author: ROY, C.

text:
    ALBERT M. GLOYD and FLEMMON E. GLOYD, Appellants, v. FREDERICK FRANCK.
    Division Two,
    March 12, 1913.
    1. PLAT: Surplus In Block: Prorated: Presumptions. Where it appears that there is, in the frontage of a city block, a surplus of several feet over the dimension as laid down in the plat of the addition on file, it will not be presumed that the street bounding the block on one side has been shifted enough to cause the surplus, but such surplus must be apportioned among the several lots in the block.
    2. CONVEYANCE: Reference to Plat: Instructions. An instruction is not erroneous in this suit to quiet title, that, where real estate is conveyed by the number of the lot and the name of the addition and by reference to the recorded plat, such plat is to be taken as a part of the conveyance. Although under the circumstances of this case it is useless, it is certainly true.
    3. INSTRUCTIONS: Peremptory: Not Asked. Plaintiffs in this suit to quiet title cannot complain because peremptory instructions to which they were entitled were not given in their favor since they themselves asked instructions which were given submitting the question to the jury.
    4. TITLE: Adverse Possession: Evidence: Instructions. Defendant owns lot 58 in a city block and his building upon the front of the lot has for thirty years extended over upon lot 57. The rear of lot 58 was not enclosed on the side toward lot 57 until within ten years before suit was brought, and behind the building tbe line of the excavation which sloped up to the alley: was extremely irregular, jagged and sloping on the side toward lot 57. Defendant claims the entire strip from the street front to the alley by adverse possession. Held, that, since the defendant had no possession of the part of the strip behind his building, and since his possession of a part did not give him title to the whole — there being no color of title — he has not acquired the unenclosed portion by adverse possession, and an instruction was erroneous which told the jury they must find for defendant if they believed he and his grantors had claimed to own the entire strip for ten years.
    5. COLOR OF TITLE: Boundary Dispute. Ordinarily color of title does not apply in boundary disputes.
    6. TITLE: Adverse Possession: Presumptions: Burden of Proof. Where the presumption is, under the circumstances of the case, that the owners of a city lot claimed that it extended as far as their building, the burden of showing that they intended to claim only to the true line, wherever that should be ascertained to be, rests upon him who would dispossess them. And where he makes no effort to discharge that burden, the court will be justified in giving a peremptory instruction for the owners as to the part covered by the building.
    Appeal from Jackson Circuit Court. — Hon. Walter A. Powell, Judge.
    Reversed and remanded.

      Evans, Williamson <& Estill for appellants.
    (1) There is a surplus in the block in question and it should be apportioned among the lot owners in proportion to their respective holdings. Crawford v. Ahrnes, 103 Mo. 96; Newcomb v. Lewis, 31 Iowa, 490; Lincoln v.' Edgecomb, 28 Me. 275; Caylor v. Luzadder, 137 Ind. 319; Parks v. Boynton, 98 Pa. St. 370; O’Brien v. McG-rame, 27 Wis. 446; Brooks v. Stanley, 66 Neb. 826; 4 Am. & Eng. Ency. Law, p. 868; Pereles v. Ma-goon, 78 Wis. 27, 23 Am. St. Rep. 389; Miller v. Land Co., 44 Kan. 355; McAlpine v. Reicheneker, 27 Kan. 257; Clayton v. Feig, 179 111. 534; Anderson v. Wirth, 131 Mich. 183; Helm v. Wilson, 89 Cal. 593; Eshelman v. Matter, 101 Cal. 233; Martz v. Williams, 67 111. 306; With am v. Cutts, 4 Me. 31; Wyatt v. Savage, 11 Me. •429; Long v. Merrill, 24 Pick. (Mass.) 157; Bloch v. Pfaff, 101 Mass. 535; Reimers v. Qninnin, 49 Mich. 449; Wolfe v. Scarborough, 2 Ohio St. 361; Marsh v. Stevenson, 7 Ohio St. 264; Sugar Valley L. Co. v. Barber, 87 Pa. St. 313; Knippa v. Umlang, 27 S. W. 915; Jones v. Kimble, 19 Wis. 429; Westphal v. Schultz, 48 Wis. 78; Francois v. Maloney, 56 111. 399; Robeson v: Howell, 23 La. Ann. 601; Baldwin v. Shannon, 43 N. J. L. 596; Sellers v. Reed, 46 Tex. 377; Ware v. McQuinn, 7 Tex. Civ. App. 107. (2) The court erred in giving instruction 8 asked on behalf of respondent. Bowman v. Lee, 48 Mo. 335; Dalby v. Snuffler, 57 Mo. 294';' Bradley v. West, 60 Mo. 33; Truner v. Hall, 60 Mo. 271; Huckshorn v. Hartwig, 81 Mo. 648; Milling Co. v. Riley, 133 Mo. 574; Hunnewell v. Burchett, 152 Mo. 611; Wilkerson v. Filer, 114 Mo. 245; Adkins v. Tomlinson, 121 Mo. 487; Crawford v. Ahrnes, 103 Mo. 95; G-olterman v. Schiermeyer, 125 Mo. 291; Thomas v. Babb, 45 Mo. 384; Sherwood v. Baker, 105 Mo. 477; Abbott’s Trial Ev. (2 Ed.), p. 90|5, sec. 37. (3) No adverse possession sufficient to vest the title by limitation in respondent is shown by the evidence. Anderson v. McPike, 86 Mo. 393; Shad.v. Shart, 95 Mo. 573; Cole v. Parker, 70 Mo. 380; Tamm v. Kellogg, 49 Mo. 118; Houcke v. Batton, 68 Mo. 84; Jacobs v. - Moseley, 91 Mo. 457; L. & M. Co. v. Jewell, 200 Mo. 707; Budd v. Collins, 69 Mo. 129; Wilkerson v. Thompson, 82 Mo. 317; Fulkerson v. Brownlee, 69 Mo. 371.

      E. Wright Taylor for respondent.
    (1) Kansas City established and opened Ninth street in the year 1870, 49.50 feet wide, with its center line at Walnut 4.57 feet north of the north line of Swope’s Addition. Did this strip in the middle of Ninth street belong to Ross & Scarritt, to Smart & Swope, or to nobody? No witness was asked this question: no one can answer from the evidence. Kam sas City took this strip 4.57 feet wide and also 20.18 feet more dedicated by Swope’s plat, in all 24.75, for Ninth street in 1870. Then there remained north of lot 62 a strip of 4.57 feet vacated and abandoned by Kansas City. Lot 62 adjoined Ninth street according to the plat. The Ninth street frontage was an appurtenance of lot 62; it had the right to abut on the street. Such is the law. When the United States bought lot 62 for its postoffice it moved its property line to the street as established by the city and built the stone fence that now marks the south line of Ninth in 1881. There is not and never has been a “surplus” in this block. Lot 62 has gained what Kansas City abandoned when she established the south line of Ninth street 24.75 feet south of the south line of Ross & Scarritt’s Addition. (2) Even if the strip in controversy be deemed a part of lot 57, yet appellants cannot recover because of adverse claim and possession. Since 1883, Franck’s building has occupied this strip; since 1883, his location by the county surveyor" has been of public record. (3) The first count of plaintiff’s petition is a suit to quiet title under sec. 650, R. S. 1899. Respondent’s instruction 8 is copied from the statute. Possession is not a material element in issue. Suit may be brought by any person “whether in possession or not” against any person “whether in possession or not.” The Statute of Limitations applicable to real actions applies. Haarstick v. Gabriel, 200 Mo. 242. Franck and his grantors under the facts proven in this case had the right, and were bound, to rely upon the calls and distances of the recorded plats of Swope’s Addition for the actual physical dimensions and location of their lot 58. Clark v. McAtee, 227 Mo. 192; Whitehead v. Atchison,T36 Mo. 485;,Dolde v. Yodicka, 49 Mo. 98.
   ROY, C.

