source: Caselaw Access Project

author: GANTT, P. J.

license: Public Domain

text:
    THE STATE v. CHARLES ANDERSON BARKER, Appellant.
    Division Two,
    February 2, 1909.
    1. INDICTMENT: “With.” The word “with” in the indictment, in the clause, “Did make an assault and with a dangerous and deadly weapon. . . . did feloniously .... shoot oS and discharge,” should have been omitted, but its use did not render the indictment bad.
    2. MURDER: To Avoid Arrest: Insanity. To say that every wanton and unjustifiable homicide indicates or establishes insanity, is untenable. Where a tramp shot and killed an officer without any provocation whatever, and where it is fairly deducible from the State’s evidence that he killed him because he thought the officer intended to arrest him, the appellate court would not be justified in setting the verdict of guilty aside on,the ground that defendant’s wholly unjustifiable act ' establishes his insanity.
    3. -: Insanity: State’s Case. Where defendant without any provocation shot an officer who was looking for him; where it is fairly deducible from the State’s evidence that he did so to avoid arrest; where he very soon afterwards hid behind a tree and undertook to shoot a doctor who was coming to attend the wounded officer; and where the testimony indicates that immediately after he was wounded by this doctor he was rational; that he gave as his reason for shooting the doctor that it was in self-defense; that he said he shot the officer because he thought “he was going to club me;” and that he gave a perfectly rational account of his encounter with the officer — all of these facts being established by the State — the court would not have heen justified in directing an acquittal on the ground of insanity, at the close of the State’s case.
    4. -: -: As A Defense: Question for Jury. The question of defendant’s insanity is one of fact to be determined by the jury; and when the unlawful killing is proved by the State or admitted by the accused, the State may rest upon the legal presumption of his sanity until he shows to the contrary. The burden of establishing defendant’s insanity rests upon him; and though he offers much evidence tending to show he was insane, and had been for years, the question of fact still remains to be determined by the jury’s verdict, under proper instructions.
    5. -: -: Necessary Proof. Defendant’s insanity need not be established beyond a reasonable doubt. Evidence to reasonably satisfy the jury that it existed at the time the offense was committed, is sufficient. It is sufficiently established by the preponderance of the evidence.
    6. -...... : -: Instruction: Presumptively Insane: Not Requested. Even though defendant was, under the facts, entitled to the presumption that he was insane at the time of the homicidal act, if the jury believed he had recently prior thereto been insane, yet if he asked no instruction incorporating that principle of law, even when his counsel were by the court requested to suggest any proposition of law arising upon the facts which they desired to have submitted to the jury, the judgment cannot be reversed because no such instruction was given. Especially should this be the ruling if the court, of its own motion, gave full and ample instructions on the subject of insanity.
    7. -: Instructions on Second Degree. Where the jury found defendant guilty of murder in the first degree, it can avail him nothing that the court instructed on murder in the second degree.
    8. -: Instructions for Manslaughter. Where the homicide was either murder in the first degree, or no crime at all because of defendant’s insanity, and there is no evidence tending to show any lawful or reasonable provocation for the homicidal act, the court does not err in refusing an instruction on manslaughter.
    9. -: Insanity: Passion and Prejudice of Jury. Where there was much evidence that defendant had been insane for years, but on the other hand that he had been simply an incorrigible, and at the time of the homicidal act and after-wards was sane, the verdict of guilty will not be set aside on the ground that it was a result of prejudice and passion on the part of the jury against a tramp who shot an officer to avoid arrest.

      Appeal from Franklin Circuit Court. — Son. N. M. Bradley, Special Judge.
    Affirmed.

      Jesse S. Scha'per for appellant.
    (1) The verdict of the jury ought to he set aside, •because it is so palpably wrong and against the evidence as to indicate that the jury were actuated by prejudice against defendant and his defense of insanity, (a) Because the evidence produced by the State in relation to the homicidal act of defendant under the circumstances and his conduct following that act in connection with his encounter with Dr. McNay in the street of Pacific was sufficient to overcome and destroy the presumption of the sanity of defendant, (b)' Because the undisputed evidence on the part of defendant shows that he is permanently afflicted with delusional insanity, which wholly impaired his power of reason from childhood. The controlling delusion is that, under its influence, he has a real and firm belief in the fact, not true in itself, that policemen or detectives constantly follow him with designs upon his life, and under the influence of this delusion he carried weapons about his person with which to defend himself against such imaginary enemies. The evidence of the homicidal act of defendant shows that he was then and there under the influence of this same delusion and under that belief he shot Kopf in supposed self-defense. (2) Instructions 1, 2 and 3, given by the court for the State, authorizing the jury that they might convict defendant of murder in the first or second degree, were erroneous, (a) Because there is no evidence to support either of them, and because the evidence is that the act of defendant in shooting Kopf, under the circumstances, was that of an insance man. State v. Speyer, 207 Mo. 556. (b) Because the evidence shows that the act of defendant, in shooting Kopf to death, under the circumstances, was, if any offense at all, either murder in the second degree or manslaughter in the fourth degree under the statute which declares that an intentional killing without malice aforethought is manslaughter in that degree, or'it was no crime at all, because of the insanity of defendant. Sec. 1834, R. S. 1899; State v. Speyer, 207 Mo. 556; State v. Dierberger, 96 Mo. 666; State v. Edwards, 70 Mo. 480; State v. Curtis, 70 Mo. 600; State v. Watson, 95 Mo. 411. (3) Instructions 6, 7, 8 and 9, given by the court for the State, defining and submitting the question of insanity of defendant as an excuse for the offense charged, are erroneous, (a) Because said instructions, although they announce in the abstract correct principles of the law applicable to insanity interposed as a defense to the commission of crimes generally, are improper and illegal in this case, in that they are not framed with reference to the habitual, permanent or chronic insanity of the defendant, such as the undisputed evidence established. It is true that said instructions are taken verbatim et literatim from the instructions approved by this court in the case of State v. Duestrow, 137 Mo. 44, but the two cases have nothing in common, and how can it be that the instructions approved in the latter case constitute a proper charge to the jury in the case at bar? (b) Because said instructions are improper and illegal in that they cast upon defendant the burden of proving his insanity at the time of the homicide charged, whereas under the evidence defendant was entitled to the. presumption that he was insane at the time of the homicidal act, if the jury believe from the evidence that defendant was insane before and at the time he left his home in Washington, D. C., in the year 1906, for the existence of which is presumed to continue up to and at. the time of the act charged, and in that case defendant was not required to prove that he was insane or of unsound mind at the time of the act charged. But it devolved upon .the State in that case, in order to convict, to prove that the act committed was done during a lucid interval. State v. Wade, 161 Mo. 441; State v. Lowe, 93 Mo. 547. (c) Because said instructions are improper and illegal in that they ignored the undisputed evidence in the case tending to prove the habitual, permanent or chronic insanity of defendant before and at the time he left his home in Washington, D. 0., in 1906, and ignored the presumption of the insanity of defendant at the time of the homicidal act. State v. Wade, supra; State v. Lowe, supra.

      Herbert 8. Hadley, Attorney-General, and F. G. Ferris, Assistant Attorney-General, for the State.
    (1) The indictment substantially charges every essential element necessary to constitute the offense of murder in the first degree, and fully informed the defendant of the nature and cause of the accusation against him. State v.'Hom, 204 Mo. 528; State v. Hudspeth, 150 Mo. 19; Joyce on Indictments, p. 736. (2) (a) Instructions 6, 7, 8, 9,10 and 11, as to insanity as a defense, are in form expressly approved by this court. State v. Duestrow, 137 Mo. 71; State v. Pagels, 92 Mo. 314; State v. Paulsgrove, 203 Mo. 200. (b) The court properly refused to instruct on manslaughter in the several degrees. There was no evidence tending to show the slightest lawful provocation for the homicide. All the evidence tended to show that he was either innocent of crime or guilty of murder. State v. Paulsgrove, 203 Mo. 207; State v. Todd, 194 Mo. 396. (3) The great issue of fact in the case is as to whether defendant was sane or insane at the time he shot Kopf. There was much-evidence tending to establish defendant’s insanity, but, on the other hand, there was ample evidence to justify the jury in reaching the conclusion that he was sane, and that he had the mental capacity to distinguish between right and wrong with respect to his act. That issue was properly submitted to the jury upon fair and oft-approved instructions. The record discloses no evidence that the verdict sprang from passion or prejudice. State v. Crane, 202 Mo. 85.
   GANTT, P. J.

The defendant was indicted at the November term, 1907, of the Franklin Circuit Court, for the murder of Alfred Kopf, at the town of Pacific, on the 3rd day of September, 1907. He was duly arraigned, and upon a plea of not guilty and insanity, he was tried at the March term, 1908, convicted of murder in the first degree, and his punishment assessed at imprisonment in the penitentiary for life. He has appealed from that sentence.

The statements of counsel show no difference as to the substantial facts.

