author: GANTT, P. J.

text:
    THE STATE v. EUGENE TUCKER, Appellant.
    Division Two,
    December 27, 1910.
    1. INSTRUCTIONS: On Whole Law of Case. Where defendant did not request any instructions,-and after the court had given its instructions did not request it to instruct on any other view of the law, and did not save any exception to the failure to instruct on all the law applicable to the facts, he cannot on appeal complain that the court failed to instruct the jury on the whole law applicable to the facts in evidence.
    2. -: Heat of Passion: Provocation. An instruction telling the jury that in order to reduce the hilling from murder in the first, degree to murder in the second degree, it must have been done in a heat of passion caused by some act- or conduct of de-' ceased, such as would reasonably cause passion on the part of defendant, and the fact that deceased’s husband tooh up and impounded defendant’s cattle and refused to deliver them up on demand, was not sufficient legal provocation to reduce the hilling from murder in the first degree to murder in the second degree, is not reversible error, where there was no evidence whatever of any provocation on the part of defendant.

      3. -: -: -: No Evidence: Incorrect Instruction. Where there is no provocation, the fact that the court may err in its definition of what constitutes provocation will furnish no ground for a reversal. And where defendant testified that he did not see deceased at the time he shot at her husband and never intended to kill her, and there could therefore have been no provocation to kill her, an instruction erroneously defining provocation as it related to her husband is not reversible error, if the court correctly instructed for murder in the second degree.
    4. JURY: Misconduct: Separation: Not Timely Assigned. Where the jury the first night of the trial were kept in the office of the jail for a few hours, and during that time some of them were taken by the sheriff through the corridors about the.cages in which prisoners were confined and there was no communication with the prisoners or other person, and the separation of the jury is not made a ground for a new trial in the motion and no showing is made of the time when knowledge of such alleged separation came to defendant or his attorney, an assignment that error was committed in permitting the jury to separate is not for review on appeal.
    5. -: Coercing Verdict: Remarks of Judge. The trial judge cannot invade the province of the jury; nor can he coerce a verdict by threatening, even indirectly, to keep them together until they agree.- On the morning following the retirement of the jury the previous afternoon, the trial judge made these remarks to them: “Gentlemen, if this case is ever decided it will have to be decided by twelve men. You are all intelligent, fair-minded men, and if you fail to agree where can a jury be found that can agree? While it is not within the province of thi court to try to force you to an agreement, and while I would not ask or suggest that any juryman ought to agree to a verdict that would not meet the approval of his conscience, still' I feel that you ought not to be discharged until you have deliberated further, and made further endeavor to reach a verdict.” Two hours thereafter the jury returned a verdict finding defendant guilty of murder in the first degree, and fixing his punishment at death. Held, that the remarks contain no intimation of a desire to attempt to coerce a verdict, and were not error.
    6. -: Challenge. A mere challenge of a juror on his voir dire examination is not sufficient. The ground of the challenge should be stated.
    Appeal from Greene Criminal Court. — Hon. Alfred Page, Judge.
    Affirmed.

      Perry T. Allen for appellant; Patterson & Patterson of counsel.
    (1) The court erred in not instructing the jury on the whole law applicable to the case made by the evidence. State v. Heinze, 66 Mo. App. 135; State v. McGuire, 113 Mo. 670; State v. Nelson, 118 Mo-. 124; State v. Branstetter, 65 Mo. 149; State v. Banks, 73 Mo. 592; State v. Patrick, 107' Mo. 147; State v. Stonum, 62 Mo. 596; State v. Palmer, 88 Mo. 568; State v. Jones, 61 Mo. 232; State v. Taylor, 118 Mo. 153; State v. Rufus, 149 Mo. 406. Where the defendant testifies in a criminal case instructions predicated upon his evidence-should be given. State v. Anderson, 86 Mo. 309; State-v. Talmage, 107 Mo. 543; State v. Palmer, 88 Mr. 568; State v. Anderson, 86 Mo. 309. If the deceased was not the aggressor but had called the defendant a liar, and defendant, incensed at the insult, but without lawful provocation, willfully and intentionally shot deceased, he is guilty of murder in, the second degree. State v. Gleason, 172 Mo. 259; State v. McKenzie, 177 Mo. 699; State v. McMullin, 170' Mo. 608. Insulting or opprobrious epithets may arouse the passion to such an extent that if the person to whom they are applied, acting under the heat of passion engendered thereby, kills his adversary, such provocation will reduce the killing to murder in the second degree, but they do not amount to a justification of the killing of the party who uses them. State v. Ballance, 207 Mo. 619; State v. Gartrell, 171 Mo. 516; State v. Gordon, 191 Mo. 125. The court, in a trial for murder in the first degree should define the meaning of the term “heat of passion,” and should also explain to the jury the character of the “heat of passion” which will reduce the homicide to-murder in the second degree and manslaughter, where the evidence authorizes instructions on such grades of' homicide. State v. McKinzie, 102 Mo. 620; State v. Bulling, 105 Mo. 204; State v. McKenzie, 177 Mo. 711. The term deliberation comprehends and includes the-term “heat of passion” or hot blood. The term deliberation should have been defined with explicitness and precision. The trial court nowhere in any of its •instructions so defines the term deliberation. The court in order to have instructed on the whole law applicable to the case made by the evidence should have instructed the jury that if the defendant shot and killed the deceased while he, the defendant, was in a violent passion suddenly aroused by opprobrious epithets or abusive language, then such killing was not deliberate and was not murder in the first degree. State v. Ballance, 207 Mo. 617'-; State v. Gartrell, 171 Mo. 515. (2) The court erred in giving instruction 6. The instruction is subject to' criticism because it begins with a vague and ambiguous definition of deliberation and of “heat of passion.” The instruction is unfair, improper, and erroneous because it ends by singling out, commenting upon, and giving special prominence to the fact that deceased had taken up defendant’s cattle and refused to deliver them to the defendant on demand therefor, and directing the jury that such refusal was not sufficient provocation to reduce the killing from murder in the first to murder in the second degree. The action of the court in directing the jury that the impounding of defendant’s cattle and the refusal to deliver them on demand was not sufficient provocation for the heat of passion that destroys deliberation, was improper, because a usurpation by the court of the jury’s function of finding the facts. State v. Grugin, 147 Mo. 39. This court has held times without number that insulting epithets were sufficient provocation to reduce the grade ■ of the homicide from murder in the first to murder in the second degree. State v. Gleason, 172 Mo. 259; State v. McKenzie, 177 Mo. 699; State v. McMullin, 170' Mo. 608; State v. Ballance, 207 Mo. 607. If insulting and opprobrious epithets are sufficient provocation to reduce the grade of the killing from murder in the first to murder in the second degree, why would not the unlawful refusal of deceased to deliver defendant’s cattle to him upon demand, and an offer to pay such damage as deceased claimed, he sufficient provocation to create the heat of passion that would reduce the killing to murder in the second degree? Whether the state of mind necessary to malee the killing the lowest grade of murder was in fact superinduced by such provocation, and .whether it actually existed at the time of the killing are questions of fact for the jury. State v. Ellis, 74 Mo. 207. (3) The court erred in giving instruction 7, which is as follows: “If you believe from the evidence that the defendant intentionally shot and killed Elizabeth Ellis, then you are instructed that there is no evidence of such provocation as would reduce such intentional killing of the said Elizabeth Ellis from murder in the first to murder in the second degree.” The vice of this instruction is that it eliminates every element of murder in the first degree except that of willfulness, eliminates the element of premeditation, malice aforethought, and deliberation, and tells the jury in plain terms that an intentional killing is murder in the first degree. To constitute murder in the first degree, the elements of willfulness, deliberation, premeditation, and malice aforethought must all exist. State v. Holme, 54 Mo. 153; State v. Silk, 145 Mo. 240'; State v. Gassert, 65 Mo. 352; State v. Frazier, 137 Mo. 317; State v. Fitzgerald, 130 Mo. 470; State v. Harris, 76 Mo. 361; State v. Anderson, 98 Mo. 461; State v. Underwood, 57 Mo. 40’. The law presumes-, in the absence of evidence to the contrary, that an intentional killing with a deadly weapon is murder in the second degree. And it devolves upon the defendant to adduce evidence to repel that presumption, unless it is repelled by evidence introduced on the part of the State. State v. Elliott, 98 Mo. 150; State v. Bowles, 146 Mo. 6; State v. Minor, 193 Mo. 597; State v. Silk, 145 Mo. 240; State v. Williams, 69 Mo. 110; State v. Young,'119 Mo. 495. Whether such a killing is deliberate and premeditated or not is a question for the jury and cannot be determined as a matter of law by the court. State v. Williams, 69 Mo. 110. A homicide though willful is not murder in the first degree unless committed with deliberation. State v. Hill, 69 Mo. 451. And an instruction is fatally defective which assumes that there can be murder in the first degree without deliberation. State v. Melton, 67 Mo. 594. All intentional homicides ■committed with premeditation and malice are murders in the second degree. State v. Weimers, 66 Mo. 13; State v. E.rb, 74 Mo. 199; State v. Lewis, 74 Mo. 222; State v. Robinson, 73 Mo. 306; State v. Ellis, 74 Mo. 207; State v. Williams, 69 Mo. 110; State v. Eaton, 75 ■Mo. 586; State v. Moxley, 115 Mo. 644; State v. Lane, 64 Mo. 3Í9. (4) The court erred in not granting the defendant a new trial because the jury were permitted to separate into parties of two and three and go through the Greene county jail. Section 2628', R. S. 1899, prohibiting the separation of a jury in the trial of a capital case, is mandatory. State v. Gray, 100 Mo. 523; McLean v. State, 8 Mo. 153; State v. Murray, 91 Mo. 96. And where such separation takes place the judgment will be reversed although it does not appear that any juror was approached upon the subject of the trial, or that there was any ground of suspicion that they were moved by outside influence. State v. Collins, 81 Mo. 109; State v. Orriek, 106Mo. Ill; State v. Steifel, '106 Mo. 129; State v. Howland, 119 Mo. 419; State v. Schaeffer, 172 Mo. 335.

