On December 23, 1903, the prosecuting attorney of Taney county filed an information, duly verified, charging the defendant and West Hudson, Bill, alias “Red” Barker, and Clyde, alias “Curley” Elliott, with murder in the first degree. The date of the commission of the alleged crime was the 15th day of December, 1903, and the name of the deceased was Henry Barchman. Defendant applied for and was granted a change of venue, on account of the prejudice of the inhabitants of Taney county; the cause was accordingly sent to Christian county. In the latter-named county, defendant entered a plea of not guilty, was granted a severance, and convicted of murder in the second degree at the December term, 1904. The punishment assessed was ten years in the penitentiary. After the usual unsuccessful motions for new trial and •in arrest of judgment, defendant appealed.

The State’s evidence tended to show that, for some time prior to December 15, 1903, Oliver & Thompson conducted a saloon in Taney county, a short distance from the line between Missouri and Arkansas; it was known as the ‘ ‘ State line saloon, ’ ’ and the deceased and John Hart were the bartenders. Thompson also conducted a saloon at Branson, in Taney county, and the defendant had been his bartender, but quit on account of trouble with Thompson a few days before the homicide. Omaha, Arkansas, was a small village, a few miles from the State line, and a number of men were engaged in a railroad camp near there, among them being Hudson, Eflliott and Barker, who are jointly charged with defendant. The day before the shooting, Elliott, Barker and defendant had some trouble with Oliver, one of the proprietors of the “State line saloon.” On said day defendant and the others went to said saloon, taking a girl with them from Omaha. They soon got into a fight with some Irishmen, and Oliver told them to get out. Turning to defendant Oliver said, “You fellows candóse Charley Thompson’s doors, and go over to Forsythe and have a big time, but no one can dose mine. If they do, they can dose over the best son-of-a-b.itch they ever saw. ’ ’ After returning to Omaha, Barker was heard to say that Oliver had run him out of his saloon and that he was going back to settle with him. He further said, “I am going back to kill Jess Oliver.” Hudson and defendant were present in this room and took part with Barker in the conversation. The evidence showed that Barker, Hudson and Elliott were disorderly and dangerous men; and Thompson had requested defendant to get them away from his saloon at Branson, as they were causing him trouble and people were complaining about them. For some days prior to the final difficulty, there seemed to be an intimacy existing between defendant and these three; in fact, they seemed to be together continually. On December 15, 1903, defendant and the same three men again hired a hack and were driven from Omaha to the State line saloon, reaching there between one and two o ’clock. All of them at once entered the saloon, and remained in there most of the time, drinking and talking until the shooting occurred. These men got into trouble with an Irishman in the saloon, made him treat the crowd, and then they retired for a. few minutes. After talking together on the outside, they came back into the saloon and partook of another round of drinks. In another tussle with the Irishman, the men got him on the floor and were handling him pretty rough, when one of the bartenders, John Hart, asked defendant not to do that. The four men then left the saloon, and in a few minutes all came back and ordered another round of drinks. Hudson drew his pistol and, without any apparent' reason, fired it three times. Upon a protest from the bartender and an appeal to defendant to stop; it, defendant said, “All right.” Defendant then ordered drinks for all and called on all to partake of same; accordingly, everyone in the room lined up> at the bar, bartender Hart stooped down to get whiskey from a demijohn for some of them, and deceased began to pull corks from bottles for those that had ordered beer. While thus engaged, Hudson rushed towards deceased, saying, “I will kill that three-fingered-son-of-a-bitch” (referring to deceased, who had only three fingers on one hand). At that time defendant and Barker had each a pistol in his hand; defendant’s pistol was pointed towards bartender Hart. Someone called out, “Hands oft. ’ ’ At once a shot was fired, and deceased exclaimed, “ Don’t shoot any more; you have killed me now. ’ ’ Hudson, Barker and a number of others ran out the front door of the saloon; but defendant and Elliott remained. Defendant continued to hold his pistol on Hart, and told him to give him five or ten dollars. Hart gave him the only bill he had in the cash drawer, but did not notice what denomination it was. While defendant was getting this money from Hart, Mr. Powers came into the saloon to see what was the trouble, and saw Elliott sitting straddle of deceased. As Mr. Powers entered the door, Elliott drew his pistol and commanded him to go back, which he did. In a little while Elliott and defendant came out, and Elliott told Mr. Powers he could now come in if he wanted to. Some one asked who "did that shooting, and Hudson said, “I shot the son-of-a-bitch. ” Deceased was picked up and carried to a room over Powers’ restaurant, where he lingered until eleven o ’clock the next night, when he died. An examination showed that the deceased received a gunshot wound on the left side of the abdomen, four inches to the left of the navel, and that the bullet passed-through his body and out át the back. Deceased seemed to think his condition serious, as he stated to Mrs. Powers, while being taken to her room, that there would soon be one man less. At one time he had hope of recovery; but his suffering was so great that in less than five minutes he changed his mind. The physician told deceased that he could not recover, that he was bound to die, and deceased agreed with him. Deceased then made a statement, in which he said that Wes Hudson shot him, and that he (deceased) was doing nothing at the time; that he did not have any pistol. About two minutes after the shooting, defendant, Hudson, Elliott and Barker, each one still carrying a pistol, met a short distance away from the State line saloon, ordered their hack and drove to Omaha. James Langwell testified that he drove the hack, and that Elliott sat on the front seat with him; and that the other three sat on the back seat of the hack. That during the ride to Omaha, one of the men on the back seat shot a hole through Hudson’s hat. That the men had him stop the hack, and all of them got out and went behind the hack, when one of them fired a shot. After reaching Omaha, defendant told several persons that there had been a shooting over at the State line saloon; that Hudson had shot the bartender; that the bartender had shot several times at Hudson and defendant; that several • shots passed through defendant’s clothes; that defendant and Hudson had shot several times at the bartender, and that Hudson hit him first. Defendant showed a hole in his shirt and one in his coat and collar, which he claimed were made by bullets from deceased’s pistol. At that time Hudson exhibited his hat, which had a hole in it, and which they claimed had been made by one of deceased’s bullets. 'Mrs. Middleton, who had charge of the hotel, at Omaha, heard defendant say, after his return from the State line saloon, “We had to kill a man.” In response to a question from David Eoff as to how it happened that he did such a cobbled-up job as that, Hudson replied, “I don’t know, Uncle David, how it happened; I only wish I had done a better job.” Defendant then said, “Well, we had to shoot him, if he hadn’t of shot him, I would.” In showing constable Davis some holes in his coat and vest, which he claimed deceased had'shot in there, defendant said, “If Wes Hudson hadn’t of done it I would have had to have done it.” In the presence of defendant, Hudson said that he (Hudson) “shot the fellow just to see him buck himself to death.” After these various statements, defendant telephoned to the sheriff and told him to come to Omaha, as a man had been killed.

