source: Caselaw Access Project

author: FOX, J.

license: Public Domain

text:
    THE STATE v. EDWARD KELLEHER, Appellant.
    Division Two,
    December 14, 1909.
    1. DYING DECLARATIONS: Res Gestae. Dying declarations as to all matters occurring anterior to tlie killyig and not immediately connected with it, are not a part of the res gestae, and are inadmissible.
    2. -: Admitted on Former Trial: Res Adjudicata. A defendant in a second trial is not precluded from interposing objections to testimony which was admitted on a former trial without objection. Defendant at the second trial may object to parts of a dying declaration which were not objected to on the former trial, although other things embraced therein were then objected to and erroneously admitted.
    3. -: Material Matters. Statements in the dying declaration that deceased went into the saloon where the killing occurred on the solicitation of a State’s witness to get a drink, is not only incompetent as a part of the res gestae, but it cannot be held to be harmless, especially in view of tbe testimony of other witnesses to tbe effect that a short- time before tbe fatal encounter deceased bad stated be was going up to that saloon to- get even with defendant.
    4. WITNESS: Ex-Convict: Competency. Whether or not a convict in tbe penitentiary, brought by a guard to the trial and in bis custody, .is competent to testify on behalf of the State, is not decided; but it is held that an ex-convict, who has been pardoned, is competent.
    5. INSTRUCTIONS: Imperfect Self-Defense. For tbe reasons stated in tbe opinion on tbe former appeal, 201 Mo. 614, it is held tbe trial court did not err in refusing defendants instructions on tbe subject of imperfect self-defense.
    Appeal from St. Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge.
    REVERSED AND REMANDED.

      Thos. B. Harvey for appellant.
    (1) The court erred in admitting portions of the dying declaration objected to by defendant on tbe ground that they were not a part of tbe res gestae. Those portions all tended to prove facts anterior to tbe homicide and not “the act of hilling, and the circumstances immediately attending it, and forming a part of the res gestae” of the homicide. True, all of the answers except those given to the last two questions, are comparatively harmless, their principal value to the prosecution being for corroboration of the witness Howard;' but the last two answers to the effect that it was upon Howard’s casual suggestion and request that they went into Walsh’s saloon were most vital and prejudicial to the theory of the defense, which was that the deceased was that night breathing threats against the defendant, expressing a determination to go to Walsh’s saloon where defendant worked and “get” him; and that it was upon his own initiative and for the purpose of executing his threats that he went to Walsh’s. The evidence was recognized by the prosecution as being of such great importance in securing a conviction of the defendant, that its admission was insisted upon in the teeth of the aforesaid well-established rule of evidence as announced not only in-other cases, but also in this very cause itself when formerly before this court. State v. Kelleher, 201 Mo. 638. Under the rule, the dying declaration must be rigidly confined to the identity of the defendant and the res gestae — the facts attending the homicidial act. State v. Draper, 65 Mo. 340; State v. Van Sant, 80 Mo. 76; State v. Bowles, 146 Mo. 16; State v. Parker, 172 Mo. 202; State v. Kelleher, 201 Mo. 638. (2) William Taylor, while serving a sentence in the penitentiary for a felony, was incompetent as a witness. The witness was convicted and sentenced to seven years in the penitentiary for perjury, and while serving said term of imprisonment he was brought from the penitentiary by a guard and offered as a witness by the prosecution. Sec. 2564, R. S. 1899, disqualifies a convict from being a witness while confined in the penitentiary, except with reference to crimes committed by fellow convicts whilst they and the witness are imprisoned. Ex parte Marmaduke, 91 Mo. 228. The reason for this statute and the one that appealed more strongly to the good judgment of the Legislature and its sense of justice, was to avoid opening fountains of perjury in every court of the State by tapping the unlimited supply in the large and well-filled reservoir of the penitentiary. If the great majority of those imprisoned there are as weak and as morally irresponsible as they are supposed to be, the mere opportunity for temporary relief from their hardships and torture would be sufficient inducement for them to become witnesses for either party to a- criminal cause; but add to the aforesaid inducement the opportunity to please the officials of the State which holds them in prison, and thus securing a speedy and permanent relief from their sufferings, and a premium is placed on their perjury which, hardly one of them could resist. And the case at bar is a forcible illustration. (3) The second and third instructions requested by the defendant on the subject of imperfect self-defense, should have been given.

      Elliott W. Major, Attorney-G-eneral, and John M. Atkinson, Assistant Attorney-General, for the State.
    (1) Appellant objected to one ¥m. Taylor, who had previously been convicted of perjury in connection with his testimony in this case before the grand jury, and who was then serving a seven-year sentence in the penitentiary, from testifying as a witness in this cause, on the ground that said Avitness “was being imprisoned in the penitentiary under sentence for a felony.” Sec. 4680, R. S. 1899', provides: “Any person who has been convicted of a criminal offense is notwithstanding, a competent witness. ’ ’ The fact that the witness, Taylor, was still serving on his sentence in the penitentiary in no way made him incompetent as a witness. It would be conceded without argument that said Taylor would be a competent witness after his sentence is completed. State v. Myers, 198 Mo. 251; State v. Minor, 117 Mo. 302. Besides, counsel for appellant proceeded to cross-examine said witness at length as to new matter. He thereby waived any right to object to the competency of said witness. Edwards v. Latimer, 183 Mo. 627; State v. Hope, 100 Mo. 347; Maxwell v. Railroad, 85 Mo. 95; Hickman v. Green, 123 Mo. 173; Nichols v. Nichols, 147 Mo. 403. (2) The objections to portions of the ante-mortem statement are a new supply interposed for the first time by counsel at the second trial in this cause. The former opinion on this point based upon the ante-mortem statement is res judicata, and the point is not open for further review. Besides, we do not think that any of the above questions and answers of the ante-mortem statement objected to by appellant in any way violate the rule as laid down in the eases of State v. Draper, 65 Mo. 335. and State v. Bowles, 146 Mo. 6. Nothing contained in either of said questions and answers tends in the least to the prejudice of appellant. The objections are hypercritical in the extreme. (3) There is no evidence to warrant the giving of either of the instructions requested by the defendant at the second trial. Defendant was either guilty of murder in the first or second degree, or was justified on the ground of self-defense for the killing of deceased. Hence, we say the court properly refused said instructions, and no error was thereby committed.
   FOX, J.

— This cause is now pending before this court upon appeal by the defendant from a judgment of conviction of murder in the second degree in the circuit court of the city of St. Louis, Missouri. In what was known as Walsh’s saloon, located at the northeast corner of Pine and 22nd streets, in the city of St. Louis, between two and three o’clock Sunday morning, January 29, 1905, defendant, Edward Kelleher, with a pistol, shot and killed Thomas Sullivan, a prize fighter by profession and known as “St. Louis Tommy Sullivan” in prize fighting circles. The defendant was charged by indictment with murder of the first degree, for the killing of said Sullivan. The sufficiency of the indictment is not challenged, hence there is no necessity for reproducing it.

This is the second appeal of this cause. See State v. Kelleher, 201 Mo. 614.

The evidence on the part of the State at the second trial tended to show that Herman Sellinger, Mike Morissev, William Taylor and the defendant, Edward Kelleher, were all standing at the bar in said Walsh’s saloon drinking, when Sullivan and the witness, John Howard (now deceased), came into the saloon, and Howard ordered the drinks for himself and deceased, Sullivan; that the defendant was standing near a water cooler at the north end of the bar, which ran north and south in said saloon; the next south to him was a friend of defendant’s by the name of'Sellinger, and at the extreme south end of the bar, next to the partition or swinging door, near the front entrance of said saloon, stood the defendant, Edward Kelleher, and near the bar stood the witness, William Taylor. A man by the name of Gerwitz was the barkeeper. There were only two shots fired, and those by defendant. One bullet went wild and hit the bar, and the other one entered the body of deceased in the right side, just below the ninth .rib, in what is known as the axillary line, and ranged forward to the left and downward and came out about one inch to the left side and one-half inch above the umbilicus. Deceased went from said Walsh’s saloon to Bumberry’s saloon near by, and after re-' maining there for a few minutes was taken to the city hospital, where an operation was performed on him early that day. Deceased died on the following Friday morning, February 3rd, of septic peritonitis, due to the pistol shot wound in the abdomen, as above described.

To fully appreciate the nature and character of the testimony it is well to give a brief statement of the testimony of the witnesses as to the main facts developed at the trial of this cause. We have examined in detail the record disclosing the evidence, and by verification find that the learned counsel for appellant, in his brief abstract of the evidence of the various witnesses, substantially states the leading features of the testimony of such witnesses, as disclosed by the record.

