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    THE STATE v. BECKNER, Appellant.
    Division Two,
    March 6, 1906.
    1. REPUTATION OF DEFENDANT: When Assailed. The reputation of a defendant, charged with a criminal offense, cannot be assailed by the State until defendant has offered proof of his reputation.
    2. -: For Violence and Turbulence: Inadmissible. A reputation for being violent and turbulent is not tantamount to a reputation for general bad character, and, hence, is not admissible to impeach the credibility of defendant as a witness.
    3. -: -: Character Not in Issue: Reversible Error. "Where a defendant has not put in issue his reputation for peace and quietude, it is not competent for the State to prove his reputation for turbulence and violence. Such testimony is directed to the impeachment of defendant in his character as a defendant, and not in his character as a witness, and its admission constitutes reversible error.
    4. -: -: Disproved by Defendant: Waiver. The error committed in permitting the State to show defendant’s character for violence and turbulence, when he has not put his character in issue, is not cured by defendant’s afterwards introducing testimony to disprove the same.
    5. -: Cross-Examining Witness: Entering into Details. While the State has a right, on cross-examination, to test the knowledge of a witness testifying to defendant’s good character, by inquiring of him if he has not heard of conduct tending to show that defendant was not a peaceable, law-biding man, it should not go into details, such, for instance, as the number of shots defendant was supposed to have fired at a certain house.
    6. EVIDENCE: Physical Condition of Deceased. Defendant’s testimony tending to show a great disparity in size and weight between him and the deceased, it was not error to permit the State to show the health and physical condition of the deceased before and at the time of the killing.

      7. -: Threats. While the alleged threat of deceased, made a month or six weeks prior to the homicide, that defendant “would get killed or kill somebody, over that girl, if he kept on going with her,” was vague and indefinite, it should have been admitted' if offered in connection with or after alleged threats made on the night of the homicide.
    8. SELF-DEFENSE: Instruction. An instruction that “unless the facts constituting such reasonable cause” of apprehending danger “have been established by the evidence in the cause, you cannot acquit the defendant on the ground of self-defense, even though you may believe he really thought he was in danger,” held, proper.
    Appeal from Jackson Criminal Court. — Row. Jno. W. Wofford, Judge.
    Reversed and remanded.

      Boyle, Guthrie & Smith for appellant; J. S. Brooks of counsel.
    (1) The trend of authority is to the effect that a witness may he impeached by showing his general reputation for truth and veracity, and his general moral character for the purpose of affecting his credibility as á witness; but it has always been held in all the courts that a man’s bad character for turbulence and violence could not be put in issue by the State unless the defendant had first introduced witnesses to show his character was good. 2 Wigmore on Ev., secs. 891, 922, 924; Bakeman v. Rose, 18 Wend. 146; State v. Sibley, 131 Mo. 519; State v. Pollard, 174 Mo. 607; State v. Nelson, 101 Mo. 468; State v. Smith, 125 Mo.'7; State v. Weeden, 133 Mo. 82; State v. Hudspeth, 159 Mo; 207. The ruling was especially injurious and prejudicial in this case for the reason that five witnesses were permitted to testify as to the character of defendant as a peaceable and quiet man, or a turbulent and violent one, and thereafter was further extended so as to permit the State to examine the character witnesses which defendant introduced, to specific acts of the defendant, all of which would have been incompetent if the court had'ruled properly in the first instance. (2) “The prosecuting attorney has a right to test the knowledge of the witness as to the general reputation of defendant by inquiring of him if he had not heard of conduct which tended to show he was not th© peaceable law-abiding man his evidence had tended to prove him to be. We think, however, it was objectionable to descend into the particulars of the number of shots fired in the Transit House difficulty.” State v. Parker, 172 Mo. 207. (3) It was error to permit the State to show the health and physical condition of deceased before and at the time of the lolling. It was in no way an issue in the case, and evidence to that effect was incompetent. (4) Defendant offered to show threatening language of the deceased used in reference to defendant a short while before the killing. Uncommunicated threats made by the deceased are admissible as tending to show who is the aggressor in an affray. State v. Spencer, 160 Mo. 123; State v. Bailey, 94 Mo. 316; State v. Sloan, 47 Mo. 610; State v. Harrod, 102 Mo. 609; State v. Elkins, 63 Mo. 165; State v. Nelson, 166 Mo. 191; State v. Yalle, 164 Mo. 539. It may be urged that the language upon which defendant relies as a threat could not be so construed. That should be a question for the jury, and the evidence is especially valuable in view of the facts of this case, as it clearly demonstrates Brown’s attitude toward the defendant at the moment the quarrel started. (5) Instruction 13 given on behalf of the State on self-defense does not properly state the law of self-defense. (a) There is no legal evidence that defendant brought on the difficulty or entered into it for the purpose of taking advantage of the deceased, and he was entitled to an instruction on self-defense clear and simple without any reference to bringing on or entering into the difficulty with or without the intention of taking advantage of and killing or injuring the deceased, (b) The second part of this instruction contained in the last clause which requires the defendant to establish his defense is plainly erroneous. State v. Wingo, 66 Mo. 181; State v. Hill, 69 Mo. 451.

      Herbert 8. Hadley, Attorney-General, Frank Blake, Assistant Attorney-General, and I. B. Kimbrell for the State.
    (1) The testimony respecting the general reputation of defendant for being a violent, turbulent and dangerous person was admissible to impeach him as a witness. That any witness in a case may be impeached not only by showing that his general reputation for truth and veracity is bad, but also by showing that his general reputation for morality and for possessing the various attributes of an immoral character is bad, has been the settled law of this State since the case of State v. Shields, 13 Mo. 236, decided in 1850. State v. Shields, 13 Mo. 236; State v. Hamilton, 55 Mo. 520; State v. Breeden, 58 Mo. 507; State v. Clinton, 67 Mo. 380; State v. Miller, 71 Mo. 590; State v. Grant, 79 Mo. 133; State v. Rider, 95 Mo. 486; State v. Parker, 96 Mo. 391; State v. Shroyer, 104 Mo. 447; State v. Day, 100- Mo. 242; State v. Raven, 115 Mo. 423; State v. McLain, 92 Mo. App. 464; State v. Martin, 124 Mo. 514; Sitton v. Grand Lodge, 84 Mo. App. 208; State v. Weeden, 133 Mo. 82; State v.Pollard, 174 Mo. 608; State v. May, 142 Mo. 150; State v. Sibley, 132 Mo. 102. (2) But conceding that this testimony was improper before defendant opened that question, yet defendant waived and cured the error by thereafter opening up- that question and introducing evidence that his reputation in this regard was good. A party can not complain that the court permitted witnesses to testify to certain facts over his. objection, if subsequently he goes into the same matter brought out over his objection. State v. Goddard, 162 Mo. 226; State v. Moore, 156 Mo. 212. (3) No error was committed in' permitting the State to cross-examine defendant’s character witnesses, for in testing a witness who speaks to good character, it will expose the unworthiness of his testimony if he admits that rumors of misconduct are known to him; for the knowledge of such rumors may well be inconsistent with his assertion that the person’s reputation is good. 2 Wigmore on Evidence, sec. 988; 1 Greenleaf Ev. (16 Ed.), sec. 461; State v. Parker, 172 Mo. 207; State v. Crow, 107 Mo.'341; State v. Boyd, 178 Mo. 2; State v. Brown, 181 Mo. 192. (4) Objection is made because the State was permitted to show the health, physical condition and weight of the deceased at the time of the killing. This evidence was clearly admissible because defendant had introduced evidence to show that the deceased was a large man, weighing over two hundred pounds, over six feet tall and engaged in hard labor. The issue was raised by the defendant and the State had a right to rebut it. (5) The exclusion of the vague threat made six weeks before the killing did not prejudice defendant. State v. Spencer, 160 Mo. 118; State v. Smith, 164 Mo. 567; State v. Downs, 91 Mo. 19; State v. Elkins, 63 Mo. 159; State v. Evans, 65 Mo. 574. (6) Instruction 13, given on behalf of the State, is criticised by counsel for defendant for the reason that defendant was required to establish the facts constituting his defense. The instruction does not shift the burden in the case. It should be read in connection with instruction 11, which tells the jury that the burden of the proof in the case rests upon the State. Instructions similar to the one complained of have been approved in the following cases: State v. Shoultz, 25 Mo. 153; State v. Thomas, 78 Mo. 340; State v. Hicks, 92 Mo. 435; State v. Talmage, 107 Mo. 558; State v. Harper, 149 Mo. 525.
   GANTT, J.

This is a prosecution for murder begun by the filing of an information in the criminal court of Jackson county, by the prosecuting attorney of .said county, wherein he charges the defendant with having, on the first day of January, 1905, at the county of Jackson in the.State of Missouri, wilfully, feloniously, deliberately, premeditatedly, on purpose and of his malice aforethought, shot and killed Charles Brown.

The defendant was duly arraigned and entered his plea of not guilty. On the 8th day of May, 1905, defendant was put upon his trial, and on May 12, 1905, the jury returned a verdict finding him guilty of murder in the second degree, and assessing his punishment at imprisonment in the State penitentiary for a term of fifty years.