The defendant’s evidence tended to show that, prior to this trouble, defendant enjoyed a good reputation as a law-abiding man. That while the defendant went to the State line saloon both days in company with Hudson, Elliott and Barker, and was present when Hudson shot deceased, yet defendant had nothing to do with said shooting, and did not aid, assist nor counsel it. Defendant admitted having a pistol at said saloon, and admitted having a little trouble with one of the proprietors of said saloon, but denied making the statements which the State’s witnesses attributed to him in reference to the killing; but admitted shooting a hole in Hudson’s hat, and that Barker shot holes in his (defendant’s) coat and vest. Defendant claimed that he was on friendly terms with deceased, and that on' both occasions he (defendant) was trying to keep the other men quiet. That the reason he went with Barker, Elliott and Hudson was that Mr. Thompson was afraid of them, and asked defendant to take them away to some place where they would not bother him. Defendant also testified that deceased threw some beer bottles at Hudson just before the last shot was'fired; and that he (defendant) was in the act of picking up his change from the bar when he heard said shot. In all that defendant testified to in reference to his presence and conduct in the saloon on the day of the difficulty he was fully corroborated by one Thomas Williams, a witness, who testified that he was a farmer of fifty years’ experience, a justice of the peace of sixteen years’ standing, and had been commander of the Gr. A. R. post. Mr. Williams, who claimed to have been present from the beginning to the end of the difficulty in the saloon, even made a stronger case for defendant than was made by defendant himself. Although Mr. Williams lived in Boone county, Arkansas, he did not appear as a witness at the trial, but his deposition was taken at Omaha and read by defendant.

In rebuttal, the State proved by several witnesses that Mr. Williams was not in the saloon at the time of the difficulty, but was some two hundred yards away, and asked what was the matter when he heard the shooting and saw a boy running away.

I. The information was sufficient. It followed a number of approved precedents in this State; indeed, counsel for the defendant do not challenge it in their brief.

II. The only error assigned by the learned counsel for the defendant in their brief is the incorrectness of one of the instructions. In his motion for new trial, the defendant nowhere assigns any objections or errors to the instructions given by the court. And the record shows that none of defendant’s instructions were refused. It is true that one of the counsel for the defendant, in one of the affidavits-filed in support of motion for new trial, does state, “The defendant asked the court to give cautionary instructions and the court agreed to give said instructions, but forgot it, and failed to do so.” What the nature of the said cautionary instructions were, and on what subject counsel desired the jury to be cautioned, the affidavit does not state, but the record does show that there were no refused instructions, and shows no exceptions on the part of the defendant to the failure of the court to instruct on all of the law applicable to the case. It would seem too clear, in the light of the uniform practice of this court, at least since the ease of State v. Cantlin, 118 Mo. 111, that the instructions of the court are not before us for review because the motion for new trial does not allege any error in those given by the court of its own motion, and there was no exception to the failure of the court to declare all the law of the case, and the failure-of the court to instruct upon any proposition of law was not at that time called to its attention. But it is now insisted by counsel in their brief that the fourth assignment in their motion for new trial, to-wit, ‘ ‘ That the court erred in not instructing the jury on all points in the case under the evidence,” is sufficiently broad to require this court to pass upon any error or inaccuracy in the instructions given by the court. We think it is too plain for discussion that a motion for new trial which nowhere challenges the correctness of instructions given by a trial court, and merely assigns as error the failure to instruct on all the points in the case, is not sufficient to require this court to pass upon the sufficiency of the instructions that were really given upon the points which the court deemed necessary. It would be manifest injustice to the circuit court. If counsel deemed that the circuit court had erred in giving any instruction, it was their duty to call the circuit court’s attention to any error therein, and afford that court an opportunity to correct its own errors, and thus save the unnecessary delay and cost of an appeal in an importarft criminal prosecution. In this case, however, it is equally clear that inasmuch as counsel saved no exceptions to the failure of the court to instruct upon all the points in the case, this assignment itself is not sufficient to permit or require an examination by this court of any alleged-errors in the instructions. [State v. Whitsell, 142 Mo. l. c. 474; State v. Headrick, 149 Mo. 396.]

