text:
    FRANK DEISTER v. KANSAS CITY NORTHWESTERN RAILWAY COMPANY and MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
    Division Two,
    May 29, 1917.
    1. CORPORATIONS: Consolidation: Revivor of Action. Where numerous corporations were consolidated into defendant company before the date of plaintiff’s injury and all acts of incorporation were made prior to that time, and the defendant has by stipulation agreed that for the purpose of the case it is the same corporation that it was at the date of the injury, there is no need of a revivor of the action, and it is not to be dismissed for failure to revive on the ground that the statute of the State in which the injury occurred requires an action to be revived against the successor of a defendant within one year after the defendant’s death or else to be dismissed.
    2. NEGLIGENCE: Res Ipsa Loquitur: Prima-facie Case: Instruction: Burden of Proof. Three men, one of whom was the plaintiff, a shipper, were trying to open the door of a car to be used .in the shipment of cattle. The door was suspended by hooks which hung over an iron rail at the top of the door, which was opened by being slid along on the rail. The evidence for plaintiff tended to prove that the hooks were too short; that the three men had difficulty in opening the door; that when it was opened far enough for one of them to get into the opening he got inside and pushed, while the other two stood on the ground and pushed up, whereupon the door fell outward from the top, and over onto plaintiff, and injured him. The car was furnished by defendant, but none of its employees was present at the time of plaintiff’s injury, jHeld, that the law does not prejudge the case by declaring that it was the fault of the car and not of the men that the door fell, that the case is not one in which the doctrine of res ipsa loquitur determines defendant’s liability, and the trial court erred in refusing to instruct the jury that the burden of proof was on the plaintiff to establish by a preponderance of the evidence that he was injured as the result of some defect in the car door.
    Appeal from Jackson Circuit Court. — Hon. T. J. Seehorn, Judge.
    Reversed and remanded.

      Martin L. Clardy, Edward J. White and Thomas Hackney for appellants.
    (1) The court erred in striking out all that portion of the defendant’s amended answer to the third amended petition, setting up the consolidation of the defendant corporations in August, 1909; the Kansas statute requiring the revival of the action within one year against the consolidated corporation; the Kansas decisions holding that said revival was a condition upon the right to sue and not a mere limitation upon the remedy and of the plea of res adjudícala, in said amended answer, and the final decision of the district court of Wyandotte County, Kansas, in favor of defendants, upon the same cause of action sued on in this action. (2) The court erred in overruling the defendant’s demurrer at the close of the plantiff’s case and in holding that the plaintiff, under the facts shown by his evidence, was entitled to recover under the rule res ipsa loquitur, the facts establishing that the plaintiff and his associates'were handling the door in question at the time of the injury, and that the same was not under the control of the defendant or its employees.

      Guthrie, Gamble é Street for respondents.
    (1) The Kansas procedure acts do not affect personal injury litigation in Missouri. ITusted v. Mo. Pac. By. Co., 143-Mo. App. 623; Lessenden v. Mo. Pac. By. Co., 238 Mo. 347. (2) Plaintiff’s right to prosecute this cause was in no manner affected by the Kansas revivor statutes. Baker v. Crandall, 28 Mo. 590; Crawford v. Bailway, 171 Mo. 77;,Berkley v. Tootle, 62 Kan. 701; Beaves v. Long, 63 Kan. 700; Steinbach v. Murphy, 70 Kan. 487; Whipple v. Union Pacific, 28Kan. 340; Cunkle v. Bailroad, 54 Kan. 149. (3) The rule of res ipsa loquitur was not excluded in its application by any act of the plaintiff or his associates. Cothron v. Packing Co., 98 Mo. App. 343; Jones v. By. Co., 135 Mo. App. 468. ’(4) The court did not err in refusing defendants’ instruction as to the burden of proof. Cramer v. Nelson, 128 Mo. App. 399; Clarke v. Kitchen, '52 Mo. 316; Milling Co. v. Walsh, 37 Mo. App. 574; Fletcher v. Mfg. Co., 35 Mo. App. 321, 329; Mackin v. Eailway, 45 Mo. App. 87.
   ROY, C.

Plaintiff recovered judgment for $10,000 for personal injuries. He made a voluntary remittitur of $2500, and judgment was thereupon entered for $7500. Defendant appealed. The appeal was allowed to the Kansas City Court of Appeals, whence it was certified here on the ground that constitutional questions were involved. This court overruled appellant’s motion to retransfer to the Kansas City Court of Appeals.

This suit was begun October 28, 1908, and on December 24, 1909, the third amended petition herein was filed. It charged the negligence of the defendants and the consequent injury to the plaintiff in the following language:

“That on or about the 31st day of October, 1906, the defendants furnished to the plaintiff, then a cattle shipr per, a freight cattle car at Piper, Kansas, to be used by the plaintiff in the shipment of a load of cattle from said station, pursuant to an arrangement between plaintiff and defendant for the shipment thereof; that pursuant to the custom and practice and the necessities of the situation it became and was necessary for the plaintiff to open the door of said cattle car, which plaintiff, with the -assistance of others, proceeded to do in the usual and proper manner therefor, when, by reason of the negligence of the defendants, said door fell from its fastenings and support down to, upon and against the plaintiff, then a stout hearty man of about fifty-four years of age, bearing the plaintiff to the ground and injuring the plaintiff, as the direct result of the negligence of said defendant, in the following respects.”

The Missouri Pacific Eailway Company on October 7, 1911, filed its separate amended answer herein. It contained a general denial and a plea of contributory negligence ; also the following:

“Further answering, the defendant states that said alleged injuries to the plaintiff are alleged to have been received on the 31st day of October, 1906, in the State of Kansas, as a result of the negligence of the Missouri Pacific Railway Company. That said Missouri Pacific Railway Company, a corporation, organized and existing under the laws of the State of Kansas,- was on the 6th day of August, 1909, duly and legally incorporated, and consolidated with eleven other corporations; and the contract and articles of consolidation were thereafter, and on the 9th day of August, 1909, duly filed with the Secretary of State of the State of Kansas, as provided by law and by the contract and articles of consolidation, said consolidated corporation adopted the name of the Missouri Pacific Railway Company as its name
“That under the law of the State of Kansas, on the date of said consolidation of said Missouri Pacific Railway Company, the said Missouri Pacific Railway Company was and became a defunct, corportion and in order to prosecute an action against its successor, the said action must have been revived within one year from said 9th day of August, 1909.
“That by sections 6025, 6026 and 6027, Revised Statutes of Kansas of 1909, it was provided:
“ ‘Sec. 6025. Order against representative or, successor of defendant must be made within one year (430). An order to revive an action against the representative or successor of defendant shall not be made without the consent of such representatives or successor, unless in one year from the time it could have been first made.
“ ‘See. 6026. Order in favor of representatives or successors of plaintiff not' to' be made after one year; where both parties have died (431). An order to revive an action in the names of the representatives or successors of a plaintiff may be made forthwith, but shall not be made without the consent of the defendant after the expiration of one year from the time the order might have been first made, but where the defendant shall also have died, or his powers have ceased in the meantime, the order of revivor on both sides may be made in the period limited in the last section.
“ ‘Sec. 6027. Action that cannot be revived, to be dismissed (423). When it appears to the court by affidavit that either party to an action has been dead for a period so long that the action cannot be revived in the names of his representatives or successors without the consent of both parties, or where a party sues or is sued as a personal representative that his powers have ceased, the court shall order the action to be dismissed at the costs of the plaintiff.’
“That more than one year has elapsed since the defendant, against whom said cause of action, if any, arose, was consolidated with eleven other railroad. corporations and no motion was filed within one year from said date of said consolidation and filing the articles of said consolidation with the Secretary of State of the State of Kansas, to substitute the successor of said railroad company or to revive the cause of action against its successor and the successor of said company has not at any time consented to a revivor or a substitution in said action.
“That by virtue of the foregoing facts, plaintiff’s cause of action has ceased to exist against the successors of said Missouri Pacific Railway Company in the State of Kansas and has no right of action in the State of Missouri.
“Further answering, the defendant states that on the 28th day of October, 1908, the plaintiff commenced a cause of action against this defendant in the district court of Wyandotte County, Kansas, No. 21324, on the same cause of action as that involved in the suit against this defendant. That said action was not revived against the consolidated company, succeeding, the defendant, Missouri Pacific Railway Company, in said action, and on the 1st *day of April, 1911, said district court of Wyandotte County, Kansas, with full jurisdiction over the person of the defendant and the cause of action set up in the plaintiff’s petition in this court, ordered and decreed that the plaintiff’s cause of action should be forever abated and that no appeal was taken from said decision of said district court of Wyandotte County, Kansas, and the same is a final adjudication against the right of the plaintiff to maintain this action at this time. ’ ’