Motions for new trial and in arrest of judgment were filed in due time, heard and overruled, and thereupon the defendant was sentenced in accordance with the verdict of the jury, and now prosecutes his appeal from the said judgment and sentence.

The homicide occurred on the first day of January, 1905, at the house of Morgan Smitson, in the city of Independence in Jackson county, Missouri. The killing of Brown by the defendant was admitted; the defense interposed was self-defense. The killing was done with a 32 calibre revolver, and occurred about'one o’clock in the morning at a dance which was then in progress at the residence of Smitson; the defendant Beckner had aecompained a young girl by the name of Minnie Hook, about fifteen years of age, to the dance. The defendant himself was between seventeen and eighteen years old, at the date of the homicide, and weighed about one hundred and twenty-three pounds. The deceased, Charles Brown, was about twenty-four years-old, a teamster, and weighed, when well, about two hundred pounds, and was about sis feet high. The evidence tends to show that Brown came to the dance somewhat later than most of the young people, and that he did not participate in the dancing, but sat in the room where the dancing was done.' The evidence tended to show that the defendant and Brown were < slightly acquainted. There was no evidence of any previous quarrel or ill-will between tbe defendant and the deceased, Brown. About one o’clock in the morning, Miss Minnie Hook notified the defendant that she was ready to go home, and she said he went up-stairs to get their wraps preparatory to leaving the house; these stairs opened directly into a middle room down-stairs; in this middle room, at this time, the deceased Brown, together with O. F. Bolán and Clarence Leftwich, were seated together on the edge of a dresser; Miss Minnie Hook came down the stairs with defendant immediately behind her and passed toward and in front of the deceased Brown; as-she passed, the deceased asked her “if she was going home,” according to the testimony of the witnesses for the State, but according to the witnesses for the defendant, he asked her if the defendant was making her go home? ” All the witnesses agree that this remark was made to the young lady in a polite and gentlemanly manner, and was not made to the defendant at all. Thereupon the defendant stepped in front of deceased, and within two or three feet of him (the deceased still remained seated on the dresser), and said to deceased, What is it to you, you big son of a bitch ? ’ ’ The defendant testified that he said to him, “You keep your big mouth out of it.” The defendant’s brother, Jacob, says the defendant said, “Keep your damn head out of it.” They all agree, however, that up to this time the deceased had not said a word to the defendant, and had remained seated on the dresser; when the defendant thus spoke to the deceased, the latter arose from the dresser and said, “Don’t call me a big son of a bitch,” or words to that effect. A scuffle then ensued, and the deceased took hold of the defendant. There is a sharp conflict at this point; the testimony on the part of the State’s witnesses in the case was to the effect that the deceased took hold of the defendant by' the arms and seemed to be holding him in order to prevent the defendant from pulling his pistol from his hip pocket, whereas, on the part of the defendant, the evidence tended to show that the deceased Brown grabbed the defendant by the throat and was choking him and pushed his head back, and backed him across the room, and that, in this position, the defendant pulled his pistol out of his right-hand hip pocket and shot Brown through the abdomen; he shot twice, one shot missing the deceased, and the other penetrating his body to the back bone, from which wound Brown died in a very few minutes. There was no evidence that the deceased was armed in any way. After the shooting, the defendant hurried away from the house to the home of Miss Hook, and after leaving her, he went to the Missouri Pacific railroad yards where he took a freight train, on which he rode to Lees Summit; he went to the home of his aunt, and from there went out in the country to visit another aunt, eight miles east of Lees Summit, at which latter place he remained about a week when he returned to Kansas City and gave himself up.

At the close of the defendant’s evidence in chief, the State offered various witnesses for the purpose of impeaching the general reputation of the defendant, for peace and good order, and to show that his general reputation was that of a violent, turbulent and dangerous man, over the objections and exceptions of the defendant. Thereupon the defendant offered evidence on his part tending to prove that his general reputation was that of a quiet, peaceable., law-abiding citizen. The other facts and. the instructions will be noted in the course of the opinion.

I. Various errors are assigned for the reversal of the judgment herein, but the most important and serious question raised by the defendant is as to the action of the court in permitting the prosecuting attorney, over the objection of the defendant, to call various witnesses and to propound to them this question: “Do you know the general reputation of the defendant for peace and quietness or turbulence and violence in-the neighborhood where he lives ? ” In this State, from a very early period, it has been the uniform rule of decisions that the character of a defendant, charged with a criminal offense, cannot be assailed by the State until the accused has offered proof as to his character, or, in other words, put his character in issue. [State v. Creson, 38 Mo. 372; State v. Martin, 74 Mo. 547; State v. Palmer, 88 Mo. 568; State v. Hart, 66 Mo. 208 ; State v. Hudspeth, 159 Mo. 178.] And this is the general doctrine announced by trustworthy commentators on Criminal Law. [Wharton’s Criminal Evidence (9 Ed.), sec. 64, and cases cited; 3 Greenleaf’s Evidence, sec. 25; State v. Hull, 20 L. R. A. 609, and cases collated in the note.] The criminal court, however, admitted this evidence on the ground that the defendant had offered himself as a witness and, having done so, he occupied the position of any other witness, and was liable to be cross-examined as to any matter pertinent to the issue and might be contradicted and impeached as any other witness, and subjected to the same tests.

At a very early day in the judicial history of this State and before the defendant was permitted to testify in his own behalf, it was held, in State v. Shields, 13 Mo. 236, that for the purpose of discrediting a witness, the opposite party is not restricted to inquiring into the general reputation of such witness for truth and veracity, but may inquire as to the witness’s moral character generally. Napton, J., spealdng for the court, said: ■‘ ‘It seems to be a better and more settled opinion, in discrediting a witness, a party is not restricted to inquiries into the character of the witness for veracity. A bad moral character generally, or a depravity not necessarily allied to a want of truth, may yet to some extent shake the credibility of the witness, and, therefore, is a fair subject of investigation. The questions propounded in this case were proper, although they must necessarily, to have had any sensible impression upon the case, been followed by others elicting the opinion of the witness npon the effect which the general or specific moral depravity spoken of, had upon the credibility of the witness attacked. The entire exclusion of the question seems to have proceeded npon the ground that general bad character was inadmissible, unless it was general bad character for truth and veracity.” [Day v. State, 13 Mo. 422.]

The doctrine thus announced has been followed in this State from that day until the present. It was first applied to the impeachment of a defendant, in State v. Clinton, 67 Mo. 380. In that case Judge Norton, speaking for this court, said: “This presents a question of the first impression in this court, and involves a construction of the act of 1877 (Laws 1877, p. 356) which provided'” that no person shall be rendered incompetent to testify in criminal causes by reason of being the person on trial or examination; and then reached the conclusion, “in the light, both of authority and reason, our opinion is that a defendant, who, at his option, becomes a witness under the act of 1877, occupies the position of any other witness; is liable to be cross-examined as to any matter pertinent to the issue; may be contradicted and impeached as any other witness, and is to be subjected to the same tests. Under the rule adopted in this State and first enunciated in the case of State v. Shields, 13 Mo. 236, and followed in the cases of Day v. State, 13 Mo. 422; State v. Hamilton, 55 Mo. 520; State v. Breeden, 58 Mo. 507, the question propounded as to the general character of defendant was a proper one. ’ ’ That ruling was adhered to in State v. Miller, 71 Mo. 590. In State v. Grant, 79 Mo. 133, the question again arose and Judge Sherwood, speaking for the court, reasserted that in this State the witness may be impeached not only by a general reputation as to veracity, but the inquiry may extend to the general moral character or reputation of the witness, citing all the cases above noted.

In State v. Rider, 90 Mo. 54, and the same case in 95 Mo. 486, it was said by this court: “The court in this, as in the formal trial, after the defendant had testified as a witness in his own behalf, permitted the State to introduce evidence as to his general reputar tion for truth and veracity, chastity and morality. It was not held to be error then, and we see no good reason for holding so now. It is in harmony with all the rulings of this court on that subject since the adoption of the statute permitting a defendant in a criminal case to testify in his own behalf.” The same doctrine is announced in State v. Shroyer, 104 Mo. 447; State v. Raven, 115 Mo. 419; State v. Martin, 124 Mo. 514; State v. Weeden, 133 Mo. 82; State v. Sibley, 132 Mo. 102; State v. May, 142 Mo. 150. The last announcement on this subject is in State v. Pollard, 174 Mo. 607, in which Judge Fox said: “We will say in respect to this complaint, that the learned trial judge accepted' and followed the rule adopted by a long line of decisions in this State, commencing with the case of State v. Shields, and followed in the cases [citing all the eases hereinbefore referred to]. These cases announce the rule as to the impeachment of witnesses, that the inquiry need not be confined to the trait of character in issue, but may be extended to general moral character. In view of the long and uniform adherence as announced in the cases quoted, and as this only constitutes one division of this court, I will not undertake to overrule the doctrine thus, announced, but will say for myself, that the rule upon the impeachment of witnesses should be restricted to the trait of character directly involved, that of truth and veracity. ’ ’

Thus we have two well-defined rules of law which apparently conflict. When a defendant, under statutes like ours, is permitted to testify, and he avails himself of his privilege, it is at once obvious .that he occupies a dual position, that of witness and accused. As already seen, unless the defendant has first offered evidence of good character in exoneration from the crime charged, the State has m right to attack his character as bad, and even when this is the case, the approved rule is that both the defendant and the State are restricted to evidence as to his character pro and con as to the specific trait involved in the controverted act or offense; in a word, the proof of character offered as a defense to a charge of crime and evidence rebutting such character must be such as bears analogy and reference to the nature of the charge on which the defendant is being tried. [1 Wigmore on Ev., sec. 59, and cases cited in note.] The ground upon which such testimony is admissible is that good character tends to lessen the probability of guilt. [3 Greenleaf’s Ev. (15 Ed.), sec. 25; State v. Anslinger, 171 Mo. l. c. 608-9; State v. Dalton, 27 Mo. l. c. 15, 16; State v. King, 78 Mo. 556.]