      Elliott W. Major, Attorney-General, and John M. Atkinson, Assistant Attorney-General, for the State.
    (1) Appellant having failed to preserve an exception to the failure of the trial court to instruct the jury on all necessary questions of law arising in the trial, he cannot now urge such failure as a ground for reversal. State v. George, 214 Mo. 270; State v. Urspruch, 190 Mo. 50; State v. Finley, 195 Mo. 211; State v. Chenault, 212 Mo. 137. The record does not contain any request by appellant for any specific instructions. There must be a specific request for additional instructions, and an objection and exception saved to the refusal of the court to give the same, before the question can be reviewed in this court. State v. Espensehied, 212 Mo. 222; State v. West, 202 Mo. 137; State v. McCarver, 194 Mo. 742; State v. Groves, 194 Mo. 558; State v. Bond, 191 Mo. 563. (2) The effect of instruction 6 simply informed the jury that the mere impounding of appellant’s cows by Ellis, and his refusal to release them until the damages were paid, were not sufficient legal or just provocation to reduce the killing from murder in the first degree to murder in the second degree. It was not error so to instruct. State v. Bhlling, 105 Mo. 219; State v. Barrington, 198 Mo. 102; State v. McKenzie, 177 Mo. 711; State v. Kotovsky, 74 Mo. 247. Appellant was not entitled to have an instruction on murder in the second degree. According to his own testimony at the trial he acted in self-defense, if the jury believe his story to be true; on the other hand, if what appellant said immediately after the shooting, as to why he killed Mrs. Ellis, was. true, then he was guilty of murder in the first degree. State v. Neihaus, 188 Mo. 324.
   GANTT, P. J.

From a judgment and sentence for murder in the first degree by the Greene County Circuit Court on the 5th day of May, 1909, the defendant, Eugene Tucker, prosecutes this appeal.

The prosecution was commenced by an information filed by the prosecuting attorney of said county charging the defendant with having on the 22d day of February, 1909, at the county of Greene and State of Missouri,, feloniously, willfully, deliberately, premeditatedly, on purpose and of his malice aforethought made an assault in and upon Elizabeth Ellis with a oertain deadly weapon, a revolving pistol then and there loaded with gunpowder and leaden bullets, and the said revolving pistol did shoot off at and against her the said Elizabeth Ellis, and with the said revolving pistol and gunpowder and leaden bullets aforesaid then and there feloniously, on purpose and with malice aforethought did willfully, deliberately and premeditatedly shoot and strike her the said Elizabeth Ellis in and upon the breast of her the said Elizabeth Ellis, giving to her then and there with the said gunpowder and leaden bullets aforesaid one mortal wound, of which said mortal wound she did at the county of Greene on the said 22d day of February, 1909’, then and there instantly die.

The defendant was duly arraigned and the cause was submitted to a jury on Monday, May 3, 1909', and on the fifth of May, 1909, the jury returned a verdict of guilty of murder in the first degree as charged in the information and assessed his punishment at death. Motions for a new trial and in arrest of judgment were filed in due time, heard and overruled.

The evidence on the part of the State tended to show the following facts: •

Joshua T. Ellis, sixty-three years of age, and Elizabeth, his wife, fifty-eight years of age, on the 22d day of February, 1909', lived about three and a half miles north of the courthouse in Springfield, in a house owned by one Scott. They lived with their son George Ellis, his wife and their two daughters, Mary and Edith. A ten-acre corn field, located north of the Ellis house, owned by a creosoting company, had been leased to Joshua Ellis for a year prior, and at the date of the killing this tract was still in his possession. The defendant Eugene Tucker lived about one-half mile to the north and east of the Ellis home. A boy by the name of Charles Dubel, about seventeen years old, and Arthur Kittrell, a brother-in-law of the defendant, lived with the defendant. A public road leading north and south lay to the east of the Ellis house, and one running east and west to the north of the place. A lane led from the public road on the north down to the Ellis home on the south. On the morning of February 22, 1909, the defendant left his home about ten o’clock with a wagon and team and went to Springfield, and returned about four o’clock that afternoon. While the Ellis and Tucker families had lived in the same vicinity for a year or more, they had scarcely a passing acquaintance with each other. Prior to February 22, 1909, the stock law had been adopted and was in full force and effect in Greene county. About six weeks prior to February 22, George Ellis had found a horse and a cow, which belonged to defendant Tucker, in a small corn field of Joshua Ellis, and they were impounded by George Ellis and his father, and a charge of $3.25 was made and collected from the defendant in order to regain the possession of his horse and cow. On the afternoon of February 22, 1909, Joshua and George Ellis went to this field for a load of fodder, about two o ’clock in the afternoon, and found two cows of the defendant in the field destroying the fodder. George Ellis went to defendant’s house to notify him that the cows were in the field, but not finding him at home told Kittrell the object of his visit, and an altercation ensued. While the proof is. meager, it seems that Kittrell assaulted George Ellis. George then returned to the field where he left his father and the two cows, and they drove the cows to his father’s bam, which was about seventy feet from the Ellis home, and locked them in. The father and son then left in a wagon for Springfield, and on reaching there filed a complaint against Kittrell for the assault upon George. They did not at that time know Kittrell’s name and he was ^described in the complaint as John Doe. That same afternoon the constable and a deputy went to defendant’s home to arrest Kittrell. Joshua Ellis went with them to identify Kittrell. The officers and Joshua Ellis went past the defendant’s house about one hundred and fifty yards where they parted, and Joshua went directly south to his home. As the officers came back towards the defendant’s house they met him and inquired if he knew Kittrell, and at first he denied that he knew such a person, but admitted finally that he knew him and promised to bring him to Springfield the following morning and surrender him to the officers.

The defendant thereupon told the officer that Joshua Ellis had his cows impounded and that he was. on his way to get them. The officers observed that the defendant was very angry and testified that he cursed Ellis saying “the d--d old s--of a b-r has got my cows.” He requested the officers to go and look at the corn field and see that there was nothing there which the cows could hurt, but they informed him that Joshua Ellis had told them that defendant might have his cows if he would come after them. The deputy constable testified that in this connection the defendant “shook himself and said, ‘I have got no gun or anything; I am not armed; I am going down to get my cows, and if I can’t get them one way I will get them another.” After this statement the defendant then went on west towards the Ellis home and the officers returned to the city. ' Between five and five-thirty o’clock that afternoon, the defendant and the boy Dubel came to the Ellis house and demanded of Joshua Ellis that his cows be given him. This Ellis declined to do unless defendant would pay the damages and this the defendant refused to do. Thereupon defendant and the Dubel boy returned to defendant’s home without the cows. At the time of leaving the defendant said, ‘‘ He would come back and come prepared. ’ ’ In about thirty minutes both the defendant and the Dubel boy did return. Joshua Ellis and his wife Elizabeth, and his granddaughter, Mary Ellis, and a child about five years old, were the only persons at the Ellis, home when the defendant came back the second time for the cows. Mrs. G-eorge Ellis and his daughter Edith had gone to meet George, who was driving a team home from Springfield. George Ellis did not reach home until after six o’clock, and after the shooting had taken place.

When the defendant came hack the second time he called Joshua Ellis and the two walked towards the barn in which the cows were impounded. Mrs. Elizabeth Ellis followed close to her husband. Mary Ellis, the granddaughter, came out of the house and was standing on the porch; she could not distinctly hear the conversation between her grandfather and the de-. fendant. When near the barn, the three stopped. Joshua Ellis was facing toward the south, the defendant was facing towards the north, and Mrs. Elizabeth Ellis stood to the west; the position of the three formed a triangle. Mary Ellis testified that she saw the defendant take his revolver, which proved to be a' .38 Smith and Wesson, out of his overcoat pocket, with his left hand, and change it to the right hand while he was saying something to her grandfather, Joshua Ellis, which she could not understand, and then she saw him shoot her grandfather, who at the first shot stooped or dodged downward, and at the second shot, staggered backward and fell. She does not remember the number of shots that were fired or just how the others were fired. She next saw her grandmother, after the shooting ceased, coming in from the porch, and on approaching the kitchen she fell. While the shooting was going on Mary was greatly excited and was hallooing to some neighbors who lived close by. Immediately after the shooting the defendant came to the house and demanded of Mary the key, so that he could turn the cows out, and she threw it at him in the yard. He and the Dubel boy then got the cows and started to their home. The defendant reloaded his pistol while waiting for Mary to get him the key. The neighbors who had heard-the shots came and Joshua was carried into the house where he died in about thirty minutes, and his' wife died in about forty-five minutes. Neither made any statements or did any talking after the shooting. The testimony on the part of the State was to the effect that the defendant wore his overcoat each time he came after the cows.