III. In Ms motion for new trial, the defendant alleges that he had discovered new and material evidence, and the affidavits of Taylor, Langwell and Pace were filed in support of this ground for a new trial. The main point sought to be established by these affidavits seems to have been that Justice Williams, who testified in behalf of the defendant, was in the saloon at the time of the homicide, or had been just immediately before the shooting began. Williams testified that he was in the saloon at the time of the homicide, and the defendant testified, also, that Williams was present. -On the contrary, the witnesses Ramsey and Powers both testified that Williams had left the saloon, and did not know of the shooting of deceased by defendant until Ramsey met him as he was on his way to get a horse and send for a physician, after the deceased had been removed from the saloon and taken to the restaurant, and, therefore, it would have been a physical impossibility for Williams to have witnessed the facts to which he testified in his examination. That, the evidence of Taylor that Williams was present was entirely cumulative, is perfectly obvious. Moreover, this affidavit disclosed no diligence whatever on the part of the defendant and Ms counsel to procure Taylor’s evidence at the trial. It is significant that the defendant was convicted on the 5th of December, 1904, and on this same day this affidavit of Taylor’s was made and sworn to before the clerk of the circuit, court of Christian county. How Taylor happened to leave Taney county and attend this trial in Christian county, and not testify for the defendant on the trial, and yet be ready and willing to make this affidavit on the day the verdict was rendered, is not explained by the defendant or the witness who made the affidavit. Langwell, one of the other affiants, was a witness and testified at the trial. He testified that Williams was in the saloon less than twenty minutes before the shooting. As to tMs proposition there was absolutely no conflict; indeed, the State’s own testimony tended to show that Williams was in the saloon a short time before the killing, but had left and gone down the road, where he was met by the witness Ramsey, and was told about the killing for the first time, some ten or fifteen minutes, at least, after it had occurred. The failure, however, to prove this fact by Langwell was owing entirely to neglect of defendant’s counsel to ask him about it when he was on the stand. But over and beyond all of this, the defendant himself filed no affidavit in support of his motion for new trial on the ground of newly-discovered evidence, and it is too well settled to admit of question that such an affidavit by the defendant is necessary. [State v. Campbell, 115 Mo. l. c. 393; State v. McLaughlin, 27 Mo. 111; State v. Gordon, 153 Mo. 576; State v. Lucas, 147 Mo. l. c. 72.] And what has already been said applies with equal force to the affidavit of Mr. Pace, one of the defendant’s attorneys in the case. No error was committed in refusing a new trial on the ground of newly-discoverec’ evidence.

IV. The verdict of the jury was in this form: “We the jury, find the defendant guilty of murder in the second degree, and assess his punishment at teen years. (10.)” No point is made by counsel as to the insufficiency of this verdict, but the verdict is a part of the record proper, and is before us for review without exception taken to it in the circuit court. Even if the misspelling of the word “ten” should be held erroneous, and the failure to add the words “in the penitentiary,” we are of the opinion that the error is not a reversible one. The jury distinctly found the defendant guilty of murder in the second degree, and if we are to regard it as if no punishment had been assessed by the jury, then the court by a plain statutory provision had power, and indeed it was its duty to have fixed the defendant’s punishment for the offense of which he was found guilty. Section 2649, Revised Statutes 1899, provides: “Where the jury find a verdict of guilty, and fail to agree on the punishment to he inflicted, or do not declare such punishment by their verdict, or assess a punishment not authorized by law, and in all cases of judgment by confession, the court shall assess and declare the punishment, and render judgment accordingly,” and this the court did in this ease, and sentenced the defendant to be confined in the penitentiary of the State of Missouri, for a period of ten years from the 5th day of December, 1904, or until otherwise discharged in due course of law. [State v. Gordon, 153 Mo. 576; State v. Thornhill, 174 Mo. 364; State v. Hamey, 168 Mo. 167.]

As the court sentenced the defendant to the least punishment affixed by the statute for murder in the second degree, it is obvious that he had no cause of complaint on this score.

After a review of all the evidence and the record in this cause, we are of the opinion that no error was committed in the proceedings and trial of the defendant, which would justify a reversal by this court.

The judgment must he and is affirmed.