The evidence on the part of the State tended to prove that about six o ’clock in the morning of the 3rd of September, 1907, defendant was seen leaving the home of Mr. Lynde in the town of Pacific. As he passed from the gate he threw away a sandwich. He went on in the direction of Mr. Busse’s place, where soon thereafter he arrived. He applied to Mr. Busse, who was in the house alone at the time, and asked for a lunch and was granted the privilege of entering the house and washing his face. He had some conversation with Mr. Busse, in which he said he was hunting work. He desired the privilege of heating some water with which to wash his shirt, and was directed by Mr. Busse to a creek where he could do his washing. He also inquired the road to Labaddie. Mr. Busse testified that his conversation was sensible. After wiping his face and hands, he sat at the window looking into a pocket mirror and picking at his face. He went out of the house a few minutes later. Mr. Busse afterwards saw him sitting in the road looking at his glass and picking his face. Defendant sat in the road there for some time, and then he walked further up the road, where he entered a patch of weeds by the road side, in which he lay down and thus concealed himself from- view. About that time Harry Knapp-, to whom some lady in the neighborhood had complained that defendant had made a disturbance, or was exciting fear, came to Mr. Busse’s house and inquired as to- where defendant might be found. Mr. Busse being somewhat deaf, Mr. Knapp talked in a loud tone. As Mr. Knapp- told Mr. Busse that he had telephoned for the city marshal; the defendant arose in the weeds, looked around and lay down again, which act in a short time defendant repeated.

Knapp started away, but soon returned to Busse’s place with Deputy Marshal Albert Kop-f, who, at the • time, was acting marshal. When about thirty feet from defendant, Knapp stopped and pointed out defendant’s hiding' place to Kop-f. As Kopf approached defendant, the defendant arose, drawing his revolver as he did so, and quickly fired a shot at Kopf, which struck Kopf in the breast. Kop-f, on seeing defendant draw his revolver, also drew a revolver and fired twice at defendant immediately after defendant had shot. Kopf turned, reeled and staggered a few feet and fell. Defendant in the meantime was working with his revolver, which seemed to be out of order. Knapp ran and telephoned for a doctor, and, returning, found Kopf mortally wounded, lying upon his face by the road.

Dr. McNay, responding to the call to attend Kopf, went in a buggy, in company with Mr. Blees, toward the scene of the tragedy. As they were on their way, and opposite Dr. McNay’s residence, they saw the defendant approaching the street in the distance, bareheaded and bleeding, and carrying a pistol. Blees informed the doctor that defendant was the man who had shot Kopf. The doctor ran into his house and immediately returned to the buggy with his shotgun. In the meantime, defendant stopped to examine Ms revolver, and then proceeded to the buggy, where Blees said to him,11 Hello; have you been in a scrap ? ’ ’ and defendant replied, “Yes, a fellow hit me with an iron bar.” Upon being asked by Blees where it happened defendant pointed back to the westward. Defendant watched the -doctor’s house, and as the doctor emerged therefrom with a gun, he ran across the street and took position behind a maple tree. Dr. McNay and Mr. Blees both called to him, telling him to come out from behind the tree and drop his revolver and he would not be harmed. This demand and assurance was repeated several times but defendant gave it no heed. As defendant stuck his hand around the tree, as if to get a shot at the doctor, the doctor fired a load from his shotgun at defendant’s hand, wMch knocked defendant’s revolver out of his hand, throwing it several feet away from the tree. Again commanded to come out from behind the tree, the defendant refused agam. Defendant qMckly made a dive for Ms revolver.; Dr. McNay at the same time attempted to shoot the other barrel of his shotgun at defendant, but failed in doing so, because he pulled the wrong trigger. The doctor then shot the defendant in the face as he was takmg aim at the doctor from behind the tree. Defendant fell, and the doctor noticing that he was not Mlled, proceeded in Ms buggy to the place where Marshal Kopf fell. During the duel between the doctor and the defendant no word was spoken by the defendant. The doctor however testified that he was acting like he knew what he was doing. Dr. McNay found Kopf suffering from a bullet wound, of which he died four days later.

When defendant was arrested and searched, which was a very short time after the shooting, there was found upon his person a map, a purse and an old pocket knife. In Ms ¡dothmg on one side was a gun pocket, and he also was carrying tMrty-eight shells. On the way to the calaboose, J. W. Placher had a conversation with, defendant, in which, as he testified, defendant gave intelligent and responsive answers to his questions. As to this conversation, Mr. Placher was corroborated by Mr. Souders, who testified that defendant said that he fired the first shot and he only fired one shot because his gun would not work. Defendant further said that the marshal’s- first shot missed him, and the second shot hit him in the mouth. Dr. Booth also heard and participated in the conversation above referred to. Dr. Booth said as he noticed the formation of defendant’s head, he made the remark, “That fellow would shoot a man for fun,” whereupon the defendant said, “I did not shoot the marshal for fun, but I had to shoot him.” Defendant also told Dr. Booth that there was a bullet in his mouth, which could be removed easily.

Dr. Lynde and his wife recognized the defendant as the man who had appeared at their door at about six o ’dock on the morning of the tragedy and received from Mrs. Lynde a sandwich and a glass of milk. He drank the milk, started away without thanking the lady for her kindness, and threw away the sandwich as he came upon the street. Mr. Moore testified that he heard defendant, in conversation with Dr. Booth, just after arrest, say that his name was Charles Anderson, and that his home was in Washington, D. C. Mr. Moore said that he seemed to be morose.

The defendant introduced in evidence records of the Supreme Court of the District of Columbia to prove that Charles Barker, the father of the defendant, was on the 18th day of May, 1889, by a jury, declared to be a lunatic and of unsound mind, so that he had not capacity sufficient for the government of himself and his property. The depositions of defendant’s mother and four other witnesses of Washington, D. C., were read in evidence, all being to the effect that defendant as a child was always hard to manage and that he would fall into a rage upon the slightest word of reprimand. He surrounded himself in his room with means of defense and escape. Sometimes he slept in day and worked all night, according to a temporary health theory of his. He could not be kept in public school,, and he was at different times in private schools, in a school for feeble minded, and in a reform school in Washington, where he was received as an incorrigible. He often used abusive language to his mother; on several occasions he threatened her with violence, and on at least one occasion he struck her. When he would be in a spell of violent rage, he would threaten violence to anyone making effort to control him, and at such times he would break the furniture and anything in reach. At times one winter he went about the house •barefooted and in his underwear only, doing so, as he said, for his health. According to Mr. Zeigler, defendant was a victim of self-abuse. He imagined that his mother was in a conspiracy to marry him to young lady visitors at her home. He was in the reform school from November, 1901, until July, 1903, when he was paroled. He was recommitted to said school, as incorrigible, in June, 1904, where he remained about two weeks and escaped. He was shortly afterwards recaptured and held in said reform school until May 18, 1905, at which time he escaped again. The assistant superintendent of the reform school testified that he always regarded defendant as a boy of unsound mind. Dr. Stewart of Washington gave numerous instances of defendant’s conduct, which had come under his own observation, and stated that defendant, at the last time he saw him, which was in July, 1906, was insane. He also testified that defendant was suffering from paranoia persecutia, and had delusions. The doctor also testified that defendant’s sister was suffering from melancholia, that she was erratic, had hallucinations, 'and entertained a general belief that everybody was trying to do her a severe injury. Mr. Henderson, of Washington, D. 0., who married the sister of defendant’s mother, was present at the trial and testified fully as to the erratic conduct of defendant’s father, and said that defendant’s father, after having been adjudicated insane, spent some time in an. insane asylum, from which he was released on account of sickness, and soon after-wards died. He also testified as to the irritable and incorrigible disposition of defendant, and to defendant’s delusions and strange conduct as a boy. Mr. Henderson had opposed the marriage of defendant’s father and mother and was instrumental in getting defendant’s father into an asylum; in which matter he succeeded after more than one effort, and on account of which defendant’s father, he said, had tried to kill him. Dr. May, of Franklin county, Missouri, interviewed defendant several times after the killing of Kopf, and testified that he could not elicit rational talk from defendant. Dr. May gave it as his opinion, from what he had observed of defendant, and from the deposition read in the case, that defendant was insane. Dr. Stierberger, county physician of Franklin county, attended, upon defendant after the day of the tragedy and treated his wounds. He was of the opinion that defendant was suffering from delusional insanity, unsystematized, and that his delusion was persecution. In September, 1906, a roomer at his mother’s house got out a warrant for his arrest for throwing the roomers’s books out of his room and cutting a magazine. Defendant heard of the warrant, and upon sight of the approach of some men, whom he imagined to be officers, he left the house by the back way, and never returned. His mother, however, received two ugly, but intelligent, letters from him, which were read in evidence, and through friends learned of his b Jng in Kentucky and other parts.

For the State in rebuttal, two convicts, who had been held in jail several months with defendant, testified that he appeared and acted and talked like ordinary men among prisoners in the jail at all times, except when officers or physicians were present, when he changed his conduct. They said, however, that he. had frequently talked to Satan and Anti-Christ, and to his “trance,” as though such personages were present.

The indictment is well enough, though the word “with” should have been omitted, where it appears after the words “did make an assault and with a dangerous weapon . .. . did make an assault,” etc. We have heretofore ruled, however, that its use did not render the indictment bad.

It is wholly unnecessary to reproduce the instructions as to the constituents of murder in the first and second degrees and on the plea of insanity as they are such as have repeatedly received the approval of this court.

The grounds urged for a reversal of the judgment and sentence of the court will be considered in the order of defendant’s brief and argument.