As defendant and the Dubel boy were taking the cows home after the homicide, Luke Wallace met them as he came down the road from the north; he had heard the shooting, and he testified that he met them some two or three minutes afterwards. He had traveled about one hundred yards. The defendant was following the cows when he came in sight of Wallace, he drew up his gun and hallooed if that was the other s-of a b-, whereupon "Wallace asked him what was the matter and defendant said: “I killed two of the s-of b--, and stuck up two fingers, and says I will kill the other s--of b--.” Wallace asked him what two he had killed and defendant answered, “The old man and the old woman.”

The coroner reached the Ellis home about 7:30 that evening. He testified that he found Mrs. Ellis dead lying on the floor of the kitchen, he found one bullet that had gone in just where the clavicle bone joins the breast bone on a downward tendency and came out at the shoulder blade; one bullet hole through the right arm, and one flesh wound on the right breast about four inches below the breast bone and about two inches above the nipple, and a flesh wound one-half way between the elbow and hand on the left wrist. The one that entered the thoracic cavity and came out at the shoulder blade was necessarily fatal. He did not think the other wounds would have killed her.

He examined the person of Joshua Ellis and found one bullet had entered the abdominal cavity below the right hip, passed clear through and came out a little below the left hip. Another bullet had entered the mouth, passed straight through the head, and came out a little above the lower part of the ear.

The testimony tended to show Joshua Ellis weighed •about 125 pounds and was rather frail, walked somewhat stooped as 'a usual thing, with his hands resting, on his hips. Mrs. Ellis weighed about the same as her husband and was a delicate woman. Mary Ellis, the only eye-witness to the" killing, testified that her grandfather took no step towards the defendant, either prior to or at the time of the shooting, nor did he make any motion or gesture with his hands that would lead the defendant to believe he meant to do him any bodily harm. Some of the. near-by neighbors testified they heard as many as six pistol shots; that four of them were in close succession, and then a pause, and the two remaining shots were fired with some time between them. After the shooting* the defendant went to'Springfield and surrendered to the police and gave up his revolver, which was a six shooter.

The defendant testified in his'own behalf. He said that at the time he saw the officers and made the statement to them he was not armed; that he did not have on his overcoat, but sent the boy Dubel to the house for his coat and before he made his first trip to the Ellis house after his cows; that he put the pistol in his pocket the night before when he went out to see about some hogs that were being disturbed by dogs, but that the pistol was in his overcoat pocket when he went after his cows the first time that afternoon; that it was his custom to carry his pistol in his overcoat pocket. Hie testified that he had told Joshua Ellis that when he came back “he would come prepared,” but this was in answer to a statement by Ellis that he should come prepared to pay the damages that he claimed the cows had done, and it was not as a threat that he would come armed. That he went home to get the money from his wife to pay the damages; that he got some two or three dollars from her, and he was not angry at that time, and took a drink of coffee before returning to the Ellis home. His wife testified that she told him where to get the money and that he got some two or three dollars, she did not know the exact amount. The defendant insisted that the killing of Mrs. Ellis was purely accidental; that he had no motive or reason for killing her. He testified that when he got back to the Ellis home the second time Mr. Ellis was in the kitchen sitting by the window, and he came out and he and the defendant walked down to the barn together. He testified that when Mr. Ellis stepped out on the porch he said to defendant, “Well, damn you, you are back here again,” and defendant said, “Yes, sir, but I do not see any occasion for you talking to me that way, ’ ’ and Ellis asked him, “Why in the h— he did not get the cows when he was there before?” and defendant said: “I told you why I did not get them, I did not have the money. I had to go home and get it. I am now prepared to get the cow's; I have got the money. ’ ’ By that ..time they had reached the barn and defendant said, “Mir. Ellis, open the barn and let me have my stock, I am here for it, came for that purpose.” Whereupon Ellis said, “Well, you G— d— s— of a b — , I will give you the stock when I get ready and not before.” Whereupon defendant told him that his conduct was uncalled for, that he did not come for any trouble, whereupon he says, that Ellis said, “Well, d— you, you won’t get that stock until I get ready to give it to you,” and made a motion of putting his hand to his hip pocket, and made a step towards, the defendant, whereupon defendant stepped back and reached for his gun, and said, “Give me that stock,” and Mr. Ellis made a step towards, him and defendant commenced shooting and kept shooting until his pistol was empty. He testified that he did not know that Mrs. Ellis was near him; he did not know that there was a single person on the premises except Mr. Ellis and himself. That he had no more intention of shooting Mrs. Ellis than his own mother. He would no more have killed her than he would’his own mother. He had no reason to do so and did not want to do it. He was excited and could not help' doing it. He was crazy at the time; he did not know the woman was there.; never had anything to do With her, and she never had anything to do with the trouble. He had never seen Mr. Ellis to know him prior to that day.

The defendant also offered evidence tending to prove that his reputation as a peaceable and law-abiding citizen was good. The defendant also attempted to prove that the reputation of Joshua Ellis as a quarrelsome and overbearing man was bad. The proof in this record was that Joshua Ellis had put up some other people’s stock and had had some trouble concerning the same. One of the character witnesses did not have any personal acquaintance with the deceased' Joshua Ellis.

The court submitted the case to the jury on instructions as to murder in the first degree, murder in the second degree, and self-defense.

Various grounds are urged to reverse the judgment of the circuit court.

I. It is assigned as error that the court failed to instruct the jury on the whole law applicable to the facts in evidence. The defendant did not request any instructions, and after the court had given its instructions to the jury, the defendant, did not request the court to instruct on any other view of the law, nor 'did he save any exception to the failure of the court to instruct on all the law applicable to the facts in evidence. This point can avail nothing in this, state of the record. [State v. Bond, 191 Mo. l. c. 563; State v. McCarver, 194 Mo. l. c. 742; State v. Groves, 194 Mo. l. c. 458; State v. West, 202 Mo. l. c. 137.]

II. Among other instructions, the court gave one numbered 6, in these words: “You are instructed that the heat of passion which destroys deliberation and which i'educés a killing from murder in the first degree to murder in the second degree, must be a heat of passion, the result of some conduct or action on the part of the deceased, Joshua Ellis, such as will be reasonably calculated to arouse passion on the part of the defendant, and in this connection you are instructed that it is not sufficient to reduce the killing to murder in the second degree that defendant was in a heat of passion, but he must have.been in a heat of passion produced by lawful provocation on the part of Joshua Ellis, and in this connection you are further instructed that the fact that deceased, Joshua Ellis, impounded or took up the cattle of defendant, and refused to deliver the same to defendant on demand therefor, is not sufficient legal provocation to reduce the killing from murder in the first degree to murder in the second degree. ’ ’

The court also gave the following instruction numbered 7: “If you believe from the evidence that the defendant intentionally shot and killed Elizabeth Ellis, then you are instructed that there is no evidence of such provocation as would reduce such intentional killing of the said Elizabeth Ellis from murder in the first degree to murder in the second degree. ’ ’

The court also gave the following instruction numbered 12: “You are instructed that if you find and believe that the defendant, Eugene Tucker, at the time and place mentioned in the second instruction, feloniously, willfully,- premeditatedly, and of his. malice aforethought, but without deliberation, shot at Joshua Ellis with the intention of killing him, but missed him, and thus accidentally shot and killed Elizabeth Ellis, then you will find the defendant guilty of murder in the second degree, although you may believe that the defendant at the time did not intend to shoot or kill the said Elizabeth Ellis.”

The record contains not a scintilla of testimony tending to show any act or word on the part of the deceased, Mrs. Elizabeth Ellis, which would or could provoke a heat of passion on the part of the defendant. Indeed the testimony of defendant himself absolves her from any word or act which could have aroused a heat of passion which would have reduced the killing of Mrs. Ellis to murder in the second degree, if he intentionally shot and killed her. He testified he did not know she was'on the ground at all, and in the nature of things he could not have been provoked by any word or act of hers. If there was any provocation, it must necessarily have been some word or act of Joshua Ellis, the husband. This instruction told the jury that in order to reduce the killing from murder in the first degree to murder in the second degree, it must have been done in the heat of passion caused by some conduct or action of Joshua Ellis, such as would reasonably arouse passion on the part of the defendant, and the fact that Joshua Ellis impounded or took up the cattle of defendant and refused to deliver the same to defendant on demand therefor was not sufficient legal provocation to reduce the killing from murder in the first degree to murder in the second degree. Certainly it was not erroneous, to this extent. The only basis of an instruction for, murder in the second degree is found in instruction number 12, which permits the jury to find defendant guilty of murder in the second degree if he feloniously ..and premeditatedly shot at Joshua Ellis and thus accidentally shot and killed Mrs. Ellis, and the instruction is bottomed upon the testimony of defendant himself, to the effect that he had no intention of shooting her; that he had no reason for it; that he was excited; he could not help it; was crazy at the time; did not know she was there.

All the evidence concurs in showing that the killing was done in daylight, in an open barn yard, with nothing to prevent defendant from seeing Mrs. Ellis, As they stood a moment before the shooting began they formed a triangle. Defendant faced to the north, Joshua Ellis to the south, and Mrs. Ellis stood west of them. Joshua Ellis received two wounds only, either of which, according to the coroner, would have been fatal, and sank where he stood. Now if Mrs. Ellis had been in a position to receive the bullets shot directly at her husband, she would have been in the line of defendant’s vision, but he positively asserts he did not see her and did not know she was on the ground, but if she was not where he could see her, she was not in the line of the shots fired at her husband, and this accords partly with what the young lady granddaughter testified, when she placed Mrs. Ellis on the west. How then are we to account for the four shots received by Mrs. Ellis? There seems to be no rational explanation save that defendant after killing the husband turned his revolver to the west on the unoffending wife, and shot her to death as he told Mr. Wallace he had done when he met him a few minutes later in the road. It seems to us that if there ever was a case in which a court and jury could say that the statements of the defendant so contradict the physical facts, and his conduct was. so unreasonable and inconsistent with the experience of mankind, that the court was not bound to believe bim and instruct the jury on his testimony for a less grade of offense, this is the one. [State v. Nelson, 118 Mo. 126; State v. Turlington, 102 Mo. 642; State v. Bryant, 102 Mo. 24.]

