source: Caselaw Access Project

author: BURGESS, J.

license: Public Domain

text:
    THE STATE v. EDWARD KELLEHER, Appellant.
    Division Two,
    March 5, 1907.
    1. DEFENDANT AS WITNESS: Inadvertent Remark of Counsel: No Rebuke of Court. In presenting his objection to the admissibility of a communicated threat, the attorney for the State inadvertently stated, “Having presented his gun as they claim, and as the defendant must testify in this case.” Objection was made to the remark, as a statement by the attorney that defendant must testify in the case, and thereupon the court ordered the remark stricken out, saying it was improper, and directed the jury to entirely disregard it, and the attorney changed it to, “That is what the defendant will have to testify to, if he testifies.” Held, that under the circumstances a rebuke by the court of the attorney was not necessary, hut the court in sustaining the objection and directing the jury to disregard the remark did all that was seemingly necessary, and the judgment will not be reversed on. the ground that the State’s attorney violated the statute which forbids any reference to defendant’s failure to testify.
    2. -: -: -: General Rule. When the jury are told in clear and emphatic terms that no inference can be drawn against the accused because of his failure to testify in his own behalf, this dispels the error of an inadvertent reference to the fact that defendant will testify.
    3. MURDER: Instruction for Manslaughter: Imperfect Self-Defense. Where there is no evidence of any circumstance connected with the homicide tending to show that defendant intended an ordinary battery merely, but on the contrary the evidence shows that defendant used upon deceased a deadly weapon in a difficulty which he himself provoked, there is no imperfect self-defense in the case, and no room for an instruction on manslaughter in the fourth degree, for the facts show that the assault was made with a felonious intent.
    4. -: -. Reasonable Provocation. To apply á vulgar epithet to deceased, or demanding to know if deceased, is looking for trouble, is not a reasonable provocation under the law which makes it manslaughter to intentionally kill a human ■ being, in the heat of passion, on a reasonable provocation, etc.
    5. EVIDENCE: Res Gestae: Subsequent Narrative: Murder. Deceased was shot in one saloon, and walked to another a block or so away and began to undress himself, and five or ten minutes thereafter .two policemen entered and he told them how the shooting occurred. Held, that it was not permissible to permit those officers to detail, as a part of the res gestae, what deceased said to them at that time. ■ The statements were not contemporaneous with the transaction, they were simply narratives of a completed past occurrence, and were therefore nothing more than hearsay.
    6. -: Uncommunicated Threats. Uncommunicated threats made by deceased against defendant are admissible for the purpose of showing who was the probable aggressor.
    7. -: Statements Made in Presence of Defendant After Arrest. A person under arrest for a specific offense is not in a position to make any denial of a statement made by deceased in his presence regarding the connection of such person with the offense, and his silence under those eircumstancs will not warrant any inference against him.
    8. -: Dying Declaration: Form. The form of a dying declaration is immaterial. Whether made in narrative form, or made in response to questions asked by an attorney or other person and taken down by a stenographer, it is competent evidence if it is clearly shown that it was made under a sense of impending dissolution.

      9. -: -: -: Sense of Impending Dissolution. Two days after the shooting and while the deceased was lying in the hospital, he made an ante-mortem statement, which was taken down in shorthand, transcribed, signed by him and witnessed. It contained these words: “Q. You know you are dangerously injured and liable to die? A. Yes, sir.” Immediately after the shooting deceased was taken to a saloon, and requested that a doctor and priest be sent for. To a witness he said, “I am a croppy, I am a dead one; there ain’t nothing to it.” At the hospital he said “it was all off with him.” Helé, that these remarks, when taken in connection with the attendant circumstances, the condition of the wound in the abdomen and his state of mind from the first, show that the statement was made under the impression of almost immediate dissolution, and it was competent as a dying declaration.
    10. -: -: Extraneous Matters. Statements contained in the proffered dying declaration which do not relate to the killing ñor to the facts and circumstances attending it, are not admissible in evidence.
    11. DISCREDITING DEFENDANT. Where defendant has not put his reputation in issue or become a witness in his own behalf, it is error to permit the State to ask another witness if he had not been sent to the penitentiary under a joint indictment against him and defendant.
    Appeal from St. Louis City Circuit Court. — Now. Robert M. Foster, Judge.
    Reversed and remanded.

      Thos. B. Harvey for appellant.
    (1) Error was committed by tbe circuit attorney and tbe court in violating tbe provisions of section 2638, by referring to tbe right of tbe defendant to testify in tbe presence of tbe jury and while discussing tbe admissibility of testimony. State v. Weaver, 165' Mo. 13; State v. Guinn, 174 Mo. 686; State v. Snyder, 182 Mo. 462; McKnight v. U. S., 54 U. S. Cir. Ct. App, 367; Wilson v. U. S., 149 U. S. 60; Yarbrough v. State, 70 Miss. 593; State v. Baldoser, 88 Iowa 56; State v. Graham, 62 Iowa 111; State v. Ryan, 70 Iowa 156. (2) Tbe court should have given tbe instruction on the doctrine of incomplete self-defense, or one in lieu thereof. Partlow Case, 90 Mo. 608; State v. Gordon, 191 Mo. 114; State v. Gilmore, 95 Mo. 554; State v. Ea-pp, 142 ■Mo. 448; State v. Garrett, 170 Mo. 397. (3) The court should have given the instruction requested by the defendant on.the subject of manslaughter resulting from hot blood, or one in lieu thereof. (4) Statements made by the deceased in Bumberry’s saloon at 2214 Pine street, in regard to how he was shot, were not a part of the res gestae, and should not have been admitted. State v. Hudspeth, 150 Mo. 27; State v. Ware, 62 Mo. 597; .State v. Snell, 78 Mo. 240; State v. Brown, 64 Mo. 367; State v. Evans, 65 Mo. 574; State v. Day, 100 Mo. 242. (5) The court erred in excluding as incompetent uncommunicated threats, after the evidence was conflicting as to whether the deceased or the defendant was the aggressor. State v. Spencer, 160 Mo. 123.

      Herbert 8. Hadley, Attorney-General, and Rush G. Lake, Assistant Attorney-General, for the State.
    (1) The question of the admissibility of the testimony of the witnesses, as to what was said by the deceased in the presence of the defendant, is now of no importance, for the reason that the defendant admitted the shooting and relied upon self-defense as his justification of the murder. At the time defendant was taken in the presence of the deceased, he stood in the attitude of denying any connection with the affair, and the police were endeavoring to locate the person who did the shooting. The charge was made by deceased, at the time he was in the hospital, that he knew the man who had shot him, but did not know his name, and defendant was taken to the bedside of deceased, to ascertain if he, defendant, was the one who did the shooting. Defendant was identified, and complains because the police officers were allowed to testify to the fact that deceased identified defendant, and that defendant stood mute. If there had been a denial, upon the trial, that defendant shot deceased, he might claim that he was prejudiced by the identification, and the subsequent testimony that he was so identified, but when that theory of his defense was abandoned, the error, if error it was, was not prejudicial. (2) Defendant complains because the court would not allow him to show that the defendant was in the habit of carrying concealed weapons. Upon this proposition see State v. Griffin, 87 Mo. 613.
   BURGESS, J.

Defendant was convicted in. the circuit court of the city of St. Louis of murder in the second degree, and his punishment fixed at twenty-five years’ imprisonment in the penitentiary, under an indictment preferred against him by the grand jury of said city charging him with murder in the first degree, in having at said city, on the 29th day of January, 1905, shot with a pistol one Thomas Sullivan, from the effects of which said shot said Sullivan, at said city, to-wit, on the 2d day of February, 1905, died. Defendant appeals.

The shooting occurred at Walsh’s saloon, at the northeast comer of Twenty-second and Pine streets in said city, between two and three o ’clock in the morning. The defendant was at the time one of Walsh’s bartenders, but was not then on duty. He and some of his associates, however, were standing at the bar. The deceased was a prize fighter.

The evidence on the part of the State tended to show that Sullivan, the deceased, was standing near a filter at the north end of the bar, which ran north and south; that next south of him was a friend of defendant’s by the name of Sellinger, and at the extreme south end of the bar, next to a partition caused by swinging doors, near the corner entrance to the saloon, stood the defendant, Edward Kelleher, and that north of the bar stood Buck Taylor. The other persons in the saloon were the barkeeper, G-erwitz, and two or three who were standing near the west side of the room.