• On the other hand, the defendant in his character as a witness is not entitled to offer his good character in evidence to corroborate his testimony until it has been attacked by the State. [2 Wigmore on Ev., secs. 891, 1104.]

The difficulty arising out of the foregoing rules, when a statute like ours permits a defendant in a criminal prosecution to testify in his own behalf, has been encountered by the courts of last resort in many of the States, as it was by this court in State v. Clinton, 67 Mo. 380. In Lockard v. Commonwealth, 87 Ky. 201, under a statute very similar to ours on this subject, the defendant testified in his own behalf, but offered no evidence as to his character. The Commonwealth then introduced several witnesses, who were, over the appellant’s objection, permitted to testify that while they knew nothing of defendant’s character for truthfulness, yet his general moral character was bad. In Kentucky, as in this State, it had been decided at an early day that evidence of the general moral character of a witness was admissible upon the ground, as was said in the case of Tacket v. May, 3 Dana 80, that ‘‘ a witness whose moral character is bad, is not as credible as one whose moral character is good.” Holt, J., speaking for the whole court, discussed the effect of the statute in view of the settled rule of decision in that State that the general had character of any witness might be shown to impeach him. He met the objection urged by many law-writers and many able judges, that the'impeachment of the general moral character of a defendant as a witness would affect him as a defendant, and would violate the rule that until he put his character in issue, the State could not assail it, and said, “When, however, the defendant becomes a witness, he voluntary assumes another character, ’ ’ and reached the conclusion that public policy and individual safety forbid that his reputation for veracity should then be beyond inquiry; that if the testimony of disinterested witnesses may be impaired and destroyed by evidence of general bad moral character, why should not a defendant’s as a witness, be open to like attack? The court held that these considerations must prevail over the suggestion that if the general moral character of the accused, when he becomes a witness, can be assailed, it is in effect a violation of the rule that in a criminal case the defendant alone can put it in issue.

Among many other cases the court expressly approved State v. Clinton, 67 Mo. 380. In Alabama, as in this State, the rule of decision has long been that a witness might be impeached by assailing his general moral character, and when a defendant offers himself as a witness, he is subject to impeachment by assailing his general moral character, but it is held by the Supreme Court of that State, in Clark v. State, 78 Ala. 474, that when it was said that his general moral character could be impeached, “only so much of his moral character as reflected on his credibility as a witness was open to assault by the State in the first instance,” and in Dolan v. State, 81 Ala. l. c. 19, after citing Clark v. State, as showing that only so much of his moral character as reflected on Ms credibility as a witness was open to assault by the State in the first instance, it is said: “A character for violence or turbulence sheds no light on the credibility of a witness; and such testimony was not admissible, unless the defendant had first put his character for peace in issue. ’ ’ Whatever may have been the differences in this court as to whether certain specific traits of immorality affected the credibility of a witness, it is clear that the case of State v. Shields, 13 Mo. 236, wMch is the foundation for the rule that in impeaching a witness the inquiry may extend to- his moral character generally, is predicated upon the ground that the loss of moral principle evidenced by the practice of a particular vice affects his credibility. But accepting this as the established rule, was it competent for the State to assail the defendant’s character before he placed his character in issue, by proving that he was a violent and turbulent man? As we have already seen, the Alabama cóurt, while adopting the rule that when a defendant offered himself as a witness he could be impeached by proving his general bad character for morality, yet rejected evidence in a homicide case of the character for violence or turbulence as casting no light on his credibility. It will be observed that the question propounded to the impeaching witnesses in this case did not involve his general reputation for truth and veracity, nor his general reputation for immorality, but.was confined to the specific charge as to his reputation of being a violent and turbulent man. This evidence, we think, was not directed to the impeachment of the defendant in his character as a ivitness, but was direct evidence tending to impeach his character as a defendant only for turbulence and violence, when he had not put his character in issue. In State v. Nelson, 101 Mo. 464, it appeal's that the defendant had offered evidence that Ferrill, a witness for the State, had the reputation of being a rash, dangerous and turbulent man when in liquor. On this point, Judge Black, spealring for the whole court, said: “Nor was there any error in excluding the evidence offered by the defendant to show that Ferrill, one of the witnesses for the Stale, had the reputation of being a rash, dangerous and turbulent man when in liquor. ¥e do not see for what purpose this evidence was offered, unless it was to discredit the evidence given by Ferrill, and it was certainly not competent for that purpose. ’ ’ In State v. Smith, 125 Mo. 7, it was ruled that a conviction of assault and battery was not admissible to impeach a witness, on the ground that it did not affect his general moral character. After a careful examination, we have been unable to.find any case that goes to the extent of holding that the mere fact that a man has a violent and turbulent disposition tends to prove that he is unworthy of belief; on the contrary, as we have seen, the Supreme Court of Alabama, and this court, have ruled to the contrary.

In Kitteringham v. Dance, 58 Iowa l. c. 634, it was proposed to show that a witness had been indicted for assault and battery, and the court excluded the offer. The Supreme Court of Iowa, discussing the admissibility of this evidence, said: “The last section provides the general character of a witness may be shown for the purpose of testing his credibility. Counsel have not seen proper to give any reason for the thought implied, that an indictment for assault and battery would impair the moral character of a witness. We do not. believe such a proposition is true. The assignment of error under consideratipn is not well tahen.” This case is entirely in harmony with the decision in State v. Smith, supra.

In our opinion our esteemed brother of the criminal court erred in holding that a reputation for being violent and turbulent was tantamount to evidence of a reputation of general bad character and admissible to impeach the credibility of the defendant as a witness. Had the defendant offered evidence of his character for peace, quietude and good order, there can he no doubt whatever that it would have been competent then for the State to have rebutted such evidence, by proving that he was a quarrelsome, turbulent and dangerous man, as tending to prove he was the aggressor, but it was not competent for the State to make this proof until the defendant had first put his character as a peaceable or violent man in issue. It seems clear to us that this evidence went directly to the character of the defendant as a defendant in the case and not to his credibility as a witness, and this being so, we must hold it was reversible error. And if we are right, it was not cured by the fact that the defendant sought to mitigate the effect of this evidence by offering evidence in his own behalf tending to prove that his reputation for peace and quiet prior to the homicide was good. Indeed, the error in the first instance was accentuated by the fact that when the defendant did offer evidence tending to- show his good reputation for peace and good order, the prosecuting attorney was permitted to examine defendant’s character witnesses as to alleged specific acts of bad conduct by defendant towards other persons. We do not desire to be misunderstood on this point; if the defendant had, in the first instance, tendered his character for peace and quiet, it would have been competent for the prosecuting attorney to have tested the credibility of the defendant’s character witnesses, by inquiring of them if they did not know or had not heard of the various breaches of the peace and criminal conduct on the part of the defendant, as he did, but until the defendant had made his character in this respect an issue in the case, it was clearly improper to have admitted evidence of his bad character, which did not tend to affect his credibility'.

II. But it is insisted by the Attorney-General that, conceding that the testimony was improper before the defendant opened the question, the defendant waived and cured the error by thereafter opening up that question and introducing evidence that his reputation was good. In support of this contention, we are cited by the learned counsel for the State to State v. Moore, 156 Mo. l. c. 212, in which it was held that where the defendant of his own accord elicited the same evidence that had been improperly admitted for the State, he removed his objection to it; an examination of that case, however, will show that the matter brought out was entirely harmless, and that the defendant subsequently, of his own accord, proved the same fact. It is clear that that case is no authority for the proposition advanced now by the Attorney-General,' that the defendant is in no position to complain of this evidence. To the same effect is State v. Goddard, 162 Mo. 226. In this last-mentioned case, the defendant elicited the same fact from which guilty knowledge might be drawn. The distinction between the error assigned in this case and that in the two cases just noted is, that the defendant in those cases voluntarily elicited the same evidence to which he had objected when introduced by the State, whereas, in this case, he objected and protested against the admission of the testimony tending to prove that he was a turbulent and violent man, and saved his exceptions to the ruling of the court, and then to negative and destroy the effect of that evidence improperly admitted, he was driven to the effort to rebut that evidence and prove the contrary. In a word, he was compelled over his objection and exception to meet an issue which was improperly injected into the case. He did not prove nor offer to prove the same fact that was showu by the State’s evidence. In Cochran v. Railroad, 113 Mo. l. c. 366, it was said: “It must be remembered that a defendant occupies a different attitude from his adver-. sary, the plaintiff. The plaintiff brings the action. If the ruling is adverse, he may take a nonsuit. Not so with the defendant. He is in court without his consent. The court may make any number of rulings that he may deem erroneous, but he cannot abandon the case; he is in court and must remain till the cause is finished. He has a right to tender as many defenses as he has. If the court erroneously deny him one, he must avail himself as best he can of those remaining. He, however, advises the court and his adversary of his claim, and if he submits, as he is bound to do, to the ruling of the court, and tries his case in accordance with the judgment of the trial court, on what principle is he estopped from complaining of the action of the trial court and his adversary in forcing him to fight the battle upon ground selected by them and at a great disadvantage to him1? "We see no element of estoppel in such a case.”