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


author: FOX, J.

text:
    THE STATE v. DAVIS, Appellant.
    Division Two,
    March 6, 1906.
    1. JURISDICTION: Criminal Action: Deferred Judgment. Where a criminal cause is submitted to a justice of the peace, he does not lose jurisdiction to render a verdict and judgment by taking it under advisement until the next day or for a reasonable time.
    2. INSTRUCTIONS: Blank Form of Verdict. A blank form of ' verdict for the State in a criminal case should be prefaced by a direction to the jury to use it if they find the defendant guilty. But an instruction with those prefatory words omitted will , not be held to direct the jury to find defendant guilty or as confusing and misleading them, if they are fully instructed on the subject of reasonable doubt and all other constituent elements of the crime charged.
    3. PRACTICING MEDICINE: No License: Non-Resident: Blank Prescription and Order. Defendant, a resident of Illinois, had a room at a hotel in this State, professed to be .a physician and held himself out as such. A young man, afflicted with blood-poisoning, called upon him, as a physician, at his room, for treatment, and defendant diagnosed his case in the usual way of practicing physicians and prescribed remedies; the prescription, however, was in the form of a blank, to be sent to Illinois, and then defendant sent bottles of medicines from there, and the patient took the medicine according to defendant’s directions and according to the printed directions on the bottle, and paid defendant at the rate of five dollars a month, and the first Monday in each month defendant came to the hotel for the purpose of seeing the patient. Held, that defendant was practicing medicine within this State within the meaning. of the statute, and, having no license, he was guilty of violating the statute, and is subject to its penalties.
    4- -■' -: Vested Rights: Constitutional Statute. The State has the right to determine upon what conditions and under what circumstances its citizens shall practice medicine, and in doing so it in no way interferes with any vested rights. The fact that defendant many years ago before the statute was enacted and before he left this State was a practicing physician here in no way invalidates the subsequently enacted statute which requires him to obtain a license from this State to practice medicine here, nor does such statute interfere with any vested right he previously enjoyed. The primary object of the statute was to protect the people from imposition by persons not qualified to practice medicine, and to fix a standard by which their qualifications might be determined, and not to suppress or prohibit the practice of medicine.
    Appeal from Scotland Circuit Court. — Hon Charles D. Stewart, Judge.
    Abmbmbd.

      Smoot, Boyd é Smoot for appellant.
    (1) The justice lost jurisdiction of the case by-taking it under advisement and in not rendering judgment on the day of trial and at the place of trial, when the canse was submitted to him. A jury must be kept together, even in civil cases, until a verdict is rendered, or they are discharged. Sec. 4000, R. S. 1899. The same is true of criminal cases. Sec. 2771, R. S. 1899. In civil cases a justice may defer judgment three days after submission. Sec. 4011, R. S. 1899. Article 12 of chapter 16 is complete in itself, and being the practice act for criminal cases before justices of the peace, must be strictly construed. It is read in vain for authority to take a case under consideration. Hobart v. Hobart, 45 Iowa 503; State v. Griffie, 118 Mo. 199; Cox v. State, '9 Mo. 181; State v. Epperson, 4 Mo. 90'; City of De Soto v. Merciel, 53 Mo. App. 57. (2) The statute applies to those practicing medicine in Missouri alone. (3) The present act is unconstitutional in that it endeavors to divest vested rights. 66 Mo. 328; 46 Mo. 376. A statute may provide for the future; it may regulate the practice of medicine for those who enter the profession in the future, but the statute must be applied prospectively. 78 Mo. 188; 79 Mo. 113; 115 Mo. 184; 133 Mo. 100.

      Herbert 8. Hadley, Attorney-General, and N. T. •Gentry, Assistant Attorney-General, for the State'.
    (1) The justice did not lose jurisdiction by failing to complete the trial of this cause on the day upon which the trial was begun. Many times it may occur that a trial lasts till a late hour, or the condition of the weather be such, or other circumstances may occur, that make it impossible that the trial be finished till the next morning. Certainly the authors of our criminal code did not intend to deprive a justice of jurisdiction by reason of a postponement under such circumstances. If he would have the right to postpone a trial under snch circumstances, the justice ■ would have the right to defer announcing his decision till the next day. Stroeli v. Dogget, 65 Mo. App. 103; Pohle v. Dickman, 67 Mo. App. 381. Again, another section provides that no judgment of a justice shall be deemed invalid, stayed or in any way affected by reason of the neglect or failure of the justice to enter the same within the time prescribed, or by reason of any informality in entering or giving such judgment, or for any other default or negligence of the justice, etc. R. S. 1899, sec. 4031. (2) It is not the compounding of medicines in another state and the shipment of same into this "State that is prohibited by this act, but rather the practicing of medicine in this State, without being licensed and registered. This law was enacted for the purpose of protecting* unsuspecting citizens from the evil results which have so many times followed the treatment received by them from transient and traveling physicians whose conduct has been similar to that of defendant, as disclosed by the evidence in this case. This statute applies to all persons, except physicians now registered, and' the Legislature had a right to exempt them. State v. Hathaway, 115 Mo. 36. (3) It is not necessary for a physician to practice any given length of time in order to come within the prohibition of this law. The holding of himself out as a physician on one occasion, the examination of one patient or the issuance of one prescription without complying with the requirements of law, is a violation of said act. State v. Bushwell, 40 Neb. 170; State v. Vandershaus, 43 N. W. 789;. State v. Van Doren, 109 N. C. 871. (4) One does not acquire a vested right to practice medicine by practicing in Missouri, and then moving to another State. Each State has the right to adopt its own reasonable regulations governing such an important and responsible occupation; and any one who is. capable and worthy can easily comply with same. A failure to so comply is a circumstance of value to the court- and to the jury. Myer on Vested Rights, sec. 952; People v. Phippin, 70 Mich. 6; Board v. Fowler, 50 La. Ann. 1373; People v. Pnlda, 52 Hnn 67; Dent v. West Virginia, 129 U. S. 123.
   FOX, J.