On April 16, 1857, Thomas H. Swope was the owner of the southeast quarter of the northwest quarter, of section five, township forty-nine, range thirty-three, in Jackson county, except a narrow strip off the west side. On that day he filed the plat of “Swope’s Addition’-’ to Kansas City. That plat purports bn its face to have been made on a survey by “O.'P. Wiggin, Surveyor.” It also purports to cover a tract of land 1320 feet from north to south and about 1200 feet from east to west. It dedicates 24% feet on the north side of it to Cherokee street and also shows Shawnee street sixty feet wide, distant 383% feet south of Cherokee street. It shows Grand avenue near the center of the plat, and shows James street sixty-six feet wide next west of Grand avenue. There is nothing on the plat to indicate on what ground it is located. To all appearances it was just a paper tossed by the winds. But from the very first it was given not only a name but a “local habitation,” i. e., on the above described tract.

At the same time Ross & Scarritt were the owners of the' south half of the forty acre tract immediately north of the above mentioned tract; and on April-30, 1857, just two weeks after the filing of Swope’s plat, they filed the plat of “Ross & Scarritt’s Addition.” It, like Swope’s, called for no particular tract of land or monument. But, from the first, it has been assigned by everybody concerned to the land so owned by them. The line between those two tracts of land has always been known beyond dispute. That line is the center of what was then Cherokee, now Ninth, street. Shawnee street next south of it is now Tenth; and James street is now Walnut. Ninth and Tenth streets are located on the ground now just as they were when first opened, which we presume occurred immediately after the filing of Swope’s plat. There are eight lots shown on that plat fronting west on the east side of Walnut between Ninth and Tenth, numbered from lot No. 55 on the south to No. 62 on the north inclusive. Those lots are all marked on the plat as forty-eight feet wide except lot No. 62 which is marked 47% feet.

It is conceded by all parties that between Ninth and Tenth streets on the east side of Walnut the distance measures 388.07 feet, or 4.57 feet more than called for by the plat.

Plaintiffs own lot No. 57, which is the third lot in order from Tenth street. Defendant owns lot No. 58, which is next on the north.

In 1883, defendant’s lot No 58 was owned by one Doan, and plaintiffs’ lot was owned by the United Presbyterian Church, the title being in trustees. Preparatory to building on lot No. 58, Doan had it surveyed in 1883. The surveyor simply measured from Tenth street north assigning to each lot a front of forty-eight feet and marked the north line of lot No. 58 on the rock which stood above the grade of the. street as a point 192 feet north of Tenth street. Doan excavated the lot and built a two-story brick business house thereon forty-six feet wide, aiming to place it one foot from the lot line on each side. The building ran back 100 feet, leaving 15% feet of open area between the building and the alley. That area was not fully excavated, but sloped from the alley down towards the bottom of the building, which was on grade. The east end of that building was 54/100 of a foot further south than the west end. The wall of the excavation on the south was irregular and jagged, and from the building east to the alley it projected some places north of the line of the wall, and-some places it was south of that line. ■ It seems that the excavation was almost entirely of rock.

The title to lot No. 57 passed out of the trustees of the church in 1887, and on December 26, 1906, it was vested in the plaintiffs. The defendant became the owner of lot No. 58 on August 16, 1902. There was never any discussion or dispute as to the boundary line until after the purchase by the plaintiffs. By accident or otherwise, the other lots seem to have been improved of the width to which they are entitled after allowing their pro rata of the surplus.

By apportioning the surplus among all the lots, the south line of lot No. 58 falls 38/100 of a foot north of the southwest corner of defendant’s building, and the north line falls 2.95 feet north of the northwest corner of that building. The south face of the wall of the building on lot No. 59 stands just two feet nine' inches north of the north wall of defendant’s building as it was originally. In other words, the south face of the wall oh lot No. 59 is almost exactly on the north line of lot No. 58 as located by apportioning the surplus.

Soon after Mr. Franck bought lot No. 58 he had it surveyed by Mr. Tuttle, who told him that there was a surplus and that his south wall was 38/100 of a foot too far south and that the right way would be for him to take the surplus on the north between his building and the next building. Mr. Franck immediately reached out with his right hand and took what was coming to him on the north, and with his left hand he held on to what he was told was not Ms. He remodeled his building and included in it the vacant space on the north.

There was no wall or fence between the area in the rear of defendant’s building and lot No. 57 until after the defendant purchased in 1902. The title to lot No. 58 passed out of Doan on November 3, 1888.

The court by instructions asked by plaintiff submitted to the jury the question as to whether there is a surplus in the block.

The court among the instructions gave the following for the defendants:

“5. The court instructs the jury that where real estate is conveyed by the number of the lot and the name of the addition, and by reference to the plat or survey of the addition as the same appears of record, then, that such plat or survey of such addition as the same appears of record is to he taken as a part and parcel of such conveyance, just the same as if- such plat or survey of such addition as the same appears of record had been incorporated in such conveyance by copying such plat or survey of such addition as it appears of record in full in such conveyance.”
“8. The court instructs the jury that if yon believe from the evidence that the defendant and his grantors have been claiming to have all the right, title, estate and interest in, to and of the real estate described in the first count in plaintiff’s petition herein, and have claimed to own the said real estate for a period of more than ten years next last before the filing of plaintiff’s petition, herein, then your verdict must be for the defendant as to the first count of plaintiff’s petition herein.”

The verdict was for defendant and plaintiffs have appealed.

I. Respondent contends that Tenth street is now located just’where Swope’s plat located it and that by. some mischance Ninth street has gotten shifted over .4.57 feet north of where that plat put it. What right has counsel to presume that a narrow strip 4.57 feet wide was omitted from the plat off the north side of Swope’s land? He only gave 24% feet for Ninth street. He evidently only intended to give half of that street and relied on the other half coming from Ross and Scarritt on the north. He would not leave that narrow strip in the center of Ninth street. We have much more right to presume that Ninth street is properly located than that Tenth street is. Ninth street was on a well-known boundary between two forty acre tracts. The only proper conclusion to be drawn is that both those streets are located where they were originally intended and that there is a surplus in the block and that the line between lots 57 and 58 is 38/100 of a foot north of the southwest corner of defendant’s building.

There is nothing wrong with instruction 5 except that it is useless. It is certainly true. Plaintiff was entitled to a peremptory instruction telling the jury that the true line between the two lots is 38/100 of a foot north of the southwest corner of defendant’s building and 92/100 of a foot north of the southeast corner thereof. Of course plaintiffs cannot complain of the failure to so instruct, as they asked instructions which were given submitting that question to the jury.

II. Instruction 8 is erroneous. The strip of land in controversy is in two parts. The east fifteen and a half feet was never enclosed by fence or wall until within ten years before suit * was brought. We cannot see how defendant can claim to have had any kind of possession of it. In law the possession is in harmony with the title until the contrary is shown by the evidence. There was no enclosure to indicate possession of that east end of the strip by the owner of lot No. 58. The excavation was not of such a definite character as to indicate the line claimed by the owners of lot No. 58, even if an excavation would under any circumstances be sufficient. The wall of that excavation was extremely irregular, jagged and sloping, so that no line could be fixed by it. It is vain to say that the south line of defendant’s wall shows an intention to claim to the continuation of that line as it runs east to the allev. There must be possession of the whole tract claimed, or possession of a part under color of title to the whole. There is no color of title ^ere. Ordinarily color of title does not apply in boundary disputes. [Groltermann v. Schiermeyer, 125 Mo. l. c. 300; Hedges v. Pollard, 149 Mo. l. c. 227.] “Any mere mental boundary” which defendant or Ms grantors may have drawn from the southeast corner of his building to the alley was insufficient to constitute adverse possession. [Wilson v. Purl, 148 Mo. l. c. 458.]

As to that part of lot No. .57 actually occupied by the wall of defendant’s building, the presumption is, under the circumstances shown in evidence, that the owners of lot No. 58 claimed that their lot extended as far south as their building, and the burden of showing that they only intended to claim to the true line, wherever that should be ascertained to be, rests upon the plaintiffs. There was no attempt on the part of the plaintiffs to discharge that burden, and the court would have been justified in giving a peremptory instruction for the defendant as to the part covered by that wall. On the question of burden of proof, see Hedges v. Pollard, 149 Mo. l. c. 226; Milligan v. Fritts, 226 Mo. 189.

'On account of the error in instruction’ 8, as above stated, the judgment is reversed and the cause remanded.

Blair, G., concurs.

PER CURIAM. — The foregoing .opinion of Roy, C., is adopted as the opinion of the court.