This statement of the law was approved in Glover v. K. C. Bolt & Nut Co., 153 Mo. l. c. 342; Warwick v. Investment Co., 112 Mo. App. 633; and Currell v. Railroad, 97 Mo. App. 93. In our opinion, the defendant did .not waive his objection and exceptions to the evidence introduced assailing his character for turbulence and violence by offering evidence to disprove the same. No other recourse was left to him by the ruling of the court and the action of the State.

III. While the prosecuting attorney has a right to test the knowledge of a witness as to the general reputation of the defendant by inquiring of him if he had not heard of conduct which tended to show he was not the peaceable, law-abiding man his evidence has tended to prove him to be, we think it was objectionable to permit the prosecutor to enter into all of the details as to the number of shots fired at the Williams house-. [State v. Parker, 172 Mo. 207.]

. IY. We think there was no error committed in permitting the State to show the health and physical condition of the deceased before and at the time of the killing. The testimony on the part of the defendant tended to show the great disparity in size and weight between the defendant and the deceased, and the State’s evidence was permissible on that question.

Error is assigned on the refusal of the court to permit the defendant to prove by witness F'razer that at a dance at Independence, a month or six weeks before the homicide, the deceased was heard, by the witness, to make a remark that the defendant ‘ ‘ would get .killed or kill somebody, over that girl, if he kept on going with her.” The objection to this was sustained for the reason that it was improper at that time. No effort was made to introduce it at a later stage of the trial. The court did permit evidence of alleged threats made on the night of the homicide. While the alleged threat was very indefinite and vague, we are inclinded to think is should have been admitted if the defendant had offered it in connection with or after the other threats had been introduced. [State v. Nelson, 166 Mo. 191; State v. Spencer, 160 Mo. 123, and cases cited.]

V. The 13th instruction given by the court of its own motion is ■ challenged by the defendant on two grounds: first, that there was no legal evidence in the case tending to prove that the defendant brought on the difficulty with a purpose of taldng advantage of the deceased, or if killing or inflicting great bodily harm upon him. With this contention we are entirely unable to agree. As the ease must necessarily be retried, we refrain from summing up the- evidence on this point further than to say that we think the evidence furnished ample proof to sustain the instruction on this point. Secondly, it is insisted that the court erred in the last clause of the instruction, in instructing the jury that “unless the .facts constituting such reasonable cause have been established by the evidence in the cause, you cannot acquit the defendant on the ground of self-defense, even though you may believe he really thought he was in danger. ’ ’ This identical instruction was approved by this court in State v. Shoultz, 25 Mo. l. c. 153; State v. Thomas, 78 Mo. l. c. 340; and State v. Hicks, 92 Mo. l. c. 435. The instruction simply means that it is not sufficient to support the plea of self-defense that a defendant believed that his life was in imminent peril to justify him in taking the life of his adversary, hut that there must appear that he had reasonable cause to apprehend such danger, and such reasonable cause for such apprehension must be established by the evidence. It does not entail upon the defendant, as the learned counsel claim, the burden of establishing his innocence, but simply that, from all the evidence, it must appear to the jury that there was sufficient cause for the defendant to apprehend that his adversary was about to slay him or do him some great bodily harm, and that it was imminent. For the error noted in the admission of the evidence assailing the defendant’s character as a turbulent and violent man before he had offered any evidence to prove that he was a peaceable and law-abiding one, the judgment must be reversed and the cause remanded.

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


source: Caselaw Access Project

author: BURGESS, P. J. BURGESS, P. J.

license: Public Domain

text:
    THE STATE v. FEELEY, Appellant.
    Division Two,
    March 6, 1906.
    1. THREATS: Res Gestae: Malice. A few hours before the homicide, while on the way with another party to the place where the homicide occurred, defendant said to the other party that “he was a straight shot and a game man, and I would find it out before I got back.” The evidence showed that defendant did not at that time know the deceased. Held, that, while such threat was not admissible as a part of the res gestae, because it had no immediate connection with the homicide, yet it was admissible to show general malice and a disposition on the part of defendant to do an act which was criminal.
    2. EXCEPTIONS: Affidavits. Matters of exception which occur in the presence of the court cannot be shown by affidavits, unless the court refuses to sign the bill when presented to him on the ground that the matters therein stated, or some of them, are not true.

      3. DEFENDANT AS WITNESS: Cross-Examination: Immaterial Matters. The cross-examination of a defendant upon immaterial matters not testified to hy him on his examination in chief, will not justify a reversal of the judgment, when no evidence is offered by the State to contradict him. And in this case, defendant having testified on direct examination to seeing deceased and another party at a certain place, permitting the State to inquire, on cross-examination, about the presence of other parties at the same time and place, did not constitute reversible error, none of the other parties being introduced by the State for the purpose of contradicting defendant.

      4. REPUTATION OF DECEASED: When Drinking. Where defendant testifies that he shot deceased because he thought deceased was going to kill him, and there is testimony that at the time of the killing deceased was drinking, evidence of the character of deceased for being quarrelsome and dangerous when drinking is properly admitted.
    5. -: -: General Reputation: Rebuttal. When defendant has introduced evidence tending to show that deceased was quarrelsome and dangerous when drinking, it is not error to permit the State; in rebuttal, to introduce evidence tending to prove that the general reputation of deceased in the neighborhood in which he lived for peace and quiet and good citizenship, was good.
    ■6. -: Not Known to Defendant. It is not necessary that defendant have knowledge of the general reputation of de- . ceased in order to entitle him to introduce evidence tending to show that deceased’s general reputation was that of a quarrelsome and dangerous man. [Overruling, as to this point, State v. Kennade, 121 Mo. 405.]
    7. INSTRUCTION: Motive. Where defendant testifies that he shot deceased because he was afraid deceased was going to kill him, no instruction on motive is necessary.
    1!. -: Voluntarily Entering into Difficulty: Self-Defense. When defendant voluntarily enters into a difficulty for some unlawful purpose, there can be no self-defense in the case. And the evidence in this case is held sufficient to justify the court in instructing the jury that there was no self-defense in the case if defendant voluntarily entered into the difficulty for the purpose of wreaking his malice upon deceased, or of doing him some great bodily harm.
    U. -: Comment on Evidence: Impeachment. An instruction which told the jury that, if any witness had been impeached, they were not for that reason bound to disregard his testimony, but might disregard the whole or any part of his testimony as they might believe he had testified truthfully or falsely, is not erroneous, as being a comment on the evidence, simply because it may apply to the testimony of only one witness.
    10. - MURDER: Indictment for First Degree: Prosecution for Second. Upon an indictment for murder in the first degree, the State, with the permission of the court, may elect to prosecute the defendant for murder in the second degree, and defendant cannot complain that the State elected to prosecute him for a less than the highest grade of homicide.
    11. -: Instructions on Both Degrees: Evidence. In a homicidal case it is only when there is no evidence to authorize an instruction upon the particular grade of the offense on which an instruction has been given that it will be held to be erroneous. And where, as in this case, there is sufficient evidence to authorize instructions on both degrees of murder, there is no error in instructing upon the lower grade, or in refusing to instruct' the jury to acquit defendant of that offense.
    12. RECORD: Changing After Appeal Taken. No record, after being lodged with the clerk of the appellate court, can be changed without the permission of the appellate court, duly entered of record at the time.
    Appeal from Bates Circuit Court. — Ho». Argus Cox, Special Judge.
    Affirmed.

