author: VALLIANT, J.

text:
    Ex Parte S. M. McANALLY.
    In Banc,
    November 28, 1906.
    1. HABEAS CORPUS: Jurisdiction: Appeal Pending. The Supreme Court has jurisdiction in habeas corpus cases where any court in the State or judge thereof has jurisdiction. The fact that petitioner has an appeal pending in the Court of Appeals from the judgment under which he is now confined in the • county jail, is no reason why the Supreme Court does not have jurisdiction of the habeas corpus petition: however, ordinarily he would he sent to that court, hut not so when that court . is not in session and none of its judges are within his reach.
    2. APPEAL: Information: Commitment. An appeal lies from a judgment based on an information, and an appeal.-from such judgment must he accorded all the force that would he given an appeal from a judgment founded on an indictment, and no more. ■ •

      3. COMMITMENT: Conviction: Appeal: Bond. Where a defendant has been convicted and takes an appeal and gives an appeal bond and prosecutes his appeal with due diligence, he cannot be committed to jail during the pendency of the appeal. Those things operate to suspend the judgment. And if execution issues and he, is committed to jail under that judgment, he is entitled to his discharge by habeas corpus.
    Habeas Corpus.
    Petitioner discharged.

      Hensley $ Bevelle and Wm. M. Morgan for petitioner.
    (1) Petitioner contends that after an appeal was granted him, amount of appeal bond by the court fixed, the appeal bond duly filed and approved as the court directed, this acted as a stay of execution pending the appeal, and that the sheriff had no authority for imprisoning him until his appeal was finally determined. Secs. 2702, 2703, 2704, E. S. 1899; In re Bauer, 112 Mo. 231. In In re Bauer this question is fully considered and the above sections construed, and it is there held that “where the circuit court admits a defendant to bail after conviction and approves his appeal bond, he is entitled to gn at large, notwithstanding no order was entered staying sentence against him. ” (2) At the time of the institution of this cause there was no judge of the circuit court in Bollinger county, the county where petitioner was imprisoned, and no judge of the St. Louis Court of Appeals in the State. Petitioner was compelled to appeal to this court or undergo the galling experience of remaining in jail. The granting of the relief sought on the first count of the petition will in no manner interfere with the jurisdiction of the Court of Appeals in the matter of the appeal. Petitioner asks only that he be not imprisoned until after the Court of Appeal has determined his appeal. This court can grant this relief without passing on any matter that is involved in the appeal. We respectfully submit that without this relief the appeal will avail the petitioner nothing, even though it be determined in his favor.

      Herbert 8. Hadley, Attorney-General, N. T. Gentry, Assistant Attorney-General, and J. Monroe Robins for respondent.
    (1) This court has no jurisdiction in this case, as the petitioner has been granted an appeal to the Court of Appeals, and that appeal is undisposed of. If the petitioner’s appeal is still pending in that court, his application for relief should have been made to that court. A writ of habeas corpus should not be granted for the purpose of depriving ah inferior court of jurisdiction; neither should it be granted by a higher court when the petitioner’s cause is regularly pending in an inferior court. (2) The only question to be decided by this proceeding is whether the petitioner, who was the defendant in a criminal prosecution and was convicted, is entitled to his liberty, pending an appeal of his case. It will be noticed that the petitioner was found guilty of selling liquor without a license; that there were two counts in the indictment, and he was found guilty on both counts. On one count, the circuit court assessed his punishment at a fine of three hundred dollars; and on the other count, the court assessed his punishment at imprisonment in the county jail for a term of four months. While this question does not seem to have been directly passed upon by any decisions of this court, yet the matter seems to have been provided for by the statute. R. S. 1899, secs. 2702-2704. If said sections of the statute do not apply, then it may be said that there are no constitutional, common law or statutory provisions for granting a stay of execution in a misdemeanor case pending an appeal. In re Bauer, 112 Mo. 231. “The right of appeal does not exist except as a result of statutory enactment. ’ ’ State v. Brown, 153 Mo. 578; State v. Thayer, 158 Mo. 36.
   VALLIANT, J.

A writ of habeas corpus issued out of this court on the petition of S. M. McAnally, directed to the sheriff of Bollinger county, commanding him to have the body of the petitioner, whom it was alleged the sheriff unlawfully held in prison, before the judges of this court to be dealt with as might be determined.

It appears from the sheriff’s return that the petitioner was convicted of a misdemeanor in the circuit court of Bollinger county and sentenced to a fine of $300 and imprisonment for the term of four months in the county jail; that in due time he prayed an appeal from that judgment to the St. Louis Court of Appeals which was granted, and, under the direction and with the approval of the circuit court, he executed a bond with security conditioned in effect that he would prosecute his appeal and abide the judgment of the appellate court and render himself in execution as might be required. The appeal was duly prosecuted and is now pending in the St. Louis Court of Appeals. But notwithstanding the appeal and the bond, a commitment issued out of the circuit court, as in execution of the judgment, commanding the sheriff to take into custody and to imprison the petitioner in the county jail and in obedience to that writ the sheriff holds the prisoner.

I. The first point which the Attorney-General presents in his brief is that since the prisoner’s case is pending in the Court of Appeals that was the proper court to which his petition should have been addressed, therefore, this court has mr jurisdiction to hear his complaint.

This court is not, in this proceeding, going to hear the cause that is pending in the Court of Appeals; the only question we have is, can this man be lawfully held in jail serving ont Ms sentence while the Court of Appeals is deliberating on his case?

So far as the question of jurisdiction is involved, • this court or any judge thereof has jurisdiction to issue a writ of habeas corpus in any case where any court of tMs State or judge thereof has jurisdiction to issue it.

We do not understand the proposition to be that we have no jurisdiction of this case in a strict sense of that term, but rather that this court will not ordinarily use its lawful power to take a case out of the hands of the Court of Appeals when that court has already taken hold of it and has lawful authority to dispose of it, and in that proposition the learned Law Officer is correct. Ordinarily under the circumstances above stated we would send the petitioner to the Court of Appeals or to the court under whose writ he is held. But in this case it was made to appear to us that neither the Court of Appeals nor the Circuit Court was in session, that no judge of either of those courts was within the reach of the petitioner and that unless the writ should come from this court the prisoner could not obtain a hearing until he had suffered a- long imprisonment. Under such circumstances it was our duty to issue the writ and in doing so we have not invaded the realm of the Court of Appeals.

II. The main question in the. case is, can the prisoner be lawfully held under the judgment of the circuit court when he has been by that court granted an appeal from that judgment, has given bond and security to answer with his body the result of that appeal, and is prosecuting it with due diligence in the appellate court?

On what theory the circuit court, after granting the appeal and taking the bond, directed or suffered the writ to issue under which the sheriff incarcerated the prisoner we do not quite understand. Section 2696, Revised Statutes 1899, gives a defendant the right of appeal from a final judgment rendered upon an indictment, and this court in State v. Brown, 153 Mo. 578, construed that section to mean that an appeal was allowed only from a judgment rendered under an indictment, and that from a judgment under an information no appeal was given. Under that interpretation of the statute one man might be convicted of a misdemeanor under an indictment and be entitled to an appeal, while another, in the same court on the same day, might be convicted under an information of a misdemeanor of precisely the same character and receive the same sentence, but would have no right of appeal. In rendering that decision the court was constrained by the strict letter of the statute. But afterwards in State v. Thayer, 158 Mo. 36, the court in an opinion by Brace, J., reconsidered the question, and by putting that section along by the side of other sections of the criminal statutes concluded that the letter of that one section should give way to the- spirit of the whole body, overruled State v. Brown, and held that an appeal would lie from a judgment under an information.

It being now conceded that an appeal lies from a judgment based on an information, it follows that the appeal taken from such judgment must be accorded all the force that would be given an appeal from a judgment founded on an indictment.

Section 2698, Revised Statutes 1899, declares that an appeal from a judgment in a criminal case shall operate as a stay of execution only when an order is made in the case, by the court or judge mentioned in the statute, expressly directing that the appeal shall operate as a stay. Whether in this case the court made such an order does not expressly appear, but we infer that no such order was made.

Section 2702, Revised Statutes 1899, declares that in all cases of appeal from judgments in criminal cases, except where the penalty imposed- by the judgment is death or imprisonment for life, any court or judge authorized to grant an appeal may cause the defendant to be brought before such court or judge and admitted to bail.

Thus we see that by section 2698 the court or judge authorized to grant the appeal may on granting it.order a stay of execution and by 2702 where no such stay has been ordered the court or judge may admit to' bail on habeas corpus.

Here the circuit court did not order, a stay of execution and did not bring the defendant before it on habeas corpus, but the defendant being before the court, the court did exactly what the statute authorized it to do if it had brought him in by habeas corpus. The defendant being then and there actually in the presence of the court and ashing to be admitted to bail, the issuance of a writ to bring him in would have been a meaningless form. The bond which the court took from the prisoner is conditioned as section 2704 requires a bond should be conditioned in like case when the prisoner is admitted to bail and so the case is exactly as it would have been if the prisoner had been brought out of jail by a writ of habeas corpus, and admitted to bail by the circuit court.

In re Bauer, 112 Mo. 231, was a case very much like this one except that that was a felony case. The circuit court had granted the appeal but had not ordered a stay of execution, the defendant gave an appeal bond which the court approved and let him go, but he was afterwards arrested and delivered to the warden of the penitentiary.