John Howard, a witness for the State, testified as follows:

“Sullivan and I walked into the saloon; we walked to the bar, passed Kelleher and Sellinger, and I stepped behind; Sellinger and Sullivan went back of me, near the filter; walked to the bar, and I said to the bartender, ‘Give me a little booze. What do' you want, Tommy?’ He says, ‘Í want the same.’ So he gave us water on, the side, and I told him that I wanted soda. So he gave me the soda, and I poured out my whiskey, and drank the whiskey, like that (illustrating), reaching for my soda to drink it, and had it to my lip® like that, and was standing like that at the bar (stands up and illustrates), and I saw when I turned around, after having it like that, to say, ‘ Here is luck, ’ I saw Kelleher standing there. He said to Sullivan, he says, ‘You [applying a vile epithet], you are a fighter?’ He says, ‘ This ain’t no place to come looking for trouble.’ And as he did why Sullivan jumped back, like that (illustrating), and Kelleher — I don’t know where he pulled the revolver from, or where he got it from — but I saw the gleam of the revolver like that, like you would throw a piece of paper or anything through the air; but I heard a shot, and I started to run; then I heard another shot. I run out the front door.”
“Q. Did you notice whether or not Kelleher had that gun in his hand at the time you turned around when you first noticed him? A. I couldn’t say whether he did or not.
‘ ‘ Q. Did you afterwards see the gun in his hands ? A. I saw the gun when he pulled it.
“Qy When he was drawing it down you saw it for the first time? A. Yes, sir. When he came up to him he came up to him like I walk up to you, saying, ‘You are a fighter, you come in here looking for trouble. ’
“Q. What kind of a gun was it? A. I couldn’t say.
“Q. Was it nickel plated? A. No, looked like a black gun to me.
“Q. Looked like one of these blue steel guns? A. Yes, sir; looked like a black gun.
“Q. Which way did you run? A. I run out of the front door.
“Q. The door you came in? A. Yes, sir.
“Q. You came in the front door, as I understand, and passed through these doors here in the partition? A. Yes, sir.
“Q. What kind of doors? A. There is glass in them. They are swinging doors.
“Q. Swinging doors? A. Yes, sir.
“Q. What did Sullivan do? A. I couldn’t say. I didn’t wait to see. I ran.
“Q. Well, did you see him turn, or did he turn and run while you were there? A. I didn’t wait to see.
“Q. You didn’t wait to see? A. No, sir. As soon as he reached back I turned. I saw the flash of the gun and saw the flash of the shot and run.
“Q. How soon after Kelleher addressed him before these shots rang out? A. Well, I couldn’t say the limitation of time.
“Q. You were there, you were a witness to it? A. Yes, sir.
“Q. You turned and saw Kelleher? A. Yes, sir.
“Q. What occurred then? Just tell how fast this thing took place. A. I don’t know the exact time. All I know here you can judge for yourself, that Sullivan jumped back, and then I saw the flash of the revolver, like pulling it from your pocket, like that (illustrating), and then a shot, and I turned to run and I heard another shot, and I ran out the front door.
“Q. Do you know whether Sullivan had a gun or not? A. I couldn’t say.”

Two days after the shooting and while the deceased was lying in the hospital, he made an ante mortem statement, which was taken down in shorthand, transcribed, signed by the deceased and witnessed.

The ante mortem statement is as follows:

“Q. State your name? A. Thomas J. Sullivan. Q. You are known as ‘St. Louis Tommy Sullivan?’ A. Yes, sir. Q. You know you are dangerously injured and liable to die? A. Yes, sir. Q. How old are yon, Tommy? A. Twenty-four. Q. Where were you bom? A. St. Louis. Q. Where do you reside? A. 3456 Lindell boulevard. [Last two questions and answers objected to as irrelevant and immaterial and not a part of the fatal occurrence; which objection is by the court overruled; to. which ruling of the court the defendant, by counsel, duly excepted then and there at the time.] Q. Now, we want a correct statement of what took place at Walsh’s saloon, 2131 Pine street, Sunday morning, the 29th inst., and we want the name of -those who were present when the shooting occurred. What time did you go into the saloon? A. About three o’clock in the morning. Q. Who was with you? A. Johnnie Howard. Q. He went with you in the saloon? A. About three o ’clock in the morning. Q. Who was with you? A. Johnnie Howard. Q. He went with you in the saloon? A. Yes, we went in together. Q. Was anybody else with you? A. No, sir. Q. Where did you meet Johnnie Howard? A. Twenty-first and Chestnut street. Q. Where did you go then? A. We went to Joe Daneri’s, Twenty-second and Chestnut streets. Q. How long did you stay in Daneri’s? A. About three-quarters of an hour. Q. Did you have any drinks while in there? A. Yes, sir. Q.' About how many? A. Three, I believe. Q. What was it, beer or whiskey? A. Whiskey. Q. Where did you go from Daneri’s ? A. Over to Walsh’s; Johnny says ‘Let’s go in and get a drink.’ Q. Where did he say that? A. When we got opposite Walsh’s. Q. You and Johnnie Howard went in there together, that is, to Walsh’s, together? A. Yes, sir. Q. Who was in there when you and Howard went in? A. This fellow who shot me. Q. What was his name? A. Eddie Kelleher. Q. Did you ever see him before? A. Yes, sir. Q. Do you know him? A. Know him, to speak to him. Q. Have you seen him since the shooting? A. Yes, sir. Q. Where did you see him? A. They brought him down here. Q. Who brought'him here? A. Some officers. Q. Did you recognize him as the party who shot you? A. Yes, sir. Q. Who was with Kelleher when the shooting occurred? A. I don’t know what his name was. Q. Did you ever see him before, that is, the man who was with Kelleher? A. Not that I know of. Q. Would you know him if you were to see him again? A. I don’t know. Q. How did the shooting occur? A. Well, when I walked in I seen this fellow that shot me and I says, ‘How do.’ We walked to the middle of the bar and Johnnie and I ordered a drink, and this fellow [Special Officer M. J. O’Brien, what fellow?] Eddie Kelleher says, ‘Did you come out here looking for trouble?’ and then pulled out his revolver and shot me. I believe he shot me twice. Q. How many shots took effect? A. One. Q. Where did he shoot you? A. In the stomach. Q. Were you facing him when he shot you? A. I was standing against the bar and I looked around when he first shot. I turned and ran for the back door. I was shot before I started running. Q. Was the bartender there and on watch when you went in? A. Yes, sir. Q. Do you know him? A. No. Q. Was he a white man or a negro? A. He looked like a white man to me. He was dark complexioned. Q. Was he on watch when you got shot? A. Yes, sir, he waited on us. Q. Did he leave the saloon in charge of the porter or anyone else while you were in there! A. No, sir; I was only in there a few minutes. Q. Were you sober, Tommy? A. Yes, sir. Q. What did Howard do after you were shot? A. I don’t know, I ran over to Bum-berry’s saloon. Q. What is the number? A. 2214 or 2216 Pine, I believe. (Q. What did you say when you ran into the saloon ? A. I told him that I was shot. Q. Told'who? A. Bumberry. Q. Did anyone telephone to you at any time Saturday night or Sunday morning? A. Yes, sir. Q. Who was it, Tommy? A. Johnnie Howard. Q. What time did he telephone? A. About two o ’clock Sunday morning. He telephoned from Manley’s saloon. Q. Where were you? A. In Mike' Howard’s; I then left and met him on the sidewalk in front of Manley’s.)”

The above matter set out in parenthesis was objected to by counsel for defendant as incompetent, and not a part of the fatal occurrence; which objection was by the coiírt overruled; to which ruling of the court the defendant, by counsel, duly excepted then and there at the time.

There were two shots fired by defendant, one of which took effect, entering the abdomen on a level with the ninth rib and coming out an inch to the left and one-half inch above the umbilicus.

The defendant was arrested the day of the shooting, and was taken before the deceased who identified him as the man who shot him.

The evidence on the part of the defendant tended to show that the deceased, recently before the shooting, had made threats against the defendant, some of which had been communicated to him and others not, and that, in connection with such threats, deceased had referred to some difficulty which had occurred some days before between him and the defendant; that deceased had exposed a pistol upon several occasions; that deceased and John Howard had been drinking together the evening before the shooting', and a few minutes before it occurred they entered Walsh’s saloon, but that deceased gave no token of ■ recognition to the defendant or either of those standing there with him.

Thomas McTague, a witness for the defendant, testified as follows: “I heard Sullivan pass some remark, but I didn’t understand what he said, and I heard Kelleher say, ‘ This .is no place to come to look for trouble, ’ and .... Sullivan stepped out from the bar and says, ‘Yes, Gr-d d-n you,-’ and goes back and comes up with the revolver. Kelleher gets back and fires two shots — fires a shot, and Sullivan turns this way, and another shot is fired, and Sullivan drops his revolver and runs toward the back of the saloon. ’ ’

McTague picked up the revolver from the floor and placed it on the top of the music box which stood opposite the bar, and left the saloon. The police, a short while after, found and took possession of the revolver.

After deceased had entered Bumberry’s saloon, and while he was yet lying- on a cot there, witness Hamilton says that he said to deceased, “What is the matter, Tommy f ” and that the deceased replied, ‘ ‘ Oh, nothing; he beat me to it.”

The court instructed for murder in the first and second degrees, and upon the law of self-defense.

The defendant insists "that error was committed by the circuit attorney and the court in violating the provisions of section 2638, Revised Statutes 1899-, by referring to the right of the defendant to testify, in the presence of the jury, and while discussing the admissibility of testimony.