On motion of plaintiff the quoted portion of that an-' swer was stricken out, and defendants excepted to such' action of the court. On June 20, 1912, the last named defendant filed its' second separate amended answer herein, containing a general denial and a plea of contributory negligence, also this:

. “Further answering, defendant says that there is a misjoinder of parties defendant.
“Further answering, this defendant states that it had a complete defense to the plaintiff’s cause of action under the law of Kansas, where the plaintiff’s cause of action arose and that in filing said suit against this defendant in Missouri, this defendant is deprived of said defense and is therefore deprived of its property without due process of law, in violation of the Fourteenth Amendment to the Constitution of the United States.
“Further answering, this defendant states that it had no corporate existence until the month of August, 1909, and according to the laws of Kansas it was not at that time legally liable under the statutes and decisions of the State of Kansas, for the cause of action set up in the plaintiff’s petition, which resulted from the alleged wrongful act of one of the constituent companies consolidated with others and forming this defendant corporation. That to permit the prosecution of this action in the State of Missouri, in violation of the statute and decisions of the State of Kansas, impairs the obligations of its contract with the State of Kansas, in violation of section 15, articled, of the Missouri Constitution, and section 10 of the Constitution of■ the United States.”

The answer of the Kansas City Northwestern Railway Company denied that plaintiff’s injuries were caused* by any negligence on the part of that defendant.

The reply was a general denial to both answers. At the beginning of the trial, and before the introduction of any evidence, the following occurred:

“Before the introduction of any testimony, the defendant objects to any evidence under the third amended petition of the plaintiff, for the following reasons: First, the action is based on the doctrine of res ipsa loquitur, and there were no allegations pleaded of negligence; and the petition discloses, upon its face, that the car door which fell upon the plaintiff was not under control of either of the defendants at the time the door fell upon the plaintiff; hut was being handled by the plaintiff and his associates; and for the doctrine of res ipsa loquitur to apply, for negligence to result from the demonstrative evidence at the happening of an accident, the appliance which caused the injury must have been under the control of the defendant or one of its agents; and, for the additional reason that, the third amended petition shows there is a misjoinder of the parties defendant.
“The Court: Overruled.
“To which ruling and action of the court the defendants, severally, by their counsel then and there duly excepted. ’ ’

The evidence showed that the door of the stock car was suspended in place by hooks which hung over an iron rail at the top of the door, which was opened by being slipped along on such rail. The evidence for plaintiff tended to prove that the ends of those hooks were too short, that they did not hang down on the side of the bar more than a fourth of an inch, and that the usual length of such part of the hooks was about an inch.

The evidence for defendants tended to prove that the door and its hangings were such as are generally used and were' all right in every respect.

The evidence for the plaintiff showed that he ’ and two other men were engaged in trying to open the door at the time of the accident; that they had difficulty in doing so, and that the door was open far enough for one of them to get into the opening. The cross-examination of plaintiff’s witnesses tended to prove that the man in the opening of the door was pushing the door while the other two were standing on the ground and pushing up on the door, the plaintiff being about the middle of the door when it fell outward from the top and over on the plaintiff.

The defendants put in evidence the following stipulation :

“Exhibit A
“In the Circuit Court of Jackson County, Missouri, at Kansas City, September Term, 1911. Frank Deister, Plaintiff, v. Kansas City, Northwestern Railroad Company and the Missouri Pacific Railway Company, Defendants. No. 40344.
‘ ‘ Stipulation.
“It is hereby agreed between the parties hereto, subject to the conditions hereinafter stated, that:
“Missouri Pacific Railway Company, a corporation, was originally incorporated and became such corporation under the laws of the State of Missouri.
“Thereafter, there was incorporated in the State of Kansas, and under the laws of said State of Kansas, a corporation by the name of The Missouri Pacific Railway Company of Kansas.
■ “Thereafter, The Missouri Pacific Railway Company of Missouri and The Missouri Pacific Railway Company of Kansas were consolidated into and became, pursuant to the laws of the State of Kansas and Missouri respectively, a corporation under the name of The Missouri Pacific Railway Company.
“Thereafter, there was incorporated in the State of Nebraska and under the laws of the State of Nebraska, a corporation by the name of The Missouri Pacific Railway Company in Nebraska.
“Thereafter, and pursuant to the laws of the State of Missouri, Kansas and Nebraska, The Missouri Pacific Railway Company, the consolidated corporation last mentioned and the Missouri Pacific Railway Company in Nebraska, were consolidated and became a corporation under the name of The Missouri Pacific Railway Company.
‘ ‘ Thereafter, there was filed in the office of the Secretary of State of the State of Kansas, on the 6th day of August, 1909, a certain agreement, the due execution of which is hereby admitted, showing proceedings, as per the printed copy hereto attached, marked 'Exhibit A,’ and made a part hereof. ”

They also put in evidence the agreement dated August 6, 1909, mentioned in said stipulation. That agreement purports to be one of consolidation of The Missouri Pacific Eailway Company of the States of Missouri, Kansas and Nebraska with eight other’railway companies, into a new corporation to be called ‘ ‘ The Missouri Pacific Eailway Company.” We do not here set out said agreement, but merely state that there is a dispute between the parties herein as to whether such document is sufficient for the purpose of such consolidation. The plaintiff put in evidence the following stipulation which was entered into sometime in the year 1910, while both these defendants were parties defendant to this suit:

“Exhibit 3.
“In the Circuit Court of Jackson County, Missouri, at Kansas City. Frank Deister, Plaintiff, v. Kansas City & Northwestern Railroad Company and Missouri Pacific Railway Company, Defendants. Number 40344.
“The defendants herein, for all purposes in this cause, hereby formally admit that at the time of the matters and things in controversy herein the line of railroad in question was owned by the defendant Kansas City & Northwestern Eailway Company, and was being operated in all branches of the business by the defendant Missouri Pacific Eailway Company and under a running arrangement between the defendants herein.”

The defendants objected to such document for the following reason:

“Because it is based upon an assumption of facts, and not based upon the facts. The defendant corporation had no legal existence at the time of the accident; and this stipulation to the effect that the road was owning and operating the road at that time, is not in accordance with the facts; and the stipulation is incompetent because of the fact. ’ ’

The objection was overrule 1.