It was in that case urged that the statute, section 4279, Revised Statutes. 18891, now section 2698, Revised Statutes 1899, declared that the appeal should not operate to stay or delay the execution of the judgment unless the court granting the appeal should make an order expressly so directing. But this court in an opinion by G-antt, P. J., held that although the appeal alone without an order expressly directing a stay of execution did not suspend the judgment, yet the sections of the statute immediately following, authorizing the admitting of the appellant to bail did, when complied with, have that effect. And so we say in the case at bar; this man has been admitted to hail in compliance with the law and therefore his imprisonment is unlawful while the appeal is undisposed of in the Court of Appeals.

It is ordered that the petitioner he discharged from custody.

All concur.


source: Caselaw Access Project

author: BURGESS, P. J.

license: Public Domain

text:
    THE STATE v. HARROUN, Appellant.
    Division Two,
    December 2, 1906.
    1. INDICTMENT: Statutory Offense: Words of Similar Import. While an indictment for a statutory offense should follow the language of the statute, it is not absolutely essential to a good indictment that it use the exact words of the statute, but words of similar import, not repugnant to the words of the statute, may be employed.
    2. -: ■ —: -: “Cheat” and “Injure:” Forgery: Surplusage. The language of the statute (sec. 2009, R. S. 1899) is, “Every person who, with intent to injure or defraud,” etc. The indictment uses the language, “with intent to cheat and defraud.” Held, that, in this connection, the word “cheat,” used in the indictment, is of similar import to the word “injure,” used in the statute, and is not repugnant to “defraud,” the other word used in the statute. Held, also, that the word “cheat” may be regarded as surplusage, and the indictment still be good, since the gravamen of the offense is the intent to “defraud.”
    3. -: Forgery: Bill of Lading: Pecuniary Obligation: Rights of Property. An indictment for forgery of a bill of lading which undertakes to cover the provisions of the statute (sec. 2009, R. S. 1899), both in regard to pecuniary obligations and property rights, held, invalid, since, first, the bill of lading is not a pecuniary obligation; and, second, the indictment fails to allege in what way rights of property were affected by the alleged forgery. 4. —-: -: -: Signature. An indictment for forgery of a bill of lading which, gives the signature of the bill as “W. K. Adams, M. Freight Agent,” should allege that it meant W. K. Adams per or by the party for whom M. stands.
    5. -: Language of Statute. The rule that an indictment in the language of the statute is sufficient applies only where all the facts which constitute the offense are set forth in the statute.
    Appeal from Buchanan Criminal Court. — Hon. A. D. Burnes, Special Judge.
    Reversed and remanded.
    • Duncan <& Utz, W. B. Norris and W. M. Williams for appellant.
    The indictment is defective and insufficient to support the judgment, and the motion in arrest should have been sustained. State v. Fay, 65 Mo. 490; State v. Chinn, 142 Mo. 507; Polk v. State, 51 S. W. 909; Bynum v. State, 17 Oh. St. 143; Carberry v. State, 11 Oh. St. 414; Joiner v. State, 80 S. W. 531; Mayer v. State, 85 S. W. 802; Thulemeyer v. State, 43 S. W. 83. (a) Thereis nothing upon the face of the bill of lading to show that said Adams, whose name is signed thereto, was acting by said W. A. Mueller, as alleged in the indictment. The letter “M” in and of itself is not sufficient for that purpose. It might mean many different things or stand for a number of names other than that of W. A. Mueller. State v. Fay, supra; State v. Chinn, 142 Mo. 513; Bynum v. State, 17 Oh. St. 143; Carberry v. State, 11 Oh. St. 414; Polk v. State, 51 S. W. 909. (b) The statute in defining forgery in the third degree requires that the act must be done with “intent to injure or defraud.” R. S. 1899, sec. 2009. The indictment does not follow the language of the statute. It charges that the act was done “with intent then and there to cheat and defraud,” thereby substituting the word “cheat” for the word “injure.” State v. Miller, 132 Mo. 300.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    Defendant is charged with the crime of forgery in the third degree, to-wit, the forgery of a certain bill of lading purporting to be the act of the Chicago, Burlington & Quincy Railway Company. Section 2009 is broad enough to include the forging of a bill of lading, or warehouse receipt, or any other obligation whereby the rights or property of another shall be, or purported to be, transferred, created, etc. State v. Gullette, 121 Mo. 447.
   BURGESS, P. J.

The defendant was convicted in the criminal court of Buchanan county of forgery in the third degree and his punishment fixed at five years imprisonment in the penitentiary under an indictment preferred against him by the grand jury of said county charging him with falsely making a bill of lading purporting to be the act of the Chicago, Burlington & Quincy Railroad Company, a corporation, for the carriage and transportation of sixty thousand pounds of wheat of the value of five hundred dollars, from St. Joseph, Missouri, to Chicago, Illinois, with the intent to cheat and defraud. After unavailing motions for a new trial and in arrest, defendant appeals.

Hon. B. J. Casteel, the regular judge of said court, being disqualified, the Hon. A. D. Burnes, judge of the fifth judicial circuit, was called in by him to try the cause.

The facts are about as follows: The defendant at the time of and for some time prior to the commission of the alleged offense was engaged in the grain and elevator business .at St. Joseph, Mo. During all this time W. K. Adams was the local freight agent of said company at said city and one W. E. Mueller, was the chief clerk in Adams’ office; it was customary when freight was received by said railroad company for Mr. Adams to execute a bill of lading therefor, signing the name “W, K. Adams, freight agent, per M.,” thereto; sometimes the bill of lading was signed “W. K. Adams., freight agent, per Mueller,” and sometimes W. K. Adams, freight agent, M.” The State’s evidence tended to show that a number of bills of lading were forged by the defendant, including the one described in the indictment, and that the defendant admitted to various officers of said railroad company that he had forged said bills of lading, some of which were in possession of other persons not known to the defendant. These statements, were made by the defendant at the office of the general freight agent of the Burlington road, at St. Joseph, at the defendant’s residence in St. Joseph, and at another place in St. Joseph. He asked these gentlemen to keep the matter quiet and to suppress a certain telegram that had been received in regard to a certain outstanding forgery. Defendant gave the railroad officers a list, which list showed that bills had been forged for freight worth $124,000'. He then took a pen and, in the presence of Judge O. M. Spencer and others, showed how he could imitate the signature of Mr. Adams as signed by Mueller. It afterwards developed that said bills of lading, instead of amounting to freight worth $124,000, in reality amounted to $156,-000. Adams and Mueller both testified that the signature to the bill of lading described in the indictment was not signed by Mr. Mueller.

The defendant’s evidence tended to show that while he had been guilty of forging other bills of lading and warehouse receipts, he did not forge the one described in the indictment; and that the Burlington Railroad Company never lost anything by reason of said alleged forgery. He also introduced evidence tending to show that he enjoyed a good reputation for honesty and integrity prior to and since the commission of the alleged crime. The defendant’s evidence further tended to show that Mueller, a witness for the State, had made contradictory statements and had made conflicting statements in his efforts to distinguish between the alleged forged bill of lading and others which were genuine.

The indictment, leaving off the formal parts, is as follows:

“The grand jurors of the State of Missouri, within and for the body of the county of Buchanan aforesaid, being duly empaneled and sworn, upon their oaths do present that W. H; Harroun, on the 2nd day of September, 1904, at the county of Buchanan and State aforesaid, feloniously did falsely make and forge a certain instrument of writing and bill of lading purporting to be the act of Chicago, Burlington & Quincy Railway Company, a corporation incorporated under and by virtue of the laws of the State of Iowa, by one W. K. Adams, its agent and servant, having authority so to do, the said W. K. Adams acting by one W. A. Mueller, the said W. A. Mueller ■ having authority thereof, he, the said W. A. Mueller, being then and there the servant and agent of said corporation' and said W. K. Adams. And the said purported act of said Chicago, Burlington & Quincy Railway Company, by its agents and servants, said W. K. Adams and said W. A. Mueller, to-wit, the said false and forged instrument of writing and' bill of lading, purported to have created and transferred a pecuniary demand and obligation for the payment of sixty thous- and pounds of wheat of the value of five hundred dollars, and the right of property in and to said wheat purported to be transferred and conveyed by the said Chicago, Burlington & Quincy Railway Company, which said false and forged instrument of writing and bill of lading is of the tenor following, to-wit:

With intent then and there and thereby feloniously to cheat and defraud; against the peace and dignity of the State.”

The indictment is assailed upon the ground that it fails to set out in the language of the statute the nature of the offense sought to be charged against the defendant, in that it alleges that “the said false and forged instrument of writing and bill of lading purported' to have created and transferred a pecuniary demand and obligation for the payment of sixty thousand pounds of wheat of the value of five hundred dollars and the right of property in said wheat purporting to be transferred and conveyed by the said Chicago, Burlington & Quincy Railway Company, which said false and forged instrument of- writing and bill of lading is of the tenor following, to-wit, with intent then and there and thereby feloniously to ‘cheat’ and defraud.” In a word, it is claimed that the indictment is bad because it uses the words, “with intent to cheat and defraud,” instead of “with intent to injure and defraud.” That is, that the word “cheat” is substituted for the word “injure.” The language of the statute (sec. 2009, R. S. 1899) is, “Every person who, with intent to injure or defraud” etc., and it would have been good pleading to have alleged, “injure and defraud,” conjunctively. ■

With respect to indictments for statutory offenses, the general rule is that the indictment must follow the language of the statute, but it is not absolutely necessary to a good indictment that it use the exact words of the statute if words of similar import are. employed. Thus, in State v. Batson, 31 Mo. 343, in an indictment for grand larceny in alleging ownership o-ftheproperty stolen it was held not necessary to use the exact words of the statute, if words of a similar import are employed, as goods and chattels of one B. instead of “belonging to” B.