I. It is insisted that the verdict of the jury is so palpably against the evidence that it should'be set aside by this court. This contention is predicated first upon the circumstances attending the homicide. That the defendant shot and killed the officer without any provocation whatever must be conceded. But to say that every wanton and unjustifiable killing indicates or so establishes insanity is utterly untenable. The defendant at the time of the killing was a tramp. That he killed the officer because he thought the officer intended to arrest him is fairly deducible from the evidence for the State. That his act was wholly unjustifiable would not of itself justify this court in setting aside the verdict, for experience teaches us that many other men have likewise assumed to themselves the right to kill officers of the law upon ho greater provocation, when there was not a semblance of their being insane, but their acts in so doing are attributable to their utter disregard of the law and a contempt of social duty. Neither do we think the subsequent conduct of the defendant in refusing to be arrested and his attempt to kill Dr. McNay establish conclusively that he was insane. He said he did it because he thought the doctor would get him. The testimony of Dr. Booth indicates that immediately after he was wounded by Dr. McNay, the defendant was rational. He gave as his reason for shooting the officer that he had to do it, in other words that it was in self-defense. His other answers to Dr. Placher were responsive to the questions. To Mr. Souders he said he shot the marshal because he thought “he was going to club him.” He gave a perfectly rational account of the encounter with the marshal, which was corroborated by the other eye-witnesses. When the State closed its testimony it had established the killing, by defendant, of the officer with a deadly weapon, without any provocation which the law recognizes and up to that time there was nothing to establish that the homicide was an insane act. Keeping in view this evidence and the presumptions flowing therefrom, we think there can be no doubt that if nothing further had been developed, there was but one rational or legal conclusion to be drawn from the evidence, and that was that the defendant was guilty of murder in the first degree. We are unable to agree with the contention of the defendant that the State’s own evidence established defendant’s insanity so clearly that the court should have taken the case from the jury and directed an acquittal.

We are thus brought to the next insistence, to-wit, that the testimony on the part of the defendant was so overwhelming that the defendant was permanently afflicted with delusional insanity and that this had existed from his childhood, that the verdict should be set aside. In the consideration of this question, certain principles must be regarded as established in this State, and they are that the law presumes every person who has reached the years of discretion to be of sound mind and capable of committing, crime, and that such a person charged with the commission of a crime before he can escape the penalty affixed thereto under the plea of insanity must rebut such presumption by evidence which reasonably' satisfies the jury that he was insane at the time he committed the act, or that his mind was so diseased as to render him incapable of distinguishing between right and wrong in respect to the act for which -he is sought to be made criminally responsible; that the question of insanity is one of fact to be determined by the jury, and that when the unlawful killing is proved by the State or admitted by the accused the State may rest upon the legal presumption of the sanity of the accused until he shows to the contrary; that the burden of proving insanity rests upon the party setting it up and that to discharge himself of this burden it is not necessary to introduce evidence which establishes beyond a reasonable doubt his insanity, but only sufficient to reasonably sátisfy the jury that it existed at the time the offense was committed; that if the preponderance of the evidence offered establishes insanity, it is sufficient. [Baldwin v. State, 12 Mo. 223; State v. Huting, 21 Mo. 464; State v. McCoy, 34 Mo. 531; State v. Redemeier, 71 Mo. 1. c. 176, and cases there cited.]

The circuit court in this case instructed the jury in accordance with the foregoing principles. And conceding, as we freely do, that the defendant offered much evidence tending to show that he was insane and had been for many years, it must still remain a question of fact for the jury to determine under the instructions of the court. Learned counsel for the defendant concedes that the instructions numbered 6, 7, 8 and 9 announce in the abstract correct principles of the law applicable to insanity as a defense to a charge of crime, but insists that they were improper and erroneous in this case in that they were not framed with reference to the permanent or probable insanity which the evidence tended to establish. And it insisted that under the evidence in the case the instructions improperly cast upon the defendant the burden of proving his insanity at the time of the homicide charged when he was entitled to the presumption that he was insane at the time of the homicidal act, if the jury believed that he was insane before the time he left his home in Washington City in 1906. No instruction incorporating this principle of law was asked by the defendant, and when the court requested counsel to suggest any proposition of law arising upon the facts, upon which the court had failed to instruct the jury, no request was made for such an instruction. We are cited by learned counsel in support of his contention to the case of State v. Lowe, 93 Mo. 1. c. 570, 571. In that case, however, it will he noted that the defendant’s counsel expressly invoked the principle of law for which the defendant in this case now contends, and it was held error to refuse it.

A similar statement of the law is made in State v. Wade, 161 Mo. 1. c. 444, but the absence of an instruction to that effect is not made the ground for the reversing of the judgment. Inasmuch as the circuit court instructed the jury fully upon the law of insanity as a defense to a criminal prosecution, and as to total alienation as well as partial insanity, and particularly directed the jury that on the question of the sanity or insanity of the defendant they should consider all of the evidence 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 time of the trial, and also the habits, mental condition and conduct of his parents, to determine whether he was of unsound mind at the time of the commission of the crime charged, it cannot be said that the court did not charge the jury upon the law arising upon the facts developed in the case, and when the court requested counsel for the defendant to call its attention or to ask other instructions which counsel thought should be given in the case, the counsel expressly limited his request for such additional instructions to the questions of good character and the right of the defendant to testify or not to testify in the case and as to manslaughter. To hold now that the judgment should be reversed and the cause remanded because the court did not direct the jury to find that the defendant was permanently insane before and at the time he left his home in Washington City in 1906, and then tells them that if he was so insane, it devolved upon the State to show that he committed the offense during a lucid interval would be, we think, contrary to the whole course of practice in this State. The issue tendered by the indictment and the plea was as 'to whether the defendant was insane at the time he committed the homicidal act, and the court’s instructions admittedly cover the law on that subject, and the court cannot be convicted of error because counsel for defendant might have invoked a presumption, which he did not even when requested by the court to do so. In our opinion the court committed no reversible error in failing to instruct on the lucid-interval theory in this case, in the absence of any suggestion that it waa applicable to the facts and in the absence of any request whatever for such an instruction, in view of the very full and ample instructions on the subject of insanity given by the court of its own motion. Section 2627, Revised Statutes 1899, has often been construed by this court, and since the decision of State v. Cantlin, 118 Mo. 100, down to and including State v. McCarver, 194 Mo. 1. c. 742, this court has uniformly held that when the instructions of the court are read to the jury or counsel have been fully advised as to what they will be and the defendant desires further instructions, it is his duty in fairness to the court, to call its attention to any matter of law arising in the case upon which the court has failed to instruct, and which it is deemed necessary by defendant to be placed before the jury in order that they may arrive at a just verdict and in the event of the failure of the court to so instruct, it is the duty of the defendant to except at the time. [State v. Bond, 191 Mo. 555; State v. Barnett and Baker, 203 Mo. 1. c. 659; State v. West, 202 Mo. 128.]

II. The fact that the court instructed upon murder in the second degree can avail the defendant nothing as the jury found him guilty of murder in the first degree. The instruction for the lower grade was more favorable to him, than the evidence justified.

Neither did the court err in refusing an instruction on manslaughter as there was not a scintilla of evidence tending to show any lawful or reasonable provocation for the homicidal act. The evidence in this case was either murder in the first degree or no crime at all by reason of the insanity of the defendant. So that the case at last is reduced to the question of whether the testimony as to the insanity of the defendant was so overwhelming and conclusive that the verdict of the jury appears to be the result of passion or prejudice and should be set aside' by this court on that ground. As we have already said, it is a settled law of this State that whether the defendant was insane, and therefore not criminally responsible for his unprovoked act in shooting and killing the officer, was a question of fact for the jury who tried the case. That there was much evidence in the form of depositions taken in Washington City, tending to show that the defendant was afflicted with delusional insanity before he ran away from his home in Washington City, there can he no doubt. But on the other hand, that same evidence, to a large degree, tended to show that he was simply an incorrigible and hard to control, and that for his misconduct he was criminally prosecuted and sent to a reformatory school in Washington City, from which he escaped when he started on his career as a tramp. His letters to his mother incorporated in the depositions, do not of themselves indicate insanity, but rather that he was incorrigible and that he had fled from home to avoid imprisonment in the reformatory. He had been committed to the reform school, according to the testimony of the superintendent of the reform school, charged with incorrigibility. All this testimony was before the jury, but along with it the jury were entitled to consider the presumption of his sanity and the testimony of Dr. Booth and Dr. Placher, and other witnesses who were incarcerated in the jail with him pending his trial, and it was for the jury to weigh all this evidence and determine whether or not he was sane or had the mental capacity to distinguish between the right and the wrong of his act in shooting the officer, and we are unable to say that their finding was so contrary to the testimony in the case that it evinces passion or prejudice. This court has on many occasions with evidence fully as cogent as to the insanity of the defendant refused to interfere with the verdict of the jury where the instructions were correct and fair to the defendant, and we must decline to interfere with the verdict in this case on that ground.

The judgment must be and is affirmed.