The court refused instruction number 2 asked by defendants as follows:

“The court instructs the jury that the burden of proof in this ease is upon the- plaintiff to establish by a greater weight or preponderance of the evidence that he was injured as the result of some defect in the car door which fell upon him and unless you find and believe by a greater weight or preponderance of the testimony, that such car door was defective and that the injury to the plaintiff resulted from the defective condition of said door, your verdict will be for the defendants.”

I. The stipulation marked “Exhibit 3” settles most of the questions in this case. By its terms the defendants “for all purposes in this cause” admitted that this defendant, “The Missouri Pacific Railway Company,” is the same corporation which was operating the railroad where and when plaintiff’s injury occurred.

All of the acts of incorporation and of consolidation of corporations mentioned in “Exhibit A” as made prior to August 6, 1909, were evidently made before the date of the alleged injury. It is not claimed in the pleadings or in the evidence that any of them were made after the injury. That stipulation, “Exhibit A,” does not state that there was any consolidation of corporations on August 6,1909. It simply states that a certain instrument was filed in the- office of the Secretary of State of Kansas on that day. It is true that the defendants read that instrument in evidence, and they make the claim here that such instrument is a valid consolidation of the companies ■therein named. The plaintiff has never agreed that there was such a consolidation on August 6, 1909, but the defendants have agreed that for all the purposes of this case the defendant, the Missouri Pacific Railway Company, is the same corporation that it was at the date of the injury.

II. The court erred in refusing the instruction asked by defendant telling the jury that the burden of proof was on the plaintiff. This is not a res ipsa loquitur case. True the car was furnished by the defendant, but that is all. None of its employees were present at the time of the injury. Three men, including the plaintiff, were trying to open the door, in doing which they were having difficulty. Was it the fault of the car or of the men that the door fell? The law does not prejudge the case by presuming against either.

Wigmore on Evidence, Vol. 4, sec. 2509, speaking of the doctrine of res ipsa loquitur, says:

“But the following considerations ought to limit it: (1) The apparatus must be such that in the ordinary instance no injurious operation is to be expected unless from a careless construction, inspection, or user; (2) Both inspection and user must have been at the time of the injury in the control of the party charged; (3) 'The injurious occurrence or condition must have happened irrespective of any voluntary action at the time by the party injured. It may be added that the particular force and justice of the presumption, regarded as a rule throwing upon the party charged the duty of producing evidence, consists in the circumstance that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to him but inaccessible to the injured person.”

The latest utterance of this court on the subject is by Paris, P. J., in Removich v. Construction Company, 264 Mo. l. c. 57. It supports in full the position here taken.

The judgment is reversed and the cause is remanded.

White, G., concurs in result.

PER CURIAM:

The foregoing opinion of Roy, C., is adopted as the opinion of the* court.

All of the judges concur.


source: Caselaw Access Project

author: WHITE, C. PER CURIAM.

license: Public Domain

text:
    THE STATE v. A. W. GOODWIN, Appellant.
    Division Two,
    May 29, 1917.
    1. SELF-DEFENSE: Instruction: Necessary to Kill. Instructions on self-defense which tell the jury that if defendant at the time he struck and killed deceased “had reasonable cause to believe and did believe that it was necessary for him to strike and kill,” and that “you must find and believe from the evidence that the defendant not only thought he was in danger of being killed, but that he had reasons to believe that he was in danger of being killed or receiving great bodily harm,” etc., are erroneous. Said instructions condition defendant’s right to self-defense upon his belief that he was in danger of being killed and upon the presence of a reasonable ground for believing it necessary to kill.
    2. -: The Rule. The rule of self-defense is that a defendant has the right to defend himself' and use such force as is necessary for the purpose, not only if he believes he is about to be killed, but if he believes he is in danger of receiving great personal injury, provided he has reasonable cause for so believing. Where under the evidence the jury might readily find that defendant was neither afraid of being killed nor believed it necessary to kill, but had .reasonable cause to believe and did believe himself in danger of being “beat up,” he had the right of self-defense and to use no greater force than was necessary to protect himself from that danger, and instructions which told the jury that it was necessary for him to believe he was in danger of being killed and must have had reasonable grounds for so believing took away that right.
    3. DEFENDANT AS WITNESS: Unwarranted Cross-Examination: Rebuke of State’s Attorney. The mere sustaining of objections to a cross-examination of defendant concerning matters entirely outside the scope of the examination in chief may not be a sufficient protection of defendant’s rights. Persistent and violent cross-examination of the defendant, especially the injection of inquiries concerning his moral turpitude disconnected from the issues, which was the course pursued in this case, require a severe rebuke of the prosecuting attorney.
    Appeal from Dunklin Circuit Court. — Hon. W. A. C. Walker, Judge.
    Reversed and remanded.

      Bradley & Bradley for appellant.
    (1) The court erred in giving the instruction for the State on the subject of self-defense. (2) The court erred in permitting counsel for the State to continue asking leading questions, in an endeavor to get before the jury incompetent matter. State v. Beckner, 194 Mo. 281; 2 Wigmore on Evidence, sees. 891, 992!, 924; State v. Sibley, 131 Mo. 519; State v. Pollard, 174 Mo. 607. The court erred in not rebuking counsel for the State for asking incompetent questions and then withdrawing them. See authorities last above; State v. Baker, 262 Mo. 689; State v. Webb, 254 Mo. 414. (3) The court erred in permitting counsel for the State to interrogate the defendant on cross-examination, repeatedly and time and again about matters concerning which the defendant was not asked on direct examination. • R. S. 1909, sec. 5242; State v. Pfeifer, 267 Mo. 23; State v. Grant, 144 Mo. 56; State v. Hathhorn, 166 Mo. 239; State v. Hudspeth, 150 Mo. 31; State v. Bell, 212 Mo. Ill; State v. Cook, 112 S. W. 712; State v. Sharp, 233 Mo. 284.

      Frank W. McAllister, Attorney-General, and S. E. Skelley, Assistant Attorney-General, for the State.
    (1) This instruction on self-defense is not prejudicial or misleáding and is in form approved by this court. State v. Gee, 85 Mo. 650; State v. Parker, 106 Mo. 224. (2) The court committed no error in not rebuking counsel for the State for asking incompetent questions. State v. Moreaux, 254 Mo. 398. (3) The court committed no error in the cross-examination of the defendant, (a) The questions to which objections were overruled were properly based on matters gone into- in the defendant’s direct examination, (b) Where objection was sustained'by the court the error, if any, was not sufficiently prejudicial to constitute reversible error.
   WHITE, C.

The appellant was found guilty of manslaughter in the fourth degree in the circuit court of Dunklin County,- at the October Term, 1915. He was charged with killing one Robert M. Baskin. The affair took place at a logging , camp of the Wisconsin Lumber Company, located on a spur track near a station known as Converse, on the Deering-Southwestern Railroad. The defendant was woods foreman of the lumber company, having general charge of the camp and of the men employed there.. Baskin, the deceased, was one of the men employed and his duty was to scale logs. Baskin was a young man whose age was variously placed at from twenty to twenty-three years by the witnesses. Goodwin was a man of forty-five years of age, and liad a wife and large family living .at Deering.

The defendant had an office, combined with a sleeping apartment, in what is termed his “car,” a building constructed in the shape of a box car, made so that it could be loaded upon a flat car and moved from place to place. In the camp it was set upon blocks about three or four feet high. This car was eight or’nine feet wide and eighteen or twenty feet long. Goodwin had his office in one end of the car and his bed in the other end, there being a partition between the two parts. A porch extended along the end occupied as his office, and a door and two windows opened upon this porch, as also a door and two windows opened at the other end of this car. The car sat along-side the spur track and about eighteen or' twenty feet from it. Forty or fifty yards away, and on the other side of the track, was what was called the “boarding house.” It consisted of two or three cars similar to Goodwin’s car, set together in such a way as to be convenient for its purpose. On that same side of the spur track, and a little distance away, was Baskin’s car, where he kept a desk and also a bed where he slept.