In State v. Watson, 65 Mo. 115, it was ruled that an indictment need not describe the offense in the language of the statute, but may use words which, in their common acceptation, mean the same thing when spoken of the acts charged against the accused. The court said:

“It will be observed that it contains every material allegation required by that section; but instead of the words ‘pass,’ ‘utter’ and ‘publish’ substitutes the words ‘ sell, ’ ‘ exchange’ and ‘ deliver. ’ Do these words, in connection with the acts charged, sufficiently describe the offense, or is the pleader confined to- the words in the section? It is generally, not, however, invariably, sufficient to describe the offense in the words of the statute; but it does not follow that other words may not be substituted. Selling, exchanging or delivering a bank bill or a piece of money is in common parlance passing the bill or money. The plain or ordinary •and usual sense of the word ‘pass,’ as applied to coin or •bank notes, is to deliver in exchange for something else, and is equally expressed by the words ‘ sell,’ ‘exchange’ or ‘deliver.’ ”

So, in State v. Mills, 146 Mo. 195, it was held that ordinarily in charging a statutory offense the words of the statute should be used. But that is not indispensably necessary. It is sufficient if the offense be set forth with substantial accuracy and reasonable certainty. Gantt, J., in speaking for the court, said: “Authorities are numerous that while ordinarily,, in charging a statutory offense, the words of the statute should be used, it is not indispensably necessary to do so. It is sufficient if the offense be set forth with substantial accuracy and reasonable certainty. [United States v. Bachelder, 2 Gall. (U. S.) 15; State v. Pennington, 3 Head (Tenn.) 119; State v. Little, 1 Vt. 331; State v. Bullock, 13 Ala. 413; State v. Watson, 65 Mo. 115.] ”

But the words used in lieu of the words in the statute must be of similar import and not repugnant thereto, or to other words used in the statute constituting the offense. If, then, the word “cheat,” as used in the indictment, is of the same import as the word “injure,” used in the statute, and is not repugnant to the word “defraud,” as therein used, the position of defendant in this regard cannot he maintained.

One of the definitions of “injure” given in Webster’s Unabridged Dictionary is, to impair; to' violate or to injure rights. In the Century 'Dictionary, it is defined as follows: “To do harm to; inflict a damage or detriment upon; impair or deteriorate in any way; subject to any deleterious, or nauseous action or Influence; a word of very wide application.” As it is used in the statute in connection with “defraud,” it must mean injury to property or property rights, as distinguished from injury to the person or personal rights; otherwise, it is meaningless in the connection in which it is used. Being a word1 of very wide application and found in the statute with respect to the forging of pecuniary obligations of another or by which any rights of property may be affected, with intent to injure or defraud, we feel justified in giving it the meaning indicated, which we also think is borne out by the definitions quoted.

The word “cheat,” in its common acceptation, is a word of similar import, because to cheat or defraud one of his property rights is to injure such rights. We do not intend to be understood, however, as saying that the word “injure” and the word “cheat” may be used interchangeably, but that the latter word being of similar import as the former, the indictment was not vitiated by reason of the substitution of “cheat” for injure. Nor is “cheat” repugnant to “defraud,” as they in this instance mean substantially the same thing.

Moreover, the word “cheat” may be regarded as surplusage and' the indictment still be good, although it omits the word “injure,” for an indictment will not be held defective, if, after striking out the objectionable and immaterial portions as surplusage, enough still remains to constitute a valid and substantial indictment. [State v. Nations, 75 Mo. 53.]

Bishop says: “If, as is common in legislation, a statute makes it punishable to do a particular thing specified, ‘or’ another thing, ‘or’ another, one commits the offense who does any one of the things, or any two, or more, or all of them. And the indictment may charge him with any one, or with any large number, at the election of the pleader; employing, if the allegation is of more than one, the conjunction ‘and’ where ‘or’ occurs in the statute. ‘The rule,’ it was once observed, ‘is undoubtedly limited in its application to cases where the offenses created in a statute are not repugnant.’ And whatever be the form of the allegation, the proofs need sustain only so much of it as constitutes a complete offense.” [Bishop on Statutory Crimes (3 Ed.), sec. 244.]

The same author says: “To repeat what was explained in another connection, if a statute makes criminal the doing of this, or that, mentioning several things disjunctively, there is but one offense, which may be committed in different ways; and in most instances all may be charged in a single count. But the conjunctive ‘and’ must ordinarily in the indictment take the place of ‘or’ in the statute, else it will be ill as being uncertain. And proof of the offense in any one of the ways will sustain the allegation. On the other hand, the indictment may equally well charge what comes within a single one or more classes, less than all, of the statute, and still it embraces the complete proportions of the forbidden wrong.” [1 Bishop’s New Criminal Proc., sec. 586.]

It seems to follow from the authorities that the indictment may be held good although it does not allege that the forgery was committed with intent to* “injure,” and the word “cheat” we disregard as surplusage; as it very properly may be. The gravamen of the offense was the “intent to defraud,” and it was necessary to allege in the indictment that the forgery was with the intent to defraud.

It is also insisted that the indictment is insufficient in that it does not charge the defendant with forging an instrument by which property rights purported to be transferred, conveyed, discharged, increased, etc., by the forging of said bill of lading. ■ The statute reads (sec. 2009, supra), “Every person who, with intent to injure or defraud, shall falsely make, alter, forge or counterfeit any instrument of writing, being or purporting to be the act of another, by which anypecuniary demand or obligation shall be or purport to be transferred, created, increased, discharged or diminished, or by which any rights or property whatsoever shall be or purport to be transferred, conveyed, discharged, increased, or i/n any manner affected,” etc. The argument is that the indictment is based upon the first clause of the statute, “pecuniary demand or obligation,” and does not charge the defendant with forging an instrument by which property rights purported to be transferred. It seems to undertake to cover both provisions of the statute, that is, the one with respect to' the forgery of pecuniary obligations and the one with respect to property rights, although they are entirely separate and distinct offenses and could not be joined in the same count. It is clear that the bill of lading is not a pecuniary obligation. The indictment should have been bottomed upon that provision with respect to property rights alone, but, as it is, it is indefinite, inconsistent with itself and uncertain.

We may also add that as the statute does not define the offense, the indictment should allege in what way rights of property were affected by the falsely making or forging said bill of lading in the absence of which defendant could not have prepared to defend against a charge so general in its nature. [State v. Krueger, 134 Mo. 262, and authorities cited.] It may, however, be said that the indictment is in the language of the statute and therefore sufficient. “But this rule only applies where all the facts which constitute the offense are set forth in the statute.” [State v. Davis, 70 Mo. 467; State v. Kesslering, 12 Mo. 565; State v. Hayward, 83 Mo. 304; State v. Krueger, supra.] And with respect to the signature to the bill of lading it should be alleged that the name thereto, signed, “W. K. Adams, M. Freight Agent,” means W. K. Adams, per or by W. A. Mueller.

As tire indictment is invalid, it follows that the instructions based upon it are erroneous.

The conclusion reached renders it unnecessary to pass upon other questions presented for consideration, as they may not arise again upon another trial, should one be had.

The judgment is reversed and the cause remanded.

All concur.


author: GANTT, J.

text:
    THE STATE v. JOHN B. MILES, Appellant.
    Division Two,
    December 4, 1906.
    1. JUROR: Opinion Formed From Rumor. Where a juror bad not talked to any witness in the case and the opinion he had formed and expressed was based on neighborhood rumors, he was not qualified.
    2. -: Challenge. A challenge of a juror “for cause” and nothing more, states no ground for the challenge, and does not draw in question the competency of the juror.
    3. IMPEACHMENT OF WITNESS: Confined In Jail. Contempt of court for failing to obey a subpoena of court to appear as a witness is in no sense a criminal offense, and proof that the witness had been in jail for the contempt does not tend to impeach him as a witness. Such evidence relates to an immaterial matter, and should not be brought into the case, and if admitted cannot be said to prejudice the rights of defendant.

      i. EVIDENCE: Out of Order. It is not error to permit the State, after the close of all the other evidence, to offer evidence that was clearly competent in chief — in this case, a trunk showing the bullet holes made by shots from defendant’s pistol as he was firing at deceased.

      5. WITNESS: Relationship to Defendant. It is not improper to permit the State to show on cross-examination that a witness for defendant is a suitor of the defendant’s daughter.
    6. INSTRUCTION: Omitting Words Feloniously and Beyond Reasonable Doubt. It is not error to omit the word “feloniously” altogether from the instructions. Neither is it error to omit the words “beyond reasonable doubt” from an instruction defining murder in the second degree, in all other respects free from objection, if those words are contained in a general instruction applicable to the testimony as a whole.
    7. REMARKS OF PROSECUTING ATTORNEY: In Opening Statement. The prosecuting attorney in his opening statement to the jury said: “We shall show you that a more dastardly murder was never perpetrated upon a noble and Christian soul.” Objection being made by defendant’s counsel, the court said the language was improper and said to the prosecuting attorney that he had already intimated to him that he should confine his remarks to what he expected to prove. Held, not to he reversible error.
    8. -: -: Not Preserved in Motion for New Trial. If defendant wishes to have remarks of the prosecuting attorney made in his opening statement reviewed by the appellate court, he must call the attention of the trial court thereto in his motion for new trial.
    9. INSTRUCTION: During Course of Argument: Marshal’s Right to Carry Pistol. Defendant, a town marshal, had gone into the country to settle a personal difficulty with deceased, and there killed him. In his argument to the jury, his counsel said that defendant, as marshal of the town, had a right to have and carry concealed on his person a pistol, and thereupon the court, during said counsel’s argument, gave an instruction in writing to the jury to the effect that the fact that defendant at the time was a town marshal would not authorize him as such officer to go around the country armed with a pistol. Held, that the right of defendant to carry concealed weapons was not an issue in the case, and any reference to such right was foreign to a proper discussion thereof, and the action of the court in trying, by this method, to correct the harm such statement might have done, was not prejudical to defendant.
    10. REMARKS OF COUNSEL: Defendant as Witness. It is not an improper argument for the prosecuting attorney, in attempting to show that there was no contradiction of the witnesses upon a material point, to repeat what defendant and other witnesses had testified in regard thereto.