All of this division concur.


author: FOX, J.

text:
    THE STATE v. WILLIAM J. MORAN, Appellant.
    Division Two,
    February 2, 1909.
    1. CRIMINAL CASE: Review of Record. Even though defendant is not represented by counsel in the appellate court, and has filed no brief nor any suggestion indicating the complaints of error upon which he relies for the reversal of the judgment against him, the court, in obedience to the statute, will examine the record and determine whether any substantial error was committed in the trial of the cause.
    2. PRELIMINARY EXAMINATION: Robbery: Jurisdiction. The statute requiring a preliminary examination in a felony case prior to the filing of an information in the- circuit or criminal court, went into effect on July 14, 1907, and the court was not without jurisdiction to try a defendant on an information charging robbery filed before said date, although defendant was accorded no preliminary examination.
    3. -: Perjury: Plea in Abatement. Where defendant was charged with having sworn falsely in the trial of a robbery charge contained in an information filed prior to July 14, 1907, his plea in abatement, to the effect that the court was without jurisdiction to try the robbery case for that no pre- , Iiminary examination had been accorded to defendant therein, was properly overruled.
    4'. PERJURY: Material Testimony. Where defendant was being tried for robbery, his testimony that he had never been arrested or convicted of any crime, was material, as affecting his credibility; and if false furnished a sufficient basis for a charge of perjury.
    5. ——: -: Issue Being Tried: Instruction. The court should refuse, in the perjury case, an instruction telling the jury that defendant’s false answer, in order to constitute perjury, must have been concerning a matter which directly tended to establish the commission of the crime then being tried. Where defendant was being tried for perjury for having sworn when on trial for robbery that he had never in his life been •arrested or convicted of a crime, an instruction telling the jury th’at such false answer could only be considered as affecting defendant’s credibility as a witness in said trial “and could not affect the issues in said trial or tend to establish the guilt or innocence of the defendant on the charge of robbery,” was properly refused.

      Appeal from St. Louis City Circuit Court. — Hon. Hugo, Muench, Judge.
    Affirmed.

      Herbert 8. Hadley, Attorney-General, and F. G. Ferris, Assistant Attorney-General, for the State.
    (1) The indictment in form and substance is sufficient to charge the crime of perjury. R. S. 1899, secs. 2033, 2039; State v. Huckeley, 87 Mo. 414; State v. Powers, 136 Mo. 196; State v. Nelson, 146 Mo. 256. (2) The demurrer to defendant’s plea in abatement to the indictment was properly sustained. The law requiring a preliminary examination in felony cases before the filing of an information did not become effective until July 14, 1907, a date subsequent to the date of said robbery trial. At the time the information was filed in said robbery ease, the law did not require a prior preliminary examination. Laws 1907, p. 243; State v. Harvey, 214 Mo. 403. (3) (a) The question as to whether defendant had ever in his lifetime been convicted of any crime was a material issue in the robbery case in which defendant testified, and his false answer thereto was a proper assignment of perjury. His false statement was material because calculated to affect his credit as a witness. IT. S. v. Landsberg, 22 TT'ed. 585; Regina v. Ann Lavey, 3 C. & K. N. P. Cases, 26; 2 Roscoe’s Crim. Evid., 850 (8 Am. Ed. 1062); Reg. v. Gibbons, 9 Cox’s Crim. Law, 105; State v. Day, 100 Mo. 249; Williams v. State, 68 Ala. 551; People v. Barry, 63 Cal. 62; People v. Courtney, 94 N. Y. 490; R. S. 1899, sec. 4680. (b) The question as to the materiality of the false statement is for the court. State v. Williams, 30 Mo. 364; State v. Fannon, 158 Mo. 149; 4 Elliott on Evid., sec. 3073. (4) The court committed no error in the giving and refusing of instructions. Authorities cited under point 3.
   FOX, J.

This cause is brought to this court upon appeal by the defendant from a judgment of conviction, in the circuit court of the city of St. Louis, of the offense of perjury.

At the December term of the circuit court of the city of St. Louis, and on the 23d day of December, 1907, the grand jury of said city returned an indictment against the defendant, charging him with having committed willful and corrupt perjury while testifying on the 1st day of July, 1907, in said circuit court, on a material issue in a cause then on trial wherein the State of Missouri was plaintiff and William J. Moran, Charles Fox and Harry Flavin were defendants, in this, that said William J. Moran, this defendant, testified that he had never been convicted of any crime in his lifetime, whereas in truth and in fact he had been convicted of a crime specified in the indictment. Subsequent to the return of the indictment the cause was assigned to Division No. 12 of said court, and on the 31st day of December, 1907, the defendant was duly arraigned upon the indictment and pleaded not guilty to the charge therein. The cause was continued to the February term of court, when defendant interposed a demurrer to the indictment, which was by the court overruled. On the 5th day of February, 1908, the defendant was put upon his trial before a jury and upon this trial the jury were unable to agree upon a verdict and were discharged from further consideration of the cause. Subsequent to this trial the defendant filed an application for a change of venue on account of the bias and prejudice of the judge, which was granted, and the cause and all the papers therein were certified to Division No. 10 of said circuit court. On the 2d day of March, 1908, the defendant, by leave of court, withdrew his former plea of not guilty and filed his plea in abatement, to which plea in abatement the circuit attorney filed a demurrer, which was by the court sustained. The defendant then filed a demurrer to the indictment, which was by the court overruled. Defendant was again arraigned upon the indictment against him and he refused to plead to said indictment, whereupon the court ordered á plea of not guilty entered. The trial of the cause then proceeded.

Upon said trial the. State introduced Robert Walker, deputy circuit clerk of the circuit court for criminal causes in the city of St. Louis, who testified that he had charge of the records of Division No. 11 of said court, and was such clerk in charge of such records on the 1st day of July, 1907. He said that he was present in the court room of that court on the 1st day of July, 1907, where the business of said court was going on, and that he was then acting as clerk of said court, of which Hon. Moses N. Sale was then judge. That upon that day the case of State of Missouri against William J. Moran, Henry H. Flavin and Charles R. Fox was being tried; that the defendant, William J. Moran, took the witness stand in behalf of himself and codefendants in the trial of said cause on that day, to whom the witness, acting as clerk as aforesaid, administered the usual form of oath: “Do you solemnly swear that the testimony you are about to give in this cause will be the truth, the whole truth and nothing but the truth; so help you God?” Said witness produced the record of said court, in which was recorded the proceedings thereof under date of July 1, 1907, showing the trial in said court on said day of the said case of State of Missouri against William J. Moran, Henry H. Flavin and Charles Fox on charge of robbery in the first degree.

Harvey J. Ready, sworn for the State, testified that he was official stenographer of Division No. 11 of said court under Judge Sale, and was acting as such in said court on the 1st day of July, 1907, at the time of the trial of said cause of the State of Missouri against Moran, Flavin and Fox; and it was his duty at said trial to report in shorthand the proceedings thereof, and to take down verbatim all that was material to the case; and»that he took down the testimony of all the witnesses in said trial in said canse. He testified, by reference to his stenographic notes, that the following question was asked of defendant, then testifying as a witness in said cause of the State of Missouri against Moran, Flavin and Fox: “Q. Have you ever been arrested at any time in your life — have you ever been convicted of any crime?” To which question the defendant replied, “No, sir.” He also testified that it was his recollection that this question was asked by the attorney for said defendants, Moran, Flavin and Fox. He identified the defendant as having seen him at said trial on the 1st day of July, 1907, and while he did not distinctly remember that he testified, he had á vague recollection that he was the man who testified as William J. Moran on that occasion. While he could not, without looking at his notes, tell from his recollection the exact question and answer referred to, he had a vague recollection independent of his notes that such was the question asked and the answer made.

The defendant, by his counsel, in open court, admitted that defendant, William J. Moran, had been duly convicted and sentenced and served a term in the penitentiary, in accordance with the allegations in reference thereto, as contained in the indictment.

At the close of the evidence on the part of the State, the defendant asked the court for an instruction, that under the law and the evidence the jury must acquit the defendant, which instruction the court refused to give.

Defendant offered and read in evidence the record of June 10, 1907, of said Division No. 11 of said court for criminal causes, contained in the same record book heretofore referred to, showing in effect that on said June 10,1907, in said case of State of Missouri against Moran, Flavin, and Fox, the said defendants were brought into court by the sheriff, were duly arraigned and each said defendant pleaded not guilty to the charges contained in said information. The defendant did not take the witness stand in his own behalf, and he offered no evidence except the said record of June 10th.

At the close of the evidence the court fully instructed the jury upon every phase of this case to which the testimony was applicable, and the cause was submitted to them and they returned a verdict finding the -defendant guilty of perjury as charged in the indictment, and assessed his punishment at imprisonment in the penitentiary for a term of seven years.

A timely motion for new trial was filed and by the court overruled. Sentence and judgment were entered of record in accordance with the verdict, and from this judgment the defendant prosecuted this appeal, and the cause is now before us upon the record for consideration.

OPINION.

The appellant, is not represented in this court. There is neither brief nor any suggestion whatever indicating the complaints of error upon which the appellant relies for reversal of this judgment. However, under the provisions of the statute, even though appellant is not represented, we are required to carefully examine the record and determine whether or not there was any substantial error in the trial of the cause. In obedience to such requirement of the statute we have carefully examined the record before us, and will give the legal propositions disclosed such attention as their importance requires.

I.