The difficulty leading to the homicide took place in the forenoon of June 15, 1914, in the front part of Goodwin’s car, where he had his desk. On that morning a young woman by the name of Yena Biggs, who formerly had been employed at the boarding house-, was visiting the camp and went to Baskin’s car, where she was sitting on the side of his desk engaged in a conversation with him when observed by Goodwin. There was some indication in the testimony that the character of this Vena Biggs had been questioned, and Goodwin, as he claimed, in the discharge of his duties as foreman of the camp, directed or requested Mrs.'Kennedy, who conducted the boarding house, to call Yena Biggs away from Baskin’s car. She did so. The girl came immediately to the-boarding house, followed by Baskin, who inquired whether Goodwin had directed Mrs. Kennedy to call her. Upon receiving an affirmative answer, without comment of any kind, he went toward Goodwin’s car.

It appears from-the evidence that Baskin’s connection with the company was about to be severed, whether by his own acts or whether he hád been notified he would be discharged does not appear. At any rate it is apparent that he entertained very strong ill-feeling for Goodwin. Although he said nothing about his purpose in going to Goodwin’s car, everyone about the boarding house seemed to know there was going to be a fight. The evidence is not clear as to what specific thing caused them to anticipate trouble, but the suggestion was made that there was going to be a fight and everybody was looking. When Baskin entered Goodwin’s car he passed out of sight of three or four women watching from the boarding house, who were the only witnesses at that time to what occurred. They immediately heard sounds indicating a fight was in progress in Goodwin’s office. Goodwin testified that Baskin walked into his office and without warning of any kipd struck him while at his desk and before he noticed who was present, and continued to strike him several times until he struggled to his feet to defend himself; he then conducted his side of the fight as best he could until they got out on the porch in view of the witnesses at the boarding house. There the combat continued for a considerable time, and finally Goodwin was knocked off or fell off the porch with Baskin after him. Then the men were seen to be struggling in a ditch extending along the spur track within a few feet of the car. Afterwards they were' on the porch again, and again were off. Erom some of the witnesses it appears that Baskin knocked Goodwin off the porch three times, or they fell off three times in the struggle, and at least twice Baskin had Goodwin down in the ditch.

It might be said that most of these three or four women failed to see the fight entirely through from beginning to end. One of them fainted; another was afraid there was going to be trouble and rushed, or was pushed, into her room; another went for her husband, and there appears to have been intervals when none of them were looking. After a time both men again appeared on the porch and Baskin had a pump handle in his hand. The evidence is conflicting as to just where he stood with this pump handle. He was either on the ground or standing on the steps of the porch of on the porch. A little before this one of the women, a Mrs. Miller, went some distance to wake up her husband, who worked on the night shift, to have him come down there and separate the men. He appeared about the time the pump handle was brought into requisition, and attempted to separate them, but was unable to keep them apart. Out of an earnest and mutual desire for each other’s hurt they rushed together again in spite of his efforts. According to Miller’s testimony, Baskin struck over him at Goodwin with a. pump handle and then struck Goodwin with it. About that time Goodwin went into the car and. reappeared with a revolver in his left hand. For a few seconds everyone’s recollection becomes blurred. - Miller beat a hasty retreat at sight of the pistol. The women in the boarding house became confused in one way or another. The next definite act testified to was that Goodwin with the revolver in his hand, but not pointed at Baskin, made Baskin give up the pump handle. Baskin handed it to him, and at the same time Goodwin said, “You dirty rascal, if you don’t get away from here I’ll shoot you.” It appears Goodwin then took his revolver back in the car and laid it down. Then he was seen a short time afterwards to strike Baskin with a pump handle. One or two witnesses say that he struck him oh the head, but many of them say he struck him on the side. At that time they were down on some planks that rán across the ditch from the side of the car to the railroad track. Goodwin himself testified that after he took one pump handle from Baskin, Baskin got hold of another. It seems these pump handles were “sticking up” somewhere about the porch where they could easily be reached. He said he struck Baskin on the head while they were still struggling on the porch, that Baskin pulled him off and while they were struggling on the planks across the ditch he struck him on the side. Most of the witnesses saw the blow on the side, which did not appear to hurt Baskin.' Immediately after that, however, Goodwin returned to his car, and Baskin sat down, or leaned over, for a'moment and then went to his car. Shortly afterward Baskin returned to the hoarding house and then went to his car again. A second time he returned to the boarding house and was unable to talk. He attempted to write, but could not write in an intelligible manner. This was explained afterwards by a physician as due to a blood clot forming on that part of the brain which affects the organs of speech. At any rate, a doctor was summoned, Baskin was taken to Memphis, was operated on and died in a day or two from a blow on the head which fractured the skull and caused a blood clot to form.

I. Two instructions given on the court’s own motion, submitting a theory of self-defense, were objected to. One of them, number 9, contains this language:

“If at the time defendant, A. W. Goodwin, struck and killed Robert M. Baskin, ... he reasonable cause to believe and did believe that it was necessary for him to strike and kill, to protect himself from such apprehended danger, you will acquit the, defendant on the ground of self-defense.

The other instruction, number 10, emphasizes the theory of the trial court in this way :

“On the question of self-defense the court instructs the jury that self-defense is-a defense of necessity and before it can avail the defendant, you must find and believe from the testimony that the defendant not only thought he was in danger of being killed but that he had reasons to believe that he was in danger of being killed or receiving great bodily harm and that such danger existed at the moment that he struck the fatal blow,” etc.

Both instructions provide that self-defense could not avail defendant unless such facts were found. These two instructions taken together made it necessary for the jury to find, before they could acquit the defendant: First, that he believed himself in danger of being killed, and struck Baskin in order to save his own life; and, second, that he had cause to believe and did believe it necessary to kill Baskin in order to protect himself. If he merely believed himself in danger of receiving great bodily harm, or if he only thought it necessary to disable or beat off his antagonist, he could not be acquitted on the ground of self-defense. It is easy to see how a skillful prosecutor could drive home the exact significance of that language with great force and effect. The rule is that he had a right to defend himself and use such force as was necessary for the purpose, not only if he believed he was about to be killed, but if he believed he was in danger of receiving great personal injury; provided, he had reasonable 'cause to believe it. The very phrasing of Section 4451, where justifiable homicide is defined, makes if as available a condition for self-defense if the person assualted believes he is in danger of receiving a serious injury as if he believes he is in danger of being murdered and commits homicide to prevent such result. All rules formulating this defense include that feature — apprehension of bodily harm — as well as an apprehension of death. [State v. Matthews, 148 Mo. l. c. 194; State v. Stockton, 61 Mo. l. c. 384; State v. Brooks, 99 Mo. 137, l. c. 144.] Instruction number 10 was therefore error.

The State cites as a justification for instruction number 9 the case of State v. Gee, 85 Mo. l. c. 650, where a'n instruction in the same language was approved. But in that case the defendant used a revolver and shot to kill the decedent, with whose murder he.was charged. The instruction provided that before he could avail himself of self-defense he must have had cause to believe and must have believed that it was necessary to shoot and hill his assailant in order to protect himself from danger. It has been approved in later cases, but always where a deadly weapon was used. However, in still later cases, that form has been criticized by this court under circumstances similar to those in the G-ee case. [State v. Lewis, 248 Mo. l. c. 508; State v. Swearengin, 269 Mo. 177.] In each of these cases this court criticized this instruction, even when the defendant used a revolver and shot to kill, as failing to give him the benefit of some purpose he might have entertained of disabling his antagonist without killing him.