John Howard was a witness in this cause upon the former trial and the testimony of Howard was preserved for the purpose of review, upon the former appeal. This witness, at the time of the second trial, was dead, and his testimony, which was preserved in the bill of exceptions, was presented to the jury. The main features of his testimony were as follows: I am a bartender in my father’s saloon at 1900 Chestnut street. I knew the deceased for several years and we were friendly and intimate for about a year before his death. I also knew the defendant to speak to him for a long time. I met the deceased about 1:30 a. m., on the night of the shooting at Manley’s saloon, 21st and Chestnut streets. We had two or three drinks of whiskey there and after about thirty minutes, we went to Walsh’s saloon at 22nd and Pine streets. I saw Edward Kelleher, Herman Sellinger and William Taylor standing at the bar in the order named, the defendant standing near the south end of the bar which was on the east side of the room and ran north and south. I don’t recall to have seen Mike Morissey in there. I saw two or three other persons standing near the music box which was against the. west wall and about opposite the middle of the bar. I recognized one of them as a man whom I knew hv sight as McTaff or McTague. Deceased and I walked up to the bar and took a position between Sellinger and Taylor, Sellinger being to my right, Kelleher next to him, the deceased to my left and Taylor behind him. I ordered drinks for deceased and myself and just as we had about taken them, Kell-eher applied an epithet to deceased and said, “You are a. fighter; this ain’t no place to come looking for trouble.” Then deceased jumped hack “like that” (illustrating), and then I saw the gleam of a revolver and heard a shot, and I started to run, and as I ran toward the front door I heard another shot. I could not say when Kelleher pulled the gun or where from. When I first turned upon hearing him speak to deceased, I did not see it. I did not wait to see what Sullivan did. “As. soon as he reached hack I turned. I saw the'flash of the gun and saw the flash of the shot and run.” I next saw the deceased at the hospital that morning, when he said to me, “I am a croppy, I am a dead one.” I don’t know whether deceased said anything to Kel-leher before Kelleher addressed him or not; I did not hear him if he did. “I conld not say whether they had any altercation or not, I don’t know.”

Cross-Examination: Deceased was a prize fighter and roomed at my father’s at 1914 Chestnut street. I lived with “my girl,” Mande Brooks, at 2024 Pine street. “I generally drink about 25 or 30- whiskeys a day and 40 or 50 beers.” The night of the shooting I had drunk 10 or 12 whiskeys and 14 or 15 bottles of Budweiser. Defendant was a barkeeper at Walsh’s saloon at 22nd and Pine streets, and deceased was accustomed to staying a good deal in the neighborhood at Kehoe’s saloon, between 22nd and 23rd on Pine street. As we went in Walsh’s saloon I spoke to Sellin-ger, but I did not hear deceased speak to anybody. After we took our places against the bar I did not look at any of the parties while waiting for and while drinking our drinks. I don’t know whether Taylor was in the room when the shooting occurred, and I did not take any notice of what the deceased was doing, nor at whom he may have been looking. I do not know of any previous trouble between Kelleher and deceased, and I do not know what Kelleher referred to when he said to deceased, “This is no place to come to look for trouble.” I don’t know whether I stated at the inquest that Kelleher applied an epithet to the deceased. Kell-eher had no gun in his hand when he spoke to deceased, nor until deceased jumped back from the bar and threw his hand back. “If he had any in his hand I certainly would have seen it.” After Kelleher addressed the deceased he jumped back and faced Kelleher and threw his hands back (illustrating by taking a position) ; I can’t say what he was reaching for. I was arrested during the night and I then and several times afterwards denied positively to the police that I knew anything about the shooting.

William Taylor, a, witness introduced by the State, in substance testified as follows: I am known as “Buck” Taylor; for the past two years I have been in the penitentiary at Jefferson City-serving a seven-year sentence for perjury. I was brought down here by a guard to testify, and after testifying I expect to he taken back for further imprisonment under said sentence. I was with Kelleher, Morissey and Sellinger the night of the shooting and we were in Walsh’s saloon about a half hour before it occurred. Howard and the deceased came in only a few minutes before the shooting. After one or two drinks deceased turned toward Morissey and asked for a light of a cigarette and that it was when Kelleher shot him. Deceased was not facing Kelleher, but was facing Morissey when he was shot. Kelleher did not say anything. Deceased ran past me and out the door on 22nd street and Kell-eher after him with a pistol in his hand: He returned and stood in the room a few minutes and then he and McTague left as the police came. After the shooting I saw a hole in the front of the bar about two feet below the top.

Cross-Examination: Sellinger, Morissey, Kelleher and T were at different places drinking that night. I had ten or fifteen bottles of Budweiser. We were in Walsh’s about a half hour before the shooting took place. It did not occur a very short while after we got there. We had three of four drinks in there before Howard and deceased came in. We were all drinking heavily. I testified before the grand jury as to this shooting, and I swore that as we entered the saloon I took Morissey into the water-closet and let him vomit, and we were in there when the shooting occurred and saw nothing of it. I testified falsely. I would have said anything to protect him; I would not swear anything to protect myself or to get myself out of the penitentiary. I hope to get out of the penitentiary, but I am not sure of it. Mr. Sager promised me that if I would treat him right he would treat me right; he promised me that he would help to get me out and I hope to get out. I expect to get out by reason of giving my testimony here. At the former trial of Kelleher I was a witness and swore to the same that I have stated I swore before the grand jury. I was indicted for perjury and on my trial I swore again that at the time of the shooting Morissey and I were in the water-closet and saw nothing of it. As the deceased and Kelleher ran toward the back door, McTague came in and said, “Look out, Eddie, don’t shoot me.” J saw nobody run toward the rear door except Sullivan and Kelleher. McTague was there just after the shooting, but I did not see him before. I was standing with my face east, and I did not notice who may have passed in the door behind me. I did not see two or three persons standing-back near the music box. Nothing was said or done before the first shot was fired to cause deceased to jump back, and he was standing still, getting a light from Morissey’s cigarette at the time said shot was fired. Sellinger looked over the swinging door and said, “Here come the cops,” and then the defendant and McTague left. The balance of us remained and were arrested. My business was singing at wine rooms in the tenderloin district which were the' resorts of fast women, and I lived with one of them in that district. My picture has been in the rogue’s gallery eight or ten years.

Re-Direet-Examination: I was indicted for perjury committed before the grand jury during its investigation of this shooting when I swore that I was not at Morgan’s saloon with Kelleher, Morissey and Sel-linger, and that I was in the water-closet with Moris-sey who was sick when the shooting occurred, and saw nothing of it. After the shooting I saw Sellinger put his gun on the music box. I did not see McTague pick the gun up from the floor and put it on the music box.

Herman Sellinger, the next witness for the State, substantially stated that: In January and February, 1905, I was conducting a saloon at 2028 Olive Street. I liave known the defendant about seven years. I went from my place of business to Walsh’s saloon, and af-terwards Morissey, Taylor, the defendant and I went in there, and just a minute afterwards Howard and the deceased came in and walked up to the bar and stood to my left, goon afterwards some shots were fired and I ran to the rear. I did not see and don’t know who fired the shots, and I did not see anybody with a gun. ¡I afterwards saw where one shot was fired into the face of the bar. I looked for the bullet hole because I did not know but what somebody was shooting at me. I did not see Kelleher with a gun at any time that night. I was drinking and if I grabbed a gun in Kelleher’s hand I don’t know about it. I don’t remember to have seen McTague in there at all. Kelleher ran out of the front door after the shots were fired and I did not see him in the saloon afterwards. He was not in there after I ran to the rear of the saloon and returned in a very short while. He did not go to the rear of the saloon and did not pass out by me or through the rear door. Sullivan ran out of the rear door on 22nd street. I think Taylor and Morissey also ran to the rear, and G-erwitz, the barkeeper, laid down under the bar. After I returned from the rear, Taylor and Morissey and the bartender and the porter were the only ones there and shortly afterwards we were all arrested and taken to the hospital to be identified and then to the jail. I was a witness before the grand jury and also at the former trial of this case, and I am now under an indictment for perjury.

Cross-Examination: I had been drinking very heavily that night and I don’t really know what did take place before the shots were fired. I did not see whether Morissey and Taylor had gone back to the rear of the saloon or to the water-closet before the shots were fired, or not. “We all went in together and the trouble happened within a minute.” By “we” I mean Kelleher, Morissey, Taylor and myself, and then within a minnte Howard and the deceased came in.

Re-Direct-Examination: I went into Walsh’s saloon first alone and met Morissey, Taylor and Kelleher, and left there and went to Daneri’s saloon about 12 o’clock and from there to Morgan’s and then went back to Walsh’s about two o’clock.