It is insisted in the motion for new trial that the court committed error by its action in sustaining the demurrer to the plea in abatement to the indictment interposed by the State. *

It is sufficient to say upon this proposition that the record discloses that the charge of perjury in this case was predicated upon the testimony which defendant gave while testifying in his own behalf about the 1st day of July, 1907, in a case in the circuit court of the city of St. Louis, wherein defendant and others were defendants, being tried upon an information charging them with the crime of robbery. An examination of this plea in abatement to the indictment in this cause discloses that it was predicated upon the theory, and the fact is so alleged, that the defendant in the robbery case, in which he gave the testimony upon which the charge of perjury is based in the case at bar, was not accorded a preliminary examination on said robbery charge, as provided by section 2476a (Laws 1907, p. 243), and it is insisted that by reason of that fact the court was conducting said robbery trial on the 1st day of July, 1907, without jurisdiction to do so. It is argued from these premises that if the court had no jurisdiction of the robbery trial, it necessarily follows that any testimony given in such trial, where the court was without jurisdiction to try the cause, could not be made the basis of a charge of perjury.

There is no merit in this plea in abatement, and the action of the court in sustaining the demurrer interposed by the State to it was entirely proper. The record discloses the time the information was filed in the robbery case, as well as the time the defendant testified in that case; hence, it is manifest by an examination of the statute that there was no law in force requiring a preliminary examination to be accorded the defendant at that date. The law requiring a preliminary examination in felony cases prior to the filing of ah information was approved April 15, 1907, and as it had no emergency clause it did not become effective until July 14, 1907, a date some days subsequent to the date of said robbery trial. The statute which became effective July 14,1907, which provided that defendants in felony cases should be accorded a preliminary examination prior to the filing of any information against them, had no application to the robbery case in which the defendant gave the testimony upon which is predicated the charge of perjury.

We have critically examined the indictment upon which this judgment is predicated, and in our opinion it charges every essential element of the offense of which defendant was convicted. It charges the offense in such form as has been repeatedly approved by this court. [R. S. 1899, secs. 2033, 2039; State v. Huckeby, 87 Mo. 414; State v. Powers, 136 Mo. 194; State v. Nelson, 146 Mo. 256.]

Upon the trial of the case in July, 1907, the defendant with two others was charged with robbery, and the defendant upon such trial offered himself as a witness. Having offered himself as a witness the question was propounded to him as to whether or not he had ever been arrested at any time in his life, or had he ever been convicted of any erime. -The answer of the defendant to that question was in substance that he had not.

Upon the state of facts developed upon the trial it became a question of law for the court to determine, as was ruled in State v. Fannon, 158 Mo. 149, as to whether or not the testimony upon which the indictment was predicated was material; at least sufficiently so to form the basis of an indictment for perjury concerning testimony relative to such facts. Confronted with this legal proposition the trial court held, and in our opinion correctly, that the facts about which the defendant testified in the robbery case, were material, that is to say, it was material as well as important as affecting the credibility of the defendant as a witness in that cause, to ascertain as to whether not he had previously been convicted of any crime. Tbe jury had the right to know all the facts concerning this witness which would enable them to intelligently weigh his testimony. In our opinion as to whether he had been arrested and convicted of any crime previous to the date of his testifying, was material, and the duty rested upon the defendant, testifying as a witness, to speak truthfully of this particular fact the same as concerning any other fact that was within his knowledge in the cause.

Section 4680, Revised Statutes 1899, fully recognizes the materiality concerning the fact of a prior conviction of a criminal offense by a witness who is testifying upon the stand, and the materiality of this fact is emphasized by the special provision in that section which requires the witness to answer the question as to whether or not he had been previously convicted. That section thus treats of this subject: “Any person who has been convicted of a criminal offense is, notwithstanding, a competent witness; but the conviction may be proved to affect his credibility, either by the record or by his own cross-examination, upon which he must answer any question relevant to that inquiry, and the party cross-examining shall not be concluded by his answer.”

This proposition was sharply presented for consideration in one of the Federal courts in the case of United States v. Landsberg, 23 Fed. 585. The defendant in that case, upon cross-examination, testified that he had not been in prison, when in fact he had been in a State prison. Upon that false testimony he was indicted for perjury and the point was made that the matter so stated by him was not material, and therefore perjury could not be assigned upon it. Upon the indictment in that case, it will be observed, the proceeding was one under a statute which made it an essential element in the crime of perjury that the matter upon which the charge was predicated must be material. That case fully reviewed the authorities and the conclusion reached was that the matter upon which the indictment was based was material. The court, in treating of ther question, very clearly, and in our opinion correctly, announced the rule applicable to this subject. It was there said: “An essential element of the offense created by the statute (Sec. 5392, Rev. Stat. U. S. 1878) is the materiality of the matter charged to have been falsely stated. The words employed in the statute are ‘material matter.’ These words were, doubtless, adopted from the common law, and they must be given a signification broad enough to cover, at least, cases of perjury at common law. The rule of the common law in regard to perjury is thus stated by Archbold: ‘Every question in cross-examination, which goes to the witness’s credit, is material for this purpose.’ [Arch. Crim. Pl. and Proc. (Eng. Ed.), 817.] The same rule was declared by the twelve judges in Reg. v. Gibbons, 9 Cox, C. C. 105. The inquiry here, therefore, is whether the imprisonment of the accused in this State and in New Jersey was calculated to injure his character and so to impeach his credit as a witness; for it is not to be doubted that when the accused offered himself as a witness, he placed himself upon the same footing as any other witness, and was liable to be impeached in the same manner. Upon this question our opinion is that the matter stated by the accused as a witness had an obvious bearing upon the character of the witness, and could properly be considered by the commissioner in determining what credit was to be given to the testimony of the witness in respect to the crime with which he stood charged. In Reg. v. Lavey, 3 C. & K. 26, the accused, when a witness, had falsely sworn that she had never been tried in the Central criminal court, and had never been in custody at the Thames police station. On her trial for perjury these statements were ruled to be material matter, and the conviction was sustained. In Com. v. Bonner, 97 Mass. 587, a witness had been asked ‘if he had been in the house of correction for any crime.’ Objection to the question on the ground that the record was the best evidence, was waived, and the case turned upon the materiality of the question. The matter was held to be material.”

n.

This leads us to the consideration of the instructions given in this cause. We do not deem it essential to reproduce them; however, we have carefully read in detail and analyzed the instructions given and those requested by the defendant and refused by the court. The law as declared by the court, in our opinion, covered every phase of the case to which the testimony was applicable. The jury were told that the matter as charged in the indictment, concerning which the defendant had testified in a previous case, and upon which the indictment in the case at bar was predicated, was material matter. Then followed the usual instructions requiring the jury to find every essential fact necessary to constitute the offense with which the defendant was charged. A very liberal instruction was given upon the fact that the indictment was a mere formal charge, and was not to be taken as any evidence of defendant’s guilt, and that the law presumes the innocence of the defendant, and that this presumption continues until it has been overcome by evidence which establishes his guilt to your satisfaction and beyond a reasonable doubt, and the burden of proving his guilt rests with the State. This closed with the usual direction to the jury that after a consideration of all the evidence if they had a reasonable doubt of the defendant’s guilt they should acquit him. Another instruction was given upon the credibility of witnesses. It is sufficient to say of that instruction that it was in such form and embraced such language in declaring the law upon the subject of credibility of witnesses as has been repeatedly approved by this court.

Two instructions were requested by the defendant. First, the court was requested to declare the law that if the jury believed from, the evidence that the defendant was asked the question on a former trial, “Have you ever been convicted of a crime in your lifetime?” and if they believed the defendant answered “No” to such question, you are instructed that such question and such answer could only be given to affect-the credibility of the said defendant in said trial, and could not affect the issues in said trial or tend to establish the guilt or innocence of the defendant on the charge of robbery. This instruction was refused by the court, and properly so. It had no application to the ease at bar, and if this instruction intends to declare as a matter of law that in order to constitute perjury the witness must testify concerning a matter which directly tends to establish the commission of the offense about which the witness is testifying, or directly tends to establish the fact that the defendant was innocent of the commission of such offense, then we have no hesitancy in saying that it did not correctly declare the law. All facts are material in the trial of a criminal cause that have a tendency to enable the jury to intelligently reach a correct conclusion concerning the guilt or innocence of the defendant. It does not follow, because the matter testified to is not specially concerning the acts of the defendant in the commission of the offense, that such matter might not be made a subject upon which a charge of perjury might be predicated, if such matter is material. It is but common knowledge that it frequently occurs in the trial of causes that inquiries are made of witnesses touching matters which do- not directly concern the commission of the acts which constitute the offense, yet such inquiries and answers may be material and highly important to the end that the triers of the fact may properly and intelligently weigh the testimony in the cause, thereby reaching a correct conclusion as to the guilt or innocence of the party accused. We repeat, that this instruction was properly refused by the court.

The other instruction requested by the defendant substantially embraced the same principle as the former one, and what we have said concerning’ the first instruction is equally applicable to this one, and there was no error in the court refusing the instruction.

III.

The motion for new trial makes no complaint of the action of the court in the admission or rejection of evidence, therefore the rulings of the court upon that subject are not before us for review.

After a full consideration of the record before us we are unable to discover any reversible error in the trial of this cause. The matter about which the defendant testified was material. The evidence fully supports the conclusions reached by the jury, and the court fairly and correctly declared the law applicable to the case.

Finding no reversible error, the judgment of the trial court should be affirmed, and it is so ordered.