      11. -: -: Deductions from Evidence. The prosecuting attorney stated defendant “put his hand into his bosom and pulled out a naked pistol. The defendant did not deny it; there is no contradiction of that fact.” The defendant had testified that he shot at deceased three times as he ran from him. Held, that the remarks, under the circumstances, were entirely authorized.
    12. -: Referring to Character of Witnesses. It is no reversible error for an attorney for the State to refer to one of its witnesses as a good man, nor to a witness for the defendant whose testimony has laid him open to the severest criticism, as “a black rascal, whose testimony should not control the judgment of the jury.”
    13. VERDICT: Illegal: Refusing to Receive: Correction. It is the duty of the court to refuse to receive a verdict which is illegal on its face or contrary to law, and it is also the right of the jury, when by a reading of their verdict by the clerk they discover that it contains a mistake, to correct it.
    14. -; -;-; -: Verdict of Manslaughter: Imprisonment for Thirty Years. The jury returned a verdict finding defendant guilty of manslaughter and assessing his punishment at imprisonment in the penitentiary for thirty years. Wlben it was read by the clerk, the court announced that it was not in accordance with the instructions, and some of the jurors stated that there was a mistake, that it was not their verdict. Thereupon, the court directed them to retire and consider of their verdict. They did so and afterwards returned a- verdict finding defendant guilty of murder in the second degree and assessing his punishment at thirty years’ imprisonment. Held, that the court did not receive the first verdict, that it properly refused to accept it, and pursued the proper course to have it corrected.
    15. —-: -: Acceptance: Statute: Applicability. The statute (see. 2651, R. S. 1899), providing that “if the jury assess a punishment, whether of imprisonment or fine, greater than the highest limit declared by law for the offense of which they convicted the defendant, the court shall disregard the excess, and pronounce sentence and render judgment according to the highest limit prescribed by law in the particular case,” refers to a case in which the court accepts the verdict; but it does not require the court to accept an illegal verdict, such as one finding defendant guilty of manslaughter and assessing his punishment at imprisonment for thirty years, nor require the court to receive a verdict which the jury, when their attention is called to it, state is not their verdict.

      16. --: Erroneous: No Exception at the Time. Unless an objection is made and exception taken at the time to the action of the court in calling the attention of the jury to an error in their verdict and in permitting them to retire to their room and correct the same, the court’s action is not reviewable on appeal. That error, as all others, cannot be urged for the first time in the motion for a new trial.
    17. INSTRUCTIONS: Oral Explanation: No Exception. Unless the appellant at the time the jury were brought in and the court explained to them orally the meaning of the instructions in reference to punishment, objected and took an exception, the court’s action is not reviewable on appeal.
    18. IMPROPER QUESTIONS: Objection Sustained. It is too plain for argument that the trial court cannot be convicted of error because the prosecuting attorney asked certain witnesses as to the good reputation of certain of the State’s witnesses when their reputation had not been attacked, if the court, when objection was made to such questions, sustained the objections.
    19. VERDICT: Passion and Prejudice. The testimony of the State’s witnesses was that defendant began the difficulty by striking deceased over the head with his pistol when the deceased was unarmed, and then as deceased ran from him shot him three times. It also justified a finding that defendant went to the premises of deceased armed with a pistol, and without any lawful provocation assaulted him. Held, that the punishment of imprisonment in the penitentiary for thirty years is not so excessive as to indicate bias and prejudice on the part of the jury.
    Appeal from Pemiscot Circuit Court. — Row. Henry C. . Riley, Judge.
    Affirmed-.

      Haris & Oliver and R. L. Ward for appellant.
    (1) The court erred in refusing the challenge for cause of William Kinley. If Kinley had an opinion, what difference can it make from whence that opinion was derived? State v. Bauerle, 145 Mo. 15; U. S-. v. McHenry, 6 Blatch. 503; TJ. S.v. Hanway, 2 Wall. 143; U. S. v. Woods, 4 Cranch C. C. 484; Coughlin v. People, 19 L. R. A. 57; Rothschild v. State, 7 Tex. App. 519; People v., Reyes, 5 Cal. 347; Ins. Co. v. Schueller, 60 111. 465; Plummer v. People, 74 111. 361; Owens v. State, 32 Neb. 167; Greenfield v. People, 74 N. T. 277; Dugle v. State, 100 Ind. 259; Polk v. State, 45 Ark. 165; Wright v. Com., 32 Gratt. 941. (2) The court erred in permitting the State to show that one Robert Barksdale, a witness for defendant, had been confined in jail on the night preceding the day on which he testified, and in allowing the State to show by said Barks-dale on cross-examination that he had been so confined. Said witness had not been in jail charged with any criminal offense, nor as a punishment following conviction for any felony or misdemeanor, but for a technical contempt, in that he had failed to answer when called as a witness. Such manner of impeachment and cross-examination was unfair, prejudicial, and against the law. State v. Douglas, 81 Mo. 231; State v. Rockett, 87 Mo-. 666; sec. 4680, R. S. 1899; Greenleaf on Evidence, sec. 373; 1 Wigmore on Evidence, sec. 520. It was error to permit the State, after the close of the State’s case as well as after the close of that of the defendant, to offer in evidence the trunk in which bullet holes appeared, and to offer the testimony of Mrs. Kirkpatrick touching the same. Mrs. Kirkpatrick had been on the stand as, a witness and the trunk had been in the custody of the State during the whole time of the trial. No reason whatever was shown why this testimony was not offered in chief. State v. Weber, 156 Mo. 249; State v. Holfield, 72 Mo. 518; State v. Shroyer, 104 Mo. 447; Williams v. State, 60' Ga. 367. It is insisted that the court not only erred in allowing testimony in identification of the trunk to- be offered out of time, but that it was error to allow this trunk to be offered in evidence, and paraded before the jury, at all. It could serve no useful purpose, nor any purpose except to inflame the minds of .the jury, and prejudice them against the defendant. Moore v. U. S., 150’ U. S. 57. It was error for the court to permit the- State to cross-question witness Luther Frankum, who testified for the defendant, as to his feelings for the daughter of the defendant. While there is almost no limit to which the State might not have gone in its questions as to Mas in favor of the defendant himself, it is insisted that such inquiry can not be directed toward witness’s feelings for members of defendant’s family. State v. Montgomery, 28 Mo. 594; State v. Glynn, 51 Yt. 577. (3) Instruction 2, being the instruction by which the court undertook to define murder of the second degree, was erroneous, in that it should have contained the word “feloniously” and have required the jury to find the elements going to- make up the offense of murder of the second degree ‘ ‘ beyond a reasonable doubt. ’ ’ It did neither. State v. Bauerle, 145 Mo. 18; State v. Hyland, 144 Mo-. 302. (4) -The court erred in permitting counsel for the State to use improper language and to make improper remarks, both in the opening statement to the jury and in their closing argument, (a) It was error for counsel for the State to say to the jury, in his opening statement, that “the State would show that deceased was known to the merchants of this town and to the officers here, as one of the best men in this county,” and upon being informed by the court that such discussion was improper, to accentuate his audacious impropriety by saying, “If it is improper to tell the jury what kind of man he is, I will withdraw the statement. ’ ’ During the whole trial no attack was made upon the character or reputation of the deceased. If it is, fundamental law that the good reputation of the deceased may not be shown by the State until such reputation has been attacked by the defendant, may it not be said to be equally basic that the State shall- not by her prosecuting officer lay vaunting claims to the possession of proof, the admission of testimony concerning which, would almost have outraged decency? 1 Wigmore on Evidence, sec. 63, note; Dukes v. State, 11 Ind. 557; Fields v. State, 134 Ind. 46; State v. Shipley, 174 Mo. 516. (b) It was error, the more prejudicial and hurtful to the defendant in that it occurred in the opening statement of the prosecuting attorney, for the court to permit such attorney to say of his own witnesses: “Kelley Summers is a good old man, and.Mrs. Hearn is a good old woman.” State v. Thomas, 78 Mo. 327; State v. Grant, 79 Mo. 133; State v. Cooper, 71 Mo. 436. For this flagrant departure from the ethics which "should guide the feet and dominate. the- conduct of a prosecuting attorney, the court failed to rebuke counsel as was requested by the defendant, but told him to discuss these matters later; thus, by implication, informing the jury that such later discussion would be proper; when as a fact in this case the reputations of the State’s witnesses, for lack of attack thereon by the defendant, never became a proper matter of either inquiry or discussion on the part of the State. State v. Shipley, 174 Mo. 516. (c) However, after being thus advised by the court that such discussion was, to say the least, untimely, the prosecuting attorney did not stop, but in a sense, added outrage to error, by using instantly thereupon this language: “I am just telling the jury what I expect to show, so that if I am lying about it they can show it to the jury.” That a party may not attempt to “bolster up,” dr rehabilitate the reputation of his witnesses until after an attack has been made upon the reputation of such witnesses, is a principle of law universally accepted. 2 Wigmore on Evidence, sec. 1104, note, (d) Again, in his opening statement, the prosecuting attorney used this language: “This is one of the most hellish, tortious and brutal murders, ever perpetrated on a noble, Christian soul.” As it is just as much a crime to kill a bad man, without justification, as it is to kill a good man, it is never competent, except in rebuttal after an attack by the defense upon the character and reputation of the deceased, for the State to prove such reputation. If the State could 'not prove it, a fortiori, the State could not talk about it before tbe jury. This statement was error greatly prejudicial to defendant. Even if the court had checked and properly rebuked the prosecuting attorney, which it did not, it is insisted that such remarks of the prosecuting attorney would not have had the virus drawn from them by a rebuke from the court. State v. Young, 99 Mo. 666; State v. Furgeson, 152 Mo. 92; State v. Shipley, 174 Mo. 512; State v. Guinn, 174 Mo. 680; State v. Kring, 174 Mo. 647; State v. Brownfield, 15 Mo. App. 593. (5) The court erred in refusing to retain and record the first verdict of the jury. Sec. 2651, R. S'. 1899; State v. Robb, 90 Mo. 34; State v. Dennison, 108 Mo. 543; State v. Foster, 115 Mo. 481.