      Scott & Bowker, Francisco <£ Clark and W. W. Graves for appellant.
    (1) Calhoun, who drove the defendant from Archie to Burdette, was permitted to testify, over the objection of defendant, as follows: “He said he was a straight shot and he was a game man and I would find it out before I got back. ’ ’ This was on the road between Archie and Burdette, and was introduced as a threat. In this the court erred. It did not refer to deceased or any class to which he belonged. It was not a part of the res gestae. Defendant did not even know deceased at the time. The evidence shows that defendant and deceased met for the first time and were introduced to each other at Burdette, after the alleged threat. State v. Crabtree, 111 Mo. 136; Goodwin v. State (Texas), 43 S. W. 336; Whittaker v. Com., 17 S. W. 358; State v. Strange, 42 S. W. 551. (2) Instruction 11 should not have been given and in giving it the court committed error. (a) There is absolutely no evidence tending to show that defendant voluntarily entered into the difficulty. An instruction not authorized by the evidence should not be given. Simpson and the defendant are the only witnesses who testify as to how the difficulty occurred. Marr v. Bunker, 92 Mo. App. 651; King v. King, 155 Mo. 406; Gorham v. Railroad, 113 Mo. 408; Brown v. Ins. Co., 65 Mich. 306; Koehler v. Buhl, 94 Mich. 496; Iler v. Baker, 82 Mich. 226; Wright v. Senn’s Estate, 85 Mich. 191. (b) Had there been evidence authorizing it, yet the form and wording is erroneous. State v. Rapp, 142 Mo. 443. (3) The court erred in permitting counsel for the State to-' cross-examine defendant about matters not brought out in the examination in chief. State v. Graves, 95 Mo. 510'; State v. Elmer, 115 Mo. 401; State v. Patterson, 88 Mo. 88; State v. Chamberlain, 89 Mo. 129; R. S. 1899, sec. 2637. (4) The court erred in permitting the State to show the general reputation of deceased when not drinking. Defendant had only undertalien to show his general reputation while drinking and the evidence offered in rebuttal as to his reputation while not drinking was improper, not proper rebuttal, and evidence upon an issue not raised by defendant. Keener v. State, 18 Ga. 221; Wigmore on Evidence, sec. 1616. Having only proven reputation of deceased while drinking, in rebuttal the State could not go further. State v. Creson, 38 Mo. 372; Babcock v. Babcock, 46 Mo. 243; Glenn v. Stewart, 167 Mo. 584. (5) There should have been an instruction upon motive. State v. Melvin, 166 Mo. 565; State v. Evans, 158 Mo. 589; State v. Foley, 144 Mo. 600 ; State v. Heinze, 66 Mo. App. 135. (6) The court should have instructed the jury to acquit defendant of murder in the second degree. The evidence of Simpson for. the State, the only eye-witness, makes it mnrder in the first degree and defendant was not tried for that crime. All the evidence showed it to' be murder in the first degree or nothing. State v. Tettaton, 159 Mo. 354; State v. Meadows, 156 Mo. 110; State v. Tomasitz, 144 Mo. 86; State v. Garrison, 147 Mo. 548; State v. Cochran, 147 Mo. 504; State v. Kindred, 148 Mo-. 270. (7) Instruction 14 is a direct comment upon the evidence of witness Simpson. State v. Rutherford, 152 Mo. 124.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) No error was committed in permitting the State to prove by witness Calhoun that defendant said “that he came from Nevada that morning, came down on the train and was going to his father’s. He (defendant) said he was a straight shot and was a game man, and I would find it out before I got back.” State v. Brown, 188 Mo. 456; Benedict v. State, 14 Wis. 425; Wills on Circum. Ev., 45; State v. Hoyt, 47 Conn. 538; State v. Harlan, 130 Mo. 375; State v. Crawford, 39 Mo. 74; Hopkins v. Com., 50 Pa. St. 9; State v. Guy, 69 Mo. 430; Brooks v. Com., 37 S. W. 1043; 1 Greenl. on Evid., sec. 108; State v. Hamilton, 170 Mo., 383; Dixon v. State, 13 Fla. 695. (2) No error was committed in allowing the prosecuting attorney to cross-examine defendant as to who he saw when he came back from the school house yard to where the deceased was standing. How defendant could possibly be harmed by such cross-examination is difficult for any one to understand, and his counsel have failed to even suggest any prejudice resulting to him. State v. Kyle, 177 Mo. 663; State v. Avery, 113 Mo. 499. (3) The court committed no error in allowing the State to show the general reputation of deceased when not drinking; as character evidence was collateral to the issue and not a direct question for the jury to pass upon. State v. Pettit, 119 Mo. 415. (4) Whether any motive was shown for the homicide or not, the defendant was clearly guilty under the evidence —yes, guilty under his own testimony in the case. He certainly was not entitled to acquittal because the State failed to show what was his motive in shooting the deceased and in shooting him after he had fallen to the ground. State v. Foley, 144 Mo. 600; State-v. David, 131 Mo. 380. (5) Even though the defendant was guilty of murder in the first degree, he cannot complain of the instruction for murder in the second degree, nor of his conviction for that offense.- State v. Frazier, 137 Mo. 340; State v. Bell, 136 Mo. 124; State v. Hopper, 71 Mo. 430; State v. Keeland, 90 Mo. 340; State v. Wagner, 78 Mo. 648; R. S. 1899, sec. 2369; State v. Silk, 145 Mo. 284. (6) Instruction 14, complained of by appellant, is not a comment on the testimony of the witness Simpson, but a declaration of the law on the weight to be given to the evidence of the various witnesses. (7) The evidence was sufficient to warrant a verdict of murder in the second degree; and ten years’ imprisonment is a very light punishment, when the circumstances attending the killing are all considered.
   BURGESS, P. J.

At the October term, 1903, of the circuit court of Bates county the grand jury of said county preferred an indictment against the defendant,Robert Feeley, charging him with murder in the first degree, in having, on the 8th day of September, 1903, at said county, shot and killed, with a pistol, one Martin Hoots. There were two mistrials. Thereafter, at the May term, 1905, of said court, the defendant was again put upon trial on the charge of murder in the second degree, convicted, and his punishment assessed at ten years ’ imprisonment in the penitentiary. He filed motions for new trial and in arrest of judgment, which being overruled, he saved his exceptions, and appeals to this court.

The evidence tends to show that the defendant was born and raised in Bates county, near a small town called Burdette. The defendant, áome twelve years before the trial of this cause, moved to Nevada, in this State, where he has resided ever since. On the 8th day of September, 1903, defendant left his home in Nevada for the purpose of visiting his father at his home near Burdette. He went by train to a little place called Archie, where he hired one Frank Calhoun to take him in a buggy to Burdette. While on the, road to said town the defendant pulled a pistol out of his pocket and remarked to Calhoun that he was a straight shot and a game man, and that he, Calhoun, would find it out before he got back. When Burdette was reached they saw Martin Hoots, the deceased, with a gun on his shoulder, walking along in front of a store owned by a man named Buel Mudd. There was evidence tending to show that defendant said, “There goes a dirty coward,” and that deceased, who appeared to have heard the remark, replied, “If he calls me a dirty coward I will take it up.” Deceased went into the store to buy some shot-gun shells, but was told that there was none in stock. Deceased then set his gun down in the store, and a friend picked it up and carried it away to the residence of Dr. Cash. David Roach was sitting on the porch of the store when defendant got out of his buggy. As deceased came out of the store, and was passing by Mr. Roach, he greeted the latter with, “Hello, Dave.” Defendant, who was near by, said, “Who in the hell are you?” Deceased replied, “I don’t know as it’s any of your business.” Defendant then said, “You are not so game but what I am just as game as you are; ” to which deceased replied, “If you are looking for trouble you are up against it.” Then defendant said, “You run on home,” and deceased rejoined, “You had better make me run on home. ’ ’ Mr. Roach then walked away with deceased about a distance of sixty feet and deceased asked who that was, at the same time saying be thought it was Bob Feeley, and that he loved every man named Feeley. He also told Mr. Roach that he had had some trouble with Jim Fenton, and had shot at the latter to scare him, but that the next time he shot he would shoot to kill Fen-ton. Professor Maxey, who was near by, saw defendant on the porch of Roach’s store take a pistol out of his pocket, wave it around his head, and then walk off the porch. Defendant followed after deceased, but Mr. Roach took hold of him and led him back to the store, when defendant said, “Who is that son of a bitch?” Being told deceased’s name, defendant said, “He is looking for trouble; I will fix him if he bothers me.” Defendant then took his pistol out of his pocket and exhibited it to Roach and others. He appeared to be intoxicated, and he and deceased, who was drinking, had several disputes during the afternoon.

Deceased and one Jim Fenton, who lived near the edge of the town, had had some trouble in the forenoon of the day of the homicide, and deceased had been up to Fenton’s a time or two to see him. After he returned ■from Fenton’s house, the last time he was there, and about half an hour before the shooting, one Wilkerson introduced deceased to the defendant. The two men shook hands, the deceased remarking, “Give me your hand, Bob; I understand you are a brother of Crit and Frank Feeley.” Both men appeared to be friendly, and a short time afterwards they were seen by several persons standing near the hitch rack, drinking whisky. Calhoun, seeing the defendant’s condition, tried to get him away, and did succeed in getting him into the buggy. Just then the deceased passed by, on his way to the store, and said to the men standing there, ‘ ‘ The coward would not come out. ’ ’ About this time some man came out of the blacksmith shop and told defendant that deceased was talking about him, and defendant at once got out of the buggy and told Calhoun to go on home. Cothrien, a witness, told the defendant to getback in the buggy, and assured him that deceased was talking about Jim Fenton, with whom he had had trouble. Defendant then said he was going to see Fenton, and started towards Fenton’s residence, and while on the way he met Mrs. Fenton and had a talk with her, after which he was seen at the back of said blacksmith shop, where he again met deceased. A witness saw deceased take a drink out of defendant’s bottle and then throw the bottle down. The two men stood talking for a few minutes, when defendant fired a shot, and deceased fell. Defendant then fired four more shots in rapid succession, which took effect upon deceased, and he also struck deceased on the back of the head with his pistol. He then threw his pistol and hat on the ground and walked towards an iron bridge, a short distance off. While on the bridge defendant waved his hands over his head several times, and then returned to where the dead body lay. In the meantime several persons appeared on the scene and saw that Hoots was dead, and that defendant’s hat, a whiskey bottle and a thirty-eight calibre pistol were lying on the ground near by. One of the shots entered deceased’s body about one and a half inches to the left of the median line and came out at about the same distance to the right of said line. Another bullet entered just under the left eye and came out above the right ear, passing through the brain. Three bullets entered in the back. Defendant asked the people who had gathered near the body who the deceased was, and when some one remarked that the man was dead, defendant said, ‘ ‘ He is not dead to me. ’ ’ About this time a rain storm was brewing, and the persons present moved the dead body to the store, and gathered up some rocks and marked therewith the place where the body lay. There was evidence to show that there were no rocks nearer than twenty feet to the body at the time, but upon this question the evidence was conflicting. The deceased had no weapons on his person at the time of the shooting. That night defendant was heard say, “I am the worst son-of-a-bitch in town; he has been running over me all day, and now I have shot it into the hack of his neck; shot it in right.” He used similar expressions in the hearing of others.