All concur.


author: GRAVES, J.

text:
    MARY LAUN v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant.
    Division One,
    February 25, 1909.
    1. NEGLIGENCE: Pleading: Humanitarian Doctrine. A charge that defendant carelessly and negligently ran its train upon and against deceased, after its employees knew or by the exercise of ordinary care might have known of the perilous situation of deceased, is an appropriate pleading of the humanitarian doctrine.
    2. -: Contributory: Not Looking. If deceased did not look or listen for the approaching train until he was on the main track, at a street crossing, where by looking he could have seen it for at least a quarter of a mile away, and coming upon a straight and unobstructed track, he was guilty of .negligence that bars his wife’s recovery, although defendant railroad company was at the time guilty of negligence in running the train in excess of ordinance speed.
    3. -: -: -: The Track a Signal of Danger. A railroad track, of and within itself, is a signal of danger, and a pedestrian cannot carelessly attempt to cross the same, at a public street crossing, without using some care for his own protection. The amount of care may vary with the surroundings, but in any condition he must use the senses with which he is endowed for his own protection, or at least some of them; and where, under the evidence, to look was to have seen, and to listen was to have heard, but he did neither, but was killed by defendant’s train running at an unlawful speed, his contributory negligence bars his wife’s action, and a verdict for her cannot stand.
    4. -: -: Looking But Hurrying Across. The weight of the evidence is that the deceased pedestrian, while he was in a place of safety in the twenty-foot space between the switch and the main line, but nearer to the main line, at the public , street crossing, did look and see the train which was approaching at a speed of 30 to 35 miles an hour, but took the chances, and hurrying or jumping attempted to cross in front of it, but was hit by it. Every witness who saw it recognized its rapid speed. Held, that it will not do to say he perhaps thought the train was running at the legal ordinance rate of six miles an hour and that by hurrying he could cross in safety, but what every other witness saw he must be held to have seen, and there being no room in the case for the humanitarian doctrine, to permit a verdict for plaintiff to stand would be to wholly ignore the doctrine of contributory negligence.

      Appeal from Gasconade Circuit Court. — Eon. R. 8. Ryors, Judge.
    Reversed.

      W. F. Evans and Woodruff & Mann for appellant.
    (1) That it is such negligence for one to attempt to cross or go upon a railway track at a public crossing, or elsewhere, without looking and listening for an approaching train, as precludes a recovery for an injury sustained by him from a passing train or locomotive, whether the company’s negligence also contributed directly to produce the injury-or not, has so often been decided by this court that it is now regarded as the settled law of this State. Kelly v. Railroad, 75 Mo. 140; Huggard v. Railroad, 134 Mo. 679; Hayden v. Railroad, 124 Mo. 567; Kelsay v. Railroad, 129 Mo. 362; Hook v. Railroad, 162 Mo. 581; Holwerson v. Railroad, 157 Mo. 216. (2) Every person who goes on a railroad track or purposes to cross it must use his eyes and ears to avoid injury, and every intelligent person who has arrived at years of discretion is presumed to know that it is dangerous to be on a railroad track when trains are passing, and when crossing one he is expected to be vigilant and watchful of the approach of a locomotive. Failure to exercise such vigilance is negligence per se. Baker v. Railroad, 122 Mo, 533; Lane v. Railroad, 132 Mo. 4; Schmidt v. Railroad, 191 Mo. 215; Holland v. Railroad, 210 Mo. 350. (3) And the rule of contributory negligence is not changed or abrogated by reason of the statute or ordinance imposing the duty, on account of the violation of which the injury resulted. Schmidt v. Railroad, supra; Weller v. Railroad, 120 Mo. 653. (4) The statute or ordinance limiting the rate of speed does not absolve persons approaching public railway crossings from exercising common prudence to avoid danger, nor shift the responsibility to the railroad slionlcl injury ensue from the failure to exercise it. Kenney v. Railroad, 105 Mo. 284; Sweeney v. Railroad, 105 Mo. 396; Evans v. Railroad, 178 Mo. 508; Ries v. Railroad, 179 Mo. 1; Holland v. Railroad, 210 Mq. 351. (5) Defendant’s demurrer should have been sustained, because it has always been the law in this State that it is such gross negligence as precludes a recovery for a person to step on a railroad track directly in front of an approaching train, and so close as to render it impossible to avoid the injury by stopping the train, as was the case in this instance, and this is true even if the train was running at a rate of speed in excess of the city ordinance. Tanner v. Railroad, 161 Mo. 497; Moore v,. Railroad, 176 Mo. 544; Watson v. Railroad, 133 Mo. 250'; Yan Bach v. Railroad, 171 Mo. 338; Mockowick v. Railroad, 196 Mo. 550. (6) Plaintiff’s own evidence shows that when deceased looked for the first time at the approaching train, after having negligently failed to look until he was in close proximity to the crossing, the locomotive was then so near him that he deemed it necessary to enter into calculation of his chance to get across in front of it and ran to accomplish that end. . It is conclusive that an attempt to cross the path of a locomotive under such circumstances is recklessly negligent. Kelly v. Railroad, 75 Mo. 144; Moore v. Railroad, 176 Mo. 540; Mockowick v. Railroad, 196 Mo. 569.

      Harry Glymer, Lorts & Brener and R. A. Brener for respondent.
    (1) In determining whether plaintiff is entitled to go to the jury, the evidence and every reasonable deduction to be drawn therefrom which tends to support the causé of action must be considered as true, and every reasonable inference to be drawn from the testimony must be in plaintiff’s favor. Buckley v. Kansas City, 156 Mo.'16; Baxter v. Railroad, 103 Mo. App. 597; Ladd v. Williams, 104 Mo. App. 390; Forbes v. Dunnavant, 198 Mo. 199’; McFern v. Gardner, 121 Mo. App. 5. (2) Tbe law presumes, in the absence of affirmative evidence to the contrary, that deceased exercised due and proper care in going upon and in attempting to cross defendant’s track. Petty v. Railroad, 88 Mo. 320; Crumpley v. Railroad, 111 Mo. 158; Schlereth v. Railroad, 115 Mo. 100; Weller v. Railroad, 164 Mo. 198; Eckhard v. Railroad, 190 Mo. 613; Goff v. Railroad, 199 Mo. 706; Powers v. Railroad, 202 Mo. 280. Also that he had a right to presume that defendant would obey the ordinances of the city in the management and speed of its trains, and to act on such presumption. Kellny v. Railroad, 101 Mo. 77; Jennings v. Railroad, 112 Mo. 276; Hutchison v. Railroad, 161 Mo. 254; Eckhard v. Railroad, 190 Mo. 613; Powers v. Railroad, 202 Mo. 280. (3) The speed of defendant’s train which the evidence established to be from twenty-five to thirty-five miles per hour, being far in excess of the limit fixed by ordinance, was negligence per se on the part of defendant; this much being established, and the presumption of law which must be indulged in favor of the exercise of due and proper care on the part of deceased in approaching and attempting to cross defendant’s track, made the case one for the jury, because it was a question of fact to be determined by the jury whether Laun was guilty of negligence in attempting to cross the track, in the light of all the facts and circumstances in evidence. Hutchison v. Railroad, 161 Mo. 246; Weller v. Railroad, 164 Mo. 198; Riska.v. Railroad, 180 Mo. 191; Eckhard v. Railroad, 190 Mo. 609; Powers v. Railroad, 202 Mo. 267. When there is a flagrant violation of a municipal ordinance resulting in an injury, contributory negligence must be clearly and satisfactorily made out before the court will relieve defendant on that ground. Petty v. Railroad, 88 Mo. 321; Bluedorn v. Railroad, 108 Mo. 449; Weller v. Railroad, 120 Mo. 648; Bluedorn v. Railroad, 121 Mo. 268; Baker v. Railroad, 147 Mo. 166. It is only when the evidence is substantially all one way, and no two opinions can be formed in the minds of fair-minded, reasonable, intelligent men that the court can determine the question of contributory negligence as a matter of law; but when reasonable and intelligent men might well differ as to the conclusions and inferences to be drawn from the evidence, such question is not one of law, but one of fact to be determined by the jury. Kelly v. Railroad, 70 Mo. 608; Berry v. Railroad, 124 Mo. 244; Weller v. Railroad, 164 Mo. 205; Erickson v. Railroad, 171 Mo. 660 ; Meng v. Railroad, 108 Mo. App. 559; Campbell v. Railroad, 175 Mo. 175; Gibler v. Railroad, 203 Mo. 219. The deceased cannot, as a matter of law, be convicted of contributory negligence if, when he reached the switch track, or the point between the switch track and the main track, and looked east for an approaching train coming directly toward him on a straight track, he could not tell as a matter of fact that the engine was approaching at a rate of speed far in excess of six miles per hour. If in the position he was then in, its excessive speed was not then apparent to him, and we contend that as a well-known fact it could not have been apparent to him, because all he could see was the front end of the approaching engine, and if it was apparent that the train was then at such a distance from the crossing that an ordinarily prudent person, exercising due care, could safely cross the track in front of a train running six miles per hour without imminent danger, then deceased was justified in attempting to cross, relying on the presumption that defendant’s agents and servants would obey the speed ordinance. Murray v. Railroad, 108 Mo. App. 508; Deitring v. Railroad, 109 Mo. App. 540; Eckhard v. Railroad, 190 Mo. 593; Heintz v. Railroad, 115 Mo. App. 671.
   GRAVES, J.

Plaintiff, the widow of George Lann, deceased, brings action for the alleged wrongful killing of her husband by one of defendant’s' trains as it passed through the city of St. Janies in Phelps county, Missouri, June 14, 1904.