In this case the evidence strongly tends to show that the defendant didn’t intend to kill Baskin and that he did not believe it was necessary to kill him. The pnmp handle was not a weapon which was necessarily deadly or likely to canse death. At one time during the combat defendant had his revolver in his hand and did not use it, hut laid it down and continued to fight without it. It is equally apparent from the evidence that he did not believe himself in danger of being killed. While the assault upon him was wholly unprovok-, ed, inexcusable and his office invaded for the purpose, he probably believed himself in danger only of being “beat up,” an end which was in speedy process of accomplishment. Entertaining that belief, and having reason to entertain it, he was justified in using a pump handle or any other weapon to which he could lay his hand, and which would give him an advantage without killing his antagonist. Of course if he struck with greater force than seemed necessary, or struck after he had the advantage or had disarmed Baskin, he could not he acquitted. All this was for the jury, hut under the evidence the jury might easily find that he neither was afraid of being killed nor believed it necessary to kill, and in that case those instructions took away his right of self-def énse.

II. Error, is assigned to the failure of the trial court to properly rebuke the attorney employed to assist in the prosecution for his persistence in cross-examining the defendant in regard to matters not testified to in his examination in chief.

The attorney for the State had brought out, on cross-examination of defendant, that Mr. Pingle, the superintendent, had spokeii of discharging Baskin because his work was not satisfactory. The attorney then, in order to impugn the good faith of the defendant, asked him if it was not a fact that he did not have a word to say about the work of Baskin when he was alive, but selected the time when he was dead and could not answer his charges. This question was entirely outside the scope of the-direct examination. The objection to it was sustained, but the prosecuting attorney then proceeded with his cross-examination. He called attention to one statement made by the defendant in explaining why he had instructed Mrs. Kennedy to call Vena Biggs away from Baskin’s car. Defendant stated in answer to a question by his counsel, that it was “to protect the respectability of the camp.” He had previously testified that he had full charge of the camp and had been instructed to keep the Camp “clean.” The prosecutor asked the defendant if Ms morals would not permit the girl to stay there. This was objected to and the objection overruled; exception noted. The questiqn was entirely improper. The attorney for the State continued by asking a question which affected the defendant’s conduct as to morality at some previous time and place. Objection to this was sustained, but the attorney persisted in asking if he had not been guilty of immoral conduct at the camp at some previous time, and asked if he had not caused the discharge of the keeper of the boarding house because of her objection to his immoral conduct, pursuing this inquiry with a number of questions before the court sustained objections to them. The trial judge sustained these objections, but allowed the attorney for the State to proceed without rebuke, and he persisted in it to a great length. He asked the defendant if Mrs. Kennedy and the other ladies knew Vena Biggs was in Baskin’s care and whether their morals were being assaulted. Before the question was answered he repeated it in another form, and asked if Mrs. Kennedy and the others knew the girl was in the car and whether any complaint had.been made about it by them. The court overruled the objection- to it.

The only pertinency of the evidence relating to the calling of Vena Biggs from Baskin’s car was to explain why Baskin went to Goodwin’s car. The State saw fit to bring it out. The only relevant purpose it could serve would be .to show Goodwin invited or expected trouble, but nothing of that kind was suggested. Defendant’s testimony in chief referred only to the duty assigned him by his superior, which he was attempting to discharge when he caused the girl to be called away. His own moral delinqueneies at another place or at a previous time, and any conduct of his and any trouble of his with the previous boarding-house keeper on account of his conduct, were entirely outside the scope of the chief examination, as was the feeling entertained by the other women toward Vena Biggs. The persistence and violence of the cross-examination by the attorney for the State, although objections to most of his questions were sustained, were particularly harmful and under the circumstances calculated to arouse a prejudice in the minds of the jury and make them think Goodwin was trying to hush up facts about his own character which might affect his guilt. The failure of the trial court to put an end to it by a severe rebuke, which would have reminded the attorney for the State that he was allowing his zeal to run away with his' sense of fair play, left the bad impression to remain with the jury. This sort of examination had been condemned as reversible error by this court in several cases. [State v. Sharp, 233 Mo. l. c. 286; State v. Webb, 254 Mo. l. c. 434-5; State v. Pfeifer, 267 Mo. l. c. 31-2.]

Errors are complained of in giving instructions on the court’s own motion on murder in the second degree, but inasmuch as the defendant was convicted of a lower offense, manslaughter, the alleged error was not harmful and will not be reviewed. [State v. Wilson, 250 Mo. l. c. 329.]

Since a new trial will be ordered, it is unnecessary to review the assignment of error in refusing the defendant’s application for a continuance.

The judgment is reversed and the cause remanded.

Boy, G., concurs.

PER CURIAM.

The foregoing opinion of White, C., is adopted as the opinion of the court.

All of the judges concur.


author: WILLIAMS, J.

text:
    THE STATE v. WILLIAM F. MOREHEAD, Appellant.
    Division Two,
    May 29, 1917.
    1. INDICTMENT: Clerical Error. The omission of the letter “t” in the word “premeditatedly” and making it appear as “premediatedly," in an indictment charging murder in the second degree and other- . wise in proper form, was a clerical error, and did not in any manner tend to the prejudice of the substantial rights of the defendant upon the merits.
    2. HARMLESS ERROR: In Instruction for Murder in First Degree. If defendant was convicted of murder in the second degree, an . error, if any, in the given instruction on murder in the first degree, was harmless.
    Appeal from Mississippi Court. — Hon. Frank Kelly, Judge.
    Affirmed.

      Russell & Joslyn for appellant.
    We know that there are cases in Missouri which hold that where a defendant is indicted for murder in the first degree and convicted of a lesser degree of homicide, he cannot complain of an instruction as to murder in the first degree, but we know of no case which holds that it is not reversible error for the court to give an instruction on murder in the first degree when the defendant is only indicted for murder in the second degree. The verdict of the jury in this case sentencing an old man seventy-nine years old for a term of forty years in the penitentiary is conclusive proof of the vice of the instruction on murder in the first degree, and defining premeditatedly by the court.

      Frank W. McAllister, Attorney-General, and 8. P. Howell, Assistant Attorney-General, for the State.
    (1) The indictrpent is sufficient. Sec. 4448, R. S. 1909; State v. Clay, 201 Mo. 681; State v. Tapman, 264 Mo. 357; State v. Marley, 177 S. W. 350; State v. Thomas, 180 S. W. 886. The incorrect spelling of the word “premeditatedly” is a mere clerical error, which did not tend to prejudice the rights of defendant, and therefore, under the authority of the Statute of Jeofails, will be disregarded. Sec. 5115, R. S. 1909; State v. Witherspoon, 231 Mo. 717; State v. McConnell, 240 Mo. 273; State v. Griffin, 249 Mo. 628. (2) Under the condition of the record in this case any insufficiency in the instruction on murder in the first degree as given by the court is not available as a ground for reversal. State v. Greene, 229 Mo. 654; State v. Sharp, 233 Mo. 288; State v. Wilson, 250 Mo. 329.
   WILLIAMS, J.

Under an indictment charging him with murder in the first degree, defendant was tried in the circuit court of Mississippi County, found guilty of murder in the second degree, and his punishment assessed at forty years’ imprisonment in the penitentiary. Defendant duly appealed to this court.