John Hoffman testified: I am sergeant of police of St. Louis. I went to the saloon where the shooting occurred about 5 o’clock in the morning. I saw a bullet hole in the counter about 2 inches from the top and about midway the length. The bar runs north and south and the bullet appeared to have been fired from the southwest. I found the pistol on top of the music box which was about 7 feet high. That looks like the gun. It was loaded and I turned it over to Officer Can-tillion. I assisted in arresting the defendant at 2627 Locust Street, Walsh’s residence, about half past nine in the morning of the shooting. When I entered his room he was dressing, another officer having preceded me, and McTague was lying in bed. We took the defendant to the hospital in the presence of the deceased. The deceased made a statement and the defendant said, “I don’t know the man, never saw him in my life before.”

Cross-Examination: I don’t remember that I stated before the coroner at the inquest that the only statement I got from the defendant was in the wagon on the way to the hospital. The defendant never made any statement to me but once, and that was at the hospital. I don’t remember that on the former trial of this case I stated that I asked the deceased on the way from the hospital to the holdover, what he had to say to what Sullivan had stated in his presence at the hospital. I saw the gun handle sticking over the edge of the music box and took it down by tip-toeing. I could not see on top of the music box.

William McDonald testified: I am a member of tbe police force and know the defendant. I was notified of tbe shooting soon after it occurred and I went to Bumberry’s saloon on Pine street and there saw the deceased. He had a gunshot wound in the stomach. I don’t remember that he said anything at Bumberry’s saloon or on the way to the hospital about his condition or his chances of recovery.

Cross-Examination: Bumberry’s saloon is about the middle of the block between 22nd and 23rd streets. I saw the deceased there about three o’clock in the morning. I went to the saloon where the shooting occurred and saw where a bullet entered the counter and splintered it up a little below the top of the bar. A large crowd gathered at Bumberry’s and I don’t know whether A1 Hamilton was there or not.

The witness was recalled by the prosecution and stated that since leaving the stand he had read his testimony given at the former trial and by refreshing his memory he could state that the deceased at Bum-berry’s saloon said that he thought it was all off with him.

Michael O’Brien testified: I am on the metropolitan police force and am a stenographer. On January 31st, 1905, I took the ante-mortem statement of the deceased at the City Hospital in shorthand and after reducing it to typewriting it was read over to the deceased and he signed it. Said dying statement was read in evidence and was to the effect that the deceased knew that he was dangerously injured and was liable to die; that about 3 o’clock in the morning he and Howard met at 21st and Chestnut streets, and from there went to Daneri’s saloon at 22nd and Chestnut streets where they remained about three-quarters of an hour and had about three drinks of whiskey ther.e, and from Daneri’s they went to Walsh’s saloon at Howard’s suggestion, and there he saw Kelleher who shot him. That he and Howard walked to the middle of the bar and ordered drinks and Kelleher said, “Did yon come out here looking for trouble, ” and then he pulled out his revolver and shot him. He shot twice and deceased was shot in the stomach. He was standing against the bar and looked around when Kelleher first shot and then turned and ran toward the back door. He was shot before be started running.

Herman Sellinger (recalled) testified: I had a revolver with me the night deceased was shot, and after the shooting I put it on top of the music bos. I could not say who was present at the time that I did this.

Cross-Examination: I put the revolver on the music box a minute or so after the shooting and as soon as I walked back into the saloon from the rear thereof. I would not say that this is the revolver, but it looks like it. I had a partner named Cullen in the saloon business at 2028 Olive Street. The revolver was one that was kept in the saloon and may have belonged to Cullen and was the only revolver there that I knew about. I lived with a woman named Gene Rogers, who, according to the newspapers, was a. notorious panel worker and thief. I have been living in the tenderloin district for about three years. I don’t know whether I testified before the grand jury or not that I was in the water-closet when the shooting occurred. I was indicted for perjury before the grand jury. I was so drunk at the time of the shooting that I have a faint recollection of what occurred. I testified as a witness for the State at the former trial of this case and I did not at that time say anything about having put this pistol on the top of the music box, because I was not asked about it. I cannot say whether or not I will be prosecuted on the perjury indictment. At the former .trial I said that I had a pistol that night, and that was the only question asked me about a pistol and I never told anybody anything about it until I was arrested and brought back from Chicago on this perjury charge and then I told the circuit attorney about the pistol.

The evidence upon the part of the defendant, as developed at the trial, was in substance, about as fol lows:

Dr. Henry Lloyd testified: I have been deputy coroner of the city of St. Louis for over three years and was coroner for one term, and I conducted the inquest on the body of the deceased, Thomas Sullivan. At the inquest, the witness, John Howard, in illustrating the motion made by the deceased when he jumped back from the bar, threw his right hand back towards his hip pocket. In his testimony before the coroner, Howard did not state that the defendant used any epithet toward the deceased on the occasion of the shooting.

William Winters testified: I am in the saloon business for about nine months. In January, 1905', I was barkeeper for John Shannon at 11th and Chestnut streets; I had been working for him for about two years. The deceased was in that saloon nearly every night. I recall the fact that deceased was shot one night in Walsh’s saloon, and that he was in Shannon’s saloon about 4 or 5 o’clock the preceding morning. He was standing in front of the bar having several drinks, and was talking about going and getting one of them “sons of bitches,” Kelleher or Taylor. Shortly afterwards he displayed a revolver and wanted to shoot it off in the saloon.

Cross-Examination: I understood from parties at the saloon that a fight had occurred there two or three days before in which Kelleher and deceased were engaged in the wine room of Shannon’s saloon. When I asked him what “sons of bitches” he referred to, he said, Kelleher or Taylor. It was a black gun that he displayed. I was not at the-saloon when the fight in which Kelleher and the deceased were engaged, took place; it occurred in the afternoon when I was not on watch.

Beverly Brown testified: I am in the employ of the city as rodman with the surveyor in the Street Department. I knew Sullivan, the deceased, ten or twelve years, intimately. At about ten o’clock on the night of the shooting I walked with him up Chestnut street towards Howard’s saloon, and he told me about some trouble he had in a saloon at 11th and Chestnut streets a few days before, and he said that he was going up to Walsh’s and get even with Eddie Kelleher and that bunch, and asked me to go with him and I told him ¡I did not want to go up. He said he wanted to get a few drinks first. He displayed a revolver, and said, “We will go up and get them,” and I says, “I don’t want to go up. I declined the invitation.”

Cross-Examination: I don’t know how often I have been arrested on charges in the police court. The gun deceased displayed to me was black. The deceased was in the habit of carrying a pistol continually. I have seen him with a pistol lots of times.

Michael Ryan testified: I am a carriage driver, and in January, 1905,1 had a stand at 19th and Chestnut streets at the southwest corner at Howard’s saloon. I heard of the shooting of the deceased, Thomas Sullivan, the same morning that it happened. He was shot at Walsh’s saloon at the corner of 22nd and Pine streets. I saw him about one o’clock the same night that he was shot. He was drinking and he wanted to hire my carriage to go up to Manly’s saloon and from there to Walsh’s saloon, and said he “wanted to get Kelleher.” I told him I was engaged, but I was not. I don’t know whether he had a pistol that night, but I saw him display a pistol a short time before that when I had him and a man by the name of Brown and they talked about beating some man up in his room. I was hauling them from 11th and Chestnut up to 19th and Chestnut streets.

Cross-Examination: The man whom I hauled with the deceased was Beverly Brown, the witness in this case, and it was about a conple of weeks before the shooting, or it may have been longer; I know it was not very long before the shooting happened. I served a term in the penitentiary for larceny eleven years ago, and have never been arrested since. I work at Eckert’s stable.

A1 Hamilton testified: I am a cigar salesman. I heard of the shooting of deceased shortly after it occurred and I went to Bnmberry’s saloon where he was. I knew Sullivan well for about five years. He roomed' with me once for about two or three months. I stooped over him and had a talk with him as he lay on a cot in Bumberry’s saloon, and I asked him how he got shot, and he said, “Well, they beat me to it.” I after-wards went to Walsh’s saloon and Officer Yollmer put me in charge of the place after arresting the parties therefrom.

Cross-Examination: I afterwards examined the bar where the bullet had struck and one of them found a revolver on top of the music box. I have been arrested but was acquitted.

Officer Theodore Vollmer testified: I am in the undertaking business and was on the police force January, 1905. Being notified of the shooting I went to Bumberry’s saloon, where the deceased was lying on a cot, and thence to Walsh’s saloon, where the shooting had occurred, and there arrested Sellinger, Morissey and Taylor. At- an early hour on the same night, I was called to Morgan’s saloon, and found Sel-linger, Taylor, Morissey and Kelleher in there. I searched both Sellinger and Kelleher for pistols and did not find any on them.

John Cullen testified: I am in the cigar business now. In January, 1905, Herman Sellinger and I were in the saloon business together at 20'28 Olive street. I remember the night that Thomas Sullivan was shot; I heard of it the nest day. There was only one revolver kept at onr place of business at 2028 Olive street, and it is my own revolver and I have it now in my trunk at my residence.