      Herbert S. Hadley, Attorney-General, and N. T. Gentry; Assistant Attorney-General, for the State.
    (1) No error was committed by the trial court in allowing the State to ask the witness, Robert Barks-dale, where he had spent the previous night, and in compelling said witness to answer that question. The only objection made by defendant to said evidence was that it was “irrelevant, immaterial and incompetent,” which this court has said amounts to no objection at all. State v. McLaughlin, 149 Mo. 27; State v. Young, 153 Mo. 449. But even if said objection had been full and the exceptions properly saved, no possible harm could have resulted to defendant, especially in view of the additional questions propounded to said witness by defendant’s counsel. The State clearly had a right ,to cross-examine said witness, to bring out from him anything that would tend to weaken his evidence, to show his interest or bias, as well as to reflect on his credit and standing. And, in the re-examination of said witness, defendant had a right to have him explain anything which the State brought out that tended to reflect on his character. This was done by defendant, and he thereby vindicated his witness, and the error, if error bad been committed, became nonprejudicial. Tbe fact that tbe witness had been convicted and sent to jail for contempt of court, could, in no possible way, bave biased tbe jury against bim, nor reflected upon Ms credibility. Neither did tbe trial court commit error in allowing tbe State to examine Mrs. Jessie Kirkpatrick in rebuttal, and to prove by her tbe fact that she found two bullet boles in deceased’s trunk. While said evidence may have very properly been introduced in chief, yet it was also competent in rebuttal. State v. Reed, 137 Mo. 134; State v. Linney, 52 Mo. 41; 1 Thompson on Trials, sec. 344; State v. Goddard, 162 Mo. 229; State v. Thornhill, 177 Mo. 696. If it was competent to contradict the defendant by oral evidence, certainly it was competent to contradict bim by introducing in evidence tbe trunk that bad bullet boles in it. Tbe record does not show that tbe trunk was “paraded before tbe jury” any more than any other piece of evidence. And its introduction could not bave “inflamed tbe minds of tbe jury and prejudiced them against tbe defendant” any more than tbe introduction in evidence of a coat or a shirt worn by tbe deceased, nor tbe introduction of a bloody knife or a powder-stained pistol, with which tbe homicide bad been committed; all of which bave been held to be proper evidence in murder cases. 4 Elliott on Evidence, sec. 3028; 2 Wigmore on Evidence, sec. 1157; Underbill on Crim. Evid., sec. 48; State v. Goddard, 146 Mo. 184; State v. Wieners, 66 Mo. 29; Wharton on Homicide (2 Ed.), see. 674; Hart v. State, 15 Tex. App. 230: (2) No error was committed by tbe trial court in giving instruction 2 for tbe State; in fact, said instruction has been approved by this court, when tbe words “beyond a reasonable doubt” were added thereto. State v. Bauerle, 145 Mo. 18. And it has often been held that it is not necessary to add said words to every instruction, when another instruction is given defining reasonable doubt. State v. Pyscher, 179' Mo. 156; State v. Hyland, 144 Mo. 311; State v. Parker, 172 Mo. 205; State v. Marsh, 171 Mo. 528. (3) (a) Even if it he admitted that error was committed by the prosecuting attorney in his opening statement, when he referred to the good character of the deceased, defendant’s counsel have failed to preserve said error for review. (b) The same is true of the remark of the prosecuting attorney to the effect that Kelley Summers and Mrs. Hearn, two of the State’s witnesses, were good people. As this part of the opening statement is not assigned! as error in defendant’s motion for a new trial, the same is not subject to review by this court. (4) No verbal instructions were given by the trial court at the time of receiving the verdict, nor prior thereto. It is true, that the jury returned a verdict which the court could not receive, and did not receive. The jury were sent back to their room to correct the verdict, which was promptly done. But, if technicalities are to be indulged in, defendant has waived his right to object to the remarks of the trial court by failing to object and failing to save his exceptions to said remarks at the time they were made. The record shows that defendant was present, in person and by his attorney, and yet made no objections to the remarks of the court. The first mention of any objections from defendant is in the motion for a new trial; this is not sufficient. State v. DeWitt, 152 Mo. 86; State v. DeMosse, 98 Mo. 343; State v. McC'arver, 194 Mo'. 733. (5) No error was committed by the trial court in refusing to receive and enter up the first verdict returned by the jury. State v. DeWitt, 186 Mo1. 71. (6) The evidence was sufficient to warrant a conviction of the defendant, even of murder in the first degree.
   GANTT, J.

On the 9th day of December, 1904, the prosecuting attorney of Pemiscot county filed an information charging the defendant and one Luther Erankum with murder in the first degree. At the July term, 1905, the case was dismissed as to Frankum and the defendant was tried and convicted of murder in the second degree, and his punishment assessed at thirty years in the penitentiary. After taking the proper steps he appealed the cause to this court. .

The evidence on behalf of the State tended to prove that the deceased, George Bradley, and his wife and three small children lived as a tenant in a house on a farm owned by the defendant, Miles, which farm was situated some two or three miles from the town of Game or Stubtown in Pemiscot county. At the time of the homicide defendant was marshal of the said town and had been for two years. The wife of the deceased had been away from home for a few days visiting at her .mother’s and had taken with her a sewing machine, trunk and bed. Early on the morning of December 7th, Bradley, the deceased, drove his wagon to his mother-in-law’s, and brought his wife and children and the said furniture back to his home, on defendant’s farm. When he reached home, he left his team at the gate and moved the trunk and machine to the porch of the house, and then went in the front room to kindle a fire. The house consisted of two front rooms with a hall between them, and the porch in front of the hall and the two rooms. The deceased, it seems, was cropping on shares for the defendant, and had raised a crop of potatoes and had cut some wood, and the defendant had moved some of these potatoes and put the others in the ground and covered them up. Early on the morning of the difficulty, Frankum, who was in the employ of the defendant and doing some work on this farm, said to one Summers, in the presence of the defendant, that Bradley had said the day before that defendant was taking too much authority down there at the farm, and that he, Bradley, would rather defendant would not do the like any more. To this the defendant replied, “Well, when I get down there, me and Bradley will have a settlement; you see if we don’t. ” This was said in an angry tone. Soon after breakfast, the defendant and Frankum and Felix Noble got into a road wagon, and drove from Game to tbe defendant’s farm, where the deceased was living. The defendant took his pistol along with him. When they reached the farm, they stopped the wagon near the lot gate and the defendant and Noble got ont of the wagon and walked to the yard gate. While the deceased was trying to make the fire in the front room, the defendant called to the deceased’s wife, who was on the front porch, to tell deceased to come out there, that he wanted to settle. After being told of this message, the deceased got his account book and walked ont towards the front gate, which was about twenty-seven feet distant from the house. As the deceased walked along he opened the account book and was looking at it and was turning the leaves; when he got near to the gate, defendant said to him, “George, you have been blowing too much, ’ ’ and the evidence on the part of the State tends to show that the defendant at once drew his pistol and began striking the deceased on the head and face, and then fired at the deceased twice. The first shot took effect in the left wrist of the deceased, and the second in the left side, coming out at the back. The deceased ran towards his wife, who was standing on the front porch, and there was evidence that as he ran the defendant fired three more shots at him, one of which took effect in the back just under the left shoulder blade and came out over the left collar bone, the bullet ranging upward. Two of the shots fired by the defendant struck the trunk on the front porch. As the deceased ran by his wife he stumbled, but regaining his balance ran into the house, got his gun, returned to the front porch and fired at the defendant, who was then retreating down the road. Deceased soon became weak and fell to the ground. He was carried into the house by his wife and Mr. Jones and expired in about thirty or forty minutes.

The foregoing facts were testified to by Mrs. Bradley, and she was corroborated by Felix Noble and Mrs. Martha Hearn.

The State’s witnesses also testified that the de- ■ ceased was inside of the house when the defendant called for him and did not have any gun in his hand until aftér the defendant had fired five shots and wounded the deceased1.