It appears from the record that while the admissibility of a communicated threat was under discussion, the following occurred:

“Mr. Sager: I object for this reason: A communicated threat not connected with the overt act of the deceased in the affray is not admissible, and for that rear-on we object to the ■pc lion, and object to an answer being made to it; we object to the question and to an answer being made to it on the ground that the defendant’s case as stated by counsel, and that is the theory of the case to which he is committed, does not bring in issue any proposition leaving any doubt in defendant ’s mind as to the intent of the deceased to kill him; does not leave any doubt in the mind of anyone, that having presented his gun as they claim, and as the defendant must testify in this ease, having applied an epithet—
“Mr. Harvey: I object to that statement, that ‘as the defendant must testify in this case.’
“Mr. Eager: I will strike it out.
“Mr. Harvey: It is not for you to strike anything out of the record.
“Mr. Sager: I have the right to withdraw the statement, and I have the right to withdraw that part of the statement.
‘ ‘ Mr. Harvey: It is, as a matter of fact, made in the presence of the jury to the effect that this defendant must testify in this case, and that fact is expressly forbidden to be commented upon by the circuit attorney under the statute. Therefore we object and except to it.
“The Court: The exception is well taken, and the remark is withdrawn and will be stricken out. The jury will pay no attention in reference to whether the defendant may or may not testify in the case.
“Mr. Harvey: The fact that the court may order the matter stricken from the record, your honor, counsel for defendant insists does not remove the effect'of the remark from the minds of the jurors, nor can it be removed therefrom by the suggestion of the court or order of the court.
‘ ‘ The Court: I say that the motion made by you to strike it from the record is sustained.
Mr. Harvey: I did not make such a motion, yonr honor, I beg pardon.
‘ ‘ The Court: Do you want it to stay in the record?
“Mr. Harvey: It is not my duty to ask it to be stricken from the record.
. ‘ ‘ The Court: Well, the court will order it stricken from the record of its own motion, and further that the remark was withdrawn by the circuit attorney, and further the jury will be instructed to pay no attention to the remark made about the defendant testifying, or whether the defendant does or does not testify.
“Mr. Harvey: To which statement and ruling of the court the defendant excepts as not effecting the purpose of the statute and not remedying the evil done.
“The Court: The Supreme Court has said that is all the court can do.
“Mr. Harvey: I am not responsible for the position of the court, your honor.
“The Court: Proceed.
“Mr. Sager: In order to qualify the statement, if it is in any sense in the case, or can be taken advantage of, I desire to say that it is what the defendant will have to testify to, if he testifies. ’ ’

The argument of defendant’s counsel is that both by the statement of the circuit attorney and that of the court the attention of the jury was pointedly directed to the fact that the defendant could testify; that no rebuke was administered or other means adopted to cure the injury, and that, indeed, there was no way to remedy the evil done the defendant.

Section 2638, Revised Statutes 1899, provides: “If the accused shall not avail himself or herself of his or her right to testify, or of the testimony of the wife or husband, on the trial in the case, it shall not be construed to affect the innocence or guilt of the accused, nor shall the same raise any presumption of guilt, nor be referred to by any attorney in the case, nor be considered by the court or jury before whom the trial takes place.”

If this statute is to be construed according to the letter, it absolutely prohibits any reference by an attorney in the case to the right of a defendant upon trial to testify in his own behalf, or to his failure to do so, and it makes no difference as to the time, whether in the opening statement of counsel, or in the argument of the case before the jury. But this does not seem to be the construction adopted by this court. It has frequently been held by this court that, when improper and prejudicial remarks are made by an attorney during the trial of a cause, if they are immediately followed by a proper rebuke of the counsel making them, and the jury instructed to disregard them, such remarks will not constitute reversible error. [State v. Graves, 95 Mo. 516; State v. Dusenberxy, 112 Mo. 277; State v. Brandenburg, 118 Mo. 187; State v. Howard, 118 Mo. 145; State v. Taylor, 134 Mo. 109.] But in this case there was no rebuke of counsel by the court; nor do w;e think that, under the circumstances disclosed by the record, a rebuke was absolutely necessary or would have served any good purpose if administered. "When objection to the remark was made by counsel for defendant, the court promptly sustained the objection and instructed the jury to disregard the improper remark. The circuit attorney then qualified the statement or remark by saying, “It is what the defendant will have to testify to, if he testifies. ’ ’ The remark made by the circuit attorney, in the first instance and which was afterwards practically withdrawn by him, was evidently made through inadvertence and in the excitement of a closely contested trial, and in sustaining an objection thereto and directing the jury to disregard it, the court did all that was seemingly necessary under the circumstances.

In State v. Kring, 64 Mo. l. c. 395, this court, in speaking of objectionable remarks made by one of the attorneys representing the State, says: “The judge presiding at the trial, in our opinion, should not have permitted such remarks to be made on the close of the argument, without a prompt correction.” It does not seem in that case that this court thought a rebuke of the attorney making the remarks was necessary, a prompt correction having been deemed sufficient. So, in the case of State v. Fitzgerald, 130 Mo. l. c. 436, the court in passing upon an improper remark made to the jury by counsel for the State in the argument of the case, said: “The court thereupon checked the counsel, the remark was withdrawn by him, and the jury was told by the court not to consider it. While it must be conceded that the remark was out of place, and' should not have been made, yet when it was withdrawn by the counsel who made it, and the court directed the jury not to consider it, it could not have been prejudicial to the rights of defendant, and the judgment should not be reversed on that ground alone.”

It is clear from the adjudications that if the court, in addition to what it did do, had at the same time rebuked the attorney, this would have removed the sting of the remark and corrected the error. But, as stated, we do not think that, under the circumstances disclosed by the record, a rebuke was necessary.

While counsel for defendant cites many decisions of courts of high authority, viz.: McKnight v. United States, 54 C. C. A. 367; Wilson v. U. S., 149 U. S. 60; Austin v. People, 102 Ill. 261; Yarbrough v. State, 70 Miss. 593; Coleman v. State, 111 Ind. 563; State v. Baldoser, 88 Iowa 56; State v. Graham, 62 Iowa 111; State v. Ryan, 70 Iowa 156, which decisions tend to sustain his contention that such an error is incurable, not one of them, however, seems to attach any importance to the failure of the court to rebuke the attorney at the time for the improper remarks made.

It is said in McKnight v. U. S., supra: There are two lines of decisions in the State courts arising upon facts disclosing a reference to this right of the defendant to testify by the- court, or prosecuting attorney. One line of cases holds that, when any reference has been made in the presence of the jury to the fact that the accused may testify, the error is irretrievable, and no subsequent instruction can dispel the effect of the allusion. In the very instruction not to draw inferences from the silence of the accused, the fact is brought to the minds of the jury that he may, if he will, testify in his own behalf. Another line of cases holds that, when the jury are told, in clear and emphatic terms, that no inference can be drawn against the accused because of his failure to testify in his own behalf, this dispels the effect of the allusion, and the error is cured.” This case comes within the latter class.

Defendant asked, and the court refused, the following instructions:

“1. If the jury believe and find from the evidence that the defendant, at the time of the alleged shooting, applied and used toward the deceased a vulgar epithet, such as stated by the witness Howard, and that as a result of the provocation given by such epithet, the deceased attempted to draw a deadly weapon for the purpose of assaulting the defendant, or acted in a manner which justified the defendant in believing that the deceased was about to assault him with a deadly weapon, and that in resisting such assault or threatened assault upon himself, the defendant drew his weapon and shot the deceased, then, and under such circumstances, the defendant’s right to defend himself against such assault or attempted assault, was only partially and not completely lost because of the fact that he gave the aforesaid provocation to the deceased by the aforesaid epithet; but the killing of the deceased by the defendant under such circumstances would1 constitute manslaughter in the fourth degree; and if the jury find and believe the facts to be as aforesaid they will convict the defendant of manslaughter in the fourth degree, unless they acquit him on the ground of self-defense.
“2. The jury is instructed that if they believe and find from the evidence that the defendant applied to the deceased a vulgar epithet, as stated by the witness Howard, or that he spoke to the deceased demanding to know if he was there looking for trouble, and that thereupon, without further provocation by the defendant, the deceased acted in a manner that caused the defendant to believe that the deceased was about to strike him or commit an assault upon him, and' that as a result of such action on the part of the deceased, and in view of all the surroundings and circumstances given in evidence, the defendant, in hot blood, and passion caused by such conduct on the part of the deceased, drew his weapon and killed the deceased, then such killing would constitute manslaughter in the fourth degree and the jury will so find unless they acquit on the ground of self-defense.”

With respect to the first of these instructions, we are of the opinion that there was no evidence upon which to base it. According to the evidence, the defendant was either justified in killing the deceased upon the ground of self-defense, or was guilty of murder. There is nothing disclosed by the evidence to authorize the application of the doctrine of imperfect self-defense. In the case of State v. Partlow, 90 Mo. 608, it is held that if the slayer provoked the combat or produced the occasion, in order to have a pretense for killing his adversary, or doing him great bodily harm, the killing will be murder, no matter to what extremity he may have been reduced in the combat. But if he had no felonious intent, intending, for instance, an ordinary battery merely, the final killing in self-defense would be manslaughter only, the distinction being between the right of perfect and the right of imperfect self-defense.

Now, there was no. evidence of any circumstance connected with the homicide tending to show that defendant intended an ordinary battery merely. Upon the contrary, the evidence shows that the defendant used upon the deceased a pistol, a deadly weapon, in a difficulty which he himself provoked, which fact shows that the assault was made with a felonious intent, and this being so, there was no imperfect self-defense in the case.

The second instruction was properly refused because not warranted by the evidence and because it is not a correct presentation of the law of manslaughter in the fourth degree as frequently defined by this court. Thus, in State v. McKenzie, 177 Mo. l. c. 712, it is said: “Manslaughter in the fourth degree, under the statutes of this State, is the intentional killing of a human being in the heat of passion, on a reasonable provocation, without malice and without premeditation, and under circumstances which will not render the killing justifiable or excusable homicide, and as a general rule it takes an assault, with personal violence, to constitute such provocation.” The same rule is announced in State v. Sumpter, 153 Mo. 436; State v. Meadows, 156 Mo. 110; State v. Brown, 64 Mo. 367; State v. Diller, 170 Mo. 1; State v. Ashcraft, 170 Mo. 409; State v. Kindred, 148 Mo. 270; State v. Gartrell, 171 Mo. 489; State v. Todd, 194 Mo. 377.