This cause is here by appeal from a judgment of conviction of the defendant in the Scotland Circuit Court for practicing medicine without a license or any other authority so to do. This prosecution was begun before a justice of the peace of Scotland county on February 4, 1905. Omitting formal parts of the information it charges the offense as follows:

“John E. Luther, prosecuting attorney within and for the county of Scotland in the State of Missouri, informs John B. Montgomery, a justice of the peace of said county of Scotland, that on the 15th day of December, 1904, at the county of Scotland aforesaid one John M. Davis did unlawfully practice medicine by then and there prescribing for, issuing medicine to and treating one Arthur Hoover, for the cure of disease and bodily affliction, the said John M. Davis not then and there being a licensed physician of the State of Missouri, nor having any legal authority to practice medicine or treat the sick and afflicted, against the peace and dignity of the State. ’ ’

This cause was first tried before the justice on an agreed statement of facts on the 4th of April, 1905; the cause being submitted the justice took it under advisement until the next day, the 5th of April, when he rendered judgment against the defendant finding him guilty and assessing his punishment at a fine of one hundred dollars. Prom this judgment defendant prosecuted his appeal to the circuit court of Scotland county. The cause came on for a hearing and trial at the May term, 1905, of the circuit court. Before the trial the defendant filed a motion praying for the discharge of the defendant on the ground that upon the fact of the transcript from the justice it appeared that the justice had lost jurisdiction of the cause before he rendered a judgment and that when he did render judgment he had no jurisdiction so to do, as this was a criminal cause and the justice was without authority to take the case under advisement. This motion was by the court overruled and the trial of this cause proceeded.

We have read in detail the testimony introduced at the trial, which was substantially as follows:

The State’s evidence tended to prove that one Arthur Hoover was suffering from blood poison, and learning that defendant was a good physician, went to see defendant at a hotel in Memphis, in Scotland county. The defendant told Mr. Hoover that he (defendant) was a physician, and showed Hoover some blanks with questions on them. That defendant then examined Hoover, diagnosed his case and prescribed for him. That defendant lived in Hamilton, Illinois, and sent bottles of medicine to Hoover, by express, from Warsaw, Illinois. That Hoover took the medicine according to defendant’s directions and according to the instructions on the bottle; and paid defendant five dollars a month. That these payments were made to defendant and Hoover had an interview with defendant in the hotel in Memphis the first Monday in every month, beginning in November, 1904. That defendant had no diploma, no license from the State Board of Health, and was not registered as a physician in Scotland county.

The defendant’s evidence tended to prove that he lived in Hamilton, Illinois, sent medicine to Mr. Hoover by express and by mail. That this medicine was sent when the patient would fill out one of defendant’s printed blanks. That defendant had been practicing medicine ever since 1857, was formerly located in St. Louis, had practiced in Edina, but not been located in Missouri for a number of years. That he had the allopathic system of medicine, but had never registered in Missouri and had never been licensed by the State Board of Health.

At the close of the evidence, the court at the instance of the State, gave the following instructions:

“1. The court decares the law to be that if you find from the evidence that the defendant, John M. Davis, at the county of Scotland and State of Missouri, at any time within one year next before the filing of this information, did publicly profess to be a physician, and that by reason of his publicly professing to be a physician, one Arthur Hoover accepted his services in his professional capacity by calling upon defendant, and defendant prescribed for, treated and issued medicine to said Arthur Hoover, who was then and there a sick person; and that the defendant at the time of so prescribing for, treating or issuing medicine to said Arthur Hoover was not a registered physician of the State of Missouri and had no certificate issued by the Board of Health of the State of Missouri, authorizing him to practice medicine in the State of Missouri, you should find the defendant guilty as charged, and assess his punishment at a fine of not less than fifty dollars nor more than five hundred dollars, or at imprisonment in the county jail not less than thirty days nor more than one year, or at both such fine and imprisonment.

“2. The court declares the law to be that the defendant is presumed to be innocent until proven guilty beyond a reasonable doubt; but a doubt to authorize an acquittal must be a substantial doubt of defendant’s guilt and not a mere possibility of his innocence.”

In submitting the instructions the court submitted a blank form for a verdict of guilty.

At the request of the defendant the court instructed the jury as follows:

‘ ‘ 5. The information in this causé charges the defendant with unlawfully practicing medicine by prescribing for, issuing medicine to and treating one Arthur Hoover for the cure of a disease and bodily affliction, and that the same was done in the county of Scotland and the State of Missouri, and unless you so find and believe from the evidence beyond a reasonable doubt, you should acquit the defendant.