John J. Noonan testified: I am sergeant of police. I have known the deceased eight years and once had occasion to arrest him on a charge of “holding up” a young man. The reputation of deceased for general morality was bad.

J. R. Shipp testified: I am in the saloon business and was formerly on the police force up to the 10th of January, 1906; have been on the force for about five years. I knew deceased around the corners of the beat that I walked, and knew him quite well, and ran him off my beat several times. His general reputation was bad.

Thomas E. McTague testified: I came from New Orleans, where my mother lived, to St. Louis about five years ago. In January, 1905, I lived at 2629 Locust street at a rooming house, the same place that Mike Walsh lived, and I had been, “off and on,” barkeeper for Mike Walsh. The defendant also was a barkeeper for Walsh. On the night of January 29, 1905, I entered Walsh’s saloon between 2 and 2:30 in the morning, by front door on 22d and Pine streets. There was also a rear door to the saloon on 22d street. Just as I entered the saloon I noticed Eddie Kelleher, Herman Sellinger, John Howard and Tommy Sullivan standing at the bar: Kelleher was at the south end of the bar, Sellinger was next to him, Howard was next to Sellinger and Sullivan was next to Howard. As I entered I heard a remark passed and Sullivan replied, “Tes, G-od damn you,” and just then I had about reached a music box which stood against the west wall of the saloon and! about opposite the middle of the bar. Then Sullivan made an effort to draw his gun and Kelleher stepped out and shot at Sullivan and Sullivan dropped Ms revolver and ran out the back door to 22d street. Sullivan jumped hack from the bar and Kelleher stepped out and fired two shots. Sullivan had his revolver partly out, and whether entirely out or not, anyhow when the shots were fired he dropped it. Sellinger also went to the rear of the saloon and staggered hack; he was very drunk. Howard ran out the front door and Kelleher also. I stood there for á moment and picked up the revolver from the floor and put it on top of the music box and then walked out of the saloon by the front door. This music box had around it a sort of cap or moulding. I did not enter the rear door of that saloon that night nor did’ I meet Kelleher chasing Sullivan. I walked north on 22d street to Olive street and overtook the defendant near 23d street, and took him home with me to 2629 Locust street, and the next morning between 9 and 10 o’clock the officers arrested him and left me in bed. The officers asked me my name and I told them. I did not see either Taylor or Morissey the night of the shooting.

Cross-Examination: I was standing at the south side of the music box and Sullivan was to the north of me and near the water-closet. Thére was nobody beyond or north of him. Kelleher was south of him near the partition. Sullivan and Kelleher stepped out from the bar about the same distance. I did not testify at the coroner’s inquest; I was not subpoenaed. I testified at the former trial of Kelleher to the same statement I am now testifying. I did not testify at the trial of Taylor or Morissey. G-ussie Groves, Mike Walsh’s woman, is notorious. I room there and pay my rent. I held a position as street inspector under the city until about a year ago. Walsh’s saloon was resorted to by bad characters. I am not married, have no wife in New Orleans, nor was I ever married in Illinois. I was on my way home when I stopped in Walsh’s saloon the night of the shooting. I don’t drink, as a. rule, but I knew the boys • there. After the remark was passed which I did not understand, Sullivan said, “Yes, God damn you,” and then went back for his gun and Kelleher pulled out his and fired. Sullivan started to pull his gun before he backed away from the bar. Kelleher said this is no place to come looking for trouble. The shooting occurred possibly a minute after I entered the saloon. Sullivan made an attempt to draw his revolver before Kelleher drew his. I •did not know whether there was any other revolver on •.top of the music box; I did not see any.. I do not know what Kelleher did with his gun after the shootingj I did not see it afterwards. I was convicted in the police court of idling and was discharged on appeal. I said on the last trial that Sullivan drew his pistol and illustrated how he had his hand and that and what I have stated on this trial are true.

Re-direct Examination: At the time Sullivan went back for his gun, Kelleher had made no effort to draw his revolver., Sullivan was the first one to go back for his gun. I was never arrested in my life before the time of this shooting. The arrest referred to by me occurred. since then.

In addition to the testimony, as herein indicated, the State introduced Dr. J. A. Hartman and Dr. John Young Brown, both of- whom fully testified as to the nature and character of the wound, and that the death of Sullivan was the result of the gunshot wound.

This is a sufficient indication of the nature and character of the testimony upon which this cause was submitted to the jury. The testimony developed upon the trial, as well as the objections interposed by counsel for the defendant, will be alluded to and given careful attention during the course of the opinion.

At the close of the evidence the court instructed the jury upon murder of the first and second degrees ,and self-defense, and also covered by appropriate instructions all the other subjects to which the testimony was applicable. It is not essential to burden this opinion with a reproduction of the instructions. Whatever attention may be necessary to give them will be given during the course of the consideration of the legal propositions presented by the record.

The cause was submitted to the jury upon the testimony as developed and the instructions of the court, and they returned their verdict finding the defendant guilty of murder in the second degree, and assessing his punishment at fifteen years’ imprisonment in the penitentiary.. Timely motions for a new trial and in arrest of judgment were filed, and, by the court, overruled. The defendant was duly sentenced in accordance with the verdict, and judgment and sen-tencé duly entered of record.. From this judgment this' appeal was prosecuted, and the record is now before us for consideration.

OPINION.

The record in this case discloses the assignment' of numerous complaints of error as a basis for the' reversal of this judgment. We will give to the complaints of the appellant such consideration as in our opinion their importance requires.

I.

The most serious proposition presented by the record with which we are confronted, is the assignment of error upon the part of the trial court in the admission, over the objections of the defendant, of certain portions of the dying declaration made by Thomas Sullivan, the deceased. The declaration of which complaint is made and to which timely exceptions were preserved, was in the form of answers by; the deceased to certain interrogations propounded. To fully appreciate this proposition it is essential that we reproduce such portions of the dying declaration of Sullivan to which, objections were interposed. Embraced in the dying declaration introduced in evidence by the State was the following:

“Q. Where did you meet Johnnie Howard? A. 21st and Chestnut street. (Objected to by defendant as not being a part of res gestae and immaterial. Objection overruled and exception saved.)-

“Q. Where did you go then? A. We went to Joe Danexi’s, 22d and Chestnut streets. (Objected to by defendant as not being a part of res gestae and immaterial. Objection overruled and exception saved.)

“Q. How long did you stay in Daneri’s? A. About three quarters of an hour. (Objected to by defendant as not being a part of res gestae and immaterial. Objection overruled and exception saved.)

“Q. Did you have any drinks while in there? A. Yes, sir. (Objected to by defendant as not being a part of res gestae and immaterial. Objection overruled and exception saved.)

“Q. About how many? A. Three, I believe. (Objected to by defendant as not being part of res gestae and immaterial. Objection overruled and exception saved.)

“Q. Was it beer or whiskey? A. Whiskey. (Objected to by defendant as not being a part of ‘res gestae and immaterial. Objection overruled and exception saved.)

“Q. Where did you go from Daneri’s? A. Over to Walsh’s. Johnnie says, ‘Let’s go in and get a drink.’ (Objected to by defendant as not being a part of res gestae and immaterial. Objection overruled and exception saved.)

“Q. Where did he say that? A. When we got opposite Walsh’s. (Objected to by defendant as not being part of res gestae and immaterial. Objection overruled and exception saved.)”

That the declarations as herein indicated, to which objections were interposed, related to matters occurring anterior to the killing and not immediately connected with it, in onr opinion, is too plain for discussion. They in no way had reference to any facts or circumstances constituting the res gestae of the homicide, hut were the narration of certain incidents which occurred anterior to the fatal encounter.