Immediately after the shooting in the saloon at the northeast comer of Twenty-second and Pine streets, the deceased ran out, and shortly thereafter entered Bumberry’s saloon at 2214 Pine street, about the middle of the block between Twenty-second and Twenty-third streets. William McDonough and Edward P. Walsh, police officers, were standing, about 3 o’clock in the morning, at Twenty-third and Olive streets, a block and a half from Bumberry’s saloon, when a newsboy told them that a man had been shot at Twenty-second and Pine streets. They thereupon went down to Bumberry’s saloon where they found Sullivan with his clothes unbuttoned and his shirt drawn up exposing a bullet wotmd in his abdomen. He had entered Bum-berry’s saloon before the officers arrived, but it is not known how much time elapsed between the shooting and his entrance to said saloon.

Officer McDonough in reply to a question by the circuit attorney, said:

“Well, the crowd started to gather in pretty thick, you know; we had to push some of them back and get them out in the street; so I asked him (Sullivan) if they had a fight or how it come that he was shot — did he shoot the other man? He says no-. He stated he didn’t know what was the cause; there was no cause that he knew of.”

Counsel for the defendant objected because the statement was not shown to be a dying declaration or made under circumstances making it competent, and for the reason that the statement was a conclusion; and upon the court stating that, “It is already in,” defendant made a motion to strike the statement out on the ground that it was irrelevant and incompetent, and was not shown to be a dying declaration. Which motion of the defendant, the court overruled, saying: “I think that comes within the rule as being a part of the res gestaeDefendant saved exceptions to the ruling of the court.

Officer Walsh was asked by the circuit attorney to state what took place at Bumberry’s saloon, and the officer was about to narrate the conversation between him and Sullivan, the deceased, when the defendant objected, “on the ground that it is not proved to be a dying declaration, or circumstances constituting an ante mortem statement, and is not competent for any other reason that I can conceive of. The same objection that I urged this morning, and your honor.permitted it, however, on the ground of its being a part of the res gestae.,”

The court overruled the objection for the same reason as stated in the quotation, and the defendant saved his exceptions.

Thereupon, the circuit attorney attempted to show by the witness that Sullivan regarded his condition as hopeless; but the officer said that he had arrived at the saloon before his companion, Officer McDonough, and all that he heard Sullivan say was that “he was suffering, and did not want anybody to bother him.” Thereupon, defendant again objected to the officer stating what Sullivan said, on the ground that it was not a dying declaration and not a part of the res gestae, and saved his exceptions to the ruling of the court.

William Bumberry testified that Sullivan walked into his saloon about two minutes, or it might have been five or ten minutes, before the officers came in, and that, after partially undressing himself, Sullivan lay down on a cot and was there when the officers had the aforesaid conversation with him. In addition to the lapse of time between Sullivan’s entrance into the saloon and the coming of the offcers was also the time that it required Sullivan to go to Bumberry’s saloon from the saloon where he was shot.

It is manifest that this testimony was admitted upon the ground, that the statements made by the deceased to, and the presence of, said witnesses constituted a part of the res gestae, that is, of what occurred at the time of the shooting of the deceased in Walsh’s saloon.

In 24 Am. and Eng. Ency. Law (2 Ed.), 679, it is said: “The declarations of the deceased as to the cause and circumstances of the homicide will not be admissible if they are made at such a time subsequent to the occurrence of the main fact in issue and under such circumstances as dearly fender them mere narratives of a past event. And there has been a disposition on the part of some of the courts to lay down the strict rule that statements by the deceased after all action on the part of the accused, actual or constructive, has ceased through the completion of the principal act, or through determination of it by its prevention or its abandonment by the wrongdoer, do not form part of the res gestae and should be excluded. But according to the great weight of authority the true test of the competency of the evidence is not whether the declarations were made after the act of homicide was done, but they will be admissible as part of the res gestae if made after the lapse of so brief an interval and in such connection with the principal transaction as to form a legitimate part of it and to preclude the presumption that they are the result of premeditation and design. According to this rule no fixed measure of time or distance from the main occurrence can be established as a rule to determine what shall be part of the res gestae. Each case must necessarily depend on its own circumstances to determine whether the facts offered are really part of the same continuous transaction.”

It is quite clear, we think, that the statements made by the deceased in Bumberry’s saloon regarding the difficulty and after it occurred, did not form a legitimate part of it. The statements made by deceased were not contemporaneous with the transaction, and should not, therefore, be admitted as part of the res gestae. They were simply narrative in their character so far as they related to what had occurred at the time of the difficulty, and were nothing more than hearsay. The difficulty had occured some time before, and the transaction had been ended just as much as if the shot, which after-wards proved fatal, had killed the deceased instantly.

In the case of State v. Hendricks, 172 Mo. 654, the difficulty out of which the prosecution arose, and in which Hipes was killed, occurred near the house of deceased. After being assaulted, the deceased struggled' to his feet, walked on to his home, went in at the gate and walked up to the door, and either his wife opened it for him or he opened it himself. His assailant had then left the place of the difficulty. Upon entering his house the wife of deceased asked him “what was the matter.” He replied, “They made their words good, that Jake Hendricks and Simon Hendricks had pounded him out there.” Then Mrs. Hipes was permitted to tell what her husband- narrated to her as to the details of the difficulty. The trial court admitted this testimony upon the theory that it was part of the res gestae. This court, speaking through Fox, J., said: “The statement of Mr. Hipes, after walking from where he was assaulted through the gate into the house, was purely narrative; in fact, the first thing he said, in answer to the question of his wife, ‘What is the matter?’ was in reference to a threat that had been made by the defendants, at least from the expression you would infer a threat, for he says, ‘They have made their words good.’ Then he proceeds to narrate minutely how he reached the place where the assault was made and all that was done by the defendants as well as himself. No one can read that statement and denominate it anything else than a narrative; it sounds just like the narrative of the difficulty months after it occurred. His statements must be taken as a whole; they cannot be separated, and say one part of it is a part of the res gestae and the other is not. These statements should have been excluded. ’ ’

The rule announced in that case was followed in State v. Birks, 199 Mo. l. c. 273, 274.

The statements being, in our opinion, simply a narrative of a past occurrence, they should not have been admitted.

It is said for defendant that the court erred in ex-eluding as incompetent uneommunicated threats, since the evidence was conflicting as to whether the deceased or the defendant was the aggressor; bnt we do not understand this to have been the ultimate ruling of the court in regard to uneommunicated threats. The record shows in the first place that the court ruled that evidence of communicated threats was admissible, bnt that evidence of uneommunicated threats by deceased would be excluded. But after counsel for the defendant stated that he did not expect to prove that the threats about to be testified to by the witness Brown had been communicated to the defendant, the circuit attorney withdrew his objection and the witness proceeded to testify to uneommunicated threats by deceased against the defendant. Moreover, the instructions embraced generally all threats, whether communicated or otherwise. There is, therefore, no merit in this contention. Defendant’s plea in this case was that of self-defense, and as there was some doubt from the evidence as to who was the aggressor, uneommunicated threats made by the deceased against the defendant were admissible for the purpose of showing who was the probable aggressor. [State v. Sloan, 47 Mo. 610; State v. Elkins, 63 Mo. 165; State v. Bailey, 94 Mo. 316; State v. Harrod, 102 Mo. 609; State v. Spencer, 160 Mo. 118.]

It is insisted that the court erred in permitting witnesses to testify to statements made by deceased at the hospital after the shooting, though made in the presence of the defendant who was at the time under arrest. It has been ruled many times by this court that when a person is under arrest for a specific offense, he is not in a position to make any denial or statement with reference to what may be said in his presence regarding his connection with the offense, and his silence under such circumstances will not warrant any inference against him. [State v. Young, 99 Mo. 666, and authorities cited; State v. Foley, 144 Mo. 600.] It is unnecessary to decide whether this error, if it stood alone, would constitute ground for reversal, hut we mention it in order that it may not he repeated upon another trial.

The rule as to the admissibility in evidence of dying declarations is that in order to be admissible such declarations must be made under a sense of impending dissolution, and after a hop© of recovery has been entirely abandoned. The evidence shows that, from the time deceased was shot and came to a realization of his situation, he had practically abandoned all hope of recovery. At Bumberry’s saloon, to which place he ran immediately after being shot, deceased requested that Bumberry send for a priest and a doctor. To John Howard, who was taken to see him, deceased said, “Johnny, I am a croppy, I am a dead one; there ain’t nothing to it.” When at the hospital, and his dying declaration was about to' be taken, he said that it was all off with him. These remarks and statements, taken in connection with the attending circumstances, the condition of the wound and the deceased’s state of mind from the first, show that the declaration was made under the impression of almost immediate dissolution.

The form of a dying declaration is immaterial, so that it clearly shows that it was made under a sense of impending dissolution. In State v. Nocton, 121 Mo. l. c. 550, Sherwood, J., speaking for the court, said: “A declaration may be received in evidence even without such formal statement. Thus, though ‘it is essential to the admissibility of these declarations, and is a preliminary fact to. be proved by the party offering them in evidence, that they were made under a sense of impending death; but it is not necessary that they should be stated, at the time, to be so made. It is enough if it satisfactorily appears, in any mode, that they were made under that sanction; whether it be directly proved by the express language of the declarant, or he inferred from his evident danger, or the opinions of the medical of other attendants, stated to him, or from his conduct, or other circumstances of the case, all of which are resorted to, in order to ascertain the state of the declarant’s mind. The length of time which elapsed between the declaration and the death of the declarant furnishes no rule for the admission or rejection of the evidence, though, in the absence of better testimony, it may serve as one of the exponents of the deceased’s belief that his dissolution was, or was not, impending. It is the impression of almost immediate dissolution, and not the rapid succession of death, in point of fact, that renders the testimony admissible.’ [1 Greenleaf on Ev. (14 Ed.), sec. 158; 3 Russell on Crimes (9 Am. Ed.), 250; 6 Am. and Eng. Ency. of Law, 108, et seq., and cases cited.] ’ ’

Our conclusion is that the dying declaration was properly admitted in evidence, with the exception of the parts included in brackets, which were not admissible, because they do not relate to the killing nor the facts and circumstances attending it. [State v. Draper, 65 Mo. 335; State v. Bowles, 146 Mo. 6.]