Unquestionably the court was- right in instructing the jury that if they found the defendant intentionally shot and killed Mrs. Ellis, then there was no evidence of provocation, and there was nothing to reduce the killing to murder in the second degree. This court long ago ruled that where there was no evidence of either lawful or just provocation it was the duty of the trial court to tell the jury there was none. [State v. Ellis, 74 Mo. l. c 220.] Where there is no provocation, the fact that the court may err- in its definition of -what constitutes provocation will furnish no ground for reversal, especially as in this case where it correctly told the jury that the impounding of defendant’s cattle under the stock law; and a refusal to deliver them upon demand was not a sufficient provocation to reduce the killing to murder in the second degree.

The court instructed for murder in the second degree in a proper instruction, and the defendant had the full benefit of this theory of an accidental killing in his attempt to kill Joshua Ellis, but the jury refused to believe his statement that he accidentally shot the deceased four times in broad daylight, with no obstacle to prevent his seeing her. His testimony on this point was wholly at variance with the vile epithet he applied to her after killing her when talking to Mr. Wallace. We think the defendant has no ground to complain of the instructions. They were exceedingly favorable in view of the evidence.

The criticism of the 7th instruction is that it eliminates all the elements of murder except intentional killing. This we think is a misapprehension of the purpose of the instruction. It was only one of the series, all to be read and considered together. The court had elsewhere correctly defined the technical words, and instructed as to all the elements of murder in both the first and second degrees. It had instructed on the theory of an accidental killing of Mrs. Ellis in an attempt to murder her husband, but without deliberation, but it must have been apparent that the jury might and would not believe the statements of defendant in the face of the physical facts and other testimony, and hence the court properly instructed- the jury that if defendant did not accidentally but intentionally shot and killed Mrs. Ellis with a deadly weapon then there was no provocation under the evidence which would reduce the homicide to murder in the second degree. The instruction read in connection with the others was consistent, correct and proper.

III. Error is assigned in that the jurors were permitted to separate and go through the Greene county jail while this cause was in progress. It appears that the first night after the trial began, the jury were kept in the office room of the sheriff in the jail for two or three hours; that during that time some of the jurors in charge of the sheriff were( taken through the corridors and around the -cages in which prisoners were confined.. There was no communication with any of the prisoners or other persons. The separation of the jury is not made a ground for new trial in the motion. Moreover, it nowhere appears at what time the knowledge of such alleged separation came to defendant or his counsel.

In State v. Barrington, 198 Mo. l. c. 93, 94, it was said by this court: “Upon this assignment of error it will suffice to say that the record fails to disclose at what time the knowledge of such misconduct complained of came to appellant or his counsel. This is fatal to the contention urged by appellant upon this proposition. In 12 Ency. PL and Prac. 558, the rule of practice upon this subject is thus announced: 'When a party moves for a new trial on the ground of misconduct which occurred during the trial, he must aver and show affirmatively that both he and his counsel ioere ignorant of the misconduct charged until after the trial.’ ” . [State v. Robinson, 117 Mo. 649; State v. Hunt, 141 Mo. 626; State v. Richardson, 394 Mo. l. c. 337; State v. Mathews, 202 Mo. l. c. 149.]

For these reasons, it must be held’ this ground for reversal is not before us for review.

IV. The remarks of Judge Page to the jury on the morning following the retirement of the jury on the previous afternoon, are urged as ground for reversal. Those remarks were: “Gentlemen, if this case is ever-decided it will have to he decided by twelve men. You are all intelligent, fair-minded men, and if you fail to agree, where can a jury be found who can agree? While it is not within the province of the court to try to force you to an agreement, and while I would not ask or suggest that any juryman ought to agree to a verdict that would not meet the approval of his conscience, still I feel that you ought not to be discharged until you have deliberated further, and made further endeavor to reach an agreement.” Some two hours after the jury retired they returned a verdict of guilty.

Under the Constitution of this State the defendant was guaranteed a trial by jury. He was entitled to the free and untrammelled judgment of the jury upon his innocence or guilt of the crime charged. The judge can not invade the province of the jury. This has been too often decided to require a citation of authority. The sole question is, can the remarks of the learned circuit judge be fairly construed to have unduly influenced the jury? We think not. Much must be left to the judge who tries a cause in determining how long he will keep a jury together in the consideration of their verdict. If it can be seen that he threatened even indirectly to punish the jury by keeping them together and thus coerce a verdict this court will interfere as it has done in various cases, but in this case, there was no intimation that the court intended to keep the jury together until they reached a verdict. On the contrary, he expressly told them it was not his province to try to force them to an agreement and that he would not suggest or ask that any juror agree to a verdict that would not meet the approval of his conscience, but owing to the importance of the case he thought they should deliberate further. In our opinion this was not improper. The jury had not been out an unreasonable or unusual length of time for a case involving a human life. These remarks fall far short of those which we have held constituted reversible error. They amounted to no more than if the court after inquiring if they had agreed upon a verdict, had simply said, you can retire and consider further. This is done every day and it has never been regarded as error. In our opinion the facts of this case differentiate it from those in State v. Hill, 91 Mo. l. c. 428; State v. Nelson, 181 Mo. l. c. 344, and State v. Eatherly, 185 Mo. l. c. 181, and our conclusion in no way militates against the reasoning of those decisions.

V. In a general way the competency of certain jurors is challenged, but their names are not set out in the motion. However, five of the jury were named in the brief of counsel. Of these Messrs. Tracey and Russell were not challenged, and. no exceptions were saved to the action of the court in accepting Messrs. Thurston, Wardell and Dillard. We have carefully read the voir dire examination of each of these jurors and in our opinion they were all competent jurors. The challenges were moreover insufficient as they stated no ground for the challenge.

Having carefully gone through the record, we have discovered no substantial error in it. The killing of the unoffending and harmless old lady in the circumstances detailed in the transcript, was so utterly without provocation or rational motive, that a jury could not have reached any other conclusion than that it was a deliberate and premeditated murder, without a redeeming feature in the case.

The judgment and sentence of the circuit court must be and is affirmed, and it is ordered that the sentence of the circuit court be executed as directed on January 26, 1911.

Burgess and Kennish, JJ., concur.


source: Caselaw Access Project

author: KENNISH, J.

license: Public Domain

text:
    THE STATE v. JAMES STANDLEY, Appellant.
    Division Two,
    December 27, 1910.
    1. APPEAL: Motion for New Trial: After Judgment. The statute requiring a motion for a new trial in a criminal case to be filed before judgment is mandatory; therefore, where sentence was pronounced and judgment rendered on the same day the verdict of guilty was returned, and three days thereafter but during the same term defendant filed his motion for a new trial, said motion cannot be considered on appeal, neither can the bill of exceptions, nor any matter of exception.
    2. -: Motion in Arrest: After Judgment. And the same is true of the motion in arrest; it, too, must be filed before judgment in a criminal case, and if that is not done it cannot be considered on appeal.
    S. -: No Motion for New Trial or in Arrest: Record Proper. Notwithstanding' the motions for a new trial and in arrest of judgment were not timely filed, and therefore cannot be considered on appeal, the record proper can be considered, and that embraces the information, the verdict, the judgment, etc.

      4. -: General Verdict: Two Distinct Offenses and Counts: Seduction: Carnal Knowledge. .Where defendant was charged in one count of the information with carnal knowledge of a female of previous chaste character, between the ages of fourteen and eighteen years, and in the other with seduction under a promise of marriage, a general verdict of guilty cannot stand. He was charged with, and tried for, two separate and distinct felonies, based upon different statutes, prescribing different penalties, requiring different proof, and a general verdict finding him guilty of both cannot stand.
    5. -: -:-: -: One Judgment. And upon , the return of such a verdict of guilty, a judgment reciting that defendant has been found guilty of both offenses and adjudging him guilty of both, is unauthorized, as would be a judgment adjudging him guilty of either offense, and must be reversed.
    Appeal from Christian Circuit Court: — Hon. -John T. Moore, Judge.
    Reversed and remanded.

      G. Purd Hays fox appellant.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    (1) The verdict is certain, definite and responsive to the issues joined. The verdict is a good general, verdict and sufficient. State v. DeWitt, 186 Mo. 70. (2) The motion for new trial was filed after judgment of sentence, and not within the time provided by the statutes of this State and the decisions of this •court. Therefore, there is nothing for this court to •consider in this case but the record proper. R. S. 1909, sec. 5285; State v. Pritchett, 219' Mo. 696. , (3) The record proper shows that the defendant was represented by counsel, arraigned, and entered his plea of not .guilty. The jury was lawfully impaneled and sworn to try the issues according to law and the evidence. The .judgment of sentence is in regular form and no errors •appear therein.
   KENNISH, J.

The defendant, James Standley, was prosecuted in the circuit court of Christian county upon an information in two counts, the first charging the defendant with the felony of having had carnal knowledge of an unmarried female of previous chaste character, between the ages of fourteen and eighteen years; and the second, the felony of seduction under promise of marriage. Upon a trial the jury returned a general verdict finding the defendant guilty and assessed his punishment at imprisonment in the penitentiary for a term of two years. From the judgment he appealed to this court.