The evidence tends to show that about 9:30 p. m., November 20, 1914, at the town of Anniston, Mississippi County, Missouri, defendant shot one Roy Jenkins, who, two days later, in a hospital at Cario, Illinois, died from the effects of said shooting. At the time of the shooting the appellant was about seventy-six years of age and was the marshal of the town of Anniston. The deceased, a short time prior to the shooting, had become somewhat intoxicated and was complaining about some one having turned his horse loose and was threatening to paint the town “red” and “stand it on end” if he didn’t find his horse. In company with another he went out on the streets to look for the horse. He met the defendant, who told the deceased to go home and, upon his refusal, told the deceased “to consider himself under arrest.” The deceased refused to consider himself under arrest and walked away. A short time later deceased and his companion were standing near the telephone office, when the report of a gun was heard. Deceased and his companion turned and walked away and after going some distance deceased discovered that he had been shot. The shot penetrated his intestines. The deceased was unarmed at the time.

Extra-judicial statements of the defendant were given in evidence, to the effect that defendant had said that he went over to quiet the deceased and that deceased told him that he could not arrest him and walked away; that the defendant followed him for the purpose of quieting him, and the deceased started toward the defendant and defendant jerked out his revolver and shot him. One other witness testified that defendant told him that he heard deceased say, “I am going to kill the old s— of a b— before daylight,” and that he thereupon “leveled down and took a shot at him;” and he further stated, “I was sorry in a minute after I did it that I did so.” Defendant told another witness that, “If Boone Melton had stuck to me it would never have gotten out on me. ’ ’

There was evidence tending to show that the deceased was quarrelsome when drinking, and that defendant’s reputation for being quarrelsome was bad.

The defendant, in his own behalf, testified that he first saw the deceased early in the evening, on the street, produce a bottle of whiskey and pass it around among a crowd. Later defendant told deceased to go home. The deceased complained about someone having turned loose his horse. Deceased thereupon invited defendant to take another drink, defendant accepting the invitation to the extent of about one “spoonful.”

Later in the evening, defendant again came upon deceased who was using very profane language. The deceased then said to defendant, “You can shoot me but you can’t arrest me.” After this conversation the defendant started home and a little later heard loud talking near the telephone office and walked down in that direction and recognized the deceased and one Bryant Nunn standing some distance away, in the dark, and he heard deceased say, “I am going to kill the d— old gray-headed s— of a b— before I leave town.” Defendant testified that the threat frightened him very much. He further testified, “I just pulled out my gun and shot; I didn’t know whether I shot him or not. ’ ’ He thought the deceased was getting a pistol or a bottle out of Ms pocket when he fired, but stated that he could have ‘ ‘shot him all to pieces” after the first shot, but didn’t do so, and didn’t know whether he had hit the deceased or not. After the shot was fired defendant heard the deceased say, “I am shot,” and deceased’s companion said, “No, you are not shot,” and deceased replied, “Yes, I am.’’ The deiendant further testified that he did not intend to kill the' deceased, and he would not have shot had he thought it would kill him.

Witnesses on behalf of the defendant testified that his reputation for being a peaceful, law-abiding citizen was good.

In rebuttal, witnesses testified that they did not hear the deceased make the threat to kill the defendant and they also denied that deceased was advancing at the time the shot was fired. One of the witnesses for the State testified that he was in a store when he heard the shot fired, and that about thirty minutes thereafter defendant came into the store and purchased a sack of tobacco. Someone inquired as to the occasion of the shooting, and defendant said, “It was somebody shooting at a dog, I guess. I wouldn’t let a rabhit run over me. I do not carry a gun, I keep it at home. ’ ’

The defendant was ably represented upon the trial of the case, and his learned counsel now urge but two errors seeking a reversal of the case. These errors will be discussed in the opinion following.

I. In the indictment the word evidently intended for “premeditatedly” is spelled “premediatedly .” In other words the first letter “t” is omitted from the word. Otherwise the indictment is in proper form, charging murder in the first degree, which also includes the elements of murder in the second degree.

It is quite apparent that the foregoing error is a clerical one and did not in any manner “tend to the prejudice of the substantial rights of the defendant upon the merits. ’ ’ This being true the above error did not render the indictment invalid. [Section 5115, R. S. 1909; State v. Griffin, 249 Mo. 624; State v. Duvenick, 237 Mo. 185, l. c. 194.]

II. It is further contended that the court erred in giving an instruction on murder in the first degree.

The appellant was convicted of murder in the second degree. It is well settled in this State that the conviction of a crime lower than that charged renders harmless the error, if any, in the giving of an instruction concerning the higher degree. [State v. Wilson, 250 Mo. 323; State v. Sharp, 233 Mo. 269, l. c. 288.]

The judgment is affirmed.

All concur.


author: FARIS, J.

text:
    THE STATE v. DAVID ROWE and ROE SANDERS, Appellants.
    Division Two,
    May 29, 1917.

      1. OBJECTION: No Reason. Where the only objection to testimony when it is offered is that it is incompetent, and where on motion to strike it out the only objection is that it is incompetent, immaterial and irrelevant, any error committed in admitting the testimony or overruling the motion cannot be determined on appeal.
    2. INSTRUCTION: Error in Giving: When Reviewable: Specific Assignment. Although the instruction given was in the identical language of the instruction condemned in State v. Mnkelstein, 269 Mo. 612, and proper exceptions were saved when it was given, yet if the only reference in the motion for a new trial which can by any fair construction be held to refer to it is: “Because the court gave the jury illegal, improper and erroneous instructions over defendant’s objections,” it cannot be held on appeal that error was committed in giving it. The assignment is‘not su iciently specific. Whatever may be the rule in -.civil cases, the statute (Sec. 5285, R. S. 1909) requires that the motion for a new trial in a criminal case “must set forth the grounds or causes therefor,” and a liberal construction of those words means that counsel owes it to the appellate court and to the trial court to point out by number, or by technical designation, or by intelligent description, what particular instruction or instructions are wrong, or upon what point or phase of the trial, or of the case, or of tho evidence, the court failed to instruct,

      3. -: Joint Defendants: Reference to One Who Did Not Testify. Where two defendants are jointly indicted and of their own volition jointly tried, and one of them testifies and the other does not, an instruction on credibility which is not error as to the defendant who did testify is not error as to -tho other and cannot be held to be forbidden comment as to him.
    4. CHALLENGED JUROR: Called to Sit in Case. Whore there is substantial evidence to support the finding of the trial court that a certain juror who sat in the case was not peremptorily challenged, and nothing appears to indicate an abuse of whatever discretion was vested in the trial court, the appellate court cannot decide the disputed question of fact, but must abide by tho decision of the trial court.
    Appeal from St. Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge.
    Abbtrmed.

      James E. Dee for appellants; W. T. Rutherford of counsel.
    (1) The trial court erred in permitting the prosecuting witness, Graham, oyer defendants’ objection, to state why he had not been employed in the last seven months before the-trial, and that three weeks after the robbery he was shot in the saloon, and that that was the reason why he had not been employed and had been in the hospital for four months. (2) The trial court erred in giving instruction telling the jury that a defendant is a competent witness in his own behalf and his testimony should be weighed by the same rules that govern the testimony of other witnesses, with the exception that in passing upon it they should take into consideration the fact that the defendant was the defendant in the case and the interest he.had in the result; because same is a comment on the weight of the evidence. State v. Mintz, 245 Mo. 542; State v. Evans, 267 Mo. 163; State v. Shaffer, 253 Mo. 338; State v. Finkelstein, 269 Mo. 612. (3) Said instruction is also bad because the defendant' Roe Sanders did not testify, and Sec. 5243, R. S. 1909, prohibits the court or jury before whom the trial takes place to consider the same or refer to the same. (4) Because the court should have granted th'e defendants a new trial after it discovered that the juror, Frederick King, although he had been challenged by the defendant, had been allowed to remain on the jury.