No principle of law is better settled than that the reputation of a defendant in a criminal case cannot be attacked unless he first puts it in issue, or becomes a witness in his own behalf; and the court should not have permitted the State to ask defendant’s witness, Kelley, although upon, cross-examination, if he had not been sent to the penitentiary under a joint indictment against him and the defendant. As to Kelley, the cross-examination was well enough, but it was improper to include defendant in the inquiry, nor was it necessary in order to discredit Kelley. It was simply doing indirectly what the State could not legitimately do by direct testimony.

Our conclusion is that the judgment should be reversed and the cause remanded for further trial. It is so ordered.

All concur.


author: FOX, P. J.

text:
    THE STATE v. CHARLES HUBBARD, alias AL MINOR, Appellant.
    Division Two,
    March 5, 1907.
    1. EVIDENCE: No Exception: New Trial. Defendant must timely except to the action of the trial court in admitting testimony in order to raise the question in the motion for new trial.
    2. -: Separate offenses: Identity. Evidence as to the commission of other separate and distinct offenses committed by defendant is admissible where it tends to throw light on the question of his identity.
    3. -: Letters: Foundation: Witness: Credibility. The testimony of a witness that defendant admitted that he had sent certain letters, is a sufficient foundation for the introduction of the letters in evidence; and the credibility of the witness is a question for the jury.

      i. -: Conflicting: Province of Jury. It is the province of the jury to settle conflicts in the testimony, and where there is substantial testimony to support their finding, it will not be disturbed.
    Appeal from Jackson Criminal Court. — How. John W. Wofford, Judge.
    Affirmed.

      Herbert 8. Hadley, Attorney-General, and Frank Blake, Assistant Attorney-General, for the State.
    (1) Testimony introduced for the purpose of identifying defendant is permissible to prove every act connecting defendant with the crime charged. State v. Bailey, 190 Mo. 257; State v. Walker, 194 Mo. 262; 1 Wigmore on Evid., sec. 414. (2) Without regard to defendant’s admission to the witness that he wrote the. letters, they were competent evidence. 3 Wigmore on Evid,, sec. 2153; Kloes v. Wurmser & Louis, 34 Mo. App. 453; Sanders Pub. Co. v. Emerson, 64 Mo. App. 662.
   FOX, P. J.

This cause is now pending before this court upon an appeal by the defendant from a judgment of conviction in the criminal court of Jackson county, for grand larceny. On June 2, 1905, the prosecuting attorney of Jackson county filed an information against the defendant, Charles Hubbard, alias A1 Minor, charging him with having committed grand larceny in September, 1904, in Jackson county, Missouri, the specific allegation being that he stole two gray mares of the value of $200, the property of Emanuel Landis, a Kansas City liveryman. After being duly arraigned a trial was had on the 4th day of April, 1906. The State introduced numerous witnesses upon the trial of this cause and the testimony of such witnesses tended very strongly to identify the defendant as the man who committed the larceny charged in the information. We deem it unnecessary to set out in detail the testimony of the various witnesses, but it is sufficient to say that the testimony introduced by the State satisfactorily pointed to the guilt of the defendant. On the other hand, the defendant introduced numerous witnesses which tended to establish an alibi, which was the defense interposed in this case. We will treat further of the testimony in this cause during the course of the opinion.

At the close of the evidence the court fully instructed the jury upon every phase of the case to which the testimony was applicable. The jury returned a verdict finding the defendant guilty as charged and assessed his punishment at imprisonment in the penitentiary for a term of six years.

Timely motions for a new trial and in arrest of judgment were filed and by the court overruled. Sentence and judgment followed in conformity to the verdict and from this judgment the defendant prosecuted this appeal and the cause is now before us for review.

Opinion.

The appellant is not represented in this court; therefore, in obedience to the requirements of the statute we have undertaken to carefully examine the disclosures of the record with a view of ascertaining if there was any reversible error in the action of the trial court.

In the fifth ground in the motion for new trial appellant complains of error on the part of the trial court in the admission of testimony tending to show the commission of separate and distinct offenses wholly disconnected from the case at bar. This assignment of error is doubtless directed to the testimony of one of the witnesses, Thomas Hubbard, who is a half brother of the defendant. It is sufficient to say upon this assignment of error that the record fails to disclose the preservation of the error complained of and urged in the motion for new trial by proper and timely exceptions to the action of the court in admitting the testimony. Furthermore, it may be said that the identity of the defendant was one of the controverted questions before the jury, and this testimony in some of its phases had a tendency to throw light upon that question.

The eleventh ground in the motion for new trial complains of error on the part of the trial court in the admission of certain documentary evidence in the way of letters written by or at the instance of the defendant and predicated the error complained of on the ground that there was no proper foundation laid for the introduction of such letters in the way of showing that they emanated from the defendant. Upon this complaint it is only necessary to say that we have carefully read in detail the testimony forming the basis for the introduction of the letters. It is only necessary in seeking the foundation for the introduction of the letters to look at the testimony of Thomas Hubbard, as heretofore stated, who was a half brother of the defendant, and, while this witness had served a term in the State penitentiary, yet his credibility and the weight to be given his testimony was a question for the jury. His .testimony clearly shows that the defendant had sent these letters, and he says substantially that the defendant admitted that he had sent the letters; therefore, we see no escape from the conclusion that the action of the court was proper in the admission of this testimony.

We have read in detail the testimony of the witnesses on the part of the State as well as the defendant testifying in this cause. If the jury believed the testimony of the witnesses testifying for the State they had ample support for the conclusion reached in their verdict. On the other hand, if the testimony as introduced by the defendant tending to establish an alibi was true, then he was not present at the time of the commission of the offense charged and therefore would be entitled to an acquittal. At last the jury must determine the facts submitted to them. It is specially their province to determine the credibility of the witnesses as well as the weight to be given their testimony, and where there is any substantial testimony which supports the finding of the jury, as has been repeatedly said by this court, their finding will not be disturbed.

The testimony as disclosed by the record is ample to support the verdict. The court fully and fairly presented the ease to the jury in its instructions, and finding no reversible error in the record before us the judgment of the trial court should be affirmed, and it is so ordered.

All concur.


author: GANTT, J.

text:
    Ex parte VICKERS.
    Division Two,
    March 5, 1907.
    1. APPEAL: Rape: Capital Case: Supersedeas. The offense of rape is not necessarily a capital offense, within the meaning of section 2698, Revised Statutes 1899, which provides that “in capital cases the order granting the appeal shall operate as a stay absolutely.”
    2. -; -: Sentence of Imprisonment: Supersedeas: Bail: Habeas Corpus. An appeal from a conviction of rape, where the sentence is imprisonment in the penitentiary, does not operate as a supersedeas. And if a defendant so convicted and sentenced fails to give bail, he will, on habeas corpus hearing, be remanded to the penitentiary to abide the decision of his appeal.
    Habeas Corpus.
    Petitioner remanded.

      Edwin Silver, Berlcheimer £ Dawson, B. J. Mc-Nally and McKee £ Jayne for petitioner.
    Rape is a capital case. 97 Mo. 504. It remains a capital case though the defendant on trial is found guilty and his punishment assessed! at imprisonment in the penitentiary only. 100 Mo. 523. It being a capital case, the appeal operates as a stay of judgment and sentence, absolutely, without further order of the court. Sec. 2698, R. S. 1899L

      Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for respondent.
    Petitioner does not ask this court to admit him to bail; he makes no offer to give bond and does not allege that the amount of the bond, as fixed and determined by the trial court, is excessive. The sole ground of his complaint is that he was committed to the penitentiary, pending his appeal to this court, instead of being committed to the county jail of Lewis county. The granting of a stay of execution is a matter resting largely in the discretion of. the trial court, which discretion is governed by the circumstances connected with each case. The gravity of the offense, the certainty of the proof and the conduct of the defendant at, before and after the trial, as well as the condition of the county jail, as to its security, are matters to be considered by the trial court. The only limitation upon its discretion is where a defendant has been convicted of a capital case, i. e., the capital punishment adjudged to be the penalty to be inflicted upon him. R. S. 1899, secs. 2698-2701. Otherwise, the Legislature did not intend for a defendant to remain away from the penitentiary, after conviction, unless he gave bond, or unless the trial court made an order staying execution of the sentence. In re Bauer, 112 Mo. 231; Ex parte McAnally, 97 S. W. 921.
   GANTT, J.