All the judges concur.


source: Caselaw Access Project

author: FARIS, J.-

license: Public Domain

text:
    ALICE K. GARTH, Plaintiff in Error, v. JOSHUA MOTTER.
    Division Two,
    March 12, 1913.
    1. JUDICIAL NOTICE: Day of Month: Meeting of Court. Tho court takes judicial notice that the first Monday in October cannot be the 11th day of October; also upon what day a court of appeals regularly convenes.
    2. WRIT OF ERROR: Timely Notice: Twenty Days Before Return Day. The writ of error was sued out July 20, 1909, and made returnable on the first Monday in October, 1909, and in fact was returned July 21, 1909. On September 20, 1909, plaintiff in error gave written notice to defendant in error that the writ would be presented to and heard by the court on Monday, October 11, 1909. The Statute requires such notice to be served •‘twenty days 'before the return day of such writ.” Held, that the notice was not timely, and the writ should be dismissed. The notice was not given twenty days before the return day of the writ.
    3. LIMITATION: Raised by Demurrer. Where the petition founded on a promissory note discloses that no payment had been paid on the note for thirty-two years, and alleges no novation of promise or other fact to toll the Statute of Limitations, a demurrer to the petition that, the cause of action is barred by the statute, should be sustained.
    Appeal from Buchanan Circuit Court. — Hon. C. A. , Mosman, Judge.
    Writ or error dismissed.

      Ben T. Woodson for plaintiff in error.
    The Statutes of Limitations cannot be taken advantage of by demurrer. Smith v. Dean, 19 Mo. 63; Angel on Limitations (2 Ed.), p. 312; Hines v. Potts, 56 Miss. 352.

      Motter & Shultz for defendant in error.
    (1) The writ of error should be dismissed. R. S. 1899, sec. • 852; Rules Governing Practice iñ the Kansas City Court of Appeals, Rule 7; Biles, Edwards & Co. v. Beadle, 93 Mo. App. 628; Schnelle v. Devanney, 61 Mo. App. 453; Williams v. Beck, 63 Mo. App. 149; Kenner v. Lead Co., 141 Mo. 248. (2) The court did not err in sustaining the demurrer to plaintiff’s petition. Burrus v. Cook, 215 Mo. 503; Bliss on Code Pleading (3 Ed.), sec. 205.
   FARIS, J.-

This is- an action at law, for the balance, with interest, due on a promissory note, for the original sum of $4500, bearing interest from matnrity at the rate of ten per cent per annum. The note was dated June 11, 1875, and fell due one year after date. It-was made by- defendant Joshua Motter and others, whose names are not here pertinent, to the father of plaintiff, who sues as sole heir, after administration had.

The petition was filed on the 17th day of April, 1909, in the circuit court of Buchanan county. This petition on its face showed a payment made ^ 0f £2635.47 on the 9th day of December, 1876; alleged that no other payments had been made thereon, and prayed judgment for the balance of $1864.53, together with interest at the rate of ten per cent per annum from December 9, 1876. The petition disclosed no facts, and made no allegations, tolling the Statute of Limitations. Applying the rule expressed by the maxim — cerium est quod certum reddi potest — we find' the amount alleged by the petition to be due at the time of filing suit, to have been about $10,745.

The defendant appeared in the circuit court .and filed a demurrer to the petition, which demurrer be-sustained, the plaintiff refused to further plead and final judgment was rendered against her below thereon on'May 8, 1909. Thereupon, on the 20th day of July, 1909, plaintiff sued out, in the Kansas City Court of Appeals, a writ of error, returnable to said court on the first Monday in October, 1909, and thereon the circuit court of Buchanan county actually made return July 21, 1909. Attempting to comply with the requirements of section 2071, Revised Statutes 1909, plaintiff in error on the 20th day of September, 1909, served on the defendant in error the following notice:

Alice K. Garth, Plaintiff in Error, v. 9063.'
Joshua Motter, Defendant in Error.
Joshua Motter, Defendant in Error, or Motter & Shultz, his. attorneys of record: You are hereby notified that the writ of error from the Kansas City Court of Appeals will be presented to and heard by that court in Kansas City, Missouri, on Monday, October 11th, 1909.
Served Sept. 20, 1909.
Ben J. Woodson,
Atty. for Plaintiff in Error.

On September 25, 1909, the defendant in error filed a motion in the Kansas City Court of Appeals to dismiss the writ of error herein, on the ground that no timely notice as required by law had been given. He also, by a brief filed in said court, and refiled in this court, urged a dismissal for lack of such notice. By stipulation of counsel the' case was submitted on briefs in the said court of appeals. The case coming on for hearing in said court on the motion filed on the merits, that court, deeming itself without authority to hear and determine the same, because the amount involved exceeded its jurisdiction, on the 4th day of November, 1909, ordered it certified to this court for determination, which was accordingly done, and the case is here.

There are but two points raised in the case; one of these is raised by the plaintiff in error, and the other by the defendant in error. The point of the plaintiff in error is: Did the trial court err in sustaining the demurrer to plaintiff’s petition, it appearing (and for the reason) that said petition showed upon its face that the cause of action stated therein, or attempted so to be, was barred by the Statute of LimiNations? The question raised by the defendant in error is: Was timely statutory notice given of the suing out of the writ of error herein; if not, should the writ be dismissed for lack of statutory notice!

We must needs look first to the last question, meeting it as we do upon the threshold.

The statute involved and relied upon is as follows :

“Sec. 2071. Every person suing out a writ of error shall cause notice thereof in writing to be served ■ on the adverse party or his attorney of record, twenty days before the return day of such writ. If such notice be not served, the writ shall be dismissed, unless good cause for such failure be shown. ’ ’

As we have already noted in the statement of facts, the writ of error was returnable on the first Monday in October, 1909. Return thereof was promptly and timely made — in fact the return bears attest of the circuit clerk on July 21, 1909, and the filing shown to have been had on July 22, 1909, in the •said court of appeals. The notice actually given by plaintiff in error was served on September 20, 1909, and it advised and notified defendant in error that “the writ of error from the Kansas City Court of Appeals will be presented to and heard by that court in Kansas City, Missouri, on Monday, October 11, 1909.” Here was, of course, more than twenty days’ notice prior to “presentation and hearing” of the writ of error, but not the twenty days’ notice required by statute before the return day of said writ. For we judicially notice that the 11th day of October cannot fall upon the first Monday in October, the date fixed by the writ itself for the return thereof. [Jordan v. Railroad, 92 Mo. App. 84.] The writ also was by its terms required to be returned to the October term of the Kansas City Court of Appeals. We judicially notice the day upon which that court convenes. [Harwood v. Toms, 130 Mo. 225; 16 Cyc. 912, and cases cited.]

Thus taking judicial notice, and retaining in mind the facts here shown by the record, we are constrained to hold that the point of defendant in error was well taken. [Kenner v. Doe Run Lead Co., 141 Mo. 248; Guy v. Mayes, 141 Mo. l. c. 443.]

This view obviates the necessity of considering the point made by the plaintiff in error touching whether the demurrer below to the petition was well taken. In passing this point, however, we may say that upon the facts of the petition it was disclosed that no payment had been made on the note in suit for thirty-two years and more, nor was any novation of promise or other fact pleaded to toll the statute. Hence, it follows that, since far more than ten years had elapsed since plaintiff or her ancestor possessed the right of action, and since no facts are alleged to take the action- out of the operation of the statute, the petition was defective and the demurrer well taken. [Burrus v. Cook, 215 Mo. 496; Bliss on Code Pleading (3 Ed.), sec. 205.]

It follows that the writ of error should be dismissed at plaintiff’s cost, and it is so ordered.