“6. If your verdict be for the defendant it may be in the following form:

“We, the jury, find the defendant not guilty.

“------------Foreman.

Defendant requested the court to instruct the jury as follows.

‘ ‘ 1. If you believe from all the evidence in the ease that the defendant merely examined a patient in the State of Missouri and afterwards on the application of the patient sent him medicine from the State of Illinois when he so ordered and desired it, this is not practicing medicine in the State of Missouri in the meaning of the law, and you should find the defendant not guilty.

‘ ‘ 2. The law is intended to punish only those who prescribe and administer medicine as a profession within the State of Missouri. It does not apply to physicians who live in another State and upon application of patients send medicine into the State of Missouri to be taken by said person, and before you would be authorized to find the defendant guilty you must believe beyond a reasonable doubt that he followed the profession of a physician in the State of Missouri by prescribing medicine within the State as a calling.

“3. If you believe from the evidence that the medicine prescribed by the defendant was compounded and prepared by him in the State of Illinois upon the application of patients in Missouri, and was so taken by the patient after the same was sent to Missouri, and that the defendant was a resident of the State of Illinois, then this fact would not make the defendant practicing medicine within the State of Missouri and you should find him not guilty.

“4. Before you can find defendant guilty you must find and believe from the evidence beyond a reasonable doubt that defendant has practiced medicine by treating the sick or those afflicted with bodily infirmities, by pre■scribing’ and issuing medicine withins this State as ■charged in the information and without a license so to do; and you must find from the evidence beyond a reasonable doubt that each and all of said facts occurred in this State; that is, you must find beyond a reasonable doubt that all of the acts usual for physicians of prescribing for, issuing medicine to and treating the sick took place within the State. If you find that the medicine taken by the patient, young Hoover, was prescribed, compounded, issued or prepared in another State and upon the application of the patient was sent to this State and was so taken by the patient after the same was sent to Missouri, then this fact would not make the defendant a practicing physician within the meaning of the laws of Missouri, -and you should find the defendant not guilty.”

These instructions were by the court refused.

The cause being submitted to the jury upon the evidence and instructions of the court, a verdict was returned by the jury finding the defendant guilty as charged and assessing his punishment at a fine of fifty dollars. Motions for new trial and in arrest of judgment were filed and by the court overruled. Judgment was rendered in accordance with the verdict and from this judgment defendant prosecutes this appeal and the cause is now here for our consideration.

OPINION.

The record discloses numerous assignments of error as grounds for the reversal of this judgment.

I. It is insisted by appellant that the justice of the peace lost jurisdiction of this cause and erroneously rendered judgment against the defendant, for the reason that said justice had no authority to take the ■case under advisement from the 4th day of April, 1905, being the day upon which the case was tried and submitted, until the next day, the 5th day of April, 1905, hence the circuit court erred in overruling appellant’s: motion to discharge him on that ground. We are unable to give our assent to this contention, and we are of the opinion from an examination of the statute in respect to trials in criminal cases before justices of the' peace, that it is without merit. Section 2769, Revised Statutes 1899, substantially provides that upon the defendant entering his plea of not guilty, he or the prosecuting witness or prosecuting attorney may demand a jury, but if no jury be demanded the case may be tried by the justice.

There is no statute applicable to trials before justices of the peace in criminal cases which undertakes: to designate, if the case is tried by the justice or even tried by a jury, the precise date of the rendition of the judgment or verdict in the cause. It is apparent, if the cause is tried by a jury and submitted to them, that they have the right to deliberate upon it, and there is no time fixed as to how long they may consider the cause as submitted before returning a verdict; and we take it that where a cause is submitted to a jury on one day and they in their jury room consider and discuss the evidence until the next day before returning a verdict, that would not in any way affect the validity of a judgment rendered upon such a verdict.. We see no reason why a justice of the peace to whom a cause is submitted may not have a similar right to take the cause under advisement for a reasonable time and then render his verdict and judgment in the cause. The statute by none of its provisions prohibits such a course. The law-making power did not even deem it essential to designate in the trial of criminal cases before justices of the peace, as it has done in civil cases, the precise number of days in which a case shall be decided; therefore, we think it is manifest that no such limitations upon the justice in considering a criminal case, which has been tried before him, as is contended for by appellant, was contemplated by the statute regulating trials in criminal causes before justices of the peace. It has been ruled by some of the appellate courts of this State that if the judgment in a civil case was not rendered within three days, as designated by the statute, it is valid, notwithstanding such statute was not complied with. [Herwick v. Barbers’ Supply Co., 61 Mo. App. 454; Pohle v. Dickmann, 67 Mo. App. 381.]

II. Appellant treats the form of the verdict in the event the jury find the defendant guilty, which was submitted to the jury among the instructions, as an instruction given by the court to find the defendant guilty. It is insisted that this was error and calculated to confuse and mislead the jury. We confess that it would have been much more appropriate for the court to have prefaced the submission of that form of the verdict with a direction to the jury to use it if they found the defendant guilty; however, we are convinced that the form of the verdict submitted to the jury in the manner that it was did not in any way mislead the jury. It will be noted that the- court also submitted a form of the verdict at the request of the defendant with a direction that if they found the defendant not guilty they would use such form. In addition to this the court instructed the jury that the defendant was presumed to be innocent and his guilt must be established beyond a reasonable doubt. The jury were also told in the instructions that the information charged defendant with practicing medicine, treating one Arthur Hoover and so treating brm in Scotland county, and that unless the jury so found and believed beyond a reasonable doubt they should acquit the defendant.