As shown by the record the verdict of the jury was returned on the 28th day of August, 1909, and on the same day judgment was regularly pronounced and sentence passed. Three days after judgment, to-wit, August 31,1909, the defendant filed a motion for a new trial, and on the 3d day of September, 1909', filed his motion in arrest of judgment.

It is provided by section 5285, Revised Statutes 1909, as follows: ‘ ‘ The motion for a new trial shall be in writing, and must set forth the grounds or causes therefor, and be filed before judgment and within four days after the return of the verdict or finding of the court, if the term shall so long continue; and if not, then before the end of the term, and shall be heard and determined in the same manner as motions for new trials in civil cases.”

This statute has been construed to be mandatory and under the decisions of this court the filing of a motion for a new trial after judgment will not preserve for review in this court matters of exception saved during the trial. [State v. Fraser, 220 Mo. 34; State v. Pritchett, 219 Mo. 696.]

The motion in arrest is also required to be filed before judgment, and in this case, being filed out of time, it cannot be considered- [R. S. 1909, sec. 5286; State v. Pritchett, supra; State v. Rosenblatt, 185 Mo. 114.]

Under the foregoing statutes as construed in the decisions cited we are restricted on this appeal to an examination of the record proper.

The information is in accordance with forms which have received the sanction of this court, and therefore we hold it sufficient. [State v. Knock, 142 Mo. 515; State v. Hall, 164 Mo. 528; State v. O’Keefe, 141 Mo271; Kelley’s Crim. Law and Prac., sec. 555.]

The defendant was properly arraigned and the jury regularly impanelled and sworn to try the issues of this case.

It is contended by appellant that the verdict is insufficient to support the judgment for the reason that the jury failed to state upon which count of the information they found the defendant guilty. The verdict is a part of the record proper. It must be certain and responsive to the charge, and therefore may be re: viewed in this court even in the absence of motions for new trial and in arrest of judgment. [State v. Miller, 189 Mo. 673; State v. Cronin,. 1891 Mo. 663; State v. Pierce, 136 Mo. 34.] The verdict is as follows: “We, the jury, find the defendant guilty, and assess his punishment at two years in the penitentiary. Elmer Cornog, Foreman.”

Upon this verdict the judgment and sentence of the court, so far as material, was as follows: “Now on this day comes the prosecuting attorney for the State of Missouri and also comes the defendant herein in person in custody of the sheriff of this county in open court, whereupon said defendant is informed by the court that he having been found guilty by jury of the crime of statutory rape and seduction under promise of marriage as charged in an information preferred against him by the prosecuting attorney of Christian county, Mo., and being now asked by the court if he had any .legal cause why judgment should not be pronounced against him according to law and still failing to show such cause: ‘It is therefore sentenced, ordered, adjudged by the court that the said James Standley having been convicted as aforesaid be confined in the penitentiary at Jefferson City for a period of two years from the 23d day of August, 1909,' etc.

It thus appears in the record before us that the court adjudged the defendant guilty of both offenses charged in the information. We are confronted, therefore, with a case in which the defendant was charged with and tried for two separate and distinct felonies based upon different statutes, prescribing different penalties and in which a general verdict of. guilty was returned by the jury and the defendant adjudged guilty of both offenses, though the punishment assessed was evidently for but one of the offenses charged. Can a judgment upon such a state of the record be upheld?

In the case of State v. Pierce, 136 Mo. 34, the defendant was charged with the forgery of an instrument of writing in one count of the indictment, and with uttering the same forged instrument in a second count. The case was submitted to the jury upon instructions authorizing a conviction upon either count and the jury were told that if they found the defendant guilty they should state in their verdict upon which count they so found. The jury returned a verdict of guilty and assessed the punishment at two years’ imprisonment in the penitentiary, but did not state upon which count they found the defendant guilty. Discussing the question presented by the record in that case this court (page 40) said: “The defendant is not represented in this court, nor was any point made on the insufficiency of the verdict. Nevertheless it is obviously insufficient, and no valid judgment can be rendered upon it, because it is impossible to tell from the verdict on which count the jury found the defendant guilty; and it is obvious from the punishment assessed against him, that they only intended to punish him for one of the distinct and separate offenses charged in the indictment. ‘The verdict must be certain, positive, and free from all ambiguity. It must convey on its face a definite and precise meaning, and must show just what the jury intended. An obscurity which renders it at all doubtful will be fatal to it.’ [3 Graham & Waterman on New Trials, p. 1378.] Bishop says on this topic: ‘Not Responsive — If the verdict does not find the issue presented by the record, but some other, or if silent on some element of the offense, no valid judgment can be recorded upon it, and it should be set aside. Or, Uni-certain. — If the meaning of it is uncertain — as, for example, if it does not show which of two defendants is meant to be convicted, or on which of two counts the conviction is — the consequesce is the same.’ [1 Bishop, Crim. Proc. (3 Ed.), sec. 1005.] Authorities abound on every hand announcing the same conclusion; indeed it may be said to he elementary law. [State v. Coon, 18 Minn. 518; Favor v. State, 54 Ga. 249; Day v. People, 76 Ill. 380; People ex rel. v. Whitson, 74 Ill. 20; Campbell v. Queen, 1 Cox C. C. 269; 2 Thompson, Trials, sec. 2640, and cases cited.] This point has thus been ruled in State v. Harmon, 106 Mo. 635. To the like effect is State v. Bedell, 35 Mo. App. 551.”

In the case of State v. Harmon, 106 Mo. 635, the same question was presented, and responding thereto this court (page 657) said: “In every case the jury should respond to the whole case. If a civil case, to the whole petition. If .a criminal case, to every count in the indictment. They should either acquit or convict on each count. [Wilson v. State, 20 Ohio, 26; Williams v. State, 6 Neb. 334; Casey v. State, 20 Neb. 138; Bricker v. Railroad, 83 Mo. 391; State v. Bedell, 35 Mo. App. 551.] ”

And in the recent case of State v. Carragin, 210 Mo. 351, after reviewing at length the decisions of this and other States upon the law applicable where the accused is tried upon an indictment charging more than one felony, this court, speaking through Gantt, J., (page 371), laid down the following rule: “From the foregoing authorities we deduce the principle that it would have been proper for the circuit court to have instructed the jury on the evidence produced in this case, after defining what would constitute a forgery of the indorsement, and uttering the same, that they might find the defendant guilty under either count of the indictment accordingly as they found the facts to be, but not upon both, or have inquired the prosecuting attorney at the close of the evidence to have elected upon which count he would ask a conviction. . . . We know of no case under our practice in which an accused may be tried and convicted of two distinct felonies except in the case of burglary and larceny, which is expressly allowed by statute.”

In accordance with, the law as declared in the foregoing cases we hold that the verdict in this case is uncertain, and for that reason and because of error in the judgment, the judgment should be reversed and the cause remanded for a new trial. It is so ordered. Gantt, P. J., concurs; Burgess, J., deceased since the submission of the cause.


text:
    THE STATE v. HERMAN A. KRETSCHMAR, Appellant.
    Division Two,
    December 27, 1910.
    1. EVIDENCE: Remote Threat: Homicide. When the threat is conditional on the doing of an act which deceased has performed shortly previous to the homicide, the intervening time is of little importance. Where defendant who had not paid deceased for his stock in a corporation, threatened that, if deceased forced him out of the company by compelling him either to pay or surrender his stock, he would kill him, and afterwards deceased did that, and he shortly thereafter killed him, the evidence of the threats was competent, though they were made eighteen months prior to the time defendant was discharged.
    2. IMPERFECT SELF-DEFENSE: Instruction: No Evidence. The doctrine of imperfect self-defense is recognized law in this State. It arises only when the defendant at the commencement of the difficulty is the aggressor or wrongdoer, and where his act and intent in bringing on the difficulty is unlawful but not felonious. But where the testimony entirely fails to prove that defendant was the aggressor or a violator of the law and as such sought the difficulty, but- on the contrary, if true, he acted in perfect self-defense and the homicide was justifiable, or else it was premeditated and deliberate murder, no instruction on the subject of imperfect self-defense should be given.
    3. INSTRUCTION: Timely Objection. An exception to an instruction should be made at the time it is given; an objection made for the first time in the motion for a new trial is not timely.
    4. HOMICIDE: Voluntarily Seeking Difficulty: Instruction. The evidence in this case is reviewed and held as tending to show that the defendant, with the felonious intent of taking the life of deceased or doing him some great bodily harm, voluntarily sought or invited the difficulty and voluntarily engaged therein,, and authorized an instruction as to the felonious intent at the-time he shot and killed deceased.
    5. -: Evidence: Reasons for Carrying Concealed Weapons: Excluded: Harmless Error. It is competent for a defendant, on trial for murder to explain why he was carrying the deadly weapon by means of which the crime is alleged to have been committed. But where the defendant had at great length explained his reasons for carrying the pistol and was permitted-in his own way without objection to answer the question, “Why did you carry it?” it is harmless error to refuse to permit him to answer the question a second time, when his counsel stated the proposed .explanation did not refer to any relations with deceased.
    6. -: -: Collateral Matters: Discharge from Employment. The question of whether or not the mill company of - which deceased was the chief owner and officer, had good and sufficient reasons for discharging appellant from its service, was collateral to the homicide issue on trial, and should not have been injected into the case. But where the only reason given was that defendant had not as salesman secured as much business for the company as it was-thought he should have done, and defendant had, prior to such explanation, brought out the fact that he had been discharged, the reason given was so mild and colorless that it cannot be said to have tended to prejudice-any substantial right of defendant
    Appeal from St. Louis City Circuit Court. — Row. George R. Shields, Judge.
    Affirmed.