Broivn, P. J., and Walker, J., concur.


author: BBOWN, P. J.

text:
    THE STATE v. GEORGE FENTON, Appellant.
    Division Two,
    March 12, 1913.
    1. INSANITY: Conflict in Testimony: Matter for Jury. The issue of insanity of a defendant charged with the murder of his wife, where there is substantial evidence tending to prove he was insane and other substantial evidence tending to establish his sanity, at the time he killed her, is properly submitted to the jury, and with their verdict on that issue the appellate court cannot interfere.
    2. REMARKS OF PROSECUTING ATTORNEY: Reference to Independent Crimes. In a prosecution for the murder of a wife, where the defense was' insanity, the prosecuting attorney-said to the jury: “Recall that celebrated case in New York City a few years ago, where the defense was insanity. Recall that case in St. Louis, too, where a man shot his wife and child under similar circumstances.” Defendant’s counsel objected that the remarks had reference to independent crimes, and on tie prosecuting attorney’s rejoinder that he had not called any names the court told him to confine himself to the record. Thereupon the prosecuting attorney said: “I heg pardon of the court and the jury, and the counsel, as well.” Held, that if the jury understood to what cases the prosecuting attorney referred, it must be presumed that, being sensible men, they also understood from the court’s admonition and the prosecutor’s apology that they should not consider the results or facts in any other case in arriving at their verdict, and the remarks, therefore, were not reversible error.
    3. -: Illogical Testimony. The prosecuting attorney, in his argument to the jury, has a right to ridicule the testimony of an insanity expert as illogical.
    4. -: Charge That Defendant Had Been Coached. An admission by the prosecuting attorney, in his argument to the jury, in a murder trial where the defense is insanity, that defendant had acted during the trial as if he did not comprehend what was going on, was an admission favorable to defendant; and an insinuation, immediately following that admission, that defendant might have been drilled or coached to act that way by his eminent expert witnesses and his eminent counsel, was simply a weak argument based on a mere conjecture, and could-not have misled the jury or inflamed their minds against defendant, and was not reversible error, though the remarks are not approved.
    Appeal from Boone Circuit Court. — Hon. David H. Harris, Judge.
    Affirmed.

      Harris & Finley and P. H. Cullen for appellant.
    (1) The court erred in permitting the prosecuting attorney to. make improper and prejudicial statements in his closing argument to the jury, (a) It was the duty of the court to keep the prosecuting attorney within the bounds of legitimate argument and to administer to him such rebuke as was commensurate with the harm done. Evans v. Trenton, 112 Mo. 395; State v. Spivey, 191 Mo. 112. (b) The prosecuting attorney’s reference to other cases was altogether outside of the record, was an attempt to discredit insanity as a defense, and was calculated only to prejudice the jury against the defendant. State v. Lee, 66 Mo. 165; State v. Jackson, 95 Mo. 652; State v. Woolard, 111 Mo. 255; State v. Hyde, 234 Mo. 256. (c) The remarks charged the defendant’s attorneys and the alienists with having trumped up the defense of insanity and constitute reversible error. State v. Clapper, 203 Mo. 552; State V. King, 174 Mo. 659; State v. McMullin, 170 Mo. 632. (d) The reference to the appearance and demeanor of the defendant was highly improper, for which alone the judgment should be reversed. Perez v. Ter., 94 Pac. (Ariz.) 1097; State v. Bolden, 44 Pac. (Wash.) 889; Besette v. State, 101 Ind. 85. (e) The error resulting from the prejudicial remarks of the prosecuting attorney was not cured by the admonition of the court to “keep within the record,” nor by the fact that the prosecutor said “I beg pardon” when interrupted by defendant’s counsel. State v. Ferguson, 152 Mo. 99; State v. .Upton, 130 Mo. App. 320; State v. Bobbst, 131 Mo. 339; State v. McGrath, 228 Mo. 429; State v. Deitz, 235 Mo. 341. (2) The verdict is against the 'Wfeight of the evidence and is the result of passion and prejudice on the part of the jury, (a) The evidence-on the part of the defendant was from witnesses wjho, by reason of their acquaintance and relationship to defendant, were most competent to judge of his sanity or insanity. Knapp v. Trust Co., 199 Mo. 665; .Holton v. Cochran, 208 Mo. 417. (b) Under all the facts and circumstances the verdict is against the evidence and must have been the result of passion and prejudice on the part of the jury. State v. Speyer, 207 Mor 540; 194 Mo. 459, 182 Mo. 77.

      Elliott W. Major, Attorney-General, and Alex, Z. Patterson, Assistant Attorney-General, for the State.
    (1) It is within the range of legitimate' argument for counsel to discuss all inferences which may be drawn from the evidence and to impress them upon the jury. State v. Johns, 124 Mo. 379; State v. Mu-sick, 101 Mo. 260; State v. Mallon, 75 Mo. 355; Lide v. State, 133 Alh. 43; People v. Phelan, 123 Cal. 551; Milan v. State, 108 Ga. 29; Comm. v. Barrows, 176 Mass. 17; People v. Doody, 172 N. Y. 165. (2) That the inferences of counsel are illogical and erroneous neither calls for the court’s interference nor warrants a new trial. Scott v. State, 110 Ala. 48; People v. Amaya, 134 Cal. 531; Sterling v. State, 89 Ga. 807; Sage v. State, 127 Ind. 15; Davis v. State, 15 Tex. App. 594; U. S. v. Flowery, 25 Fed. Cas. No. 15,122; 1 Sprague 109. (3) The jury is not bound by the inferences and may reject them.' Hence there can be no harm in the court disregarding them. Mitchell v. State, 43 Fla. 584; State v. Toombs, 79 Iowa, 741. (4) Matters of common and general public notoriety may be properly commented on and refered to by way of argument or illustration. State v. Punshon, 133 Mo. 44; People v. Bartheman, 120 Cal. 7; Combs v. State, 75 Ind. 215; Turner v. State, 89 Tenn. 547. (5) The conduct of the accused and his counsel during the trial may be commented on without error. Inman v. State, 72 Ga. 269; Norris v. State, 64 S. W. (Tex.) 1044; Thompson v. State, 44 S. W. (Tex.) 837. (6) Interfering with counsel in his argument is discretionary with the court, and the appellate court will not review such discretion unless it appears that the rights of the prisoner were actually prejudiced. State v. Hamilton, 55 Mo. 520; State v. Allen, 45 W. Va. 65; Inman v. State, 72 Ga. 269; Combs v. State, 75 Ind. 215; Ford v. State, 34 Ark. 649; State v. Turner, 36 S. C. 534. (7) The right of counsel in argument to embellish their arguments with illustrations is not governed by any fixed rule, but is controlled by the discretion of the court, and unless such discretion is palpably abused in such a way as to manifestly tend to an improper conviction the exercise of such discretion will not be controlled by the appellate court. Bulliner v. People, 95 111. 396; Seibert v. ■ People, 143 111. 571; Todd v. State, 44 S. W. (Tex.) 1096. (8) Courts are loath to reverse judgments on accoiint of improper remarks of attorneys — especially as in this case, where the proof is clear, because in such cases a verdict of guilty would have been returned regardless of the improper remarks. State v. Dietz, 235 Mo. 332; State v. Harvey, 214 Mo. 403; State v. Church, 199 Mo. 605; State v. Hibler, 149 Mo. 478; State v. Summar, 143 Mo. 220; State v. Dusenberry, 112 Mo. 277; Sec. 5115, R. S. 1909. (9) The remark of the prosecuting attorney, first objected to, in which he refers to the celebrated cases in New York and St. Louis in which the defense was insanity, was surely regarding matters of common and public notoriety and proper to discuss. To state that in certain celebrated cases the defense was insanity was but stating that which every one knows and could not have prejudiced the jury. State v. Punshon, 133 Mo. 59; Northingtonv. State, 14 Lea, 424; Combs v. State, 75 Ind. 219. (10) Insinuating remarks made against the counsel for the accused furnish no ground for reversal, where the court told the prosecuting attorney that his remarks were out of order. State v. Taylor, ,134 Mo. 109. (11) Since the conduct of accused might properly be commented on by the prosecuting attorney, it was not error for the prosecuting attorney to state that appellant had sat at the trial apparently not comprehending anything that had occurred. The attitude and conduct of appellant were matters for the jury to consider, and even though the prosecuting attorney drew an erroneous conclusion and inference from such attitude and conduct, yet the statement of such mistaken inferences and conclusions do not constitute such misconduct as will warrant a reversal. State v. Mallon, 75 Mo. 355; Behler v. State, 112 Ind. 140; People v. Bankhart, 59 Cal. 402; People v. Lee, 60 Oal. 95; Spahn v. People, 137 111. 538; Sage v. State, 127 Ind. 15; Boss v. State, 57 Pac. (Wyo.) 924. And this, for the reason that counsel do not always agree as to what the testimony is. People v. Barnhart, 59 Oal. 402. (12) As a general rule, the withdrawal of the objectionable remarks of the prosecuting attorney, either by himself or by the court, or a direction to disregard them, is deemed to have removed the prejudice and cured the error. State v. Gartrell, 171 Mo. 489; State v. McMullins, 170 Mo. 608; State v. Wright, 141 Mo. 333; State v. Hack, 118 Mo. 92; State v. Gibbs, 10 Mont. 213; Dunlap v. U. S., 165 IT. S. 486; People v. Benham, 160 N. T. 402.
   BBOWN, P. J.