The proposition now under consideration was sharply presented to this court in State v. Parker, 172 Mo. 191. In that case, as in the case at bar, objections were interposed to certain portions of the dying declaration, and this court, speaking through Judge Gantt, very clearly and correctly announced the well settled rules applicable to the admission of dying declarations. In treating of the proposition in that case, it was said:

“We are thus brought to the objection that portions of this statement were incompetent because it was not confined and restricted to the identification of the accused and the deceased and to the act of killing and the circumstances immediately attending said act and forming a part of the res gestae.
“Dying declarations a.re admissible as to those facts 'and circumstances constituting the res gestae of the homicide, but as to all other matters occurring anterior to the killing and not immediately connected with it, they are incompetent. This is the settled law of this State. [State v. Draper, 65 Mo. l. c. 340, and cases cited; State v. Vansant, 80 Mo. l. c. 76; State v. Bowles, 146 Mo. l. c. 16; l Greenleaf on Ev., sec. 156; State v. Parker, 96 Mo. l. c. 392.]
“The portions of the statement to which defendant objected, outside of those excluded by the court and included within brackets, are the following: ‘I never made any threats against him in my life.’ The State by its counsel conceded that the words ‘in my life’ should be stricken out and the defendant objected to striking out those- words without striking out the whole of that sentence.
“We think the court erred in not striking out the whole of said sentence. It necessarily referred to matters anterior to the fatal encounter, was not a part of the res gestae and under the rule just announced was inadmissible. It cannot be said that it was harmless as it tended directly to disprove the evidence of the defendant’s witnesses that deceased had made threats of violence toward defendant and they had been communicated to defendant.
“Other parts of the statement to which exception was taken, were: ‘I had not touched a drop of liquor for over a month;’ ‘I know of no reason why he shot me, except as above stated;’ ‘I did not think he was going to shoot me, as I had never given him any cause to shoot me;’ £I had never had a quarrel with him.’
“Each of these statements are subject to the same objection as the one above noted. They do not purport on their face to be statements of any facts which occurred at the killing. They refer either to the absence of threats anterior to the homicide or the conclusions drawn by deceased that defendant had no cause to shoot him. We think they should likewise have been excluded. [State v. Elkins, 101 Mo. 344.]”

With equal clearness, Judge Bubgess, in this case upon the former appeal, exhaustively reviewed the authorities upon the subject of dying declarations which related to facts and. circumstances occurring subsequent to the fatal difficulty, and expressly held that such facts did not constitute any part of the res gestae, and therefore were inadmissible. The same rule which was so clearly pointed out as to facts and circumstances occurring subsequent to the killing, applies with equal force to the facts and circumstances occurring anterior to the fatal difficulty, which are not immediately connected with and forming a part of the res gestae.

It must not be overlooked that the learned trial judge was not in any way misled, either by the action of counsel for the defendant or the action of this court upon the former appeal. Upon this second trial learned counsel for appellant interposed clearly and specifically his objections to the introduction of certain portions of the dying declaration, which were by the court overruled and exceptions timely preserved. Emphasizing the fact that the trial court admitted the objectionable portions of the dying declaration upon' an erroneous view of the law, we find that during the progress of the trial the court gave expression to its views as to what a dying declaration might contain. This expression was made concerning the testimony of the witness A1 Hamilton, when a discussion between the court and counsel occurred concerning this proposition. The remarks between counsel and the court as disclosed by the record, were as follows:

“Mr. Harvey: It was objected to as not being a part of the dying declaration proper. In the .dying declaration you cannot give anything except the facts immediately connected with the alleged homicide.
“The Court: Anything he testified to in his dying statement.
“Mr. Harvey: I wish to state, as I understand the ruling about a dying declaration, they can contain only such things as grew immediately out of, or occurred with the alleged shooting or killing. Anything that occurred before that, or afterwards, the dying declaration could not contain; it is confined to what occurred at the time, and arose immediately out of it.
“The Court: It may contain anything the dying party might have testified to, both before and after the transaction. ’ ’

Upon the complaints of the appellant as to the admission of the portions of the dying declaration as heretofore indicated, the learned Attorney-General submits two propositions:

First: That the opinion by this court upon the former appeal based upon the ante-mortem statement is res ad judicata, and the point is not open for further review.

Second: That the questions and answers of the ante-mortem statement objected to by the appellant do not in any way violate the rule as laid down in the cases of State v. Draper, 65 Mo. 335; and State v. Bowles, 146 Mo. 6.

After a most careful consideration of the propositions so ably presented by the Attorney-General, we are unable to give our assent to the correctness of either insistence. While it is true that the declarations now under consideration upon this second trial were embraced in the record upon the former appeal, but manifestly an examination of the opinion will demonstrate that the question as to the competency of such declarations was not passed upon by this court, for the reason that they were not in judgment before the court. Counsel for appellant, upon the former appeal, did not embrace the dying declarations now under consideration among those to which he interposed an objection; hence Judge BuRgess in treating of the question as to the admissibility of dying declarations, correctly directed his attention only to those to which an objection had been interposed. The dying declarations involved in this proceeding were not discussed, and of course were not erroneously admitted in that case, for the reason that they went in without objection.

We know of no rule which would preclude a defendant on a second trial from interposing objections to testimony which was admitted upon a former trial without any objection. It often occurs in the trial of causes that instructions are given as well as evidence introduced to which no objection is made, and this court in disposing of the case would not give any attention to such instructions or to such evidence, for the reason it was not before the court for review; but upon some subsequent trial where the same instructions were given and the same evidence introduced, to which clear and specific objections were interposed, manifestly the instructions and the evidence in that case, upon appeal to this court, would be subject to review, and if the action of the court was found to be erroneous, the court would so decláre. The mere fact that a proposition was embraced within the record, but was not a subject of review, for the reason that no objections had been interposed in the trial court, in our opinion, would not be res adjudicata of that proposition.

It often happens in the trial of important cases that learned and able counsel, being confronted with so many complicated questions, may fail to timely interpose an objection to certain testimony or to certain instructions given in the cause. As in the case at bar, the dying declarations offered in evidence by the State were quite lengthy and consisted of questions and answers by the deceased. In going over such questions and answers counsel failed to make his objections to certain portions of them, but did not make objections to other portions of the dying declaration, and by reason of the admission of the portions to which objections were interposed, the judgment in the case was reversed and the cause remanded, and a second trial had. This second trial was separate and independent of the first. All of the facts essential to establish the guilt of the defendant had to again be developed by the State, as well as all matters of defense by the defendant had to be again introduced at that trial, and in our opinion it cannot be seriously contended that the defendant did not have the right to interpose objections to any portion of the testimony which may have been introduced in the former trial without any objection, and the mere fact that this court upon the former appeal did not treat of the admissibility of certain evidence, for the reason that it was not subject to review, and was admissible on the ground that the testimony went in without any objection, should not be held as res judicata of the question as to the admissibility of such evidence to which clear and specific objections were interposed upon the second trial.

Recurring to the second proposition insisted upon by the learned Attorney-General, that'is, that the ante-mortem statement objected to by appellant does not in any way violate the rule as laid down in the cases heretofore indicated, we will say that the portions of the dying declaration to which timely objections and exceptions were made, are fully set forth herein, and in our opinion they furnish a full and complete answer to the question as to whether or not such declarations related to matters and incidents occurring anterior to the killing and not immediately connected with it. The answers and questions embraced in the dying declarations show beyond dispute that they had reference to matters which occurred anterior to the killing, which were not immediately connected with it, and for that reason such declarations formed no part of the res gestae of the homicide.

It does not furnish a sufficient o.r satisfactory answer to the complaint urged by appellant that the dying declarations as herein indicated were not admissible, to say that they were harmless. It may be said that a number of the questions and answers embraced in the dying declaration concerning the different saloons visited and the number of drinks taken, and the character and class of drinks, were not of very much importance, yet they might, however, be used by the State to some extent for the purpose of corroboration of one of the leading witnesses against defendant, John Howard; but when we reach the questions and answers in the dying declarations wherein the deceased states in substance that he went into Walsh’s saloon at the solicitation of John Howard for the purpose of getting a drink, and that this suggestion was made before they entered the saloon of Walsh—in other words, as stated in the declaration that this suggestion was made “when we got opposite Walsh’s,” it presents a statement which could be used and doubtless was used in tbe discussion of tbe testimony before tbe jury in tbe trial of tbis cause, of great force and vital importance. Analyzing tbe force and effect of tbis statement, it simply amounts to a declaration by tbe deceased that be went into Walsh’s saloon, not upon bis own volition, but at tbe suggestion of bis companion John Howard, and that be went in there, not with the view of finding tbe defendant, Kelleber, or in any way seeking a difficulty with him, and that bis only purpose in going in was to comply with the suggestion of bis companion, John Howard, and for tbe innocent purpose of taking a drink. Tbis declaration was of vital importance for tbe State; its tendency was to directly contradict the testimony of the witness Beverly Brown, who testified that about 10 or 10:30 p. m. on tbe night of tbe shooting, tbe deceased displayed a pistol and said that £<he was going up to Walsh’s and get even with Eddie Kelleber and that bunch,” and requested Brown to go with him, which invitation was declined. Brown’s testimony further emphasized tbis threat to go to Walsh’s saloon to get even with Kelleber, by stating upon cross-examination that the deceased referred to a difficulty with tbe defendant a few days previous at Shannon’s saloon. Equally does it tend to contradict tbe force and effect of tbe testimony of Michael Ryan, who testified that about one o’clock on the night of tbe shooting tbe deceased tried to hire tbis witness who was a carriage driver, to take him'to Manley’s saloon and thence to Walsh’s saloon; “that be wanted to get Kelleber.” Tbis witness also declined to aid deceased in tbe execution of bis- intention to go to Manley’s and Walsh’s saloons as designated. There was other testimony of a similar character by witness Winters as to threats made by tbe deceased on tbe morning of tbe day preceding tbe shooting.