      Chas. P. Johnson and C. Or rich Bishop for appellant; Thos. B. Harvey of counsel.
    (1) The threat, if threat it may be called, was-made a year and a- half before the tragedy, at a time when the three parties, appellant, deceased and the witness, were upon the most amicable terms', which terms apparently continued up to the fatal day; there was no expression of animosity • or hostility towards deceased any more than to the witness GHoor; the remark itself was not taken “seriously” by the witness. (2) The feeling of hurt. or soreness which affected appellant, according to the. State’s own evidence, did not grow out of appellant’s, ceasing his connection with the mill, but out of an entirely distinct transaction, to-wit, the writing by de-. ceased of letters to a friend and former business client-of appellant which reflected upon appellant’s business capacity and integrity; and it was of this action of deceased that appellant was complaining to witness at the time of the conversation on their walk on Broadway. The State’s officer contended with vehemence that, the appellant “had done just what he said he would do, ’ ’ when his own evidence did not sustain his position., (3) The testimony was highly prejudicial to appellant, as not only suggesting a motive for the homicide which had no foundation in fact, but also as giving rise to a presumption in the minds of the jury that because appellant may have, a long period before, uttered intemperate remarks, he must necessarily have slain in malice and with premeditation. While it has been, often held by this court that the value of threats as evidence is not affected by their remoteness from the. time of the tragedy nor by the- fact that they were conditional in their expression, yet there must of necessity be some 'connection between their utterance and the deed under inquiry. (4) The court grievously erred in instruction 7, given for the State, upon the-subject of one’s seeking or inviting a combat or putting oneself in the way of being assaulted in order that when hard pressed one may have a pretext to take the life of' one’s assailant, etc. There was no evidence in the ease-upon which to base such an instruction. There was no eye-witness to the homicide (so far as the record-shows) and the only testimony as to the res gestae of the homicide is that of the appellant. State v. Edwards, 203 Mo. 528; State v. Herrell, 97 Mo. 111; State v. Walker, 196 Mo. 85; State v. Gordon, 191 Mo. 122.

      Elliott W. Major, Attorney-General, and John M. Atkinson, Assistant Attorney-General, for the State.
    (1) The threat was made by appellant at the time and in connection with the fact that deceased wanted a controlling ownership of the stock of the Mill Company, if he were to furnish the needed amount of money to keep the Mill Company on its feet. While appellant had not then, nor did he thereafter, ever pay one cent on the stock he bought from deceased or Gloor, yet he did not want deceased to have a controlling interest of the stock for fear that he (appellant) would lose his job with the company. Less than one hour before deceased was killed, appellant complained to Gloor about deceased having bought the controlling interest of the stock for his son. Appellant used the Delph letters only as a pretense or excuse to wreak his deep-seated malice and hatred for deceased because he had been "put out” of his position by deceased, as he termed it. The remoteness of threats from the date of the commission of the crime does not affect their admissibility or competency, but only affects their weight, which is a question for the jury to determine in passing on the whole case. State v. Porter, 213 Mo. 62; State v. Coleman, 186 Mo. 158; State v. Grant, 79 Mo. 137; State v. McNamara, 212 Mo. 163; State v. Feeley, 194 Mo. 313; State v. Cochran, 147 Mo. 517; State v. McNally, 87 Mo. 644; Culbertson v. Hill, 87 Mo. 555; 1 Wigmore on Ev., sec. 107; 4 Elliott on Ev., sec. 3035. (2) The complaint is that there was no evidence in the case upon which to base instruction 7. We contend that there is an abundance of evidence in proof in this case to warrant the giving of this instruction, and that the court did not err thereby. A similar assignment of error was recently .reviewed by this court in the case of State v. Dunn, 221 Mo. 545. The physical facts and the testimony disclosed are many times stronger and more conclusive than those disclosed in proof in the Dunn case, supra.
   KENNISH, J.

On the 18th day of February, 1909, the grand jury for the city of St. Louis returned an indictment charging Herman A. Kretschmar, the appellant herein, with murder in the first degree for the killing, with a pistol, of Clarence N. Jones, on the 3d day of February, 1909. Appellant was thereafter tried, found guilty of murder in the second degree, and his punishment assessed at imprisonment in the penitentiary for a term of eighteen years. Timely motions for a new trial and in arrest having been duly filed and by the court overruled, appellant brings the cause to this court by appeal, and assigns error.

The material facts of this cause, as disclosed by the evidence for the State, are about as follows:.

The Commonwealth Feed Mills Company is a corporation with its office and place of business, located at the corner of North Second street and DeSoto avenue in the city of St. Louis. For about one and a half years prior to the 12th day of January, 1909, appellant had been the nominal secretary of the Mill Company, yet his real and active duties took him out most of the time as a traveling salesman for the feed products of the mill. On the last-named date appellant surrendered all of his stock and resigned as secretary of said Mill Company, as requested by its board of directors. He continued his services as salesman until the first day of February, 1909, after which time he had no further connection with the company.

On the 3d day of February, 1909, the day of the fatal tragedy, the deceased, Clarence N. Jones, was the president of the Mill Company and was the owner of fifty-one shares of its stock, which was a controlling interest. Edwin door was its vice-president and treasurer, and Drummond Jones, a son of deceased, was its secretary.

In the latter part of the month of October, or the early part of November, 1907, the Mill Company was in . great financial distress. Mr. Jones was then living at his summer home at Arcadia, in this State, and owned twenty-five shares of the stock of said Mill Company; Grloor owned forty shares, and appellant thirty-five shares. It appears that appellant had bought what stock he then owned from the deceased, and Grloor, severally, and that he had given to each of said parties his note for the purchase price of the stock so purchased.

Grloor and appellant made a. trip or two to Arcadia to see deceased about putting more money in the business. This Mr. Jones declined to do unless he owned a controlling interest in the stock of the company. After some delay Mr. Jones was sold enough stock by Grloor and appellant to give him fifty-one shares, as he had requested, and he then furnished the money needed by the company. Appellant and Grloor each continued to own a portion of the stock.

It appears in the record that appellant had- failed to pay deceased or Gloor for a single share of the stock which they had sold him and some time during November or December, 1908, appellant was notified by deceased that he must pay for the shares he then owned and had purchased from deceased or return them and take up his note, which he had given in payment therefor.

At the time appellant ceased to be a stockholder and tendered his resignation as secretary (January 12, 1909), the Mill Company owed deceased more money than the entire value of the capital stock of the corporation.

Appellant’s employment with the company as secretary and salesman began in the month of August, 1907, and soon thereafter he made a contract for the company with Edmund E. Delph of Philadelphia, Pennsylvania, by the terms of which Delph was to act as distributing agent for the product of the mill in that State and the surrounding district. At first many orders were received by the company from Mr. Delph, bnt the business began falling off, and on March 11, 1908, and again on the 17th day of the same month, the deceased wrote to Mr. Delph and in each letter complained that orders were not coming in from his agency as formerly, and asked for an explanation. The deceased referred in the letters to the representations made to him by appellant and Gloor as to the amount of business which could be expected from that agency and of his consequent disappointment over the results. Appellant learned of these letters, and obtaining the originals from Mr. Delph in October, 1908, made two copies of each. He seems to have considered the references to him in the letters as a reflection upon his character as a business man. The deceased had also written a letter to a man named Dula in New York City, which was not offered in evidence, but of which appellant had heard and took exceptions to as also reflecting upon him.

"When it became necessary to secure additional funds to continue the business of the company in the fall of 1907, appellant was greatly incensed at the refusal of the deceased to supply the money unless upon the condition of becoming the owner of a controlling interest in the stock, and appellant complained to Gloor at the time that deceased wanted to hog the proposition so that if it became profitable he could take it all himself, and he then said to Gloor, “I would kill anyone that went back on me that way; I would kill him; I would kill you if you went back on me.”

Appellant had said nothing about the Delph letters to the deceased or Gloor until Monday, February 1, 1909, the day after his connection with the company had ceased. That day, meeting Gloor on the street, he said: “I have got something to show you in a few days. ’ ’

On Wednesday, the 3d day of February, 1909, appellant went to the office of the Mill Company between noon and one o’clock, having no special business, as he testified, but he still had a desk and some personal effects there. He had with him copies of the Delph letters and was armed with a revolver. On his way to the mill he stopped at a saloon and took a drink of whiskey. Arriving at the mill he found the deceased and Gloor at work in the office, the deceased sitting at his desk in his shirt sleeves engaged in addressing letters. No conversation of any special importance took place. About one o’clock appellant asked Gloor if he was going down town, and Gloor informed him he was as soon as. he finished copying a letter. Appellant and Gloor then left the office and walked to Broadway, and then to Gano avenue, where Gloor took his car. While appellant and Gloor were taking this short walk of about six blocks, the following conversation, in part, as testified to by Gloor, concerning deceased, took place between them: “I said, ‘I don’t think it was very kind of you to try to buy out Mr. Jones’s interest and leave me out entirely.’ He says, ‘Your stock isn’t worth anything. You will have to make sixteen thousand dollars before you can pay a dividend.’ He says, ‘Mr. Jones has bought this mill for his son. ’ He says, ‘He is on record to that effect.’ He says, ‘He has put me out and he will put you out. ’ ’ ’

While Gloor was waiting at Gano avenue for his car, he was reminded of the promise appellant made to him on the Monday before to show him the Delph letters, which appellant then drew from his pocket and handed to Gloor. After the latter had read the letters he endeavored to convince appellant that Jones was simply trying to get business for the company and was not intending any reflection by what was said in the letters. Appellant was angry and said: “It is a reflection upon my intelligence and on my integrity and business ability; it is on yours, too.” When this conversation ended Gloor’s car came, and he asked appellant if he was going down town, to which he received a negative reply. After leaving door, appellant returned to the office of the Mill Company, reaching there about 1:30 o ’clock, where he found deceased still at his desk at work. The deceased had been in the habit of remaining in the office during the noon hour and not .going out for his lunch. This fact was known to appellant. The mill was not running that day and very few persons were around the premises.