The evidence upon the part of the defendant tended to show that there were rocks at the place where the deceased fell when shot. Defendant also showed by a number of witnesses that his reputation for peace and good order at Nevada, where he lived, was good. He also testified in his own behalf substantially as follows:

Q. You may state your name to the jury? A. Robert Feeley.

Q. You are the defendant in this case, are you, Mr. Feeley? A. Yes, sir.

Q. How old are you, Mr. Feeley? A. Forty years old.

Q. Are you a married man. A. Yes, sir.

Q. Son of Uncle Norris Feeley of this county? A. Yes, sir.

Q. "Where were you horn? A. Out west of Burdette.

Q. "West of Burdette. Mr. Feeley when did you leave Bates county and Cass county and go south? A. About eighteen years ago.

Q. How much of that time, where did you live ? A. Nevada.

Q. How much of that time have you lived in Nevada? A. About twelve years.

Q. "What is your business ? A. Barber.

Q. On the 8th day of September, 1903, where did you start? A. Started to my father’s.

Q. Your father’s. State to the jury, Mr. Feeley, what time you got to Burdette about ? A. Why, I guess about four or five o’clock about.

Q. Four or five o’clock? A. Yes, sir.

Q. Well, just state to the jury when you got to Burdette and what you did ? A. I got out of the buggy and stepped upon the porch and met Mr. Roach. A. Met Mr. Roach there and was talking to him.

Q. Where was it you got out? A. Mr. Mudd’s store.

Q. Mr. Buel Mudd’s store?

Q. Mr.- Peeley, when and where was the first time you saw the deceased, Martin Hoots? A. I was standing on the store porch and he came up.

Q. Had you ever met or heard of Martin Hoots prior to that time? A. No, sir.

Q. What was he doing when you first saw him? A. He was going south.

Q. State to the jury what, if anything, he had? A. He had a shot gun.

Q. State to the jury what conversation, if any, you had with the deceased, or in his presence? A. Well, he came up and I asked Mr. Roach who he was'. He says, “He is Martin Hoots,” and he said, “It’s none of your business.”

Q. . Who said that? A. Mr. Hoots did.

Q. Mr. Hoots said, “It’s none of your business?”

Q. Mr. Peeley, what further conversation, if any, did you have there with Mr. Hoots? A. Why, Mr. Roach says, “that is Uncle Norris Peeley’s son,” and he said he had an order on Grit, .my brother, for some money and I told him I guess C'rit would pay it and he talked a few minutes and he walked on away.

Q. When he left you where did he go ? A. He went south.

Q. Which way? A. Towards the old blacksmith shop.

Q. Where did you go when the deceased started toward the old blacksmith shop, where did you go? A. I went out south of the store to get in and go home-.

Q. Who did you see, if any one, while you were at the buggy? A. Uncle Dan Cothrien.

Q. When did you nest see the deceased, Martin Hoots, Mr. Peeley? A. He came up to the buggy.

Q. Coming which way? A. From the west.

Q. What did he have with him, if anything? A. He had a shot gun.

Q. State to the jury what, if anything, Martin Hoots said when he addressed you? A. Well, he said, “The God damned son-of-a-bitch was a coward, he wouldn’t come out.”

Q. What did you do then? A. I stepped out of the buggy.

Q. Was anything further said there at that time between you and Mr. Hoots? A. No, sir.

Q. What became of Hoots? A. He went on north toward the store.

Q. Where did you go ? A. I went over behind the store to the old school house.

Q. Back of the old school house? A. Yes, sir.

Q. How did you happen to go over there? A. Well, Mrs. Fenton was over there and she called me to come •over.

Q. Did you have any conversation with Mrs. Fen-ton? A. Yes, sir.

Q. What was it? A. Back of the school house.

Q. Was it, or was it in the school house yard? A. It was in the school house yard.

Q. State what conversation, if any, you had with Mrs. Fenton in regard to the deceased, Martin Hoots? A. Well, I was talking with her and going to go up home with her and she said for me not to go with her, that her son Jim had been having trouble with Hoots and for me not to go, that he was a dangerous man to go .about, and I didn’t go.

Q. Where did you next see the deceased, Martin Hoots ? A. In behind the blacksmith shop.

Q. What, if anything, was said by you, or Hoots? A. Why, he called for me to come over where he was.

Q. Where were you when he called you ? A. I was In the school house yard.

Q. Where was Hoots? A. He was back of the blacksmith shop.

Q. Did you go to the back end of the blacksmith shop where Hoots was? A. Yes, sir.

Q. What was said by yon or Hoots when yon got over there, if anything? A. Well, he wanted to know what God damned old woman that was I was talking to. I told him it was old grandma Fenton. He says, “God damn it. I have been up- to Fenton’s two or three times after Jim,’’ and he says, ‘‘The coward won’t come out.’’ He says, “I have had trouble with him.” He says, “I made him and sheriff Mudd leave town,” and this town belonged to him. And he asked me if I had any whiskey and I told him yes, and he wanted a drink and I pulled out my bottle and handed it to him and he says, “No, you take a drink.” I took a drink and then he drank and threw it down. He says, “This whiskey is no account, bad stuff,” and he says, “Just like you.” He says, “I am going to make you go home.” I told him if he would wait a few minutes I would go home without making. He says, “No, you ain’t, I am going to make you go now.” He stepped towards me and I stepped back and pulled my gun and told him to stand back, I didn’t want any trouble. He reached back to pick up a rock and then I commenced shooting.

Q. Now, Mr. Feeley, just stand up here and show the jury the position Hoots was in when you commenced firing the pistol. Just come down here, I guess you had better. Which way first was Mr. Hoots standing from you when you had this conversation with him? A. He was standing about like that (indicating).

Q. Where was he with reference to where I would be. Say I am Hoots, which way was he, what direction? A. I was west of Hoots about where you are standing.

Q. Now-just show the jury what position Hoots was in when you fired the first shot? A. Something like this (stooping down).

Q. Where were you standing if yon were Hoots? A. About where I was.

■ Q. Now, Mr. Feeley, how many shots did yon fire, do you know? A. No, I emptied my gun.

Q. Mr. Feeley, what was the position of Hoots when you fired the last shot? A. Well, it was about straight.

Q. You may state to the jury why you shot Martin Hoots? A. Well, sir, I did because I —

Mr. Jackson (interrupting): “I object to that.”

Court: “Overruled.”

A. I done it because I was afraid he was going to kill me.

Q. Was going to kill you? A. Yes, sir.

Over the objection and exception of defendant, the court gave fourteen instructions covering murder in the second degree, self-defense and reasonable doubt, only two of which, the eleventh and fourteenth instructions, are criticised. The grounds of objection and criticism will be reviewed later in this opinion.

It is contended by defendant that the court committed error in admitting in evidence, over the objection of defendant, the testimony of witness Calhoun, which was to the effect that while on the way from Archie to Burdette, defendant said to him, “he was a straight shot and he was a game man, and I would find it out before I got back.” The contention is that, while admitted as a threat, it is too vague and indefinite to be called such, and that even if it could be so called, it was inadmissible. That defendant did not know the ■deceased at the time is clearly shown by the evidence, and the threat could not, therefore, have been made against him in particular. In State v. Crabtree, 111 Mo. 136, it was held that general threats made by the defendant before the homicide, and having no reference to the deceased, were not admissible in evidence against him. But in that case the evidence showed that the threats applied to the members of defendant’s own family, if to any in. particular, and had no reference whatever to the deceased. In Godwin v. State, 38 Tex. Cr. Rep. 466, that case was cited with approval. In the last case cited, which was a prosecution for murder, it was held that testimony of threats made by the defendant, on the day preceding the homicide, to hill somebody, but not directed in any way towards the deceased, was inadmissible. Practically the same rule is announced in the case of Strange v. State, 38 Tex. Cr. Rep. 280. Counsel for defendant also cite Whitaker v. Commonwealth (Ky.), 17 S. W. 358, as sustaining the contention of the defendant, but it does not do so. On the contrary, it was ruled that general threats, while not competent as part of the res gestae, part of the bloody transaction, were competent as showing general malice, and a purpose to injure or kill someone, and the deceased became the victim.