Tbis testimony as introduced by tbe defendant could be used and doubtless was used in tbe discussion of the facts before a jury to show that the deceased had fully made up his mind, even up to within an hour before the shooting to go to Walsh’s saloon, and that when he did go it was of Ms own volition and not for the inoffensive purpose of complying with the suggestion of his companion, John Howard, to go into the saloon merely to get a drink. This testimony as introduced by the defendant could also be used with great force in leading the jury to the conclusion that the deceased, in keeping with his previous declarations to witnesses Brown, Ryan and Winters, sought Walsh’s saloon and entered there for the purpose of finding the defendant and renewing the difficulty in which they had been engaged at Shannon’s saloon. It is apparent that the dying declaration, to which reference has been made, and which was made anterior to the fatal difficulty would have a very strong tendency to lessen the force and effect of the testimony of the witnesses concerning the threats of the deceased to go to Walsh’s saloon for the purpose, as the deceased expressed! it, of “getting Kelleher,” the defendant.

We have carefully analyzed the Parker case, heretofore referred to, and we are unable to distinguish the force and effect of the dying declarations which were erroneously admitted in the case at bar, and the testimony in that case which was held to be incompetent and inadmissible. The portion of the statement in the Parker case which was introduced as a dying declaration, embraced the following: “I never made any threats against him in my life. ’ ’ This court held that the trial court erred in not striking out the whole of that sentence, and in assigning a reason for such holding it was said that the declaration could not be treated as being harmless, as it tended to directly disprove the evidence of defendant’s witnesses that deceased had made threats of violence toward the defendant. So we say in the cage at bar, that the dying declaration introduced in evidence which was anterior to the time of the fatal encounter, that the deceased went into Walsh’s saloon upon the suggestion of his companion, John Howard, for the mere purpose of getting a drink, also tends with equal force of the declaration made in the Parker case, directly to disprove the testimony of two or three witnesses concerning the avowed' purpose of going to Walsh’s saloon for the purpose of seeking Kel-leher and “getting even with him and that hunch.”

We see no necessity for pursuing this subject any further. If the Parker case announced the correct rule, and we see no legal valid reason for departing from it, concerning the declarations sought to be introduced in that case, then we see no escape from the conclusion in the case at bar that the learned trial court erroneously and improperly admitted the declaration to which we have referred.

n.

It is insisted by appellant that William Taylor, commonly known as “Buck” Taylor, who testified in this cause against the defendant, was incompetent as a witness. This witness was convicted and sentenced to seven years in the penitentiary for perjury, and while serving said term of imprisonment he was brought from the penitentiary by a guard and introduced as a witness by the prosecution in this cause. The defendant, through his counsel, upon the facts being developed that this witness was serving a sentence in the penitentiary, and was in attendance upon court .unlawfully and without any authority of law, interposed an objection to his competency, which objection was overruled and a timely exception preserved.

It is sufficient to say of this proposition that it is conceded by counsel for appellant and respondent that this witness has been pardoned and is now not an inmate of the penitentiary, therefore upon the retrial of this cause the grounds urged in the case at bar as to his incompetency, will not be in existence, his term of service in the penitentiary will have expired by reason of the pardon, therefore under the provisions of the statute he would be a competent witness, and the determination of this proposition would serve no purpose, as applicable to this case, as a guide to the lower court in the retrial of it; hence we express no opinion uopn this proposition.

III.

It is next insisted that the court committed error in its refusal of the second and third instructions requested by the defendant on the subject of imperfect self-defense. It is only necessary to say upon that proposition that the leading features of the testimony in the case at bar are substantially the same as disclosed by the record upon the former appeal. Judge Bxjegbss fully, treated of the propriety of similar instructions in the disposition of the case upon the former hearing. In our opinion the question as to the propriety of those instructions was correctly determined in that case, and we see no legal valid reason for departing from the conclusions therein reached.

IV.

We have indicated our views upon the leading propositions disclosed by the record, and it is sufficient to say of. the other complaints made by appellant, to which we have given consideration, that they are insufficient to warrant this court in reversing the judgment. For the errors as herein pointed out, the judgment of the trial court should be reversed and the cause remanded. It is so ordered.

All concur.


text:
    THE STATE v. WALTER HEADLEY, Appellant.
    Division Two,
    December 14, 1909.
    1. CARNAL KNOWLEDGE: Attempt: Instruction. An instruction on the subject of an assault with an intent to ravish a girl five years old, by tearing her private parts with a greased finger, is set out in full in the opinion, and held to contain every essential element of the offense.
    2. -: No Penetration: Instruction for Rape, Where the evidence clearly shows there was no penetration, the court very properly told the jury that they could not convict the defendant of rape, but, there being testimony that defendant with his finger, greased with vaseline, tore the private parts of the five-year-old child, they could convict him of an assault with intent to ravish, as elsewhere defined in the instructions.
    3. WITNESS: Children Five or Seven Years Old. The competency of children five and a half and seven years of age to testify, is to be determined in each case by the trial judge by appropriate questions, and his decision is not open to review unless there be a clear abuse of his judicial discretion, or the witness be admitted or rejected upon an erroneous view of a legal principle. And in this case, where the trial judge carefully examined the two little girls before they were permitted to testify, as to their competency, and that resulted in indicating their legal capacity to do so, and there is nothing to indicate any abuse of judicial discretion, the judgment will not he reversed because their testimony was received, although without it there could have been no conviction.
    4. CARNAL KNOWLEDGE: Instruction for Common Assault. The evidence in this case tends to establish guilt of an assault with intent to ravish, and that being the case defendant cannot complain that the court did not instruct for common assault- — a lower grade of the same offense.
    Appeal from Jackson Criminal Court, — Eon. Won. H. Wallace, Judge.
    AFFIRMED.

      Moore, Handy & Kimbrell for appellant.
    (1) The court erred in giving instructions 1 and 5. State v. Harney, 101 Mo. 470; State v. Riseling, 186 Mo. 531; State v. Owsley, 102 Mo. 678; State v. Priestley, 74 Mo. 24. (2) The court erred in admitting the evidence of Eunice Swift and Ethel Kelso for the reason that they were so young that they did not know the nature and obligation of an oath. 1 Stark. Evidence, sec. 22. (3) The court erred in failing to instruct the jury on common assault alone. State v. Scholl, 130 Mo. 400; State v. Priestly, supra; State v. Owsley, supra; State v. Dalton, 106 Mo. 469. In order to justify a conviction of assault with intent to rape, the evidence must show some acts and conduct of the accused that there is no reasonable doubt of his intent to gratify his lustful desire against the consent of the female, notwithstanding resistance on her part. Jones v. State, 90 Ala. 628. In order to warrant a conviction for assault with intent to commit rape the State must prove the following facts: “That the defendant made an assault upon the girl; that the assault was accompanied with a specific intention to rape; with the specific intention to have carnal knowledge of the girl; to have carnal knowledge without her consent and by the use of such force as is sufficient to overcome such resistance as the girl should make.” Shields v. State, 32 Tex. Crim. Rep. 498; State v. Scholl, supra; State v. Owsley, supra; State v. Priestley, supra; Franey v. State, 210' Ill. 206; State v. Riseling, 186 Mo. 521; Dunn v. State, 58 Neb. 807.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    (1) Defendant’s counsel excepted to the ruling of the court in permitting prosecutrix, Eunice Swift, a child of five years, to testify. The trial court applied the test and, in its discretion, permitted the testimony. The second subdivision of section 4659, R. S. 1899, is as follows: “A child under ten years of age who appears incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly,” is incompetent. It is not unusual to receive the testimony of children of tender age if they appear to be of sufficient understanding. Their competency is to be determined by their apparent capacity. It is a discretion within the sole province of the trial judge to determine their competency by appropriate questions, and his discretion is not open to review unless there be a clear abuse of judicial discretion, or the witness be admitted or rejected upon an erroneous view of the legal principle. State v. Nelson, 132 Mo. 198; Riden-hour v. Railroad, 102 Mo. 270; State v. Doyle, 107 Mo. 36-; State v. Scanlon, 58 Mo. 204; 1 G-reenleaf on Ev. (7 Ed.), sec. 367; 3 Rice on EV., p. 289. (2) (a) Instruction 1 is a proper instruction and has been approved by this court. It told the jury that if they found the defendant guilty what punishment they might, in their-discretion, assess, (b) Instruction 5 told the jury there was no evidence of penetration and defendant could not be convicted of rape, but only of assault with intent to rape. This was a valid and correct instruction. Sec. 2361, R. S. 1899; State v. Scott, 172 Mo-. 536.
   FOX, J.