      Frank W. McAllister, Attorney-General, ■ and 8. P. Howell, Assistant Attorney-General, for the State.
    (1) The court did not err in permitting the State to elicit from the prosecuting witness what his actions had been since his release from the penitentiary. State v. Spaugh, 200 Mo. 598; State v. Starr, 244 Mo. 175. Moreover, the objection to the admission of this testimony was insufficient to preserve the error, if any, for review here, for the reason that no specific ground for its inadmissibility was assigned. State v. ‘Wellman, 253 Mo. 302; State v. Castleton, 255 Mo. 201; State v. Kapp, 187 S. W. 1178. (2) Under the condition of the record in the case at bar, the objection to the sufficiency of instruction on defendant’s credibility as a witness is not properly saved for review. Sec. 5285, R. S. 1909. State v. Finklestein, 269 Mo. 612; State v. Levy, 262 Mo. 190; State v. McBrien, 265 Mo. 594; State v. Taylor, 183 S. W. 301; State v. Gifford, 186 S. W. 1060; State v. Gilbert, 186 S. W. 1003; State v. Kapp, 187 S. W. 1180. Sec. 5312, R. S. 1909. The following authorities announce the rule which obtains in civil cases. Sec. 2022, R. S. 1909; Wampler v. Railway, 190 S. W. 908. (3) Where it does not appear from the record that the rights of appellant have been prejudiced by a failure to comply with the statute in selecting the jury panel, the finding of the lower court will not be disturbed on appeal. State v. Ward, 74 Mo. 256; State.v. Gleason, • 88 Mo. 582; State v. Riddle, 179 Mo. 293; State v. Jackson, 242 Mo. 420; State v. Shoemaker, 183 S. W. 324.
   FARIS, J.

The defendants were tried jointly in the circuit court of the city of St. Louis for the crime of robbery in the first degree, and being by the jury found guilty had assessed against each of them as punishment imprisomnent in the penitentiary for five years. . After the conventional motions they have perfected a joint appeal. With the two above named defendants one George Warrance was originally charged in the same information, but obtained a severance, and we need no longer trouble ourselves with his connection with the case.

The facts shown on the part of the State are brief, as are likewise those offered by defendant. Howard Graham, the man averred in the information to have been robbed, was a bartender in charge of the saloon of one John Miller, which saloon was situate on the northeast corner of Twentieth and Olive streets in the city of St. Louis. • Miller, the owner of the saloon, was absent at the time the robbery occurred. At about eight o’clock on the evening of April 1, 1915, the two defendants and said Warrance went to Miller’s' saloon and endeavored to borrow the sum of five dollars from Ploward Graham. The latter refused to lend them this money, but at their solicitation gave them a drink of liquor of some sort, and thereupon the three left the saloon. Some fifteen or twenty minutes later the defendants and said Warrance returned to the saloon and defendant Rowe drew’his revolver, presented it at Graham and ordered him to throw up his hands. At this time there were besides Graham, three other men in the saloon, who also at the command of Rowe threw up their hands. Defendant Rowe then at the point of his revolver compelled Graham and one Sherman Holman, who was one of the customers in the saloon at the time of the robbery, to go down a stairway into the basement of the building. Steven Sandothe, another.of the customers in the saloon at the time of the robbery, ran out at the side door, apparently while defendants and Warrance were disposing of the others, and saw no more of the robbery. Gus Bloomer, the third and last of the three customers, was compelled to enter the ice box, from which box through the glass window thereof, he saw some one of the party taking money out of the cash register.

The proof shows that all of the money in the cash register, amounting to some $24.60, was taken by some one of the persons engaged in the robbery. As soon as Graham heard a noise which indicated that the cash register was being closed, he came ont of the basement and released Bloomer from the ice box. The defendants had left the saloon by this time. The police were informed of the robbery and in the course of an hour or more arrested defendants and brought them to Miller’s saloon where they were identified by Graham. In the course of this identification. Rowe, applying to' Graham an abusive epithet, said to him that he “had a hell of a nerve to make any holler.” The defendants were positively identified by Graham, the man robbed, and by Plolman, one of the persons in the saloon at the time of the robbery. The witness Sandbothe is not positive in his identification.

The only witnesses produced in behalf of defendants were Officer Gunn and defendant Rowe himself. Defendant Sanders did not testify. No evidence of importance was elicited from Officer Gunn except that he stated he found no pistol on defendants when he arrested them, but he did not remember how much money they had. He corroborated the conversation between defendant Rowe and Graham, which we set out above, and the fact of the identification of the defendants by Graham. Defendant Rowe denied substantially every fact stated by the witnesses for the State. He admits that he came into the saloon on the night of the robbery, but he says that he did so for the purpose of buying a drink and that while doing so an argument arose between Graham and some .unknown person; that Graham reached for a pistol and he (defendant) ran out the front door. There is no contehtion made, however, as to the sufficiency of the evidence, nor could there be upon the facts shown in proof.

Such furthet facts as transpired upon the trial and which form the basis of the several contentions urged by defendants for reversal, will be set out when we come, to express our views.

I. Defendant complains for that the State elicited from the witness Howard Graham the fact that he had been shot some weeks after the commission of the robbery here in question arid so desperately wounded as to cause him to he confined in a hospital for four months. This statement was made by the witness upon his re-direct examination after the defendant had drawn from the witness in cross-examination the admission that he had served a term in the penitentiary for robbery, and after the witness had been asked how many men he had killed; how many men he had robbed; if he were not a dope fiend; if he had not cheated one Holman-out of five hundred dollars, and whether his employer knew that he (the witness) was an ex-convict when employment as a bartender was given him. Upon the re-direct examination of the witness the State, evidently for the purpose of rehabilitation, asked the witness briefly as to his course of life since his admitted conviction for robbery — which occurred in 1905. The witness said that he had never been in trouble since such conviction and had been steadily employed except for the seven months preceding the trial. He was then asked by the State why he had not been employed also during the latter period. He answered that he was shot through the left arm and right lung three weeks after the robbery and confined as a result in a hospital for four months. When the question was asked which elicited the alleged harmful answer, the only observation made by defendants’ counsel was that, “I think it is incompetent, because these defendants were in jail at that time.” This statement, it will be noted, was not an objection. Subsequently a motion to strike out was made, but no reasons were given for such motion beyond the alleged facts that the answer of the witness was incompetent, irrelevant and immaterial and had no bearing on the case. Clearly the record discloses, under the authorities, no sufficient preservation of the point for our review. This view renders unnecessary any discussion whether the defendants, admittedly in jail at the time thereof, could in any event have been hurt by the admission of this statement; as also whether the question was not justified on the theory of rehabilitation, in view of the cross-examination of defendants’ learned counsel. For the first reason stated, we disallow this contention.

II. Upon the trial the court gave touching the testimony of defendant Rowe (defendant Sanders did not take the stand), the identical instruction condemned by this court In Banc in the late case of State v. Finkelstein, 269 Mo. 612. -^le State concedes and we perforce agree that this was error for which the case must he reversed, if the point has herein been properly saved tor review. Let us look alone to the latter point.