On behalf of the defendant the evidence tended to show that the. defendant and Frankum had been doing some work on this farm of the defendant for several days prior to this difficulty, without any opposition on the part of Bradley, the deceased, and that there was an unsettled account between them in regard to some wood and some potatoes. There was also evidence on the part of the defendant tending to show that Felix Nohle was intoxicated the day before and on the morning of the shooting, and was so drunk that morning . that defendant had to help him into the wagon and hold him down after he got him in, and that defendant took a drink with Noble just before leaving Game. The testimony on the part of the defendant also was to the effect that no threat was made hy the defendant that morning, and that defendant’s, pistol was not on the shelf in the same room with the defendant when Summers was present, as Summers testified. There was also evidence of threats made by the deceased, some of which were of a vague and indefinite character. Defendant testified that he had never heard any of said threats until after the shooting, and did not know of any ill-feeling existing toward him on the part of the deceased ,• that their relations were friendly and he had often taken dinner with the deceased and family and had shot craps with him in the saloon for cigars and drinks. Defendant and Frankum testified that the ill-feeling of the deceased toward defendant had been brought about by the fact that defendant had sawed up into firewood, and hauled away, some logs which had been lying in the barn yard occupied by the deceased, and defendant had removed from the barn a lot of partnership potatoes and hilled them up on the premises to keep them from freezing, and had taken for his own use a sack full of them. The defendant’s testimony further tended to prove that defendant fired but three shots; that these shots entered the body of the deceased from the rear and ranged upwards.

Frankum testified in detail that when they reached the premises of the deceased that morning he drove the wagon up close to the lot gate and stopped, the defendant Miles got out and found the lot gate locked and called to Bradley to come out and unlock the gate, whereupon the deceased replied: “You come and make me. ’ ’ Thereupon the defendant then told him to unlock the gate and Bradley went in and got his gun and said, “You make me.” Bradley, the deceased, was standing on the porch holding his gun in his arms about half raised; the defendant then told him if that was the way he was going to do, to get his book and settle up. The deceased then went in and got his book and came out to the gate. When he came out with the book, the defendant went into the yard and witness saw them, they were fighting. He did not know who struck the first lick, but heard defendant say: “You got your gun to shoot me with awhile ago,” and deceased said, “Gr— d— you, I will kill you, ’ ’ and started to the house in a run; thereupon defendant shot him, fired three shots pretty fast. The deceased was two or three steps from the defendant when the defendant began shooting; when defendant fired the last shot, the deceased was going up the steps of the porch. The defendant ran after the shooting, and deceased got his gun, came out on the porch and fired one shot at defendant, who was twenty-five oy thirty feet from him. The deceased was gone a very short time after the gun, not long enough in the opinion of the witness to have taken the gun, loaded it and return to the porch and fire at the defendant. Witness did not see where Bradley got the gun.

The defendant testifying in his own hehalf corroborated Frankum’s statement and adds that after the deceased had said, “You make me unlock the gate,” he said to him, “If you are going to treat me that way get your hook and we will settle up and quit one another.” Thereupon the deceased went hack and the defendant thought he had carried the gun into the house; that defendant went to the lot gate and saw the gun sitting by the side of the door in the hall. Deceased went into the house and got his hook. “We then got into this settlement, he commenced cursing about the potatoes and told me I took too d— much authority, I told him I done so as an accommodation. He said I had been stealing the potatoes that he owned; that I was a d— thief, I told him he was a liar. He struck at me then and hit me on the arm and we commenced fighting*. I said to him, ‘You started to get your gun, didn’t you?’ and he said, ‘Gr— d— you, I will get it,’ and started to the house. I fired three shots as fast as I could shoot. He was either going up the steps on the porch or at the door of the porch when I fired the last shot. After that I ran, got out of the gate; I. thought I had missed him; I ran sixty or seventy feet when he came out with his gun and shot, I thought twice, but others say he only shot once.”

The points upon which the defendant seeks a reversal and the facts in connection therewith will be noted in the course of the opinion. But it may be added here that there was testimony in rebuttal on the part of the State contradicting the evidence for the defendant to the effect that Noble was drunk that day, and also contradicting certain statements attributed to the wife of the deceased.

I. It is insisted that William Kinley, one of the panel of forty from which the jury of twelve was selected to try this cause, was incompetent on the ground that he had formed and expressed an opinion. But it is apparent that the juror knew nothing about the case except from neighborhood rumors; he had talked to no witness in the case, and knew nothing of the facts himself; he did state that from what Jim Ray told-him he had some little sort of an opinion, if what Ray told him was true, but that Ray was. not a witness and only undertook to tell him what he had heard. It was conceded that Ray was not a witness in the case and only undertook to repeat the rumors that he had heard, and the juror stated that he could render a verdict in accordance with the evidence. But it is unnecessary to discuss the competency of this juror further, for the reason that counsel for the defendant stated no grounds for the challenge of the juror further than for cause. [State v. Taylor, 134 Mo. 109; State v. Evans, 161 Mo. 95; State v. McGinnis, 158 Mo. 105; State v. McCarver, 194 Mo. l. c. 737.]

II. Error is assigned on cross-examination of Robert Barksdale, a witness for .the defendant. This witness was called to contradict the evidence of Felix Noble, a witness for the State, after he had testified to the statements made to him by Noble as to the occurrence of the morning of the homicide. He was asked by counsel for the State where he had stayed the night before; to this counsel for the defendant objected for the reason that it was incompetent, immaterial and irrelevant. The witness then answered that he had stayed in jail the night before, and then on re-direct examination he testified that he had been put in jail for contempt of court for failing to appear when called the day before as a witness,'and not for any kind1 .of criminal offense. As the contempt for failing to obey the subpoena was in no sense a criminal offense, the proof that he had been in the jail for the contempt did not in. the least tend to impeach his testimony. It was an examination upon an immaterial matter, and it certainly can not be said to have wrought any prejudice to the defendant, though it should have been excluded as irrel-. evant.

Again, it is urged that there was error in permitting the State, after the close of all the other evidence, to offer in evidence the trunk in which the bullet holes appeared. "While we think this evidence was clearly competent in chief, its admission by the court out of the usual order was in the discretion of the trial court. This has been so often decided that it is unnecessary to notice this point further. [State v. Reed, 137 Mo. 134; State v. Thornhill, 177 Mo. 696.]

Another ground of complaint is that the court permitted the State to cross-examine Luther Frankum as to whether he was not a suitor of defendant’s daughter. He testified he was not, and there was no contradiction of the evidence on this point, and no harm could have resulted from the testimony, but we see no objection to a cross-examination which seeks, to elicit the relationship of the parties which has a tendency to show that ' his evidence might be more favorable on that account.

m. Instruction numbered two, given by the court of its own motion, did not contain the words “feloniously” and “beyond a reasonable doubt,” and because of the omission of these words, the learned counsel for the defendant insists that the instruction was erroneous, although in every other respect it properly defined murder in the second degree and correctly informed the jury what they should find in order to convict the defendant of murder in the second degree. It has been often ruled by this court that it was not error to omit the words “felonious” from the instruction defining murder in either degree. In State v. Scott, 109 Mo. l. c. 232, it was said: “The word ‘felonious’ is descriptive of the grade of the offense, rather than the criminal act which constitutes the offense, and ordinarily has no place in the instruction . . . and can be omitted altogether without affecting, in the least, the correctness and sufficiency of the instruction.” And it has also been ruled that, if used, it was wholly unnecessary to define it. [State v. Parker, 106 Mo. 223; State v. Cantlin, 118 Mo. l. c. 111; State v. Parker, 172 Mo. l. c. 205, 206.] It has just as often been held that it was no error to fail to use the words “beyond a reasonable doubt” in each of the instructions, but it is sufficient to give a general instruction on that subject applicable to the testimony as a whole. [State v. Good, 132 Mo. l. c. 126; State v. Pyscher, 179 Mo. l. c. 156.]

IV. Error is assigned on account of certain language used by the prosecuting attorney in his opening statement to the jury. The words attributed to the prosecuting attorney were these: “We shall show you that a more dastardly murder was never perpetrated on a noble and Christian soul.” The record discloses that when the counsel for the State used this language it was promptly objected to by the defendant, and the court said that the language was improper, and said to the prosecuting attorney that he had already intimated to him that he should confine his remarks to what he expected to prove. Other remarks of the prosecuting attorney are alleged in the brief as hurtful and prejudicial, but by reference to the eighth assignment in the motion for new trial, it will be observed that the defendant singles out the one remark in the opening statement, which he considered an error, and makes no complaint of other remarks in the opening statement. If he desired these other remarks to be reviewed in this court, it was clearly the duty of the defendant to have called the trial court’s attention thereto in his motion for new trial. In view of the fact that the trial court at once disapproved and rebuked the prosecuting attorney for referring to the deceased as a noble and Christian soul, we are of the opinion that it was no such error as to work a reversal of so important a cause. In State v. Sublett, 191 Mo. l. c. 174, it was said by this court: “While counsel in addressing the jury should confine their remarks to the facts of the case under consideration, as disclosed by the record and the evidence, a judgment should not he reversed and a new trial granted for every slight transgression by counsel of' the' character alluded to; but to authorize such a course, the court should be satisfied that the improper remarks were prejudicial to the defendant and had some influence with the jury in arriving at their verdict, which we do not think the ease in this instance. ’ ’

Y. ■ It is urged that the circuit court erred in giving instruction numbered 16, in the following circumstances :

At the close of the opening argument for the State Mr. C. B. Paris, one of the counsel for the defendant, in his argument before the jury, said, among other things, that as marshal of the town of Game, the defendant had a right to have and carry concealed upon his person, a pistol, and thereupon the court, during the argument of Mr. Faris, after the above statement was made, gave the jury this additional instruction: “The court instructs the jury that if you believe from the evidence that the defendant John Miles was, at the time of the alleged homicide, marshal of the town of Game, that fact of itself would not authorize him, as such officer, to go around the country armed with a pistol.” It is clear that the learned counsel for the defendant was usurping the function of the court in stating the law to the jury as to the right’of the'defendant to carry concealed weapons, and it was evidently given by the court to correct what it deemed to be a misstatement of the law made by the learned counsel. It is plain that the action of the court was induced by the statement of the learned counsel. It is now suggested by counsel for the defendant that, if he was transgressing the points of legitimate argument, the correct practice would have been for the court to have checked him and admonished him to keep within the record, but if the court had undertaken to do this verbally, we would in all probability have had the objection made that the court was giving instructions not in writing. Upon consideration of the whole matter, the testimony of the defendant as well as that on behalf of the State, it appears to us that the right of the defendant to carry a concealed weapon on the morning in question was not an issue in the case. He was confessedly not performing any duty devolving upon him as marshal of his town, nor had he gone to the premises .of the deceased to execute any process or warrant, or to make any arrest, and all reference to his right to carry a concealed weapon on that occasion was foreign to any proper discussion of the cause, and while the learned circuit judge deemed it best to correct the statement of his counsel as to such a right by this instruction, it is perfectly obvious that it could not be said to be prejudicial to the defendant, and it affords no ground for reversing the judgment.