The defendant in this cause was convicted upon an information, duly verified, filed in the criminal court of Jackson county on the 5th day of August, 1908, by the prosecuting attorney of said county, charging that the defendant on the 4th day of July, 1908, at the county of Jackson and State of Missouri, in and upon one Eunice Swift, a female child under the age of fourteen years, to-wit, of the age of five years, unlawfully and feloniously did make an assault, and her, the said Eunice Swift, then and there unlawfully and feloniously did carnally know and abuse, against the peace and dignity of the State, To this information, the defendant entered Ms plea of not guilty, and a trial of this cause was had on the 21st day of September following.

The evidence developed upon the trial upon the part of the State substantially tended to show that the prosecutrix, Eunice Swift, resided with her parents at No. 1815 Kansas Avenue, Kansas City, Missouri, in the lower rooms of a two-story frame apartment building, and at the time of the trial was five years and seven months old. The upper story of this building was occupied by Mr. and Mrs. Kelso and their daughter, Ethel, age seven years. The crime, according to the evidence of the State,- was committed about 5 o ’clock in the afternoon of July 4th. At the time of his arrest the defendant was employed by Browning-King as a stationary fireman. He had been an acquaintance of the Kelso family for about twelve or fourteen years, and with his wife and family had been invited by the Kelsos to their home to witness the display of fireworks on the evening of the 4th of July. Mr. Kelso, who was employed as a teamster, and the defendant, met at a saloon on the morning of the 4th of July and had a few rounds of drinks together. At this meeting Kelso extended an .invitation to the defendant to have dinner with him on that day. The defendant arrived at the Kelso home about 1:30' in the afternoon, Mr. Kelso arriving between two and three o’clock. After their .arrival at the Kelso home two or three cans of beer were drunk by them before dinner, dinner being served about four o’clock. Kelso being somewhat under the influence of liquor retired upon a bed in the dining-room during or just after the meal. After dinner the prosecutrix and the Kelso child were playing on the front porch upstairs in a hammock. On the invitation, of Mrs. Swift, Mrs. Kelso went down stairs, leaving her husband on the bed asleep or at least in a stupor, and the defendant in the dining-room.

Mrs. Kelso testified that she was away not exceeding ten minutes wlien her daughter, Ethel, ran down stairs. The mother of prosecutrix testified that ‘‘Ethel had a very scared expression on her face,” and upon inquiry being made by her of the Kelso child as to the whereabouts of the prosecutrix, Ethel replied-“that she was upstairs and commenced crying.” Mrs.Swift testified that she immediately ran through the-house and called to the prosecutrix two or three times,- and that her daughter answered her from the head of-the stairs, having just come out of the dining-roomt where the defendant was. This witness testified that her daughter “was badly scared and crying,” and told her “that the man had put his fingers away up-, and she showed me where.” Both Mrs. Swift and Mrs. Kelso testified that the defendant “was very nervous, white-looking, scared and trembling all over,” and when accused by Mrs. Kelso of having abused the prosecutrix, the defendant replied, “Just wait a. minute, Jessie, just wait a minute, let me explain.” The defendant was forced out of the house by Mrs. Kelso and Mrs. Swift, Mrs. Kelso following him out onto the sidewalk where he was arrested by a police officer and taken to the police station. At the police station a vaseline bottle, containing a small amount of vaseline and a pocket knife were found upon the person of the defendant. An examination of the prosecutrix disclosed that her private parts were lacerted, blood flowing from them and that her underwear was bloody. It was also shown that the underwear of Ethel Kelso had traces of vaseline on it, and that vaseline was discernible on the skin of the Kelso child around and near the private parts.

The mother of the prosecutrix testified that between two and three o’clock in the afternoon of the; commission of this offense she had given the prosecu-trix a bath and dressed her, putting on clean underwear.

Mr. Kelso testified that shortly after dinner he went to sleep on the bed in the dining-room; that hia wife was down stairs with Mrs. Swift; that he was asleep about a half or three-quarters of an hour; that he was awakened by his little girl; that she was pale and said “that she was hurt; she said that he tried to hurt her.”

The defendant objected to the introduction of the testimony of Eunice Swift, the prosecutrix, on the ground that she was incompetent as a witness , on account of her youth. The record discloses that before "this witness was permitted to testify the learned trial judge examined her thoroughly touching her competency as a witness, and after such examination overruled defendant’s objection, to which he excepted. While the record disclosing the testimony of this witness shows some childlike misstatements or discrepancies as to the exact time of the day of this occurrence, her evidence touching the commission of this offense shows that she was an intelligent child for her age. Among other questions propounded to this witness and her answers thereto, were the following: “Q. Do you know Walter Headley? A. Yes, sir. Q. Did you ever see him before ? A. No, I saw him once. Q. You saw him once? A. Yes, sir. Q. What did he do to you? A. He take something out of his pocket and put it away up. Q. Away up? A. - Away up here. (Indicating.) Q. Under your clothing? A. Yes, sir. Q. How many times did he put his hands away up there? A. Four times. (Indicating with fingers.) Q. How many is that? A. That is four. Q. Where was he when he did this? A. He was right in the bed room where Mr. Kelso was sleeping—where Mr. Kelso was lying down. 'Q. Who was sleeping? A. Mr. Kelso. Q. Where was he sleeping? A. On the bed. Q. Was he asleep? A. Yes.”

This witness then testified that Ethel Kelso was in the room; that Ethel tried to and did get away from defendant and then went down stairs. Q. Then where did you go? A. He just went up there. Q. Did you see your mamma? A. Yes, sir. Q. When did she go up there? A. Her never come up there; her called me. Q. What did you do when she called you? A. I got away, I got to the stairs. Q. You went to the stairs? A. Yes, sir. Q. Then what did.you do? A. I go down stairs. Q. Did you have on your panties? A. Yes, sir. Q. Where did this man put his hand? A. His fingers away up there. (Indicating under her skirt.) Q. On which side of your panties, the outside or the inside? A. Outside. Q. What was it that he had on his hands? A. Salve. Q. Where did he get it? A. Upstairs on Mrs. Kelso’s dresser.”

On cross-examination this witness stated that after dinner she was cleaned up and went upstairs; that the first time she saw the defendant that day he was sitting at the table eating; that she and Ethel Kelso were sitting on the defendant’s knees, and that he was bouncing them up and down. She again stated that defendant took salve out of his pocket and stuck his fingers away up under her dress, and that when he did this she said to him “let me alone;” that she remained there awhile longer and that he again punched her away up on her leg, and that it hurt her.

The testimony of Ethel Kelso, the little' playmate of the prosecutrix, was a corroboration of that given by the prosecutrix. She testified that the defendant called to her to get on his lap, and that when she did so he put the prosecutrix down and taking a bottle of vaseline out of his pocket, dropped some of it on his fingers, raised her dress and stuck his fingers under her clothing. She testified that she did not see what the defendant did to the prosecutrix; she stated that after the defendant put her down she ran down stairs and told her mother what defendant had done. To this statement of the witness, as to what she told her mother, defendant saved exceptions.

Dr. C. J. Grilman testified that about six o’clock on the evening of July 4th, 1908, he was called to the home of the prosecutrix and there examined her; that he found the little girl bleeding a good deal from her private parts, and that in making his examination he removed her underwear, which he had in his possession at the trial; that her .underwear was wet with blood when he removed it. He testified that the upper or outer part of her privates were torn, perhaps a quarter to a half inch; that “the private part was ruffled, small ruffles, like pin scratches all around, and the hemorrhage was very profuse, it was bleeding. ’ ’ In describing this tear in her private parts, he said: “Well, it was about a quarter of an inch deep — it would be hard to describe it. It was somewhat of the shape of the privates ; the tear was in the upper part. Say this was the upper part, where it was torn, it was torn about a quarter of an inch deep and about three quarters of an inch long — three quarters of an inch long. There were numerous tears and scratches around in here in the vagina. Q. Doctor, had the privates been entered, any penetration there? A. It would be impossible to penetrate very deep, not over half an inch; Q. Had there been any penetration from your examination? A. I could’nt determine that. Q. Doctor, from your experience as a physician what would you say was the cause of this tear and this bloody condition that you found there? A. From external violence. Q. Prom some external violence? A. Yes, sir. Q. Such as what? A. He might do it with the finger. It could be torn with a finger. Q. In order to make a tear of that kind it would be necessary to have some penetration? A. There would be some penetration. Q. It would have to be the application of some force to the privates? A. Yes, sir.” This witness further stated that he determined at the time that the scratches were made by the stretching of the parts. He also stated that he examined the Kelso child on that occasion and that he found her underwear 'was greasy; “it seems to me that there was vaseline on her underwear.” On cross-examination Dr. G-ilman testified that lie could not say that the injuries were done by the human finger; but that “it wasn’t done by any sharp instrument; it wasn’t cut, it was torn.”