In the recent case of State v. Brown, 188 Mo. l. c. 465, Fox, J., in speaking for the court, held such threats to be admissible in evidence, “as indicating the existence of a frame of mind or disposition from which criminal actions proceed, and the action of the court in overruling the objections of defendant to the introduction of those statements is fully supported by the rule as announced upon this subject in State v. Grant, 79 Mo. l. c. 137; State v. Guy, 69 Mo. 430 ; State v. Hamilton, 170 Mo. 377.”

In Hopkins v. Com., 50 Pa. St. l. c. 15, the rule is stated in the following language: ' “Nor was it necessary that the premeditated malice should have selected its victim. If the jury believe that the defendant had formed the deliberate design to kill somebody, and in pursuance of that purpose, within an hour after declaring it, did kill McMarity, the Commonwealth has a right to insist upon his conviction of murder in the first degree, and that they might thus insist, they had a right to prove his declaration an hour before the deed. ”

In Brooks v. Com., 100 Ky. 194, it is held that general threats by the accused to HU someone, made shortly before the homicide, were admissible to show malice, without proving that such threats were directed toward any particular individual. The court said: “According to the weight of authority, the testimony of the other witnesses of general threats made by the accused or of his purpose to do an act which would be criminal, the like of which followed, was admissible in order to establish ‘general malice and purpose to injure or kill some one, ’ of which the deceased became the victim. ’ ’

We do not think the threat proven in the case at bar was admissible in evidence as part of the .res gestae, because it had no immediate connection with the homicide, which occurred several hours afterwards, but we do think, according to the weight of authority and the rule announced in our own decisions, it was admissible to show general malice and a disposition on the part of the defendant to do an act which was criminal, such threat to be given such weight by the jury as they, under all the circumstances, thought it entitled to.

The point is made by defendant that the court erred in permitting W. O. Jackson, counsel for the State, in course of his argument to take a pistol, and have Mr. Ludwick, the prosecuting attorney, assume different attitudes in front of the pistol in order to demonstrate what could or could not have been the range of the shots. But no such occurrence is shown by the bill of exceptions, and cannot, therefore, be considered by this court. Matters of exception which occur in the presence of the court cannot be shown by affidavits, unless the court refuses to sign the bill when presented to him upon the ground that the matters therein stated, or some of them, are not true. [State v. McAfee, 148 Mo. 370; State v. Grant, 144 Mo. l. c. 66; State v. Lamb, 141 Mo. 298; State v. Reed, 154 Mo. l. c. 126.]

Defendant testified in his direct examination to going to the school house yard and talking to Mrs. Fenton, and to returning to a point behind the blacksmith shop, and there seeing and talking with deceased; and, over the objection of defendant, the prosecuting' attorney, in the cross-examination of defendant, was permitted to ask him about the presence of Bich Haley, Toney Bhodes, Willie Nelson and Sol Wilkerson there at the same place and time, although he had not testified to the presence of either of them in his examination in chief. Defendant contends that this was error. Section 2637, Bevised Statutes 1899, by implication, prohibits the cross-examination of a defendant in a criminal case, who testifies in his own behalf, touching matters not testified to by him in his examination in chief, if timely objection be interposed to such cross-examination; and it has been held that the defendant can only be cross-examined as to matters referred to by him in his examination in chief. [State v. Chamberlain, 89 Mo. 129; State v. Patterson, 88 Mo. 88, and authorities cited.] But we do not think that such a cross-examination, regardless of the fact that it may not be prejudicial to the defendant or work him any harm, should, ipso facto, be ground for the reversal of a judgment of conviction; otherwise the most immaterial matter elicited from a defendant on cross-examination, and not testified to in chief, would authorize the reversal, of a judgment of conviction. We cannot believe that such was the intention of the Legislature in passing the law. Whether the 'persons named, or either of them, were present at the time and place indicated was entirely immaterial for the purpose of this inquiry, and we are unable to see in what way the mere fact that defendant was improperly cross-examined as to their presence could prejudice his case. Moreover none of these persons was introduced as a witness by the State for the purpose of contradicting the defendant with regard to the fact of his or their presence at the time and place indicated. In an exhaustive review of the authorities upon this question, at the present term of the court, in the case of State v. Barrington, not yet reported, Pox, J., in speaking for the court, held that the cross-examination of a defendant upon immaterial matters npt testified to by him upon his examination in chief, will not, when no evidence is offered by the State to contradict him, justify a reversal of a judgment of conviction.

It is said for defendant that the court erred in permitting the State to show the general reputation of deceased when not drinking, when the defendant had only introduced evidence tending to show that deceased was a quarrelsome and dangerous man tvhen drinking. The argument is that such evidence upon the part of the State was improper, not rebuttal, and brought forward an issue not raised by the defendant. The record shows that, in rebuttal to testimony offered by defendant tending to show that deceased was a quarrelsome and dangerous man when drinking, the State introduced evidence tending to prove that the general reputation of deceased in the neighborhood in which he lived, for peace and quiet and good citizenship, was good.

In support of the contention of defendant, Keener v. State, 18 Ga. 194, is chiefly relied upon. In that case the deceased, who was a railroad conductor, 'was killed by Keener in a brothel. Upon his trial for murder the defendant proposed to prove the general character of ■deceased for violence in the particular place where the difficulty occurred, to which the State objected and the evidence was excluded. The case went to the Supreme Court of that State, and the judgment of conviction was reversed upon the ground of the exclusion of said evidence, the court expressly repudiating the general doctrine that a person can have but one general reputation, and that in the neighborhood only in which he lives, and holding that ‘ ‘ a man may have different general characters, adapted to different circumstances and localities; that is, a character for rail-cars and a character for the brothel; a character for the church and one for the street; a character when drunk and a character when sober. ’ ’ Wigmore on Evidence, vol. 2, see. 1616, is another authority rélied upon by defendant as sustaining his contention. The doctrine announced in the Keener case forms the basis of the text in that work upon this subject. These authorities, with perhaps one exception, namely, Railroad v. Reynolds, 117 Ga. 47, are the only ones to which our attention has been directed, or that we have been able to find after diligent search, which announce this doctrine. But even these do not sustain defendant’s contention, because it is not pretended in this case that deceased had acquired any kind of reputation at any place other than in the neighborhood in which he resided, while the question decided .in Keener’s case, upon which the other authority cited by defendant is based, was that a man may acquire and have, at the same time, different general reputations in different places or localities. While it would have been proper for the defendant to show by testimony the general reputation of deceased in the neighborhood in which he lived for violence and quarrelsomeness when drunk, yet, under the circumstances hereinafter to be noted, that was only one trait or quality of his disposition which went to make up his general reputation, and not separable from it, and the State should not, therefore, be deprived of the right to show, in rebuttal, his general reputation for peace, quiet and good citizenship, in the neighborhood in which he resided.

In the case of Hussey v. State, 87 Ala. 121, it was said: “There was no error ih allowing the State to prove the good character of the deceased for peace and quiet. The ground of objection to this evidence seems to he that the general reputation of the deceased had not been put in issue, but only the particular traits of his character as a quick-tempered, violent man, easily provoked, and likely to provoke a difficulty. If these traits of disposition are provable at all — which we do not decide — they are not separable from the question of character. It is plain that the State could rebut this evidence by proof of defendant’s [sic] reputation for peace and quiet, the whole question of character often going to the intent with which an alleged crime was committed, ‘the prevailing character of the-party’s mind, as evinced by the previous habits of his life, being a material element in discovering that intent in the instance in question.’ [1 Greenl. Ev., sec. 54, n. 3.].”

Whether or not, in a trial for murder, where it is. doubtful whether the homicide was committed with malice or from a well-grounded apprehension of danger, the defendant has the right to show the quarrelsome and dangerous reputation of the deceased, as tending to show that the killing was not in malice, regardless of the fact that he may not know it at the time of the killing, as well also as to whether the defendant has the right to show such reputation under any circumstances, the authorities are much in conflict. In State v. Hicks, 27 Mo. 588, the rule that defendant must at the time of the killing have knowledge of the reputation of deceased for being a quarrelsome and dangerous man, was expressly recognized by an instruction asked by defendant himself, which was refused by the trial court, and which this court ruled should have been given. While that ease was followedin some respects in State v. Keene, 50 Mo. 357, the rule was not followed respecting the necessity of knowledge on the part of defendant of the general reputation of the deceased in order to entitle bim to introduce evidence tending to show that deceased’s general reputation was that of a quarrelsome and dangerous man. The court said: “When the homicide is committed under such circumstances that it is doubtful whether the act was committed maliciously, or from a well-grounded apprehension of danger, it is very proper that the jury should consider the fact that the. deceased was turbulent, violent and desperate, in determining whether the accused had reasonable cause to apprehend great personal injury to himself.” The same rule is announced in State v. Bryant, 55 Mo. 75. The same question was before this court again in State v. Downs, 91 Mo. 19, in which it is said: “When the killing has been done under such circumstances that there is doubt as to .whether the act was done from malice or from a sense of real danger, testimony of the turbulent character of the deceased may be received, and should be admitted, as tending to show and explain the motive that prompted the act,” citing State v. Hicks, supra; State v. Elkins, 63 Mo. 159; State v. Keene, 50 Mo. 360; State v. Bryant, 55 Mo. 77. In the more recent case, however, of State v. Kennade, 121 Mo. 405, it was held that evidence as to the reputation of deceased for quarrelsomeness was properly rejected, it not having been shown that defendant knew it. The court said: ‘ ‘ Even if deceased had a reputation for being quarrelsome and dangerous, evidence of it could not have been received unless it had been previously shown that defendant knew it, and therefore might more reasonably apprehend danger in certain circumstances than if that reputation had been different. As this knowledge of defendant of the reputation of deceased is affirmatively shown by his testimony not to have existed, an answer to the question asked the officers was correctly denied,” citing State v. Hicks, 27 Mo. 590. That ease is clearly in conflict on this point with the previous decisions of this court which we have cited, and should not longer be followed.