The petitioner, charged and con-convicted of rape in the circuit court of Lewis county and sentenced to the penitentiary for fifty years, was by the court permitted bail pending his appeal, but being either unable or unwilling to give bail for supersedeas, moved the circuit court to supersede the judgment pending his appeal and permit him tó remain in jail in Lewis county, which request the circuit court denied. lie has filed his petition in this court for a writ of habeas corpus, and seeks hereby to obtain an order remanding him to the Lewis county jail until his appeal is determined. He does not ask to be bailed. His contention is that by virtue of section 2698, Revised Statutes 1899, his appeal from the circuit court operated as a stay pending his appeal, and the circuit court had no discretion to deny him the supersedeas and therefore he is entitled to an order returning him to the Lewis county jail. The insistence of the petitioner is based upon the proposition that rape under our statute (sec. 1837, R. S. 1899), is a capital offense and by section 2698, Revised Statutes 1899, it is provided that “in capital cases the order granting the appeal shall operaté as snch stay absolutely. ’ ’ In other felonies it is provided that an appeal or writ of error shall not stay or delay execution of the judgment or sentence, unless the Supreme Court or the court in which the judgment is rendered, on inspection of the record, shall be of the opinion that there is probable cause for such an appeal or writ of error and shall make an order directing that the appeal or writ of error shall operate as a stay of proceedings on the judgment, pending the appeal. That rape is a capital offense in the sense that it may be punishable by death and therefore certain consequences result which are applicable to offenses punishable only by death, may be conceded, but it is obvious that when under the statute like section 1837 the punishment is in the alternative and imprisonment in the penitentiary may be imposed instead of. the death penalty, it does not follow that the words “capital cases” in section 2698 include or refer to offenses for which the punishment is not death, but imprisonment in the penitentiary. A fundamental rule of construction is that the courts should seek to effectuate the intent of the Legislature. The signification of many words is affected by the context in which they are found. Primarily a capital case meant one punishable by death, and we think this was the sense in which the Legislature meant it should be understood when applied to appeals. It was the purpose that when an appeal was taken from a death sentence it should operate as a stay of itself. If it was the intention that it should apply where the sentence was merely to the penitentiary, then it was utterly out of harmony with 'the other portions of the section. This clause appears for the first time in the general revision of 1889, and we think it was the purpose of the Legislature in this amendment to use the words “capital cases” in their primary sense, and that when an appeal or writ of error was sued out in a case where the sentence was death, the order granting the appeal should, without further steps, operate as a stay of the sentence until it was affirmed in this court, but it was not the purpose of the Legislature to stay sentences, merely by granting an appeal, in cases in which the sentence was not capital, but was imprisonment in the penitentiary. The prisoner is ordered remanded to the custody of the warden to abide the decision of his appeal.

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


text:
    THE STATE v. JAMES YANDELL, Appellant.
    Division Two,
    March 5, 1907.
    1. JURORS: Second Offense: Number of Challenges: Waiver. Under the statutes a defendant who has previously been convicted of an offense punishable by imprisonment in the penitentiary “not less than a specified number of years,” may upon a trial for a subsequent penitentiary offense be punished by im-. prisonment for life, and hence he is entitled to twenty peremptory challenges. But that is a right he can waive. And if he makes no objection to a panel of thirty, he cannot, after the jury of twelve has been sworn to try the cause, for the first time demand as a matter of right that it be discharged for the reason that he was-entitled to twenty challenges but was allowed only twelve. Having failed to make his objection in time, he will be held to have waived his right to twenty challenges.
    2. INSTRUCTIONS: No Exceptions. Where the instructions were not embraced in a bill of exceptions and no exceptions were saved to the giving of certain instructions set out in the record proper and alleged to have been given, the appellate court cannot consider the instructions on appeal.
    3. EVIDENCE: Admission and Exclusion: No Assignment in Motion. Where no point is made by defendant in his motion for a new trial, in regard to the admission of improper evidence on behalf of the State, or to the exclusion of proper evidence offered by defendant, the admission or exclusion of evidence cannot be considered on appeal.

      4. -: Weight of Evidence. Where there is substantial evidence of defendant’s guilt, the appellate court will not undertake to determine that a verdict of guilty is against the evidence in the case.
    Appeal from Douglas Circuit Court. — Row. F. C. Johnston, Special Judge.
    Affirmed.

      J. 8. Clarke for appellant.
    (1) The charge set forth in the information is “second offense” burglary and larceny (sec. 2379', R. S. 1899) and under such charge, if sustained by the evidence, the punishment must be imprisonment for life; hence defendant was entitled to his statutory challenge of twenty men instead of twelve. Sec. 1890, R. S. 1899. The degree or severity of punishment determines the number of peremptory challenges the defendant in any criminal case is entitled to, and such number is based solely on the charge in the indictment or information, and in determining the number of peremptory challenges the defendant was entitled to in this case, we only have to examine the information to find what the charge against him is, and what degree of punishment the State sought to inflict. It is obvious that the State sought to charge and prove an offense punishable solely by life imprisonment, and have thus far succeeded in such attempt. (2) After the jury was sworn to try the cause and had heard part of the evidence, the defendant could not consent, in this kind of case, to the discharge of juror Hale, and replacing him by one Martin without any preliminary qualifications as a juror. There is nothing to show that Martin was of the age of twenty-one years, that he was not of kin to the parties in interest, that he was a resident of the county of Douglas, or even State of Missouri. He was simply agreed upon by the State and defendant’s counsel, to taire the place of juror Hale and was sworn to try the case in the nsnal way. A defendant in a criminal case may waive his statutory privileges concerning jnrors, hut not his constitutional rights. State v. Davis, 66 Mo. 684; State v. Meyers, 68 Mo. 266; Vaughn v. Scad, 30 Mo. 600. In prosecutions for felonies the defendant has the right “to a public trial by an impartial jury of the county.” Sec. 22, art. two, Constitution of Missouri. As the juror Martin was not in any manner interrogated as to his qualifications as a juror, he may or may not have been even a resident of the county, which is a constitutional qualification and cannot be waived by defendant. If defendant could waive this right under the Constitution, then he could waive it in like manner to the full number of twelve persons. (3) The evidence to identity of the defendant is the certificate of the warden of the penitentiary, who claims to have received a James Yandell into the State prison on May 23, 1901. Nothing can be presumed against defendant in this sort of case. There was no certificate of the Webster County Circuit Court clerk attached to the judgment offered in evidence by the State, to prove former convictions in this court, the certificate being attached to the last one only. The one read to the jury being the first judgment, was not a certified copy and should not have been read to the jury. State must show judgment of former conviction. State v. Brown, 115 Mo. 409.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) In his motion for a new trial, defendant makes no mention of the admission of improper evidence for the State; neither does he complain of the refusal of the trial court to admit proper evidence for the defendant. Hence, the admission or exclusion of evidence can not be considered by this court. State v. Laycock, 141 Mo. 274. It may be stated, however, that the record of delend ant’s former conviction of burglary and larceny, and bis service of a term in and discharge from the penitentiary, were properly admitted in evidence; and the same showed that he was an habitual criminal. R. S. 1899, sec. 2379; State v. Carr, 146 Mo. 1. (2) The record! wholly fails to show what, if any, instructions were asked or given in this case. So the question of the giving and refusing of instructions can not be considered! by this court, especially as the defendant made no' objections and saved no .exceptions to the instructions at the time. State v. Eaton, 191 Mo. 157; State v. King, 194 Mo. 474; State v. Reed, 89 Mo. 171; State v. Morgan, 95 S. W. 402. (3) There is nothing in the record to show that defendant made any objections to the number of jurors on the panel till after the twelve were ser lected, or that he asked for additional jurors before making his challenges. The objection that he made to the number in his motion for a new trial was, of course, too late. State v. Waters, 62 Mo. 196; State v. Klinger, 46 Mo. 224. But it is insisted that, under the statute, defendant was only entitled to a panel of thirty men, which the record shows were qualified in this case. R. S. 1899, secs. 2619 and 2621. (4) Defendant’s main contention seems to be that error was committed by the trial court in excusing juror Hale and in substituting in his place juror Martin. The record, however, shows that this was done by the consent of defendant; and the record nowhere shows that any objections were made thereto till he filed his motion for a new trial. While a defendant in a criminal case has certain statutory rights, yét he may waive them, as was clearly done in this case. State v. Waters, supra; State v. Klinger, supra. As defendant consented to this at the time, he can not now be heard to complain. State v. Baber, 74 Mo. 297. His failing to make objections and save his exceptions at the time constituted a waiver. State v. Smith, 114 Mo. 423; State v. Sansone, 116 Mo. 11; State v. Howard, 118 Mo. 133. But aside from the question of waiver, the trial court had a perfect right to excuse one of the jurors, on account of sickness or death in his family, and to select another juror, and to begin the trial again. Thompson-Merriam on Juries, sec. 273; 1 Bishop’s New Grim. Proc., sec. 948; Proffatt on Jury Trials, sec. 139; State v. Monda, 39 La. Ann. 868; People v. Stewart, 64 Cal. 60; Parsons v. State, 22 Ala. 50; Pannell v. State, 29 Ga. 681; Nolen v. State, 2 Head (Term.) 520; 12 Encyc. of Plead. & Prac., 657. (5) Defendant, in his motion for a new trial, does not allege that the verdict was against the weight of evidence, nor that there was not sufficient evidence to justify the verdict. The simple statement of this case shows that the evidence was sufficient, and amply sufficient, to sustain'the verdict. The possession of stolen goods, recently after they are stolen, raises a presumption that the party in possession is guilty of both larceny and burglary. State v. Warford, 106 Mo. 62; State v. Babb, 76 Mo. 503. It is true that all of the stolen property was not found; but proof that a part of same was in the possession of the defendant recently after the larceny, was sufficient, in connection with other circumstances, to fix the guilt on defendant of stealing all of said property. State v. James, 194 Mo. 269; State v. Owens, 79 Mo. 625. The letter written by defendant to the Caudle woman was not only admissible, but it tended to show that the defendant was guilty of attempted subornation of perjury, and that, too, in connection with this case. State v. Alexander, 119 Mo. 461; Fulkerson v. Murdock, 53 Mo. App. 154. “Evidence to show that the accused has attempted to fabricate or procure false evidence, or destroy evidence against himself, .... is always admissible as showing a consciousness of guilt, and is of particular value where the incriminating evidence is mainly circumstantial.” Underhill on Grim. Evid., sec. 121; 1 Wigmore on Evidence, secs. 277-8; 4 Elliott on Evidence, sec. 2712; 1 Greenl. on Evidence, secs. 37 and 195a; State v. Ward, 61 Yt. 194; Allen v. United States, 164 U. S. 499. There being substantial evidence of the guilt of the defendant, this court will not undertake to weigh the same; but will leave that duty to the jury. State v. Smith, 190 Mo. 706; State v. Payne, 194 Mo. 442; State v. Groves, 194 Mo. 452; State v. Williams, 186 Mo. 128; State v. Williams, 149 Mo. 496; State v. Swisher, 186 Mo. 8.
   BURGESS, J.