Convicted of murder in the first degree, defendant appeals from a judgment of the circuit court of Boone county fixing his punishment in the penitentiary for the term of his natural life.

Defendant, a widower, age forty-four, with six children, was married to Salina Florence Jordan, a widow, on December 7,1910. They made their home in the city of Columbia, Missouri, until March 7, 1911, when they separated without any apparent cause. After the separation Mrs. Fenton resided with her sister, Mrs Pierring, in Columbia,- at which place defendant, over Mrs. Herring’s objections, called upon his wife frequently. In June, 1911, defendant’s wife made a visit to relatives in the State of Oklahoma and on the Pacific Coast, returning to the home of Mrs. Herring on September 17, 1911. On the following day defendant called upon her and “requested her to shake hands with him and kiss him as a wife ought to do.” Mrs. Fenton shook hands with defendant, but said that she would not be so deceitful as to kiss him. Evidently by this remark she cheated the impression that she did not intend to resume marital relations with defendant.

Defendant then visited a hardware store, where he purchased’a revolver; returned home; put on his best clothes; again called on his wife and shot her three times, killing her instantly.

The defense is insanity, and the only errors complained of are alleged improper remarks of the’prosecuting attorney in his closing argument to the jury.

The evidence shows that defendant’s mother became insane* in the year 1866, following a severe attack of fever; that she was confined in the _ , 7 Fulton insane asylum for nearly a month and then discharged as cured. There is slight evidence that her mind was not right for some years after she was released from the asylum. Defendant was born about fourteen months after his mother was discharged from the asylum.

According to the evidence of defendant’s witnesses he seemed to have been greatly depressed in spirits after his wife left him — was continually referring to her and requesting his friends to intercede for him and persuade her to return to his home. Pie would not tell anyone why his wife left him and spoke of her in kindly terms, except on one occasion when she refused to sign a deed for some property he had sold. Pie finally placed his children with relatives and friends with the avowed intention of traveling. Yet he did not leave home.

Mrs. Sherman, who resided just across the street from defendant, testified that defendant often visited her and her husband; was frequently lamenting the fact that his wife had left him, and expressed the view that she would have been willing to remain with him if others had not interfered. Mrs. Sherman and her husband tried to cheer defendant, but he usually seemed to be discouraged. Sold his furniture, and wanted other parties to take his children, but regretted to separate them. Wanted to travel and get away from his troubles. Took up a wooden sidewalk in front of his property and put in a brick sidewalk. Then a week or so later tore np the brick sidewalk and pnt in a granitoid sidewalk. Seemed nervous and would sit with his head resting upon his hands. Sometimes he would seem all right and sometimes he appeared to be crazy. He appeared very greatly attached to his children and provided for them quite well.

A nephew of defendant testified that defendant applied to him for work. That after securing a job defendant worked about an hour and then quit, saying: “God,',I can’t work.”

Defendant’s sixteen year old daughter testified that her father did not enjoy life after his wife left him. Could not sleep well. Wanted to brood over his troubles. Frequently cried and talked about suicide.

Witness Chambers saw defendant a few hours before the latter killed his wife. Spoke to defendant, but received no reply.

After killing his wife defendant went to the residence of a Mrs. Hill, a next-door neighbor, and told her to be good to his children, that he had killed his wife and had nothing to live for. At her request he gave her his pistol and cartridges.

Witness Edwards visited the jail on the day of the killing and said to defendant: “George, how did it happen?” to which defendant replied: “I cannot tell you now. I have been putting it off six months,” or “six weeks,” witness could, not remember which.

One of defendant’s brothers came to the jail, crying, and said: “My God, why did'yon do this?” To his remark, defendant replied: “Why, can’t yon stand it better than that? It is done and we will have to stand it the best we can.” Defendant seemed to be in a cool state of mind a few hours after the killing.

Sometimes defendant was sociable with his friends, and at other times would pass them without speaking and look wild out of his eyes. At another time he said his troubles were greater than he could bear, and hinted suicide. There were moré than a dozen witnesses who gave testimony similar to the foregoing, detailing peculiar or slightly peculiar conduct on the part of defendant.

Three physicians who had made a specialty of insanity and nervous diseases visited defendant after the homicide, and, from their interview with, and an examination of, the defendant, and from hypothetical questions propounded, gave it as their opinion that he was insane when he killed his wife. j

On the part of the State there were more than a dozen of defendant’s acquaintances who testified that they had met him, conversed with him, and observed his conduct at various dates during the last few months before the homicide, but saw nothing in his conversation or demeanor to indicate that he was insane. From their evidence it appears that defendant was a successful business man and had accumulated considerable property. He had been a farmer up to ¿bout three years before he killed his wife, and after selling his farm and moving to town had engaged in buying and selling real estate and loaning money.

There was some evidence that long before defendant’s wife left him he was at times despondent or uncommunicative. He was employed as a gate-keeper by the Boone County Fair Association for a period of several days during the summer of 1911, and superintended the construction of a dwelling house for another party up to within a week or ten days before the tragedy occurred. After defendant was placed in jail for killing his wife he notified some of his debtors to pall at the jail and pay what they owed him. He gave some personal checks to his attorneys for their services in defending him, and also sold and indorsed notes to a bank after he had killed his wife and been placed in jail. No effort was ever made to place him under guardianship as a person unfit to manage his pwn affairs.

There being substantial evidence tending to prove that defendant was insané at the time he hilled his wife, and also other substantial evidence tending to establish his sanity at the time of that unfortunate occurrence, the issue of insanity was properly submitted to the jury and with their verdict we cannot interfere, unless we find that defendant was prejudiced by the alleged improper remarks of the prosecutor.

During the closing argument the following oecurred. “Mr. Anderson, for the State, Said:

“Recall that celebrated case in New York City, a few. years ago, where the defense was insanity. Recall that case in St. Louis, too, where a man shot his wife and child under similar circumstances.
“By Mr. Cullen: We object to that as outside the evidence and improper — any reference to independent acts or crimes — and we ask that the court reprimand the counsel.
“By Mr. Anderson: I am not calling any names.
“By the Court: Yes, confine yourself to the record, Mr. Anderson.
“By Mr. Anderson: Yery well. I beg pardon of the court and the jury and the counsel, as well.
“And to the action of the'court in failing to sufficiently rebuke the counsel for the State, the defendant, by his counsel, then and there at the time duly excepted and saved his exceptions.”

Near the close of his argument Mr. Anderson, for the State, said:

“Now gentlemen, I am not appealing to your passions. You have lifted your right hand toward Heaven to bring in a verdict according to the law and the evidence and I trust you are going to do it. They have been paving the way all along to get you to send that defendant to the asylum. What does that mean? That means you had just as well say that the man was insane when he committed the offense, bnt he is sane now. To send him to the hospital is to acquit him. They paved the way by that eminent alienist to get him out, since his incarceration. He has rested. His condition is so much better than when he went to the jail. Can a man rest in jail with the charge of murder staring him in the face? He is sane now and he was sane at the time. It is true that he sat there apparently not comprehending a thing that has gone on here. Gentlemen, do you think that those eminent specialists, do you think that those eminent attorneys, could not sufficiently drill that man, until he could pose like that? Can you do it?
“By Mr. Cullen: We object to that seriously. It is not true and we ask the court to reprimand the counsel.
“By the Court: Keep yourself within tine record, Mr. Anderson.
“By Mr. Cullen: I ask the Court to reprimand the counsel. I say now, on my honor, it is not true.
“By Mr. Anderson: I beg pardon.
“And to the action of the court in failing to sufficiently reprimand counsel for the State, the defendant, by his counsel, then and there at the time duly excepted and saved his exceptions. ’ ’

We are convinced that the prosecutor’s reference to the New York and St. Louis cases was not harmful to defendant. Prosecutor was immediatelL admonished by the court to drop that line of argument, and he did so and apologized to the court for his error. If the jury understood what cases the prosecuting attorney referred to, we must presume that they, being sensible men, also understood from the court’s admonition and the apology of the prosecutor that they should not consider the result or facts in any other ease in arriving at a verdict in this case.