VI. Again, it is made another ground of new trial that Mr. Bice Pierce, one of the counsel for the State, made improper and prejudicial remarks in the course of his argument. It is said that he made the remark that defendant did not deny anything. It appeared from the bill of exceptions that what Mr. Pierce did say was, “lam saying that he did not contradict. If I am wrong, I will stop. ’ ’ The Court: “You may proceed. ’ ’ Mr. Pierce, continuing, “I say that witness went on the stand and said that this man was hitting Bradley with a pistol when he turned. The defendant was a witness in the case, and what does he say? He says: ‘I said to him all that Frankum said he heard him say, and that was, “Now get your gun; go get your gun; go and get your gun.” ’ ” Defendant, when on the stand testifying in his own behalf, said: “I told him [the deceased] after he started, to get his gun.” The burden of this objection is that the State’s attorney had no right, in discussing the testimony of the defendant and the defendant’s witness Frankum, to say that there was no contradiction by the defendant of what his witness Frankum had said, on the ground that our statute (sec. 2638, R. S. 1899) provides: “If the accused shall not avail himself or herself of his or her right to testify or of the testimony of the wife or husband, on the trial in the case, it shall not be construed to affect the innocence or guilt of the deceased, nor shall the same raise any presumption of guilt, nor be referred to by any attorney in the case, nor be considered by the court or jury before whom the trial takes place.” This statute has been before this court on various occasions. In State v. Graves, 95 Mo. 510, it was held error to' allow the prosecuting attorney over the objections of the defendant and without rebuke from the court, to comment upon what the defendant might have testified to, or did not, when on the witness stand. Arguendo, the court said: “Under this statute, the defendant has two options, the first of which is that he may elect either to go on the stand or not, as a witness; and second, when he elects to go on the stand, he may testify only to such matters as he may choose. It is clear that, under the statute, if he elects not to go on the stand, the fact that he did not testify at all, could ‘neither be construed’ to affect his innocence or guilt, nor be referred to' by any attorney in the case. If the statute forbids comment upon whát he might have sworn to when he elected not to go on the stand, why does it not in its essence and spirit, when he elects to testify, also forbid comment upon what he might have sworn to while on the stand and which he elected, as under the statute he had a right to do, not to testify about 1 In the case of State v. Anderson, 89 Mo. 330, it is said in arguendo, ‘that under the statute no comment or allusion can be made to the failure of a defendant to testify in his own behalf, yet this rule extends no further than the terms of the statute, so that when a defendant in a criminal cause takes the stand, and fails, as in this case, to testify to and explain prominent and damaging facts peculiarly within his own knowledge, the inferences from such failure are as adverse as though he was a witness in a civil case.” Subsequent cases of this court have repeated the rule that it is improper for counsel for the State to comment on the defendant’s failure to testify to any particular fact. [State v. Elmer, 115 Mo. 401; State v. Fairlamb, 121 Mo. 150; State v. Snyder, 182 Mo. 523, 524.]

But in State v. Buck, 194 Mo. 440, 441, the facts were similar to those now before us. In this case, there was no failure on the part of the defendant to testify. In his testimony he undertook to tell all that was done and all that was said by himself and the deceased at the time and just before the homicide. The counsel for the State, in the remarks objected to, was simply stating that there was no contradiction by the defendant in his testimony of what the defendant’s witness Erankum had testified to. In State v. Ruck, 194 Mo. 441, after discussing the difference between the case of State v. Snyder, 182 Mo. 523, in which the defendant failed to testify, and in which the witness detailed a transaction between himself and the defendant when no other person was present, and in which the prosecuting attorney in discussing this evidence said that he believed what the witness had said was the truth, and it had not. been denied, and repeated that there was no witness on the defendant’s side to deny it, it was held that this was an unlawful reference to the defendant’s failure to testify and a violation of the statute. Whereas, in Buck’s ease, counsel for the State in the course of his argument used the general language, “Here we have testimony undenied and undisputed. ’ ’ And it was insisted that that was a reference to the failure of the " defendant to testify, but it was said that where the evidence had taken a wide range and included many facts and circumstances, it was perfectly competent for counsel for the State, in his argument, to insist that the State had established these facts beyond contradiction, and it was said, “Nor do we think it will do to give section 2638, Revised Statutes 1899, sjich a construction that 'counsel for the State'may not in the course of an argument, if the evidence of the State is uncontradicted, allude to it as undenied and undisputed. ’ ’

But the statements of Mr. Pierce in this case clearly violated no statute or rule or propriety; he was simply attempting to demonstrate, as well as we can glean from the meager excerpt from his speech, that taking the testimony of the defendant’s witness Frankum, and the defendant himself, there was no contradiction really between them, and that defendant had assaulted Bradley with a pistol by beating him, and then when he started towards the house shot him. We think there was no error in the action of the court on this point.

Neither was there any error in the statement of the assistant attorney for the State stating that the testimony showed that ‘ ‘ the defendant put his hand in his bosom and pulled out a naked weapon. The defendant did not deny it, there is no contradiction of that fact.” In view of the fact that the defendant in his own behalf stated that he shot at the deceased three times as he ran from him, it would seem that counsel for the State might well say, as he did, that the defendant pulled out a naked weapon, and that there was no contradiction to that fact, as there was none. It was testified to by all the eye-witnesses, and the counsel for the defendant in the argument of the cause justified the defendant in carrying the pistol. The statement that the defendant did not deny it had not -the remotest reference to any failure on the part of the defendant to testify. It was but his way of asserting what the defendant and all the other witnesses stated, that the defendant drew his pistol that morning, and shot at the deceased and inflicted wounds from which he died. If under the defendant’s own statement in the case, counsel could not assert these facts and state that they were not denied, then there is no longer any right of argument left to the State. As to the reference to the scabhard, when the counsel for the defendant objected to this, the circuit court properly said there was no evidence one way or the other on that subject, and at most it was but a deduction which counsel had a right to draw from the evidence or want of evidence. It did not effect the case one way or the other.

VII. Complaint is made that the prosecuting attorney in his closing argument alluded to the witness Felix Noble as a good man, and to the negm man, Rhodes, who testified to the number of drinks that Noble took and the exact number of minutes which elapsed between the drinks, as a black rascal, whose testimony should not control the judgment of the jury. Objections were made by the counsel for defendant to this statement, first, that there was no proof that Noble was a noble and good man, whereupon, the prosecuting attorney invoked the presumption that every man was a good man until you show otherwise, to which counsel for the defendant answered there was no proof of that fact in this case, and the court stated there was no proof ■either way, and counsel for the defendant excepted to the ruling. The mere fact that the prosecuting attorney alluded to old man Noble as a good man, is certainly no ground to reverse this judgment. Nothing is more common than that counsel will commend their own witnesses and depreciate those of the opposite side. As to the remark in regard to the evidence of the witness Rhodes, the witness had laid himself open to the severest criticism by the character of his testimony, and while the criticism might have been couched in more elegant language, it is out of the question to hold that this designation of the witness should reverse this cause. We are reminded in this connection of what was said by Judge Sherwood in State v. Emory, 79 Mo. 463, that: “Prosecuting attorneys are now so ‘cabin’d,’ ‘cribb’d,’ ‘confin’d,’ that they are really afraid to make an effective speech; to indulge in just and fierce inveetive against a criminal, lest if a verdict be won for the State the judgment will be reversed. Every term of this court changes are rung on on improper remarks made by the prosecuting attorney. It is high time that this ‘point, no point’ should cease to be pressed upon our attention.”