Considering all the instructions we are unable to conceive how the jury could have been misled' into the belief that the form of the verdict for the State submitted to them was a direction by the court to find the defendant guilty.

III. It is insisted by appellant that, under the proof as developed at the trial in this cause, defendant was not practicing medicine in this State as contemplated by the statute.

The law governing the subject of the practice of medicine and surgery in this State, upon which this prosecution is predicated, will be found in the Laws of 1901, pages 207-208. Section 1 of that act provides: “It shall be unlawful for any person not now a registered physician within the meaning of the law to practice medicine or surgery in any of its departments, or to profess to cure and attempt to treat the sick and others afflicted with bodily or mental infirmities, or engage in the practice of midwifery in the State of Missouri, except as hereinafter provided.” Section 4 of that act provides for the recording of the license to practice medicine obtained from the Board of Health, embracing in the section a provision that for any neglect to record the license in the manner and within the time provided by the statute, the party guilty of such neglect shall be guilty of a misdemeanor. Section 5, which is specially applicable to the charge upon which the defendant was convicted, provides that “any person, except physicians now registered, practicing medicine or surgery in this State, and any person attempting to treat the sick or others afflicted with bodily or mental infirmities, without first obtaining a license from the State Board of Health, as provided in this act, shall be deemed guilty of a misdemeanor, and punished by a fine of not less than fifty dollars nor more than five hundred dollars, or by imprisonment in the county jail for a period of not less than thirty days nor more than one year, or by both such fine and imprisonment for each and every offense, and treating each patient shall be regarded as a separate offense. ’ ’

The evidence in this cause is practically undisputed. The defendant had a room at the hotel in Memphis, Scotland county, Missouri, professed to be a physician and held himself out as such. Arthur Hoover applied to Mm at the hotel in Scotland county, Missouri, as a physician for treatment; he diagnosed his case in the usual and ordinary way of practicing physicians and prescribed remedies; his prescription for medicine, however, was in the form of a blank, which was required to be sent to the State of Illinois, and then the defendant would send the bottles of medicine to Hoover by express from Warsaw, Illinois. Hoover took the medicine according to defendant’s directions and according to the directions on the bottle. He paid the defendant at the rate of five dollars per month for such treatment; the payments were made to defendant ■and defendant would come to the hotel for the purpose of seeing his patient, Hoover, the first Monday in every month. This in our opinion was clearly practicing medicine in this State as contemplated by the statute. The mere fact that the medicine was sent from Illinois did not in any way alter the construction placed upon his •acts that he was a practicing physician in this State.

The practice of medicine as contemplated by the provisions of the statute covering that subject, may consist only of the examination of a patient, diagnosing the cause of the trouble complained of, or by one professing to be a physician seeing the patient at stated intervals, and the indication and prescribing of remedies to be applied, and the acceptance of pay for such services. The mere fact that the remedies indicated .and prescribed are sent from another State does not negative the idea that the defendant was practicing medicine or attempting to practice medicine in this State. It would not be an uncommon occurrence for a regular practicing physician of this State to examine Ms patients, diagnose the cause of their illness and then say to them, “The remedies-1 indicate and prescribe you must obtain from the State of New York.” This Is not a case where the physician does not come to the State and undertake to secure patients, but simply furnishes blanks, which are sent to him in another State and he sends the medicine in accordance with the requests, but here we have a person coming to this State, holding himself out as a physician, has patients visit him, examines them, advises them as to the nature and cause of their trouble, indicates the remedies to be applied and accepts pay for such services. The bare statement of the’ two classes of cases makes manifest the distinction between them.

The proof in this cause was amply sufficient to show that the defendant was undertaking to practice his profession in Scotland county, Missouri, and it being conceded that he was not a regular registered physician in this State, and had no license from the State Board of Health to practice medicine, the testimony fully warranted the conclusion reached by the jury in their verdict.

IV. The instructions of the court given to the jury for the State and the defendant fully covered every feature of this case to which the testimony was applicable; hence there was no error in refusing the instructions requested by the defendant.

V. This leads us to the final contention of the appellant, that the statute upon which this prosecution is predicated is unconstitutional and void. This contention is predicated upon the claim that this defendant commencing in 1857 practiced medicine in this State for a number of years and finally moved to the State of Illinois and was engaged there in the practice of his profession. It is insisted that by having once practiced medicine in this State he thus secured a vested right to practice in this commonwealth whenever he saw proper. We cannot give our assent to this contention.

It is but common knowledge that the people who have ill health or whose families are troubled with disease are more easily and can be more readily imposed upon by persons who represent themselves as physician, claiming that they can give them permanent relief, than any other class; and it may be added, that intelligence is no protection from impositions along that line, for when a man is sick or his family ill, whether he be intelligent or ignorant, they readily give an attentive ear to any sort of a doctor who claims that he can give them relief, and are at all times ready to purchase and swallow all sorts of nostrums because they are recommended by someone who claims to be a physician.