Under an information duly verified and filed by the prosecuting attorney of Douglas county, charging the defendant with burglary and larceny and with being an habitual criminal, defendant was convicted in the circuit court of said county on the 23rd day of June, 1906, and his punishment fixed at imprisonment in the penitentiary for the term of his natural life.

The offense was alleged to have been committed January 3,1906; the building alleged to have been burglarized was a storehouse belonging to T. N. and P. M. Smallwood, from which various articles of dry goods, shoes and jewelry, of the value of $94.45, were alleged to have been stolen by defendant.

In due time after verdict the defendant filed motions for a new trial and in arrest, which were overruled, and he appeals.

The State’s evidence tended to prove that T. N. and P. M. Smallwood were the owners of a store building situated in the town of Denlow in Douglas county, Missouri, and that on the night of the 3rd of January, 1906, the doors and windows of said building were securely fastened. The next morning they discovered that one of the windows, which had been fastened at the top with a nail, had been prized open and the window sash taken out and sot on the ground against the side of the wall. Some shoes, some men’s overshoes, two bolts of red flannel, one bolt of eider down, a hat, fifty-five finger rings, four watches and some bracelets were missing; also fifty pennies and some blue pocket handkerchiefs, all of the value of $94. The evidence further showed that early on the evening of the burglary there had been a slight rain, and immediately afterwards there was a fall in the temperature, and the ground was frozen. Close to the window that was broken open there were found the tracks of a man going up to the window from the west; these tracks were made by a number 8 shoe; going away from the window there were tracks made by a number 11 overshoe; the tracks going to the window showed that the party making them did not wear overshoes. Two or three persons followed these tracks down the road for the distance of a quarter of a mile, where a small plank was found on the ground. This was the kind of a plank that was used by merchants to wrap cloth around. At that point the tracks of an -unshod horse were seen on the ground, which indicated that the horse had been standing there for some time; the horse’s tracks then extended on down the road toward the town of Norwood, and to within three miles of said town. The searching parties, in company with Constable Thompson, went on to the house of the father of the defendant. This house was searched, but none of the stolen property was found, aud the defendant was not there; so the constable and his posse went to the residence of one Mattie Caudle, who lived about 250 or 300 yards from the Yandell home, and searched her house. On going in, these parties heard a man and woman talking in an upstairs room; the stairway runs up on the inside of the house, but the stairway door was locked. The officer demanded of the Caudle woman that she open the stair door, but she said it was nailed up; just as the officer was about to break the door open, one of the parties saw the defendant running from the direction of said house. Constable Thompson and Mr. Martin took after him, called to Mm to stop tMee times and fired a pistol once. The defendant continued to run, and the constable procured a horse and finally overtook him, when the defendant tried to get a rock and assault the officer. The defendant was brought back to the Caudle house, and when he saw some of the stolen property found in said house he said: “What in the hell are you going to do with my overshoes; they are mine.” Mr. Smallwood spoke up and said, “This lady says that they are her brother’s,” and the defendant again insisted that they were his. On being asked where he got them, defendant said, “Find out; you have got me, now find out.” The defendant stated to the officers that he was upstairs when he saw them coming, and jumped through a hole in the wall. In said house were found the two bolts of red flannel; one bolt was at the head of the bed, between the bed and the wall, and the other piece was at the foot of the bed, under the tick; there were also found two new pairs of shoes and one pair of stolen overshoes; the overshoes were number 11, and were found in a closet. On the way to Norwood, the defendant said that the overshoes were not his. A short time before the burglary the defendant was at the town of Denlow, claiming that he wanted to rent a house for his sister to live in, and send her children to school. After being arrested, the defendant said that he had never been to Denlow, and knew nothing about Ms sister wanting to send her cMldren to school. In taking the defendant from the town of Norwood to the county jail the constable rode with him in a hack, in company with Mr. Martin. On the way, about two miles before they reached the jail, the defendant made some peculiar motions with his hands under the lap robe; these motions attracted the attention of the officer, for he thought the defendant was trying to slip Ms handcuffs. The next morning a penny was found in said hack on the side the defendant rode on; the next day the defendant was searched in jail and twenty or twenty-five keys were found in his pockets; also some pennies and three blue handkerchiefs. At the point on the road where the defendant made the motion with his hands, the officer found a handkerchief of the same color, and also eleven pennies. About a quarter of a mile from the Yandell house, a man named Wes Jones was living, and Jones’ wife is a cousin of the defendant. For some two weeks prior to the burglary the defendant had a trunk, which he kept upstairs at the home of Mr. Jones, he having formerly worked for Mr. Jones. On the night after the burglary, the defendant came to the Jones place, while Mr. and Mrs. Jones were away from the house, stayed a while, went up stairs and left before bedtime. He took a grip away with him, saying he was going to see his brother. A few days afterwards the officers came to the Jones house and tried to open this trunk, but it was locked; as Mr. and Mrs. Jones did not have the key to it, the officers took an axe and broke it open. In the trunk were found some of the stolen rings, some knives, some razors, some bracelets, scarf pins and watch-chains wrapped up in a blue handkerchief, like the ones that were stolen; they also found a black hat in said trank, which was identified as the stolen hat. The officers testified that this jewelry had tags on the same, and the tags were identified by the Messrs. Smallwood as showing their price mark.

While in jail, the defendant wrote the following letter:

Ava, Mo., Jan. 10,1906.
Mrs. Mattie Caudle:
Kind Friend. — I thought I would write you a few lines to let you know that I am well, truly hoping these few lines will reach their destination and find you well. Well, Mattie, you know what you said; you ought to stick to what you said; there is no chance for me; be of good cheer. "Write and tell me if you are coming down' when I have my trial. Now, Mat., I will live and die for yonr sake; you ought to have stuck to what you first said, now, honey, you always told me if I got into trouble that you would spend everything you had for me. Honey, you know that my life never, never will be any pleasure if I cannot be with the one that I love. Honey, you must not write in any way about what has happened when you write, just write and tell me if you are well. Mat., they cannot hurt you in any way; I will see that they don’t hurt you in any way with the law. Now May keep says: “Yea and Nay.” If you will you can sell your land and help me out of trouble. When you answer, if you aim to do what I asked you to do, just put O. K. at the bottom of your letter, then I will know what you aim to do. Now, Mat., this letter will be registered to you without anyone knowing anything about it. Be sure to write like that you ever got a letter from me first. I don’t want them to find out that I ever slipped a letter to you. Now, Mat., if you find out anything about my case that you think would do me any good, you can write and tell me; but be sure and be careful what you write. I will not sign my name to this letter, for you will know my hand write. Now, Mat., don’t sign your name to your letter when you write, sign some other name, some young girl’s name; then we can write like we was sparking. Now, Mat., when you get this read it carefully, and if the postmaster asks you who it is from don’t tell anything about it.
Yours truly,

The State also introduced in evidence a certified copy of the record of the circuit court of Webster county, Missouri, showing that the defendant was convicted in that court of burglary and larceny on Septem-. ber 20, 1900, and was sentenced to the penitentiary for three years for the burglary and two, years for the larceny. The State also introduced in evidence a certificáte from the warden of the penitentiary, showing that the defendant was received into the penitentiary May 23,1901, for the term of five years for burglary and larceny, having been sentenced by the circuit court of Webster county, and that he was discharged June 18, 1904.

The defense was an alibi, and the defendant testified that he was in the town of Norwood on the afternoon and evening of the burglary and went home between nine and ten o ’clock; that his father and two sisters and himself occupied the same room that night; that he was not at Denlow, and knew nothing of the burglary. He admitted having possession of the stolen jewelry, but claimed that this jewelry and some razors were turned over to him by a man named Arthur Peacock, who had since died; that Mr. Peacock employed him to peddle this jewelry around the country, and had given it to him tied up> in a handkerchief, in November prior to the burglary. The defendant, however, could not remember whether he had peddled any of it or not, but claimed that he had told his sisters and father of his arrangement with Mr. Peacock. The defendant further stated that he was at the Caudle woman’s house the morning he was arrested, and saw the constable and his posse coming, and concluded that Ire had better run away. He did this, because of certain scandalous reports that had been circulated in that neighborhood regarding him and this lady. He further said he went there for the purpose of talking to her about leasing some land, and was talking to her on that subject, and also about the rumors regarding them that were afloat in the neighborhood. He said that he jumped out of a window when he saw the officers coming, and ran off, leaving his hat in the house. The defendant further admitted that he had been convicted of burglary and larceny in Webster county; that he afterwards pleaded guilty to the crime of burglary and larceny, and that he afterwards pleaded guilty to the charge of felonious assault, receiving penitentiary sentences therefor, some of which sentences were afterwards reduced.