The second transgression of the prosecutor likewise does not furnish sufficient foundation for overturning the verdict.

One of defendant’s experts had testified that defendant’s mental condition had improved since he was placed in jail; that rest most always made a patient better, and that “a man gets as ^ . ,, much rest m ;jail as m an asylum.” The prosecuting attorney had a perfect right to comment upon this testimony, and because he ridiculed it as illogical or failed to place- the same construction upon it which defendant’s attorneys did was not error.

The statement by the prosecutor that defendant had acted during the trial as though he did not comprehend what was going on, was an admiss^-ori favorable to defendant, and prosecutor’s insinuation that defendant might have been drilled or coached to act as though he was insane by defendant’s lawyers or witnesses was simply a weak argument based on a mere conjecture, and we do not think it could have misled the jury or inflamed their minds against defendant.

We have carefully examined all the authorities cited by defendant’s learned counsel and find no case where the alleged improper remarks are of the same character complained of in this case.

The remarks of the prosecuting attorney in the case of State v. McMullin, 170 Mo. l. c. 632, are more nearly like those made in the suit at bar than in any case to which our attention has been called. In the McMullin case the prosecutor said: “The defense is trumped up by the defendant; Mrs. Henry (who was a witness for defendant) has been brought into court without a subpoena, like a cold deck, and was not subpoenaed until after the trial began, and that is the reason we are not prepared to impeach her. We did not know that she was going to be a witness.” The above quoted remarks were held improper, but an admonition from the court to the prosecutor, to confine himself to the record, was held to have cured the error, and we think the same rule should apply in this case.

"We do not wish to he understood as approving the class of argument complained of in this case. It is certainly not permissible to charge either a defendant or his witnesses with a crime where there is no evidence in the record indicating their guilt. Such is the doctrine announced in the case of State v. King, 174 Mo. l. c. 659, cited by defendant, but we are not aware of any law which defendant’s attorneys would have violated even if they had advised defendant to deport himself during the trial as an insane person.

The' trial court accorded the defendant a careful and an impartial trial, ■ during which his rights were zealously guarded by eminent counsel. The record contains no reversible error and the judgment is therefore affirmed.

Varis and Walicer, JJ., concur.


author: WALKER, J.

text:
    THE STATE v. ROY WATTS, Appellant.
    Division Two,
    March 12, 1913.
    BILL OF EXCEPTIONS: Not Signed by Judge: Certificate of Clerk. If the transcript filed in the Supreme Court does not show that the copy of the bill of exceptions embodied therein was signed and sealed by the trial judge, said bill of exceptions cannot be considered on appeal, and there is nothing for review except the record proper. Nor is the defect supplied by an embodiment in the transcript of a record entry that the bill of exceptions had been filed in vacation and had been “signed and allowed” by the trial judge. Whether the case be civil or criminal, it must be made to appear that the bill of exceptions itself, as embodied in the transcript filed in the Supreme Court, was signed and sealed by the judge of the trial court.
    Appeal from Madison Circuit Court. — Now. Veter H. ' Huch, Judge.
    Aefirmed.

      No ell & Noell for appellant.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State; A. W. Stewart of counsel.
   WALKER, J.

Defendant appeals from a conviction in the circuit court of Madison county, for seduction under section 4478, Revised Statutes 1909, his punishment having been assessed at twelve months’ imprisonment in the county jail and a fine of one thousand dollars.

The transcript of the proceedings filed here discloses a commingled mass of record entries, testimony, instructions given, copies of motions for a new trial and in arrest and the overruling of same with defendant’s exceptions, the affidavit for appeal and the granting of same; to all of which is appended a record entry signed by the ■clerk, as follows:

“Now on this 22nd day of August, 1912, in vacation of the circuit court of Madison county, Missouri, comes Roy Watts, by his attorney, and files his bill of exceptions in the above entitled cause, the same being duly signed and allowed by Honorable Peter H. Huck, judge of the said circuit court.”

This is followed by the usual formal certificate as to the correctness of the transcript, which is properly signed by the clerk with the seal of the court imprinted thereon.

The copy of the bill of exceptions, embodied in this transcript, does not show that the trial judge allowed and signed the same. If this is essential to a complete bill, we are precluded £rorQ examining anything except the record proper.

Bills of exceptions were unknown to the common law, being first authorized by the Statute of 13 Edward I, chap. 31. This statute provided in brief that “whenever anyone alleged an exception the justice should put his seal thereto for a witness.” This statute in effect required the trial judge to sign the exception because the use of his seal was at that time a surer attestation of the truth of the bill than his signature; and this was the purpose of the statute. The origin of similar provisions to be found in the codes of many States is traceable to this early English statute.

The requirements of our statute in this regard are that “whenever, in the progress of any trial in any civil suit pending in any court of' record, either party shall except to the opinion of the court, and shall write his exception and pray the court to allow and sign the same, the person composing the court shall, if such bill be true, sign the same.” [Sec. 2028, R. S. 1909.] This rule of procedure was first enacted in 1822, and has been carried forward through each successive revision of the statutes without material change. Bills of exceptions in criminal cases arej under an express section of the code of criminal procedure (Sec. 5245, R. S. 1909), to be “settled, signed, sealed and •filed as now allowed by law in civil actions.” The .rulings of this court,' therefore, that bills of exceptions shall be signed by the trial judge are applicable to criminal as well as civil cases. Notwithstanding the record entry of the clerk that the bill was duly signed and allowed by the trial judge, lacking the latter’s signature, it is no bill. [Roberts v. Jones, 148 Mo. 368; Reno v. Fitz Jarrell, 163 Mo. 411.] In State v. Collins, 196 Mo. 87, the same rule is announced. In a later- case involving the same question, the court, speaking through Pox, J., said:

“At the very threshold of the consideration of this cause we find that the record fails to disclose any authenticated bill of exceptions by which the objections and exceptions to the action of the court during the progress of the trial were preserved. There is an entire absence in this record of a bill of exceptions purporting to have been duly signed and sealed by the trial judge. While it does appear that there is a transcript on file in which matters of record proper and evidence are all mingled together, and at the close the clerk certifies that the defendant comes in vacation and files herein his bill of exceptions in this cause, which is duly signed and sealed by the Hon. Hugh Dabbs, Judge, there is absolutely nothing which shows that a bill of exceptions is embraced within this record, and this statement by the clerk is insufficient to authorize this court to review anything except the record proper.” [State v. Brown, 216 Mo. l. c. 377.]

On appeals in criminal cases it becomes the duty of the clerk of the court in which the proceedings were h'ad to make out, under section 5308, Revised Statutes 1909, a full transcript of the record in the case, including the bill of exceptions, judgment and sentence, and certify and return the same to the clerk of the Supreme Court. The bill of exceptions required by this section to be embodied in the transcript should, under the authorities cited, contain a. copy of the trial judge’s allowance of such bill, and of his signature thereto.

As we have stated, this requisite is absent from the transcript in the case at bar. The language of this court in Garth v. Caldwell, 72 Mo. l. c. 627, in discussing a defect in a bill of exceptions identical with the one under consideration, is not inappropriate here. The court said: “What has become of the bill of exceptions signed by the judge, does not appear, nor is it material for our present purpose to inquire. It is sufficient for us to say that what is termed the original bill of exceptions is not signed by the judge, and, therefore, cannot be regarded by us as preserving any of the matters said to be contained therein.” [Garth v. Caldwell, 72 Mo. l. c. 627.]

Under this well-established rnle we are, therefore, precluded from examining anything in this case except the record proper; finding no error therein, the judgment of the trial court is affirmed, and the sentence which the law pronounces is ordered to be executed.