The prime object of this law upon the subject of the practice of medicine is the protection of the people from the impositions herein indicated by persons who are not sufficiently skilled in the profession to authorize them to properly administer medicine and therefore relieve the afflicted.

The evidence in this cause nowhere discloses that the defendant was a registered physician under any prior existing statute; in fact, defendant while on the stand does not disclose that he was practicing his profession in this State in 1857 and subsequent to that time in accordance with the then existing laws governing the practice of medicine; therefore, we are unable to conceive how it can be held that he had secured by virtue of his practice in this State a vested right, and there is no reason why he should not comply with the law now in force in this State if he desires to practice his profession here and reap the rewards of such practice. It was expressly ruled in People v. Fulda, 52 Hun 65, by the Supreme Court of New York, that the fact that before the enactment of a statute which compelled the taking out of a license, the defendant in that case had been practicing medicine, did not prevent the application of the statute to him, which requires as a condition the taking out of a license in order to justify his practice. The court in that case, discussing the statute which imposed the condition of taking out a license to practice medicine, used this language: ‘ ‘ This was part of the police regulations of the State. It was thought necessary for the protection of the people that these safeguards should be thrown around them in reference to those who assumed to practice medicine in the community. The State has a right to determine upon what conditions and under what circumstances its citizens should be entitled to pursue any vocation. It is in no way interfering with any vested rights, nor is it a usurpation of authority which is not possessed. ’ ’

In Dent v. West Virginia, 129 U. S. 114, the same contention was made by the defendant in that case as is made in the case at bar, that is, that he had been practicing medicine within the State six years before the enactment of the law, and that the statute which undertook to impose certain conditions in order to authorize him to practice his profession, deprived him of a vested right, and was a deprivation of property without due process of law. The statute was held valid, and in discussing it the court thus stated the law: “It is undoubtedly the right of every citizen of the United States to follow any lawful calling, business or profession he may choose, subject only to such restrictions as are imposed upon all persons of like age, sex .and condition, and the right to continue the prosecution of any lawful vocation cannot be arbitrarily taken away any more than real or personal property can be thus taken. But there is no arbitrary deprivation of such right where its exercise is not permitted because of a failure to comply with conditions imposed by the State for the protection of society. The power of the State to provide for the general welfare of its people authorizes it to prescribe all such regulations as, in its judgment, will secure or tend to secure them against the consequences of ignorance and incapacity as well as of deception and fraud; and it is only when the qualifications required for the pursuit of any calling or profession have no relation to such calling or profession, or are unattainable by reasonable study and application, that they can operate to deprive one of his right to pursue a lawful vocation.”

The principles in support of the law-making power to enact laws imposing conditions upon those who engage in the practice of medicine are very clearly stated by the Supreme Court of Louisiana in Board of Medical Examiners v. Fowler (1898), 50 La. Ann. l. c. 1373. It was said'by that court that ‘ ‘ whenever the pursuit of any particular occupation or profession requires for the protection of the lives or health of the general public, skill, integrity, knowledge or other personal attributes or characteristics in the person pursuing it, the General Assembly has the power and the authority to have recourse to proper measure to ensure that none but persons possessing these qualifications should pursue the calling. We find this right constantly put in force by the general as well as the State governments.”

It is apparent that the General Assembly of Missouri, in the enactment of the provisions of law regulating the practice of medicine and surgery in this State, intended to fix a standard as to fitness, skill and qualification which would authorize the practice of that profession. This law does not undertake to deprive any person of a vested right, for there can be no such tifingas a vested right in the practice of medicine. It does not undertake to suppress or prohibit the practice of medicine or surgery, nor to prohibit any particular person from practicing as a physician or surgeon, but it simply undertakes to require the necessary and essential qualifications for that purpose. The correctness of the conclusions as herein indicated are fully supported by the well-considered cases of this country. [Dent v. West Virginia, 129 U. S. 114; Myer on Vested Rights, sec. 952; People v. Phippin, 70 Mich. 6; Board of Med. Exam. v. Fowler, 50 La. Ann. 1358; People v. Fulda, 52 Hun (N. Y.) 67.]

We see no necessity for pursuing this subject further. It is clearly manifest that the defendant had no vested right to practice medicine in this State by virtue of bis former practice bere in 1857. Upon returning to tbis State to practice bis profession bis qualifications, fitness and skill to do so must be judged by tbe law in force at tbe time be so returns, and before be will be authorized to engage in tbe practice of bis profession and reap tbe rewards from such practice, there is no reason why be should not comply with the conditions imposed upon him by tbe law in force at tbe time be so undertakes to engage in tbe practice.

■ We have indicated our views upon tbe assignments of error as disclosed by tbe record before us. Nothing remains except to announce tbe conclusion, and that is that there was no reversible error in tbe trial of tbis cause; tbe statute upon which tbe prosecution rests is constitutional, and tbe judgment should be affirmed, and it is so ordered.

All concur.