The witness Pascal, who was the miller, was in the machinery room of the mill and saw appellant come from the office, go to the hydrant and take a drink of water, and then return to the office. An ink peddler had come into the office to sell ink to the deceased, and came out about the time appellant was seen by Pascal to re-enter. In less than two minutes after the ink peddler had left the office and before he had gone one hundred feet, appellant came to the office door and called to Pascal, saying: ‘ Pascal, come in here; I have shot that fellow.” Pascal replied, “What do you. mean, fellow? You must be crazy, ’’ to which appellant replied, “But the lie passed between'us; he made an effort to get to his hip pocket.” When appellant came out of' the office he had a .38-calibre Smith & Wesson pistol in his hand and was putting it in a rubber holster, and then put it in his hip pocket. As appellant was leaving he said to Pascal: “Better search that man, see if he isn’t armed.” Pascal immediately entered the office and found the body of deceased sitting in a chair, his right arm slightly under his body, and the left arm over the body; his face against the partition wall; his glasses still on; the chair partly tilted or turned, and a caster from the chair loose on the floor. All papers were found on his desk undisturbed; copies of the two Delph letters were lying on his desk, and there was no evidence of a struggle. Deceased had received three pistol wounds and was dead when Pascal reached the body; one bullet entered above the back of the left ear, penetrated the brain and Ranged downward; the second bullet entered about one inch below the fold of the left arm, between the third and fourth ribs, ranged downward and lodged near the tenth rib on the right side; the third bullet entered the right arm. No powder burns were found on the body. Deceased was searched and no weapon was found on his body or in his desk. A small pocket knife, closed, was found in his trousers pocket.

The deceased was about sixty-one years old and appellant near sixty at the time of the tragedy. They were about the same size and weight; they had known each other for many years and had been friends. For the last six months prior to the killing, while they had always spoken, yet they had not been on such friendly terms as in former years.

Appellant testified in his own behalf and admitted the killing of the deceased with a .38-calibre Smith & Wesson pistol, which was offered in evidence. He admitted having had a conversation as testified to by witness Gloor, but denied that he had ever threatened to kill deceased. He testified that when he left Gloor at Gano avenue he went back to the office to see deceased about the Delph letters and found him still at work at his desk addressing envelopes; that he began a conversation with the deceased about sending for appellant’s desk and other effects and then handed him the copies of the Delph letters, which deceased read; that after calling deceased’s attention to certain statements in the letters, which he said were not correct and asking him why he wrote those letters, the deceased answered, saying: ‘‘ Oh, those letters are all right. ’ ’ Appellant insisted that the statements in the letters were unwarranted and asked deceased to write to Delph putting appellant right in the matter. Appellant then referred to another letter written to Dula in New York, and called upon deceased to explain as to it also. This character of conversation went on between the two until an ink peddler came in, whereupon appellant went out to the hydrant for a drink, as heretofore stated. Appellant returned and was about through with the interview and said to deceased: ‘‘ Think.over that. I am. going to write to Mr. Dula this evening and ask him for your letter.” What occurred'thereafter between the deceased and appellant leading up to the homicide is related by appellant in his testimony as follows: “Oh, I had the door partly open when I said that, ‘Think it over. ’ I says, ‘I am going to write to Mr. Dula this afternoon or evening asking him for your letter.’ That door was open and Mr. Jones said, ‘There.is no good of your lying about Dula’s letter.’ Well, Í was a little incensed; I don’t know whether I closed the door or not. I went to the desk and tapped my finger (indicating) several times. I says: ‘Now here, me lying about Dula’s, here is A. Dula’s letter. What do you mean?’ I says: ‘Dula (here indicates) some reference to me, and every time,’ I said, ‘that I am a liar you are fifty-seven varieties of a liar. You have lied to me about Ed, and I believe you lied to me when you told me your brother was a thief, and,’ I said, ‘I will go to George Jones, ’ or I may have said, ‘ George. ’ Well, he got up. I wouldn’t use the words ‘sprang up.’ He got up very quick, he had his. hand on the paper, or desk, and! he says, ‘You damned-----,’ and he struck me. I dodged the blow, but he got hold of my arm — the coat sleeve — and I thought he was going to kill me. . He reached for his pocket (indicating right hip pocket), and I thought he was going to pull his derringer, and I was feeling for my pistol, but he got hold of my sleeve and I got hold of it presently and reached around from in under and I fired three times just as fast as I could, and I don’t know whether to say he fell or — I don’t know what word to use. He fell into the chair. He really — I don’t know what word to use — but on to the chair and went over against the wall on the floor.. I went out in the mill and called for Pascal. ’ ’

Evidence was introduced tending to prove the good character of the defendant.

The cause was submitted to the jury upon instructions on murder in the first and second degrees, manslaughter in the fourth degree, self-defense, and' such other instructions as> were applicable to the facts in evidence.

I. Appellant complains that the court erred in admitting in evidence the testimony of witness Gloor concerning threats made by appellant against deceased about a year and four months prior to the homicide.

It is shown by the evidence that at the time the threats were made, as testified to by witness Gloor, all of the stock of the company was then owned by appellant, Gloor and deceased. The business had not been profitable and additional capital was needed. The deceased was the only one of the three stockholders able to furnish it, and he was unwilling to do so unless he secured a controlling interest in the company. That necessitated the sale and transfer of a part of the stock owned by each of the other stockholders to the deceased. The transfer was accordingly made and that was what caused appellant to say to Gloor that deceased “wanted to hog the proposition so that if it became profitable he could take it all himself,” and that “I would kill anybody that went back on me; I would kill him; I would kill you if you went back on me. ’ ’

In considering the question of the competency of this evidence it is important to keep in mind the fact that appellant had not paid for his stock, and that shortly before the homicide the deceased notified appellant that he must pay for the stock purchased from deceased or surrender it. He did the latter, and thus the very contingency had arisen which he had made the basis of the execution of his threat to kill. In appellant’s own language, as he viewed it on the day of the homicide, the deceased “has put me out and he will put you out.” These facts bring the evidence objected to within the rule that “when the threat is conditional on the doing of an act which the deceased has performed shortly previous to the homicide, the intervening time is of little importance.” [6 Ency. Ev. 712.]

As shown by the following authorities the remoteness of the threats “does not affect the question of the competency; it only goes to the weight of the evidence;” and the circumstances and conditions under which the threats were made, as testified to by witness Gloor, are so intimately related to the facts and circumstances connected with and leading up to the homicide that we entertain no doubt as to the competency of the testimony. [State v. Porter, 213 Mo. l. c. 62-3 ; State v. Coleman, 186 Mo. l. c. 158; State v. Adams, 76 Mo. l. c. 357; State v. Grant, 76 Mo. l. c. 236; State v. McNally, 87 Mo. l. c. 650.]

II. It is next contended that the court erred in giving on behalf of the State instruction numbered 7. This instruction is said to be erroneous, first, for the reason that there was no evidence “upon the subject of one’s seeking or inviting a combat or putting himself in the way of being assaulted in order that when hard pressed he may have a pretext to take the life of his assailant,” and, second, for the reason that it failed to tell the jury to what extent the right of self-defense would be forfeited in the event the defendant sought or invited the difficulty, or if he voluntarily entered into the difficulty without an intention of either killing or doing some great bodily harm to the deceased.

The second ground of attack on the instruction which we shall dispose of first, is that it did not submit to the jury the defendant’s right of imperfect self-defense. The doctrine of imperfect self-defense is now the recognized law in this State. It arises only when the defendant at the commencement of the difficulty is the aggressor or wrongdoer, and where his act and intent in bringing on the difficulty are unlawful but not felonious. Under such circumstances if the defendant, being in the difficulty, finds it necessary to take the life of his adversary to save his.own, he has the imperfect right of self-defense to do so, and the homicide will be manslaughter and not murder. [State v. Gordon, 191 Mo. 114; State v. Zorn, 202 Mo. 12; Reed v. State, 11 Tex. App. 509.] It has been stated to be a “fundamental doctrine of universal recognition” that self-defense is a ‘positive, affirmative, intentional act. [State v. Smith, 114 Mo. 406.] To be raised as an issue in a case it must be based upon evidence and in the case in hand it was based solely upon the testimony of the defendant. Imperfect self-defense is equally a positive, affirmative, intentional act and can only become an issue to be submitted to the jury upon an instruction, when the evidence tends to prove the facts upon which that right arises. The testimony of the defendant in this case, if believed, gave him the right to take the life of the deceased in perfect self-defense and the homicide was justifiable. But his testimony entirely fails to prove, nor is there any evidence in the case tending to prove that the defendant was the aggressor, the wrongdoer, or a violator of the law and as such voluntarily sought, invited or engaged in the difficulty with an unlawful intent less than felonious, and therefore there was no basis in the evidence fox an instruction on the law of imperfect self-defense. In the case of State v. Zorn, supra, this court, in discussing the question under consideration, used language which is particularly applicable to the evidence in this case. The court (page. 41) said: “We have carefully analyzed all the facts disclosed by the record and so far as is shown by the developments at the trial, the record of which is now before us, there was no imperfect self-defense in this case. He was either perfectly justified or he was not justified at all. The defendant in this cause interposed the plea of self-defense, and from the very inception of the trial insisted that the deceased was the aggressor and wrongdoer, and the right of imperfect self-defense can only arise when the defendant at the commencement of the difficulty is the aggressor o.r wrongdoer.” For the foregoing reasons we hold the instruction was not erroneous, in failing to submit to the jury the law of imperfect self-defense.