The defendant testified in his own behalf; he stated that he was a single man, and denied that he made an assault upon or abused the prosecutrix. He testified that after arriving at the Kelso home on the 4th of July they had three cans of beer, two before and one after dinner; that after dinner Mrs. Kelso cleaned off the table and that he went down and got the last can of beer, which he and Kelso drank; that Kelso then laid down on the bed with a paper in his hand; that Kelso and he were talking; that the last he saw of Mrs. Kelso she was in the kitchen; he did not know she 'had gone down stairs; that Kelso was on the bed five or ten minutes; that while Kelso was on the bed these two little girls, the prosecutrix and Ethel Kelso, came in, and that he took them up astride of his knee, “holding their hands and jumping them up together, then one at a time, just laughing and having a good time,” and continued this for five or ten minutes, when Ethel began crying, saying that this jarring hurt her in some way, and that he let her down, and she left the room; that the prosecutrix then began to cry and that he put her down; that Kelso was sitting on the side of the bed at that time and that he got up, picked up his hat, making the remark that “it was time to take another drink,” and said, “Come on, Bod,” and started out. of the room, thinking Kelso was following him, when he was met by Mrs. Kelso and Mrs. Swift, who accused him of having abused the children; that he demanded an explanation, addressing Mrs. Kelso'saying, “What is the matter, Jessie, what is the matter, Jessie?” but that they would not explain, but ordered him out of the house. Defendant further testified that Kelso was awake while the little girls were sitting on his knee. As explanatory of his possession of the bottle of vase-line which was found in. his pocket when arrested, defendant stated that in his work as fireman, his feet were frequently scalded, and that he used vaseline on them for relief; that he had used vaseline for that purpose for four or five years; had used it that morning, and after using it screwed the top on the bottle and placed it in his pocket, for the purpose of taking it to his place of employment, and that when, arrested he discovered that almost all of the contents of the bottle had been spilled in his pocket, and that he called the attention of the police officer to it.

The mother of defendant testified that- the defendant had been annoyed by his feet perspiring, and that he had used vaseline on them for relief a number of years.

Defendant also offered testimony tending to show that his reputation for morality in the community in which he resided, was good.

In rebuttal the State recalled the police officer who searched defendant immediately after his arrest. He testified that in taking the bottle of vaseline from the person of defendant he placed his hand in defendant’s pocket; that the lid was on the bottle and that he did not notice any vaseline on the person or clothes of defendant. The testimony of Mrs. Swift, the mother of prosecutrix, on this point, was in corroboration of that given by the police officer.

At the close of the evidence the court instructed the jury upon every phase of the case to which the testimony was applicable. The cause was submitted to the jury and they returned their verdict finding the defendant guilty of an ássault to ravish and assessed his punishment at imprisonment in the state penitentiary for a term of four years. Timely motions for new trial and in arrest of judgment were filed and by the court taken up and overruled. Sentence and judgment were entered of record in conformity to the verdict, and from such judgment the defendant prosecuted this appeal, and the record is now before us for consideration.

OPINION.

The complaints of error on the part of counsel for .appellant, as indicated by their briefs now before us, may thus be briefly stated:

First: The court erred in giving instructions No. 1 and No. 5.

Second: The court erred in admitting the evidence of Eunice Swift and, Ethel Kelso for the réason that they were so young that they did not* know the nature and obligation of an oath.

Third: The court erred in failing to instruct the jury on common assault alone.

I.

Directing olxr attention to the complaints of appellant as to instructions numbered 1 and 5, it is well to reproduce those instructions. They were as follows:

“1. The court instructs the jury that if they find and believe from the evidence that at the county of Jackson and State of Missouri, at any time within three years next before the 5th day of August, 1908, the date of the filing of the information in this case, the defendant, Walter Headley, in and upon one Eunice Swift, feloniously and unlawfully did make an assault with the felonious intent then and her the said Eunice Swift, then and there unlawfully and feloniously to ravish and carnally know and abuse, and that she the said Eunice Swift, was then and there a female child under the age of fourteen years, to-wit, of the age of five years, then you will find the defendant guilty of assault with intent to ravish, and assess his punishment at imprisonment in the state penitentiary for a term of not less than two years and not more than five years, or by imprisonment in the county jail not less than six months nor more than twelve months, or by a fine not less than one hundred dollars and imprisonment in the county jail not less than three months nor more than twelve months, or by a fine not less than one hundred dollars.
“Feloniously, as used in these instructions, means wickedly and against the admonition of the law; that is, wickedly and unlawfully.
“5. You are instructed that in order to convict the defendant of the charge of rape, as stated in the information, it must have been shown by the evidence that there was actual penetration of the female organ of the prosecutrix by the male organ of the accused, and as there has been no testimony introduced tending to prove such penetration, you cannot convict defendant of rape, but only of assault with intent to ravish, as elsewhere defined in these instructions.’7

It is sufficient to say of those instructions that as applicable to the facts developed upon the trial of this cause they clearly and correctly presented the law. Instruction numbered 1 was an instruction which has frequently met the approval of this court, requiring the jury to find every essential element of the offense of an assault with intent to. ravish in order to warrant the conviction of the defendant of that grade of crime. The trial court, in our opinion, correctly reached the conclusion, upon the facts developed upon the trial, that the evidence was insufficient to justify a conviction of rape, for the reason that the proof failed to show penetration ; therefore by instruction number 5 the court very properly informed the jury of this failure of proof as to the offense of rape, but that the defendant might be convicted of an assault with intent to ravish, as elsewhere defined in these instructions.

II.

It is insisted by learned counsel for appellant that the court erred in admitting the evidence of Eunice Swift and Ethel Kelso for the reason that they were so young that they did not know the nature and obligation of an oath. Upon that proposition the record discloses that before the prosecuting witness, who was something over five years old, and the witness Ethel Kelso, who was seven years old, were permitted to testify the learned trial judge examined them thoroughly touching their capacity to testify and their competency as witnesses. After making such examination the court ruled that they were competent, and overruled defendant’s objection and permitted the witnesses to testify. The second subdivision of section 4659, Revised Statutes of 1899, makes this provision, as applicable to this subject: “A child under ten years of age, who appears incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly,” is incompetent. This proposition is not one of first impression presented to this court, but this identical question was sharply presented to this court in State v. Nelson, 132 Mo. 184, and in the treatment of the proposition in that case, it was said: “It is not unusual to receive the testimony of children under nine, and sometimes under seven, years of age if they appear to be of sufficient understanding ; and it has been admitted even at the age of five years. [1 Greenleaf Ev. (14 Ed.), sec. 367.] Indeed, there is no précise age at which children are competent or incompetent. Their competency is to be determined by their apparent capacity. It belongs to the judge in each case to determine by appropriate questions the competency of the infant offered as a witness, and his decision is not open to review unless there be a clear abuse of judicial discretion, or the witness be admitted or rejected upon an erroneous view of a legal principle. [3 Rice Ev., p. 289, et seq. See, also, State v. Scanlan, 58 Mo. 204; State v. Doyle, 107 Mo. 42.]” That case, in our opinion, announces the true and correct rule as applicable to the subject now under con-' sideration, and it is only necessary to state in the determination of the question now under consideration, that we have examined the disclosures of the record concerning the examination of these two children before they testified in the canse, and have considered in detail their testimony as given, and we are unwilling to say, after a careful review of such record, that there was an abuse by the trial court of the judicial discretion in permitting the two little girls to testify.

III.

The final contention of learned counsel for appellant is that the court committed error in failing to instruct the jury on common assault alone. Upon that proposition we shall he content with pointing to the evidence as disclosed by the'record, and which is fully herein indicated by the statement in the case, and in our opinion, if the defendant was guilty of any offense at all, it was that of which he was convicted, and under the evidence in this cause he is in no position to suggest that the court should have submitted to the jury a lower grade of crime than the one of which he was convicted.

Recurring to the testimony, it is true that there was some conflict; however, the conflict was principally between the testimony of the defendant and the two little girls and their mothers, and as has repeatedly been ruled by this court, it was the province of the jury to settle all the conflicts in the testimony. That the record now,before us discloses substantial testimony tending to establish the guilt , of this defendant of an assault with the specific intent to ravish, is, in our opinion, too plain for discussion. If the jury believed the testimony as introduced by the State it furnished ample support for the verdict returned in this cause. There was no error in the action of the court declining to instruct the jury upon common assault.

We have given expression to our views upon the propositions to which our attention was directed in the brief of counsel for the appellant, and finding no substantial error which would warrant the reversal of this cause, it results that the judgment of the trial court, should he affirmed, and it is so ordered.

All concur.