In the case at bar, defendant testified that he shot deceased because he was afraid deceased was going to kill him, and under such circumstances evidence of the character of the deceased for being quarrelsome and dangerous when drinking was properly admitted.

A point is made upon the failure of the court to instruct the jury upon the question of motive when requested by defendant to instruct upon all the law of the case. No instruction upon this particular feature of the case was necessary for, according to the defendant’s own testimony, he shot deceased because he was afraid he was going to kill him. In other words, his motive in shooting deceased, if his testimony he true, was to defend himself against the apprehended assault which was then about to be made upon him by deceased; and in the instruction on the right of self-defense given in the case defendant was given the full benefit of such motive. Moreover, there was no error for failure to instruct upon motive, “because a man is not to be acquitted of crime simply because his motive for perpetrating it cannot be discovered.” [State v. Brown, 168 Mo. 449; State v. David, 131 Mo. 397.]

Instruction number eleven is claimed to be erroneous upon the ground of absence of evidence tending to show that defendant voluntarily entered into the difficulty. This contention is groundless. The .evidence tended strongly to show that defendant was rather anxious to get into a difficulty with someone, particularly the deceased; certainly he did not try to avoid it. His frequent aggravating remarks in the presence of and directed^ toward the deceased for the evident purpose of provoking him into a difficulty, his shooting him while unarmed and even after he was down, and all the circumstances connected with the killing, show that defendant not only voluntarily entered into the difficulty for the purpose of wreaking his malice upon deceased, but that he sought and provoked it, for such purpose. But, says defendant, even if there was evidence authorizing the instruction, the form and wording in which it is couched is erroneous. In support of this - position defendant relies upon State v. Rapp, 142 Mo. 443. Instructions numbers one and two, commented on in that case, deprived the defendants therein of the right of self-defense if they voluntarily entered into the difficulty, whatever their motive, even though it might have been for the sole and only purpose of defending themselves against the assault of their adversary, while under the law it is only where the difficulty is entered into for some unlawful purpose, such as taking the life of the adversary or to do Mm some great bodily harm, as provided in the instructions in this case, that the defendant is deprived of the right of self-defense. “Self-defense is an affirmative, positive intentional act,” and it logically follows that such act is voluntary. [State v. Gilmore, 95 Mo. 554.] In speaking for the court in the case of State v. Gordon, 191 Mo. l. c. 126, Gantt, J., said: “It has been ruled in various cases by this court that self-defense is an affirmative, intentional act, and in that sense is voluntary, and while, perhaps, it was too strongly put in State v. Rapp, 142 Mo. l. c. 448, to say that ‘voluntarily entering into a difficulty is not an ingredient of any homicidal crime,’ as was said in that case, still we think that it is clear that when one is assaulted by another and he neither brought on or voluntarily entered into such a difficulty with a view to taire advantage of a quarrel begun between' him and his opponent, he does not forfeit his right of self-defense by voluntarily resisting the assault made upon him, and if the circumstances are such that when thus assaulted he has reasonable cause to believe and does believe that Ms opponent then and there entertains a design to kill him or do Mm some great bodily harm, and there is imminent danger of the accomplishment of such design, then he may resist the accomplishment of such a purpose by killing his adversary to prevent the accomplishment of such a purpose.” But, as we have said, when the difficulty is entering into for some unlawful purpose, such as wreaking or gratifying malice, then there can be no self-defense in the case. The position taken by the defendant with reference to this instruction is, we think, clearly untenable.

In the brief of counsel for defendant it is insisted that instruction fourteen is erroneous in that it is a direct comment upon the evidence of "W. T. Simpson, who was a witness for the State. The position is that no other witness was impeached in the way indicated by the instruction, and that the effect of it was to bolster up his testimony. The ease of State v. Rutherford, 152 Mo. 124, is relied on by defendant to sustain his contention; but the reason the instruction in that case was condemned was because it singled out certain evidence which was before the jury and gave it marked prominence, when the weight of all the evidence was for the consideration of the jury. The instruction in this case in no way intimated to the jury the weight to be given to the testimony of any particular witness, but told them, as it should, that if any witness had been impeached, they were not for that reason bound to disregard his testimony, but were at liberty to disregard the whole or any part of the testimony of such witness, or believe or disbelieve him, as they might believe that he had testified truthfully or falsely in the case. That the instruction may not have applied to any other witness than Simpson makes it no more objectionable than an instruction which tells the jury that if they believe that any witness has wilfully sworn falsely to any material fact, they might disregard all or any part of the testimony of such witness as might seem to them proper, which has so often been approved by this court that it seems unnecessary to cite the decisions upon the subject.

A further contention is that the court should have instructed the jury to acquit the defendant of murder in the second degree. The argument is that the evidence of Simpson, a witness for. the State, and the only person who saw the killing, makes it murder in the first degree, and that defendant was not tried for that crime; that all the evidence showed it to be murder in the- first degree or nothing. When a person is indicted for murder in the first degree, as in this case, the State, with the permission of the court, may elect to prosecute him for murder in the second degree, and the defendant will have no right to complain of the course of the State in electing to prosecute him for a less than the highest grade of homicide. [R. S. 1899, sec. 2369; State v. Talmage, 107 Mo. 543; State v. Lowe, 93 Mo. 547; State v. Keeland, 90 Mo. 337; State v. Nelson, 88 Mo. 126; State v. Wagner, 78 Mo. 644; State v. Burk, 89 Mo. 635; State v. Moxley, 115 Mo. 644.] While the case of State v. Talmage, supra, has been expressly overruled as to what it takes to constitute manslaughter in the third degree (State v. Pettit, 119 Mo. 410; State v. Barutio, 148 Mo. 249), its correctness in all other respects has never been questioned by this court. In a homicidal case, it is only when there is no evidence to authorize an instruction upon the particular grade of the offense upon which an instruction has been given that it will be held to be erroneous. Here there was sufficient evidence to authorize instructions upon both degrees of murder; hence, there was no error in instructing* upon the lower grade of the offense, or in refusing to instruct the jury to acquit defendant of that offense. As was said by Gantt, P. J., in speaking for the court, in State v. Silk, 145 Mo. l. c. 248: “It is urged that the offense was murder in the first degree or nothing; that the court ought not to have instructed for murder in the second degree. We think the evidence shows an intentional killing with a deadly weapon, which alone raises the presumption of murder in the second degree. ’ ’

The issues in this case were submitted to the jury upon instructions which covered every feature of the case and which were very fair to the defendant. They were fully justified by the facts disclosed by the record. According to the testimony of defendant himself, and all the facts connected with the homicide adduced in evidence, defendant was guilty of murder in the first or second degree, or else the killing was in self-defense. The jury found him guilty of the offense for which he was put upon trial, and we think the verdict was fully warranted by the evidence. The judgment should be affirmed. It is so ordered.

All concur.

ON MOTION FOR REHEARING.

BURGESS, P. J.

An opinion was delivered in this ease on the 31st day of January last, affirming the judgment of the trial court, in which we declined to pass upon instructions numbered eleven and fourteen for the reason that neither the record filed in this court, nor the original bill of exceptions filed with the clerk of the circuit court, showed that any complaint was made of the action of the court in giving said instructions. In motion for a rehearing, however, filed February 6th inst., our attention is called to the fact that by stipulation between counsel for the defendant and the State, filed with the clerk of this court on January 3, 1906, the motion for new trial is correctly set out in appellant’s brief at pages five to eight, inclusive, which shows that the point upon the action of the court in giving all instructions in behalf of the State was duly raised by the. motion. On January 4,1906, another stipulation entered into by the same counsel, correcting the record in other respects, was also filed with the clerk of this court. The records of this court fail to show the filing of either of these stipulations, and when we came to the investigation of the case we found but one, that being the stipulation filed January 4, 1906, which referred in no way to the instructions, and it being so unusual for two different stipulations to be filed for the correction of the record in the same case, and especially without asking or obtaining the permission of the court, we overlooked the stipulation filed January 3d. It may not be out of place to say here that no record, after being lodged with the clerk of this court, can be changed without the permission of the court, duly entered of record at the time. But owing to the importance of this case we have duly considered the questions raised by counsel for defendant upon the instructions, and have modified the opinion in this respect. The motion for rehearing is overruled.

All concur.