The negligence charged is (1) running in excess of the ordinance speed, i. e., six miles per hour, (2) failure to ring the bell upon the approach of the street crossing where the accident occurred, and (3) carelessly and negligently running said train upon and against the deceased, after the employees knew or by the exercise of ordinary care might have known the perilous situation of deceased. In other words the last charge was an appropriate pleading of the humanitarian doctrine. In the instruction asked and given for the plaintiff the failure to ring the bell is abandoned, as is also the humanitarian doctrine, and the case is submitted solely upon the excessive rate of speed.

By change of venue the cause was sent from Crawford county, the place of its institution, to Gasconade county, where it was tried. By answer the defendant first invokes a general denial, and secondly an appropriate plea of contributory negligence.

Plaintiff introduced her evidence, to which the defendant demurred, which demurrer being overruled, the defendant declined to introduce any evidence, whereupon the jury was instructed and in regular course returned a verdict for the plaintiff in the sum of $5,000, which was followed by a judgment for such sum. Motion for new trial, timely made, proving futile, the defendant appealed.

The serious question in this case is the question of contributory negligence upon the part of the deceased. The negligence of the defendant in running in excess of ordinance speed is not denied. The rate is variously estimated at from twenty-five to thirty-five miles per hour, and the latter is perhaps more nearly correct.

The accident occurred at the crossing of Jefferson street in the city of St. James. Defendant’s railway runs practically east and west through said city, and Jefferson street runs north and south, so that they cross nearly at right angles. This crossing is one hundred to one hundred and twenty-five feet east of the depot of the defendant, and at the east end of the depot platform. The street is eighty feet in width and the one most generally used in going to and from the north and south parts of the city. Deceased left Miles’s store, which is south of the railroad and on the west side of Jefferson street, evidently to cross to the north part of the city. In so doing he walked along the west side of Jefferson street and walked north. Between him and the east end of the depot platform was a side track and the main track of defendant’s railway. The space between the two is given at twenty feet. In his course, he reached the switch track first and crossed it. On this occasion two trains came into St. James within a few minutes of each other — as best we can gather, within three minutes of each other. Both trains consisted of an engine and caboose. The station agent said that he did not signal a clearance to the latter train because it was following the other too closely, and he signalled it to stop, and that it finally stopped some six hundred or eight hundred' feet beyond the depot, at the stockyards. This of course bears upon the rate of speed, and as indicated above, might tend to show a speed up to the limit placed by other witnesses of thirty-five miles per hour. But as the negligence of the company stands conceded, we are more concerned in the actions of the deceased, inasmuch as they must bear upon the question of contributory negligence. For the plaintiff there were seven witnesses, including herself. She did not see the accident, nor did P. R. Elliott, the station agent, nor C. P. Bnrge. Their testimony is not, therefore, directly valuable upon the question now in hand. The other witnesses upon this question testify thus:

H. H. Pinto says:

“Q. How long did you watch Mr. Laun? A. I watched him till he got across the street — or clear across the railroad, I mean, till he got to the main track.
“Q. What, if anything, did you see Mr. Laun do to ascertain if there was a train coming from the east? A. Why, nothing more than he looked when he got between the two; he crossed the side track before he got to the main track; he first glanced his head down the track, he looked east, the direction the train was coming.
“Q. Now, this track he crossed was a switch to the main fine? A. Yes, sir; that is what I saw him cross.
“Q. He had crossed the street and crossed the switch track, and, as I understand you, he was between the main track and the switch track when he paused and looked east? A. Yes, sir.”

On cross-examination, he further said:

“Q. You heard the train go through a minute before that and then you stepped out to see what it was? A. No, sir, I stepped to the door at leisure as I had nothing else to do at that time.
“Q. Well, the train was a block away then, in plain view and hearing? A. Yes, sir; it was.
“Q. Where was Mr. Laun then? A. He was right close to the side track; right close to the main track, I mean.
“Q. He crossed over on the side track? A. He crossed over to the side track and when he got half way between the side track and the main track he kind of paused and turned his head around.
“Q. He looked toward the engine? A. He looked that way.
“Q. And at the time the engine was right at him? A. It was not very long.
“Q. Well, it was right at him? A. It was back, I guess, forty or fifty feet.
“Q. And he started to run across, didn’t he? A. Yes, sir.
“Q. He tried to beat it to the. crossing — that is what he tried to do ? A. I do not* know.
“Q. That is the way it appeared to you, was it not; is not that a fact? He jumped like he would have to hurry to get across? A. Yes, sir; he would have to hurry of course to get out of danger.
“Q. When he stopped he was not in danger; he was between the two tracks? A. Yes, sir.”

(xeorge Stbattman, a boy thirteen years old, who was on the depot platform, said:

“Q. Where was he when you first saw him [Laun] ? A. He was right there at the switch com-. ing across the track.
“Q. On which side of the main track is the switch? A. On the south side.
‘‘Q. When you first saw him was he at the switch? A. He was out there coming across.
“Q. What was he doing? A. He was walking across there.
“Q. Did you see him as he got between the switch and the main line? A. Yes, sir.
“Q. After he had crossed over from the side track before he got to-the main line? A. Yes, sir; I saw him then.
“Q. What did he do? A. He just looked east.
“Q. Was that the direction the train was coming from? A. Yes, sir; it was a west-bound train.
“Q. What did he do after he looked east? A. He came on across with his head down.
“Q. What happened then? A. He started to cross the other track and when he got a little ways he started to run; he got about middle ways of the main track and he started to run across; I do not know if it was the middle; he was about to that railing.
"Q. On the north or south side? A. On the south side.
“Q. And he started to run across? A. Tes, sir.
“Q. Did you see the train hit him? A. Yes, sir.”

On cross-examination, he put it thus:

"Q. And you say you saw Mr. Laun coming from the south? A. Yes, sir.
“Q. Where was he when you first saw him? A. He was at that track.
“Q. Side track? A. I guess it is that switch track.
“Q. He came from that and before he got onto the main track.he looked east? A. Yes, sir; he looked * that way.
££Q. Where was the engine then? A. I did not , see the engine until he got on the track.
££Q. When he got at the south rail, you saw him run? A. Just when he got to that rail he went to run across it.
“Q. He was across two rails when he looked east? A. He was between two tracks when I saw him look east.
££Q. When he got to the south rail he started to run? A. Yes, sir.
C£Q. It got him before he could get across. A. He was about across when it hit him.
££Q. He was going on a run, iwas he? A.. Yes, sir.
££Q. Hurrying across? A. Yes, sir.”

West Barnes, who was on the depot platform, says:

‘ ‘ Q. Where was Mr. Lann when yon first saw him prior to the accident? A. He was between the side track and the main track.
“Q. Did yon see him as he came from Miles’s store, on the south side of the railroad? A. No, sir.
“Q. What was he doing when yon saw him in between the two tracks? A. He was walking along.
“Q. He was walking along? A. Yes, sir.
“Q. What do you know of his looking for a train, east or west? A. I do not know.
“Q. Where did yon see him next? A. I saw him about the middle of the main track.
“Q. What was he doing at that time? A. He was, I suppose, trying to get across the track.
“Q. Was he standing still or walking? A. He was making a step.
“Q. Making a step? A. Yes, sir.
“Q. Where was the engine- at that time? A. Well, I never noticed particularly where it was; I never took any notice where it was; it was near.”

On cross-examination, he further said:

“Q. Yon say yon saw this approaching train before yon saw Mr. Lann? A. Yes, sir.
“ Q. How far away did yon see the train — down to. the section house? A. I saw it about three poles away.
“Q. That far away before yon noticed Mr. Lann? A. Yes, sir.
“Q. It was that many telegraph ’ poles away before yon saw Mr. Lann? A. Yes, sir; three poles away before I saw Mr. Lann.
“Q. Yon could have seen the train past the section house, three quarters of a mile away, if yon had looked, could yon not? A. Yes, sir.
“Q. There was nothing to obstruct yonr view? A. I do not think there was anything on’the line to obstruct my view.
“Q. Nothing in your way? A. Not that I know of.
“Q. It was a plain straight track all the way? A. Yes, sir.
“Q. You saw Mr. Laun between the two tracks, the side track and the main track, and what did he do ? A. He looked and started ahead.
“Q. He stopped and looked ahead? A. He never made any stop. He looked ahead.
“Q. You did not say that he made a stop? A. No, sir.
“Q. You did not look away; you first saw him between the two tracks, and the next you saw him in the middle of the main track, is that right? A. Yes, sir; I kept watching him all the way from the time I first saw him.
Q. Where was George Laun when you first saw him? A. He was about middle way between the side track and the main track.
“Q. About midway between the two tracks?’ A. Yes, sir.
“Q. You do not know if he had stopped and started up when you saw him? A. No, sir.
“Q. You do not know if he had looked before that or not? A. No, sir.
“Q. But the train was coming? A. Yes, sir.
“Q. -You saw that it was coming fast? A. Yes, sir.
“Q. G-oing along very fast? A. Yes, sir; it wa,s coming very fast.
“Q. It was plain to you that it was coming very fast? A. Yes, sir.
“Q. Faster than six miles per hour? A. I think so.
“Q. Fast as thirty miles per hour? A. Well, I would say twenty-five or thirty miles an hour. '
“Q. That was all very apparent to you? A. Yes, sir.
“Q. You saw him when he went on the track in front of the train and about to be run down? A Yes, sir.
“Q. When he went on the track he got immediately in front of the engine? A. Yes, sir.
“Q. So close he could hardly begin to get across? A. Yes, sir.
“Q. It was apparent to you that he would be struck, even from where you were standing and looking? A. Yes, sir.
“Q. It was perfectly plain? A. I saw there was no other show for him.”