VIII. It is next urged as a ground for reversal that the circuit court erred in refusing to accept the verdict of the jury, which was first returned into court finding the defendant guilty of manslaughter in the second degree and assessing his punishment at a term of thirty years, and directing the jury to retire for further consideration, after which they returned a verdict of murder in the second degree, assessing the punishment of the defendant at thirty years in the penitentiary. From the testimony taken on the motion for new trial it appeared that when the jury returned into court, they handed their verdict to the clerk, and it was in this form: “We the jury find the defendant guilty of manslaughter in the second degree, and do assess his punishment by imprisonment in the penitentiary for a term of thirty years.” At this point the judge said to the clerk, “Hand me those instructions.” Thereupon the judge informed the jury that their verdict did not conform to the instructions of the court; that under the law given them by the court, they could not assess the punishment for manslaughter for thirty years. The foreman of the jury testified that at the close of the argument by counsel, the court handed the jury blank forms for their verdict with the instructions in the case. He states that when the verdict for manslaughter was read over by the- clerk, by the direction of the judge, several of the jury at least told the court that that was not their verdict, that there.was a mistake. The court thereupon stated to the jury that it could not receive the verdict and directed them to retire and consider of their verdict. Afterwards, on the same day, the jury returned a verdict of guilty of murder in the second degree and assessed the defendant’s punishment at thirty years in the penitentiary. It is clear from all the testimony on the motion as well as from the statement of the judge in the bill of exceptions, that the court did not receive the verdict. It seems perfectly plain that the verdict of manslaughter was not intended by the jury, but was the result of having a form of a verdict of manslaughter as well as one for murder in the second degree furnished them by the court when they retired, and that they had filled out the blanks in the manslaughter verdict instead of the one for murder in the second degree by oversight of the foreman, and that when their attention was called to it by the reading of the verdict by the clerk, the jury never declared it was their verdict in court. And the court advised them that they could not affix a punishment of thirty years for manslaughter and directed the sheriff to return the jury to their room to consider further of their verdict. And afterwards they returned into court the verdict of murder in the second degree, which was read over to them and they all declared, in the presence of the court, that this was their verdict, and they were then discharged. Mr. Bishop in his New Criminal Procedure, vol. I, sec. 1003, says: “Until the announcement that the verdict is recorded, ... or some such period, as to which the oases are not distinct or uniform — the jury may change it at pleasure, or one may defeat it by dissent; but after they have dispersed, they cannot be recalled to alter or amend it, nor can a juror object that he did not consent thereto.” And in section 1004 he says: “A verdict inadequate in form or substance should not be received; but the jury should be required to perfect it, either in the presence of the court, or by returning for the purpose to their room, due consultation having been had with the judge, and if necessary further evidence delivered.” The authorities fully sustain the text of the learned author.

In State ex rel. v. Clemenston, 69 Wis.635, thecourt ' says: “All the authorities hold that a jury may after announcing a verdict, if they see fit before they are discharged, change the same and render a different verdict. And in many cases, where the jury have manifestly made an omission or mistake in their verdict, it is the duty of the presiding judge to call their attention to that fact, and return it to the jury for correction.” Many oases are cited by the court in support of this statement and the court concludes, “These cases show the power of the court as well as the jury over their verdict, and that the verdict which binds all parties, is that at which the jury finally arrive and deliver to the court. ’ ’

In State v. Keasley, 50 La. Ann. l. c. 763, the Supreme Court of Louisiana said: “Counsel for the accused does not controvert the proposition that the court may decline to receive an illegal and imperfect verdict. He contends that the result was after the court had given its instructions regarding their power to make a change, the jury instead of making a change resumed its deliberations and changed a finding previously announced. That the first verdict showed that the jury had concluded that though defendant had shot at Antoine he had missed him. That this finding was changed in consequence of the second instruction regarding their first finding. The following from Bishop’s Criminal Procedure directly applies: ‘When the jury comes in with a verdict it is not as of course to be immediately received in the form in which it is rendered. And it is probably the correct doctrine that the judge may require the jury to pass on the verdict upon the whole indictment in such form of words as shall constitute a sufficient finding in point of law, or if they refuse, decline altogether to accept the verdict. It seems quite plain that in every case of a verdict rendered the judge or prosecuting officer or both should look after its form and its substance' so as to prevent a doubtful or insufficient finding from passing into the record of the court.’ [Yol. 1, sec. 1004.] .... It is settled by repeated decisions, where the jury returns an incomplete verdict, or one not responsive to any charge in the indictment, the court may direct them to retire and bring in a proper verdict. It follows that the court may inform the jury, without necessarily suggesting what shall be the verdict, why it is that the verdict is incomplete, or not responsive to the charge. ”

In People v. Jenkins, 56 Cal. l. c. 7, it is said: “It is the duty of the lower court to look after the form and substance of a verdict, so as to prevent a doubtful or insufficient finding from passing into the records of the court; for that purpose the court can, at any time while the jury are before it, and under its control, see that it is amended in form so as to meet the requirements of the law. ’ ’

In Heller v. State, 23 Ohio St. l. c. 584, it was said: “Where, on the trial of an indictment for malicious shooting with intent to kill, the jury return for their verdict that they ‘find the defendant guilty of shooting with intent to kill, while in a fit of passion and excitement, but without malice,’ it is not error for the court to refuse to receive such verdict and require the jury to further consider the case.”

In Trent et al. v. State, 31 Tex. Cr. Rep. 251, the jury returned a verdict finding both guilty, and affixing the punishment at confinement in the reformatory, whereupon they were informed that' Trent could not be sent to the reformatory, and thereupon they retired and returned a verdict sending both to the penitentiary. And it was held no error.

In State v. Taylor, 14 Tex. App. l. c. 351, 352, it was ' said: “We think the action of the court in refusing to receive the first verdict returned by the jury, was correct. This verdict found the defendant guilty of murder in the first degree and assessed the punishment at confinement in the penitentiary for ninety-nine years. It was not only an informal verdict as to the punishment, but it was contrary to the charge of the court, and it was not such a finding as the court could receive. It was not only proper but it was the court’s duty to refuse to receive the verdict and to call the attention of the jury to the charge of the court and send them out again to consider of their verdict. ’ ’

In State v. DeWitt, 186 Mo. l. c. 71, it was said by this court: “A practice has obtained in many of the circuits, which we commend, of the courts giving the jury a form for their verdict, but when the verdict is returned, and it is found uncertain or insufficient, the court should so state to the'jury and require them to put it into proper form, or with their consent amend it in their presence. ’ ’

That the finding of the jury in the first verdict, that the defendant should be imprisoned’ in the penitentiary for thirty years for manslaughter, was contrary to the law and the instructions of the court, there can be no doubt, and it was clearly in the power of the coiirt, and it was his duty to decline to receive the verdict in that form, independent of the fact that the jury had made a mistake in filling out the blank verdict for mansláughter instead of the one for murder in the second degree, and when the jury discovered their mistake, it is also obvious that it was in the power of the jury to correct it when they retired to further consider their verdict.

But we are cited by the learned counsel to section 2651, Revised Statutes 1899, which provides: “If the jury assesses a punishment, whether of imprisonment or fine, greater than the highest limit declared by law for the offense of which they convicted the defendant, the court shall disregard the excess, and pronounce sentence and render judgment according to the highest limit prescribed by law in the particular case.” But that section evidently refers to a ease in which the court receives the verdict and then prescribes the sentence which shall be inflicted. It does not compel the court to receive a verdict which is illegal on its face, nor require the court to receive a verdict which the jury, when their attention is called to it, state is not their verdict, but is a mistake, as is the case here. After a consideration of all the authorities on this subject, we are satisfied that no error was committed by the learned circuit court in declining to receive the verdict, and in calling the jurors ’ attention to the mistake that had been made, nor in permitting the jury to retire to their room and further consider the matter, and in finally receiving their verdict finding the defendant guilty of murder in the second degree and assessing his punishment at thirty years in the penitentiary.

But there is another reason why the objection now urged to the action of the court in calling the attention of the jury to the error in their verdict, and in permitting them to retire to their room and correct the same, cannot avail the defendant on this appeal and it is this: when the court declined to receive the verdict and directed the jury to retire to consider further, no objection or exception to the court’s action was taken by the defendant at the time. Nothing is better settled in this State than that exceptions in criminal causes rest upon the same footing and must be taken in the same way as provided by law in civil cases, and cannot be urged for the first time in a motion for new trial. [State v. DeMosse, 98 Mo. l. c. 343, and cases there cited.]

IX. It is further objected that the court erred in giving oral instructions to the jury. To the understanding of this point, it should be stated that after the jury had retired to consider their verdict, they requested to be brought before the court, and thereupon the foreman or some other member of the jury stated to the court that some of the jurors did not understand the instructions, and thereupon the court stated to the jury when the instructions provide a minimum punishment, the jury cannot go below that minimum, but where the instructions provide no maximum punishment, the jury are at liberty to fix tbe punishment for such length of time as they see fit, not less than the minimum. And the jurors-not having requested any further instructions, the court directed them to be returned to their jury room. The defendant and his counsel were both present when the jury made their statement to the court and when the court directed them as to the meaning of the instruction, and the bill of exceptions discloses that no objections were made and no exceptions taken to the action of the circuit court in explaining to the jury the meaning of the instructions as. to the extent of the punishment. As already stated, for that reason the point now made is not open for review by this court. [State v. DeMosse, 98. Mo. 343, and cases cited.]

X. Counsel for defendant complained that the prosecuting attorney asked the witnesses questions as to the good reputationof certain of theState’switnesses ■ when such reputations had not been attacked by the defendant, but admits that when such questions were asked counsel for the defendant objected to the same and their objections were sustained by the court. It is too plain for discussion that the circuit court cannot be convicted, of error under such circumstances. [State v. Grant, 144 Mo. l. c. 65.]

XI. Finally, it is insisted that the punishment is so- excessive as to indicate bias- and prejudice on the part of the jury. . We are unable to concur with the learned counsel in this contention. If the jury believed the testimony for the State, as they evidently did, the defendant began the difficulty by striking the deceased over the head with his pistol when the deceased was unarmed andthen when the deceased ran from Mm, shot Mm three times. The testimony was sufficient to justify the jury in finding that the defendant went to the premises of the deceased armed with’ a deadly weapon, and without any lawful provocation assaulted the deceased by beating him over the head with a revolver and then brutally shooting him down in his own yard, in the presence of his family. The jury evidently repudiated the plea of self-defense, as they well might have done, and we see nothing in the evidence that indicates that the verdict was the result of passion of prejudice on the part of the jury, and this last assignment of error must be ruled against the defendant.

After a careful consideration of the whole record, we are of the opinion that the defendant had a fair and impartial trial, and the judgment of the circuit court should be and is affirmed.

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