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


author: WILLIAMS, C.

text:
    THE STATE v. WALTER LEWIS, Appellant.
    Division Two,
    March 12, 1913.
    1. MURDER: Degree:' Instructions: Appeal. Where defendant was convicted of murder in the second degree, it becomes unnecessary for the Supreme Court to discuss assignments of error in an instruction on murder in the first degree.
    2. -: Second Degree: Malice: Instructions. It is not error to fail to refer to self-defense in an instruction on murder in the second degree. Malice aforethought, an element of murder in the second degree, is not consistent with the theory of self-defense.
    3. MANSLAUGHTER: Fourth Degree: Cruel or Unusual Manner: Instructions. Where the evidence all tended to show that a killing was voluntary or intentional, an instruction. was erroneous which in effect required the jury to find that the shooting was not done in a “cruel or unusual manner” before they could find defendant guilty of manslaughter in the fourth degree. Such instruction either undertook to blend the two statutory definitions of manslaughter in the fourth degree, or to confuse with and blend in the definition of manslaughter in the fourth degree, under Sec. 4468, R. S. 1909, the converse or negative of the requirement of manslaughter in the second degree under Sec. 4460. In either case it was error.
    4. HOMICIDE: Extrajudicial Statements: Instructions: Non,prejudiciai Error. An instruction that what defendant has said against himself the law presumes to be true, but what he has said it his own behalf the jury are not obliged to believe, cannot be held to be prejudicial error even though there is no evidence upon which to base it.
    5. -: -: Weight of Defendant’s Testimony: Joined in One Instruction. It is error to include in an instruction with reference to weighing the testimony of the accused given at the trial, a further direction as to the law governing the weight to be given to his extrajudicial statements.
    6. -: Self-defense: Instructions. A clause in an instruction on self-defense, to-wit: “and at the time he' shot he had reasonable cause to believe, and did believe, that it was necessary for him to shoot and hill to protect himself from such apprehended danger, you will find the defendant not guilty on the ground of self-defense,” is not approved.
    Appeal from Washington Circuit Court. — Mon. E. M. Bearing, Judge.
    Reversed and remanded.

      Farris é Watson, Byrns & Bean, 8. G. Nipper and M. E. Rhodes for appellant.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
   WILLIAMS, C.

Defendant, under an information charging him with murder in the first degree, for shooting to death -with a pistol one James Edsell, on August 6, 1911, was, at the March term, 1912, of the circuit court of Washington county, convicted of murder in the second degree, and his punishment fixed at twenty-five years in the penitentiary. He appeals from the judgment.

The substantive facts brought out by the State’s evidence are about as follows:

The shooting occurred between seven and eight o’clock, p. m., on Sunday, August 6, 1911, near the east front of the Providence Baptist church house, a short distance from Richwoods, near the north line of Washington county, Missouri. On this Sunday evening the people of the neighborhood were gathering there to attend church services. Prior to the arrival there of either the deceased or the defendant a quarrel and fight had occurred on the church grounds between Jim Lewis, a brother of defendant, and one Billy Patton. The boys had been separated and the trouble just about concluded when the deceased arrived at the church.. Deceased, who was an official of the church, had heard the noise of the fight while on his way to the church, and upon his arrival inquired into the trouble and told the boys that they would have to stop fussing. He was standing on a little porch or platform in front of the church door when the defendant’s brother, who had participated in the fight, came near him and said that he felt like he had been run over, and that he had always behaved himself. To this deceased made reply: “Yes, you always behave yourself;” and further said, “I feel like I have been run over, too.” Just at this time defendant arrived', accompanied by Miss Laura Palmer, a neighborhood girl whom he was escorting to church. Several people had -congregated in front of the church by this time, and defendant and Miss Palmer passed, up through the crowd, stopping within three or four feet of the platform on which deceased was standing. The Rev. Mr. Brown, who had been in the church building, stepped to the door and said to deceased, “Brother Edsell, we had better go in and have church,” and deceased replied, “I don’t believe we can have any church now. It looks like they have come here for trouble, and we had just as well pair out and give it to them.” Defendant then said, “I think you have said enough — I can attend to you in a minute.” Some of the evidence for the State is to the effect that when deceased told the boys they would have to stop fussing, defendant stepped up and said “stop it then.” Immediately after defendant had so spoken, deceased stepped off the platform, which was but two steps from the ground, 'and struck the defendant under the left eye with his fist. The blow staggered the defendant. ■Some witnesses testified that it staggered him backwards a distance of eight or ten feet; others, that it knocked him down, and others, that the blow did not knock him entirely down. Immediately after the blow was struck a pistol was fired, the ball striking Miss Palmer on tbe right side. One witness for the State testified that the shot was fired by defendant. A crowd gathered around the Palmer girl, who had fallen, and the fight between deceased and defendant was temporarily suspended, the defendant going some twenty-five or thirty feet north and east, and around a tree standing to the northeast of the church house, and coming back in front of the building, with a pistol in his hand, and down to where the crowd was gathered about the Palmer girl, and close to where deceased was standing in a stooping position, looking at the wounded girl. Plere the deceased saw the defendant, straightened up, and began striking at him, the defendant retreating and deceased following and attempting to strike or get hold of the defendant. Deceased caught'the defendant after going about thirty or forty feet, and at this point, while they were scuffling and fighting, defendant held his pistol against the body of the deceased and fired two shots in rapid succession, one bullet penetrating the small intestines, and the other following the course of a rib on one side of the body. Thereupon deceased released his hold of defendant, and the defendant ran, going in the southeasterly direction, towards his home. Deceased’s shirt was on fire from the fire of the pistol. He brushed the fire out, walked into the church building, and said, “Boys, they have got me.” He then became sick, and lay down on the floor, and a doctor was summoned. He was removed later to his home, a' short distance away, in- FTanklin county, and died the following Tuesday morning as the result of the shooting.

The Palmer girl was removed to the home of a neighbor. One witness for the State testifies that about midnight, the night of the shooting, defendant came to the house where the Palmer girl was, and went up to her bedside and said, “Laura, I shot you and killed yon;” the girl replying that he did not do it on purpose, and that she was not dead yet.

Dr. Foard testified for the State that he had attended both of the wounded on the night of the shooting, and that the wounds of both were caused by the same sized bullets. This witness also testified that about two weeks before this trouble, while in his office, discussing with defendant a fight which had occurred between defendant’s brother, Jim, and one of the Ed-sell boys, defendant said he wished that it had been he instead of Jim, and that he would not have used a rock like Jim did, but would have used something else, and that if he “ever got into it” with any of them (meaning the Edsells) he would “fix them.”

The testimony on the part of the defense differs from that for the State in this: The former tends to show that the first shot fired was not fired by the defendant, and that deceased, after said shot was fired, instead of going down to where the wounded girl was, just looked in that direction, and immediately turned and pursued the defendant, striking at Mm, and finally catching him after going a distance of about forty feet, and that defendant and deceased had hold of each other and were struggling when defendant fired the two shots.

One witness for defendant testified that about a month before this trouble he was talking with deceased about the hauling of some ties, and told deceased that he knew some fellows who would haul them; that deceased asked him who they were, and he replied that one of them was Walter Lewis (the defendant), and that, thereupon deceased said “he didn’t want anything to do with them, and he didn’t want any of them ever to cross his path.” The witness said he' communicated the substance of this conversation to the defendant the following Sunday, and told defendant he could not have him haul the ties for the reason that deceased did not want him around, and that he (deceased) “might hurt him some time.”

Miss Palmer, the wounded girl, testified that defendant, on the night of the shooting, did not make the statement at her bedside that he had shot her.

Thomas Miller, Sr., another witness for the defense, testified that the deceased, a short time after the fight between young Patton and Jim Lewis, put his hand on Patton’s shoulder, and said “stay with him.” This witness further testified that the trouble had been settled when defendant came up, and that deceased was still “rearing;” that deceased said they were dogs, and always trying to raise trouble, and that they were afraid to say anything themselves.

The Rev. Mr. Brown testified for the defense that deceased, while standing on the platform, said to the Patton boy, “If you are in the right, stay with him, and if you are wrong, give in;” that he (witness) thereupon told deceased to think of himself and not create any more trouble than they-already had; that he saw deceased could not control his passion, and he again cautioned Mm, but that deceased did not pay any attention to him. ' This was just before the trouble started between defendant and the deceased.