J. M. Asher said:

“Q. Did you see Mr. Laun as he approached the track? A. Yes, sir; I saw him just about the time he got on the track.
“Q. About the time he got on the track? A. Yes, sir.
“Q. On the switch or main line? A. Yes, sir; I first saw him when he got off the switch and was between the switch and the main line.
‘ ‘ Q. And from that time on, what did he do ? A. Well, the first I could see he was coming towards me; he was coming across the track, and just about the time he got on the main track — about that time he got one foot across the rail, he turned and looked and saw the train coming.
“Q. As he had one foot across the north rail? A. He had one foot across the rail and he turned his head and saw the train was coming and he began to make a leap to get across.
“ Q. Well, where was he when he was struck? A. He was just about across the track and the corner of the engine struck him about the hip here somewhere.
“Q. You saw the train before that? A. Yes, sir.
“Q. Where did you first see the train? A. It was just coming in sight when I first saw it. . . .
“Q. How far east from the crossing was the engine when you first saw Mr. Laun? A. Well, I guess it was about twenty-five to forty yards from the crossing when I first saw Mr. Laun.
“Q. The engine was that far away when you first saw Mr. Laun? A. Yes, sir.
“Q. How far east from the crossing — well—you say that when you first saw Mr. Laun he was between the main line and the side track? A. Yes, sir.’'

And on cross-examination, he further said:

“Q. Did you notice the approaching train before you first saw Mr. Laun? A. Yes, sir.
“Q. Did you hear it? A. Yes, sir.
“Q. You heard it coming? A. I heard it whistle way down the track, and I heard it whistle as it come in sight.
“Q. Was the bell ringing? A. If there was 1 did'not notice it.
“Q. As a matter of fact you did not pay any attention and they may have rung the bell? A. I do not think they rang any bell at all. . . .
“Q. You were just a little east of Jefferson street? A. Yes, sir.
“Q. So the train must have been by Jefferson street when you saw him? A. It was thirty or forty feet from the crossing or where he was crossing.
“Q: He was half way between the two tracks? A. I think he was pretty near the main track when I saw it.
“Q. He was between the two? A. He had crossed the switch and was going on the main track.
“Q. You saw him there? A. Yes, sir.
“Q. You say then he stopped at the rail? A. He didn’t particularly stop; he simply turned his head and began to make his leap to get across.
“Q. He was then at the south rail? A. Yes, sir.
“Q. Did he go on the track? A. Well, I do not know if he was across or right at the south rail.
“ Q. He could have stepped back one step and been in the clear, is that right? A. I expect he could.
“Q. He started across with a jump? A. Yes, sir; when he looked he saw the train and he began to make his leap; he was on the track when he saw the train.
“Q. You do not know if he stopped between the tracks before that or not? A. Well, I did not notice that; I did not notice the train until it was nearly opposite me and he was coming across.
“Q. How fast was the train running? A. It was about thirty miles per hour; it was so fast you could hardly tell the wheels were turning. . . .
“Q. Then you saw him look toward the train? A. Yes, sir.
“Q. You do not know if he had paused before that and looked or not, do you? A. I do not know; he did not stop then, he just turned his head.”

It appears that all the witnesses saw and knew the excessive rate of speed. Giving- the plaintiff the most favorable evidence the train was in plain view upon a straight, unobstructed track for at least a quarter of a mile to the east, and one witness fixes it at three-fourths of a mile. The evidence also shows that deceased was about at the north rail of the main track when he was struck. These excerpts and this summary fairly states the case on the question of contributory negligence. The evidence tended to show that no bell was rung, but this, as previously said, was abandoned in the instructions.

I. Plaintiff’s evidence is divisible into two classes, i. e., some witnesses say that deceased did not look until he got on the main track, or at least their language might by a strained construction be so construed, whilst others say he stopped and looked east, while he was between the two tracks. Grant it that deceased did not look for an approaching train until he was in fact upon the main track, what is the status of the plaintiff’s case? If deceased failed to look and listen for an approaching train then he was guilty of negligence which would bar plaintiff’s recovery, although the defendant was at the time guilty of negligence in running in excess of ordinance speed. Such has always been the rule in this State. In Schmidt v. Railroad, 191 Mo. 1. c. 228-9, we said:

“The pivotal point upon which this case must turn is, did the circuit court err in overruling the demurrer to the evidence? That the train was running in excess of the rate of speed prescribed by the ordinance of Jefferson City is conceded and established by the testimony of the defendant’s own engineer and fireman, as well as that of the plaintiff’s witnesses. Such conduct on the part of the railway company was negligence per se, but notwithstanding this neglect of the regulations in regard to the running of trains within the city limits on the part of the railroad employees, the question still remains, was not the deceased’s own contributory negligence the proximate cause of his death? '
“It is a settled law of this State that a person who goes upon a railroad track or proposes to cross it, must use his eyes and ears to avoid injury. And while a neglect of the regulations in regard to the running of trains amounts to negligence in law on the part of the railway company, this does not absolve pedestrians and others who propose to cross the tracks from the exercise of ordinary care. Every intelligent person who has arrived at years of discretion is presumed to know that it is dangerous to be upon a railroad track when trains are passing to and fro, and when crossing one, he is expected to be vigilant and watchful of the approach of the locomotive. The failure to exercise such vigilance is negligence per se. [Harlan v. Railroad, 64 Mo. 482.]
“The law that a traveller, before entering upon a railroad track, must observe some caution for his own safety, and that a failure to do so will be such negligence as will preclude a recovery in case of injury, is as well settled in this State as is the law that ■ a railroad company is guilty of negligence in running ■ a train without observing the reasonable precaution required by law or ordinance. The measure of precaution to be observed by a traveller depends often upon the circumstances and surroundings. The general rule is that in knowingly approaching the track of a railroad, he must use his sense of sight or hearing to ascertain if there be danger. If the view is so obstructed that he cannot see, he should carefully listen. The circumstances may not require that he both look and listen, but common prudence requires that he do either one or the other, and a failure to do so renders his act negligence in law. The rule of contributory negligence is not changed or abrogated by reason of a statute or ordinance imposing the duty on account'of the violation of which the injury resulted. [Weller v. Railroad, 120 Mo. 653.] The statute does not absolve persons approaching a public railway crossing from exercising common prudence to avoid danger, nor shift the responsibility to another should injury ensue from the failure to exercise it. [Kenney v. Railroad, 105 Mo. 284.]”

To the same effect are the recent cases of Holland v. Railroad, 210 Mo. 338, and Stotler v. Railroad, 204 Mo. 619, in each of which the many supporting cases are cited and reviewed.

In the case at bar, had deceased looked he conld have seen this train for at least a quarter of a mile, and coming upon a straight and unobstructed track. All of the witnesses did see it and they were in no better position to see than was deceased.

A railroad track of and within itself is a signal of danger, and one cannot carelessly attempt to cross the same without using some care for his own protection. The amount of care may be somewhat different under different surroundings, but he must at least exercise the senses with which he is endowed for his own protection, or at least some of them. Under all the evidence in this case to look was to see and to listen was to hear.

If then deceased did neither until he got on the main track, his contributory negligence must bar the plaintiff’s action.

II. On the other hand, the weight of the evi-, dence shows that he did look to the east just before reaching the main track, and then hurried across it in front of the rapidly moving train. Every witness who saw this train recognized the rapid speed thereof. What these witnesses could see and hear, deceased could have seen and heard. It will not do to say, as argued by counsel, that he perhaps thought the train was running only six miles per hour and he could, by hurrying, as he did hurry, cross in safety. He had no right to race with death that way. If he saw the train, and the evidence shows that he did, he knew that it was running more than six miles per hour. Every person there and testifying knew the speed, why not deceased? It is preposterous to say that an intelligent person could- look at a train approaching at the rate of thirty to thirty-five miles per hour, without knowing that such train had a rapid rate of speed. To our mind the testimony shows that the deceased saw this train before he reached the main'track, but took Ms chances, thinking he conld heat it across the crossing. In the case of Holland v. Railroad, 210 Mo. 1. c. 351, a statement is made which aptly fits this case. Ye there said: “There is no escaping the conclusion that the deceased saw the approaching train. He must, therefore, have been absorbed in other matters, or have misjudged the speed of the train and determined to take the risk of being caught by it before he could cross the track. But, whatever may have induced his action, Ms conduct can only be characterized as the grossest recklessness. The demurrer interposed by the defendant to the evidence should have been sustained.”

To further quote from or review authorities would be but to repeat. In the cases cited above, many of our own cases are cited and reviewed. To permit this verdict to stand would be but to wipe out the doctrine of contributory negligence, and that, too, in a case wherein there is no room for the humanitarian rule. This we do not feel called upon to do at this late date. Plaintiff’s evidence disclosed such contributory negligence upon the part of deceased as to preclude her recovery. Defendant’s instruction in the nature of a demurrer should have been given. For these reasons tMs cause should be and is reversed.

All concur.