It should also be noted that the instruction is not now open to attack upon the ground just considered for the additional reason that no such objection was made to it at the trial when the instruction was given, but was made for the first time in the motion for a new trial, and therefore too late for review in this court. [State v. Reed, 89 Mo. 168; State v. Finley, 193 Mo. 202.]

The point most strongly insisted upon against instruction number 7 is that there is no evidence in the record upon which to submit the issue to the jury that the defendant, with the felonious intent of taking the life of the deceased or doing him some great bodily harm, voluntarily sought or invited the difficulty or voluntarily and of his own free will became engaged therein.

A full statement of the facts in evidence accompanies this opinion, and it is not necessary that they should be .repeated here. We shall give the following brief summary of the facts upon which, it is contended by the Attorney-General, the question of law contained in that part of the instruction under consideration not only arose in the case, but that an instruction thereon was required by the statute:

When it became necessary for appellant and Gloor to transfer a controlling interest of the stock in the company to deceased in order to secure additional funds needed in the business, appellant was angry and said to Gloor that deceased “wanted to hog the proposition so that if it became profitable he could take it all himself,” and he then said to Gloor, “I would kill anybody that went back on me; I would kill Mm; I would kill you if you went back on me.” Appellant ascertained that deceased had written two business letters to Delph, the agent of the company in Philadelphia, in which reference was made to appellant and Gloor, and also that another letter had been written by deceased to Mr. Dula of New York, of similar import. He secured the Delph letters in October, 1908, and made two copies of each. He made no mention of these letters to either of his business associates until two days before the homicide, being the day after his. connection with the company had ceased. The relations between appellant and deceased had hot been so cordial as formerly for a few months before the homicide. Shortly before the homicide the deceased notified appellant that he must either pay Ms note or surrender the stock. He surrendered the stock and his relations with the company ended on February 1, 1909. On the 3d day of February, the day of the homicide, about midday, appellant, having no special business, went to the office of the Mill Company, stopping for a drink of whiskey on the way, and carrying in his pocket the copies of the Delph letters and a .38-calibre Smith & Wesson revolver. Arriving at the office he found the deceased and Gloor at work, but did not, in the presence of both, refer to the Delph letters. . He asked Gloor if he was going up town, and he answered that he was. They left the office together, and upon reaching the ear line he declined to go on with Gloor, but returned to the office, where he knew deceased would be alone at that hour. While walking up the street with Gloor he was angry and said he had been put out of the company by the deceased. He showed Gloor the copies of the Delph letters and sought to convince him that the letters reflected on both of them. Soon after the appellant went into the office upon his return after leaving Gloor, a peddler went in and appellant stepped out for a drink of watér, but returned about the time the peddler left, and almost immediately shot and killed deceased, whose body was found in a sitting posture in the chair almost as he had been sitting at work at his desk, and with three bullet wounds in his body. This was in part the evidence for the State. Did it tend to prove that appellant at the time of the killing went to the office with the intent to take the life of the deceased or to do him some great bodily harm?

In reviewing calmly these facts there are some observations which we think may fairly be made in passing upon the motives and purpose of appellant, as evidenced by his conduct and actions preceding and leading up to the homicide. Appellant had said in anger that he would kill anybody who would go back on him; he would kill the deceased. In the connection used, the words “going back” on appellant evidently meant taking from him his stock and interest in the company. He had paid nothing on this stock; had surrendered it but a few days before the homicide, and the very condition thus existed upon which appellant’s threat against the life of the deceased was to be executed.

Appellant had in his possession for six months the letters written by the deceased and which he regarded as reflecting upon him, and yet he made no mention of them to his associates until two days after his salary had ceased and after he had surrendered his stock. He then places these two letters in one pocket and a deadly weapon in the other, and stopping for a stimulant on' the way, goes to the office of the Mill Company. If his mission had been peaceful why did he not discuss the letters in a friendly way in the presence of his two former business associates, instead of taking the matter up with each separately, as he testifies he did? Indeed, if the letters did in fact reflect on appellant, or if he so believed, why did he not have the matter attended to during the six months preceding while he was with the company, and when it would have been to the interest of the company as well as himself to have made the correction?

He gives Gloor to understand that he desired to go-down town, and escorts Gloor to the ear, then leaves him and returns to the office where he knew he would find the deceased alone. The two fatal bullets entered the head and body of the deceased and coursed downward, and the body, without any powder burns arid the eye-glasses still in place, was found sitting in the chair as deceased had been at work, except that the chair was tilted against the wall.

In our opinion the evidence thus reviewed indicates that appellant in arming himself and killing Jones was carrying out a purpose which had been carefully designed and which culminated as he had predetermined. The evidence was amply sufficient upon which to base the instruction as to the felonious intent of the defendant at the time he shot and killed the deceased.

It remains to be considered whether or not there was evidence tending to prove that appellant vpluntarily sought or invited the difficulty, or voluntarily and of his own free will engaged therein. This part of the instruction must find support, if at all, in the testimony of appellant himself. Without repeating that testimony as to what occurred in the office immediately preceding the tragedy, we must say that, after a careful examination of the record, we have not the least doubt that if deceased did assault appellant, as the latter testified ; the accusations made by appellant; the demand for a letter of retraction or disclaimer; the threat to injure deceased in a business way; the allusion to the trouble between deceased and his brother; the evident anger of appellant in tapping his finger on the desk and accusing deceased of making false statements, together with many other circumstances, tend to prove that appellant voluntarily sought, invited and engaged in the difficulty, and that the instruction properly submitted that phase of the case to the jury.

The criticism made in appellant’s brief as to the-form of instruction number 7, is fully answered by the decisions of this court in the cases of State v. Bailey, 190 Mo. 257, and State v. Dunn, 221 Mo. 530, in which the same question was before this court. In the Dunn case the instruction complained of was identical in form with instruction number 7 in this case. The instruction in form was then approved by this court, and nothing of value could now be added to what is there said upon the subject.

III. Complaint is made that the court erred in not permitting the defendant to explain his reason for being armed with a pistol on the occasion of the homicide.

It is competent for a defendant on trial for murder, to explain why he was carrying the deadly weapon by means of which the crime is alleged to have been committed. [State v. Heath, 221 Mo. 565.]

When objection was made by the circuit attorney to the question propounded to defendant as to why he carried a pistol, the court asked counsel for defendant if he proposed to show “that it was by reason of any relations with Jones,” and in receiving a negative answer sustained the objection. It is not quite clear upon what ground the court based this ruling, for, as appellant contends, the very purpose of the testimony and the right of the defendant was- to show that the weapon was not carried because of any relations with Jones, or because the defendant had anticipated the difficulty in which the weapon had been used to kill Jones.

While the defendant had the right to make the explanation, and it was error in the court to sustain an objection thereto, for the reason assigned, we cannot close our eyes to the fact that the defendant had given testimony, without objection, covering over two pages of the printed record, in explanation of his carrying weapons for ten years, and why he carried' them. In fact he had been asked the direct question, “Why did you carry it (pistol)?” and was permitted to answer without objection, and in his own way. It was not until he had been asked the same question a second time that the ruling complained of was made. Very few cases have come under our observation in which the defendant was given such latitude and went into such detail of explanation in order to ward off any sinister inference as to his possession of the deadly weapon at the time of the homicide, and we do not think it possible that the jury was uninformed as to defendant’s contention that he was not carrying the weapon for the purpose of using it upon the deceased.

Entertaining these views, we hold that appellant was not prejudiced by the ruling of the court and that the error was harmless.

IY. It is finally urged that prejudicial error was committed in permitting the State to prove why appellant was discharged from his position as salesman for the .company. Upon this contention the Attorney-General answers that the evidence was rendered competent because appellant had developed on cross-examination the fact that he had been discharged as such salesman, and that the reason for such discharge thereby became material in the case, and further that appellant failed to. make a proper objection to the evidence to entitle him to have the ruling of the court thereupon saved for review upon appeal. Both of these contentions are controverted by appellant.

The question as to whether o.r not the Mill Company had good and sufficient reasons for discharging appellant from its service was clearly collateral to the issue on trial and should not have been injected into the case. But all that was brought out in the testimony thus objected to was the fact that appellant had not secured as much business for the company as it was thought he should have done. There was no hint in this testimony of any reason' for his discharge which in any manner reflected upon appellant’s moral character. The jury knew he had been discharg’ed; it was properly in evidence that appellant himself had said that ‘‘deceased had put him out” of the company. It would be taken as a matter of course that some reason or difference existed which caused the company to discontinue appellant’s relations with it as salesman, and the reason given in the evidence objected to. is so mild and colorless, so far as having any influence, on the homicide is concerned, that we cannot find that its admission tended to prejudice the defendant upon his substantial rights.

Finding no reversible error in the record the judgment is affirmed.

Gantt, P. J., and Burgess, J., concur.