The proper exceptions were saved when the instruction was given; but the only reference in the motion for a new trial, which can by any construction he held to refer to the instruction now criticised or to any other, is this, to-wit: “Because the court gave the jury illegal, improper and erroneous instructions over the defendants’ objections.” This is not a sufficient pointing out of error. The trial court is fairly entitled to have his attention directed to the errors which he-has committed with such specificness at least as will enable him to find the situs of alleged error, without putting an unnecessary 'burden upon his time and care. [State v. McBrien, 265 Mo. l. c. 604.] Likewise, for reasons to he seen below and in the dissenting views of the writer' in the Finkelstein case, supra, we are entitled to know wherein the instructions given or omitted are erroneous or insufficient. Whether there exist differences in the rules which respectively govern appellate practice in civil and criminal cases we are not required to here determine. The assignment of error herein would not he sufficient in a civil case. The statute which provides with what definiteness a motion for a new trial in a civil case shall set out the reason therefor (Sec. 1841, R. S. 1909) has, by reason of its now position in the statute, due- to codification and revision, seemingly, though not actually, lost some of its appositeness. Going afield a moment to recall a hit of its history, we note that said Section 1841 first came into our practice acts in 1835, and then read thus:

“All motions for new trials and in arrest of judgment, shall be made within four days after the trial, if the term shall so long continue, and if not, then before the end of the term; and every such motion shall be accompanied by a written specification of the reasons upon which it is founded.” [See. 1, p. 469, R. S. 1835.]

The above provision was again printed in the Revision of 1845 among the requisite details of a motion for a new trial, and as yet having reference to no other kind, of motions whatever, but was put into a separate section. [Sec. 2, p. 830, R. S. 1845.] Pour years later the present practice code was passed (Laws 1849, p. 73), but it contained no express provision as to what any motion should contain. In 1855 the whole practice act was revised, and the living parts, that is, the parts of the old practice act which had not been abrogated or repealed by the new Code of 1849, were put into one revised bill with the said code, and in this revised act the section (now Sec. 1841, R. S. 1909) designating the requisite contents of a motion for a new trial, was put among miscellaneous details of civil practice, and thus for the first time made to apply to all formal motions of what ever kind, made under the civil code. [Sec. 27, p. 1235, R. S. 1855; Sec. 48, p. 662, G. S. 1865; Sec. 3557, R. S. 1879; Sec. 2085, R. S. 1889; Sec. 640, R. S. 1899; Sec. 1841, R. S. 1909.]

But we have left no room for doubt as to what statute governs us as to the contents of a motion for a new trial in a criminal case, and what that statute requires. [Cf. sec. 5285, R. S. 1909.] The controlling language is, that “the motion for a new trial shall be in writing and must set forth the grounds or causes therefor.” [Sec. 5285, supra.] It will be noted that the language of this section does not say that it may set forth the-grounds and causes therefor, but that it must do so; neither does it say that part of such a motion may be oral and the remainder in writing, or that a part of it must be in writing and the rest of it held in ambush, or' in reserve solely for the ear of the appellate tribunal, or in the secret crannies of learned counsel’s mental processes, but it says the motion shall be in writing. Upon the only dark or doubtful point left us, that is, the question: "What is a sufficient setting forth of the grounds and causes? we have been fairly liberal. We have never required to be set forth the reasons why any given instruction is wrong. But time and again we have said substantially that counsel in a criminal case of sufficient gravity to warrant an appeal, owes it both to this court and to the court nisi to point out ,by number, or by technical designation or by .intelligible description, what particular instruction or instructions are wrong; or upon what point, or phase of the trial, or of the case, or of the evidence the court failed to instruct. [State v. Levy, 262 Mo. 181; State v. McBrien, supra; State v. Taylor, 267 Mo. l. c. 48; State v. Gifford, 186 S. W. 1058; State v. Kapp, 187 S. W. 1178.] For the performance of this duty counsel is allowed four full days, usually. So much we deem due under this statute to the courts; to the trial court that it may be allowed a fair opportunity to correct its own mistakes and so iron out delays and expedite justice;.and to'the appellate courts that they may not waste their time in seeking out error in undesignated instructions wherein no error lies. Keeping in mind the statute which requires us to comb the record of a criminal case for error (Sec. 5312, R. S. 1909), as well as the provisions of Section 5285 above set forth, no other view seems plausible. It results that this assignment of error must be disallowed.

III. The further contention, that the instruction upon the weight of defendant’s evidence is bad, because of the fact that defendant Roe Sanders, though jointly tried with defendant Rowe, did not himself testify in the case, Rowe being the only one of defendants called as a witness, is affected ^y £he same infirmity. Both contentions go to the correctness of an instruction, or to the propriety of giving it. Both points are alone preservable by a proper and sufficient motion for a new trial. But if it be contended wholly aside from the instruction phase that as to Sanders the instruction is a forbidden comment upon the failure of the latter to testify upon the trial, then the answers are: (a) that he was of his own volition jointly tried with Rowe, and the forbidden comment — if it was such and viewed solely as such — was not error aa to Rowe, therefore it was not error as to Sanders; and (b) the point that the instruction constituted a forbidden comment upon Sanders’ failure to take the stand was in no way preserved for review here.

IY. It is urged that one Frederick Klug, who qualified upon his voir dire examination upen the panel from which the trial jury was selected, was in fact peremptorily challenged by defendant, but was through an error called into the jury-box by the deputy sheriff and actually served as one of the trial jurors. In proof of the fact of such peremptory challenge of Klug there are appended the affidavits of the two defendants and of their counsel, which latter affidavit is accompanied by a copy of 'the jury list (authenticated as a true copy merely by the affidavit of counsel for defendant). Against this showing the State offered the counter affidavit of the deputy sheriff who held the jury list and called the trial panel into the jury box, and who swears that the name of Klug was on the list unchallenged, and for this reason ho called him as a juror and he served as such. ,

It will be seen that the affidavit of the officer contradicts diametrically the affidavits of defendants and their counsel. The copy of the jury list shown us here contains but eleven names unmarked upon the panel, so that if it be a fact that the juror Klug was challenged by defendant, then but eleven unchallenged men were left thereon to try the case. So, if Klug was challenged, then either the defendant or the State challenged peremptorily more jurors than the law gives them the right to challenge. Whether this error, if it was such, was committed by the defendant, or by the State, we are unable to determine from the copy of the list before us. Questions both of fact and law arise upon an appeal, concretely presented by the twin queries: (a) Did the thing complained of actually happen upon the trial of the case? And (b) if it did actually happen, is it reversible error?

Manifestly we cannot come to the last point till we have disposed of the first one. Defendants and their counsel depose that the erroneous calling of a challenged juror actually happened in their presence, but they did not find it out till the case was. over and they had lost. The deputy sheriff is' equally positive it did not happen at all. The officer is corroborated by the patent fact that if Klug were actually challenged by either side, then there were left upon the- list but eleven jurors, where a full panel of twelve should have appeared. It follows that though an error may have occurred upon the one point or the other, there is no way for us to definitely ascertain here upon which point the error was. The learned trial court held, in connection with other views he perhaps also entertained upon-the question, against defendants upon the question of fact. There was substantial proof, aided by some corroboration to support his finding. We know of no rule of law which will permit us to overturn the holding of the court nisi upon a disputed question of fact upon a point like this in a criminal case. If there was no substantial evidence to sustain the trial court, or if the matter rested, in judicial discretion and it were palpable that he had abused this discretion, the rule would be wholly different. Our trouble as an appellate court, and we meet it on the very threshold, is that we are powerless to determine where the truth of the thing lies and so we must needs say that the court below was right. It follows that we are constrained to disallow this contention also.

Let the case be affirmed.

All concur.