Witness Tyree, for the defense, testified to a dying declaration by the deceased. He said that deceased told him that one John Brunk fired the first shot, and that from the way they were situated it was impossible for the defendant to have shot the girl; that deceased said he saw the girl fall, and he turned his attention to her, “and the first thing he knew he (defendant) was right' back there at Mm, ‘and I was hot, and I went right after him.’ ”

Defendant testified that he did not know who fired the first shot; that after deceased'struck him he started to run away, and deceased followed him, striking at him,- and finally caught up with him, grabbing him by ¿he shoulder and whirling Mm around; that he thought deceased would kill Mm; that as soon as lie could get Ms pistol out of Ms pocket, after deceased had grabbed bim, he shot him, aud that he did not know how he shot him; that he didn’t think he had his arm on deceased’s shoulder; that he was excited, and that if he had hold of the deceased at the time he did not know it.

The evidence showed that there was considerable excitement in the crowd during the progress of the quarrel and fight. Deceased was about forty-one years of age, strong and muscular, and weighed between 175 and 180 pounds. Defendant’s age was about twenty-three years, and Ms weight between 165 and 170 pounds.

Assignments of error are directed at certain instructions given by the court, over defendant’s exceptions, and the same will be given attention in the course of the opinion.

I. ' Defendant first insists that instructions numbered 1 and 2, given on the part of the State, are erroneous in that each undertakes to cover the entire case, and yet entirely ignores the right of self-defense.

Instruction No. 1 covers murder in the first degree, and No. 2, murder in the second degree. Defendant having been convicted of murder in the second degree, it becomes unnecessary to discuss any error assigned as to the instruction on murder in the first degree. [State v. Riddle, 179 Mo. l. c. 298.]

As to instruction two, we think defendant’s contention groundless. The elements of murder in the second degree are inconsistent with and necessarily exclude the elements of self-defense. Malice aforethought must exist in finding guilt in the second degree, and is not consistent with the theory of self-defense. It is therefore not error to fail to refer to self-defense in an instruction on murder in the second degree. [State v. Lawson, 239 Mo. 591.] Instruction two fully covered the subject of murder in the second degree, and that was all that was required of that instruction. The foregoing observations in no way conflict with the holding in State v. Helton, 234 Mo. 559, cited by defendant.

II. The instruction given by the court on manslaughter in the fourth degree is objected to. The portion of the instruction complained 0f in effect required the jury to find -^at the shooting and killing of deceased by defendant was not done “in a cruel or unusual manner” before they could find him guilty of manslaughter in the fourth degree.

Section 4460, Revised Statutes 1909, defines manslaughter in the second degree as “the killing of a human being, without a design to effect 'death, in a heat of passion, but in a cruel or unusual manner, unless it be committed under such circumstances as to constitute excusable or justifiable homicide.”

■There are two sections defining manslaughter in the fourth degree. Section 4467 defines manslaughter in the fourth degree as “the involuntary killing of another by a weapon, or by means neither cruel nor unusual, in the heat of passion, in any case other than justifiable homicide.” Section 4468 further defines, manslaughter in the fourth degree as “every other killing of a hnman being by the act, procurement or culpable negligence of another which would be manslaughter at common law, and which is not excusable or justifiable,” etc.

The evidence in this ease all tends to show that the killing was intentional or voluntary. Voluntary manslaughter, as embraced by section 4468, supra, has been defined by this court in State v. Sebastian, 215 Mo. l. c. 80, as “the intentional killing of a human being in a heat of passion, on a reasonable provocation, without malice and without premeditation, and under circumstances which will not render the killing justifiable or excusable homicide.”' One of the requirements of second-degree manslaughter is that the killing must be done “in a cruel or unusual manner,” and one of the statutory negative requirements of involuntary manslaughter in the fourth degree is that the killing be by “means neither cruel nor unusual.” But it will be noticed that the definition of voluntary manslaughter in the fourth degree, as given above, does not require the absence of “a cruel or unusual manner. ’ ’

It is therefore apparent that the instruction in question either undertook to blend the two statutory definitions of manslaughter in the fourth degree, or to confuse with and blend in the definition of manslaughter in the fourth degree, under section 4468, the converse or'negative of the requirement of manslaughter in the second degree under section 4460.

- It has been held to be error to blend the definitions of manslaughter as defined in sections 4467 and 4468, supra, in. one instruction. [State v. Chambers, 87 Mo. 406.] It is likewise error to blend the negative or converse of manslaughter in the second degree with voluntary manslaughter in the fourth degree, and especially so where the evidence does not tend to prove manslaughter in any degree except voluntary manslaughter in the fourth degree. The jury might consider that killing by shooting was not unusual, since the majority of homicides are perhaps accomplished in that manner; but we doubt very much'if a jury would ever find or consider that an intentional or voluntary killing with a pistol was not cruel, as is required by this instruction.

The instruction in the form given had the effect of destroying the otherwise correct definition of manslaughter in the fourth degree contained therein, and left the matter very much in the same situation as if the court had failed to instruct on manslaughter in the fourth degree, as called for by the evidence in the case.

III. Instruction 9, given by the court, is as follows :

“You are further instructed that the defendant is a competent witness in this case in his own behalf, and his testimony is to be weighed by the same rules that govern the testimony of each and every other witness in this case; but in weigh- . . . , mg his testimony tne ¡jury may take m-consideration, only as affecting his credibility as a witness, the fact that he is the defendant in the case on trial and his interest in the result of the trial.
“And you are further instructed that the statements,' if any, made by the defendant in his own favor, you are not bound to believe; but you may accept and believe or reject and disbelieve the same accordingly as you may believe the same to be true or false; and statements, if any, made by defendant against his interest are presumed to be true, because made against his interest.”

Defendant contends that this instruction is erroneous in that, first, there was no evidence upon which to base the second paragraph thereof, and, second, that as said paragraph constituted part of the instruction on the weight to be given the testimony of accused, it tended to mislead the jury into believing that it had reference to his testimony upon the trial, and not to statements, made out of court.

The first point has been decided adversely to defendant’s contention by this court. [State v. Coleman, 186 Mo. 151.] Defendant’s second contention, however, is well founded. The first paragraph of said instruction states the law with reference to weighing the testimony of accused given upon the trial The second paragraph states the law with regard to the weight to he given any extrajudicial statements proven to have been made by accused affecting the issues in controversy; and the same would not be a proper rule for weighing the testimony of the accused. Included as it was in this instruction, which states the law as to the weight to be given the testimony of the accused, the jury might be, and possibly were, misled into the belief that the second paragraph should also be applied to the testimony or statements made by accused while a witness. Whenever an instruction announcing the rule contained in said second paragraph is warranted by the evidence, it should be given separately, and so worded as to make it clear that it applies to proven statements or declarations of the accused made out of court.

IV. The instruction given by the court on self-defense is attacked, the objection being to the following portion thereof: “And at the time he shot he had reasonable cause to believe, and did believe, that it was necessary for him to shoot and hill to protect himself from such apprehended danger, you will find the defendant not guilty on the ground of self-defense.” Since the case must be retried, we would suggest, if the evidence upon retrial is in effect the same as upon the first trial, that- the above quoted portion of the instruction on self-defense be changed to read as follows: “And at the time he shot he had reasonable cause to believe, and did believe, that it was necessary for him to use his pistol in the ivay he did to protect himself from such apprehended danger, you -will find defendant not guilty on the ground of self-defense, although such shooting resulted in the death of the said James Edsell.”

The above is not to be taken as a guide generally in a self-defense instruction, but is only meant to suggest an amendment to tbe instruction given, so that the same, when so amended, will more clearly and fairly present the issue of self-defense to the jury. The instruction given was quite lengthy, and could have been stated in fewer words, but aside from the portion above criticised, the same fully and fairly covered the law of self-defense as applicable to the evidence in this case.

Other assignments of error are urged by defendant, but upon careful examination are not found to be of sufficient importance to merit discussion.

The judgment is reversed and the cause remanded for new trial.

Boy, C., not sitting.

PER CURIAM. — The above opinion by Williams, C., is adopted as the opinion of the court.

All the judges concur.