The defendant’s sister and father testified that they were at home and occupied the same room with the defendant the night of the burglary, their mother being away, and that defendant came home between 9 and 10 o’clock, and remained home the rest of the night. His sister, Minnie, denied stating to the officers that the defendant had not been at home for two weeks.

Prank Jones and Joe Credon testified to the fact that the defendant had a trunk at the Jones house; that he kept some jewelry and a black hat there.

Mattie Caudle testified that an effort had been made to bribe her by the sheriff, he having offered her $15 to testify against the defendant, Charles Moshier and Bonnie Wyatt. She admitted that the constable took some red flannel from off the foot of her bed and from behind her bed, but claimed that her husband gave it to her, and that he brought it there Wednesday or Thursday before. She admitted, however, that she and her husband had been separated for two years. She said that those shoes were for ladies, and belonged to her, and that she got them from some man who traveled around and bought up iron and rubber; that they asked her if they could leave the shoes there, and she consented; this was along in the fall, and the shoes had been in her closet ever since. She admitted that the defendant had been to her house veryfrequentlyto see her but always in reference to leasing this land, and that he was there that day exclusively for that purpose. She said that they had been talking that morning for three-quarters of an hour before the officers came, but they did not talk on any other subject except the" subject of leasing this ground. She further testified that when they saw the officers coming, the defendant walked out the door and did not jump out of the window nor go upstairs. The overshoes, she said, she bought at Peyton’s store early in the spring, and had had them a good while; that she bought two pairs, intending to give her mother one pair. She denied stating to Charles Sanders and Frank Ball that the defendant brought said goods there. She further admitted that she had in the house a pistol belonging to the defendant, but said that she kept it there for the purpose of shooting a chicken hawk.

In rebuttal, the State proved by Jailor E slick and Joe Spurlock that the defendant, after he was placed in jail and told of the finding of the jewelry in his trunk, said that if there was any jewelry in his trunk somebody else put it in there. The State also proved by Sheriff Sanders and Deputy Sheriff Ball that the Caudle woman first stated to them that she got that flannel from- Uncle Bill Peyton, and afterwards said that defendant brought it there. The State also proved by Constable Thompson that the defendant’s sister, Minnie, stated, when the constable searched her house two days after tbe burglary, that she had not seen the defendant for two weeks.

The record discloses that on the 20th day of June, 1906, tbe defendant was brought into court, and that the sheriff returned into court a special venire of forty, from which a panel of thirty men qualified as jurors, were selected; that the respective parties made their challenges, and from this panel of thirty there were twelve jurors selected by the parties, to sit upon the trial of the cause; that said jurors were duly sworn as the law directs, and the trial proceeded with. That, thereafter, one of said jurors, W. C. Hale, was excused by the court from further service on said jury because of the sudden illness of his wife; that thereupon the court adjourned until the next morning, when it again convened, and one Harry Martin was submitted as a juror in the place of said Hale; that said Martin was duly qualified and the jury sworn as the law directs to try the cause. That before the trial of the cause was again proceeded with the defendant filed' a motion to discharge the jury upon the ground that he was entitled to twenty peremptory challenges, whereas he was allowed but twelve. The motion was overruled. He assigns error.

As the defendant was informed against for the second offense of burglary and larceny, it is contended that, upon conviction, the punishment must be imprisonment for life, and that, hence, he was entitled to ehallenge twenty instead of twelve of the panel of thirty.

By section 1890, Revised Statutes 1899, it is provided that every person who shall be convicted of burglary in the second degree shall be imprisoned in the penitentiary for not less than three years, but no limit of imprisonment is declared. Section 2619, Revised Statutes 1899, provides that “the defendant in every indictment for a criminal offense shall be entitled to a peremptory challenge of jurors in. the following cases, as follows: First, if the offense charged is punishable with death, or by imprisonment in the penitentiary not less than for life, to the number of twenty, and no more; second, if the offense be punishable by like imprisonment, not less than a specified number of years, and no limit to the duration of such imprisonment is declared, to the number of twelve, and no more.”

If the second clause of this section of the statute is to govern, it is clear that the defendant would only have been entitled to twelve challenges, because the punishment prescribed by section 1890, supra, for burglary in the second degree is not less than three years in the penitentiary, with no limit to the duration of such imprisonment, which may be for life. But this statute is applicable only to first offenses of that character, and not to a case where the conviction is sought, as in this case, under section 2379, Revised Statutes 1899, which, because of the increase in and severity of the punishment of the person convicted of the second offense, confers upon him the right to twenty challenges. Said section provides:

‘ ‘ If any person convicted of any offense punishable by imprisonment in the penitentiary, or of any attempt to commit an offense which, if perpetrated, would be punishable by imprisonment in the penitentiary, shall be discharged, either upon pardon or upon compliance with the sentence, and shall subsequently be convicted of any offense committed after suchpardonordischarge he shall be punished as follows: First, if such suhse-. quent offense be snch that, upon a first conviction, the offender would be punishable by imprisonment in the penitentiary for life, or for a term which under the provisions of this law might extend to imprisonment for life, then such person shall be punished by imprisonment in the penitentiary for life; second, if such subsequent offense be snch that,- upon a first conviction, the offender would he punished by imprisonment for a limited term of years, then snch person shall be punished by imprisonment in the penitentiary for the longest term prescribed upon a conviction for such first offense; third, if snch subsequent conviction be for an attempt to commit an offense which, If perpetrated, would be punishable by imprisonment in the penitentiary, the person convicted of such subsequent offense shall he punished by imprisonment in the penitentiary for a term not exceeding five years.”

It is clear that if the offense of which the defendant stands convicted in this ease had been his first offense, it would, under the provisions of the law, be punishable by imprisonment in the penitentiary for a term of not less than three years, and the punishment might extend to imprisonment for life. Therefore, under the express provisions of the section last cited, the punishment imposed for such second offense is imprisonment in the penitentiary for life, and, consequently, the defendant was entitled to twenty challenges. But this was a right which defendant could waive. [State v. Bell, 166 Mo. 106, and authorities cited.] Defendant made no objection whatever to the panel of thirty qualified' jurors. As before stated, the record discloses that it was only after the jury had been sworn the second time to try the cause that the defendant presented his motion to discharge the jury for the reason that he was entitled to twenty challenges, when he was allowed but twelve. Nor was there any objection to the twelve jurors selected and sworn to try the cause, and it must be presumed' that they were satisfactory to both parties.

Section 2622, Revised Statutes 1899, provides: ‘ ‘ There shall be summoned' and returned in every criminal cause a number of qualified jurors equal to the number of peremptory challenges, and twelve in addition; and no party shall be required to make peremptory challenges before a panel of such number of competent jurors shall be obtained. ”

As we have said, the defendant had a right to twenty challenges, but this important privilege could be waived by him if he felt so disposed. [State v. Klinger, 46 Mo. 224.] Had he insisted upon this right in time, and it had been denied him by the court', such refusal would have been error; but as defendant made no objection before the jury was sworn, he will be regarded as having acquiesced, and as having waived his said right. [State v. Waters, 62 Mo. 196.]

Instructions numbered two and three, claimed to have been given by the court, are criticised by defendant upon various grounds; but no instructions whatever are embraced in the bill of exceptions. There are what purport to be instructions given by the court copied into what seems to be the record proper, but it nowhere appears in the bill of exceptions that said instructions were excepted to at the time they were given. They cannot, therefore, be considered upon this appeal.

No point is made by defendant in Ms motion for a new trial in regard to the admission of improper evidence on the part of the State; nor is any complaint made in said motion of the refusal of the court to admit proper evidence offered by the defendant. Therefore, the admission or exclusion of evidence cannot be considered by this court. [State v. Laycock, 141 Mo. 274.]

Defendant does not allege in his motion for a new trial that there was no substantial evidence to sustain the verdict; but only says that the verdict is against the evidence in the case. The evidence as shown by the record very conclusively proved defendant guilty. Besides, its weight was for the consideration of the jury, and they having found the defendant gmlty as charged, and their verdict having been approved by the trial court, said verdict will not be interfered with. [State v. Smith, 190 Mo. 706; State v. Swisher, 186 Mo. 1; State v. Williams, 149 Mo. 496.]

Finding no reversible error in the record, we affirm the judgment.

All concur.


text:
    THE STATE v. McCOY, Appellant.
    Division Two,
    March 5, 1907.
    NO BILL OF EXCEPTIONS. Where no bill of exceptions is filed, there is nothing before the court except the record proper, and if that is free from error, the judgment will be affirmed.
    Appeal from Jasper Circuit Court . — Hon. Hugh Babbs, Judge.
    ■Affirmed.

      Herbert 8. Hadley, Attorney-General, and Frank Blake, Assistant Attorney-General, for the State.
   FOX, P. J.

This cause is here upon appeal by the defendant from a judgment of the circuit court of Jasper county, Missouri, convicting the defendant of murder of the second degree. On December 4, 1905, the prosecuting attorney of Jasper county filed an information against the defendant, charging him with murder in the first degree. The crime was committed on November 20, 1905, upon one James W. Perry, with the fists and feet of the defendant, striking, kicking, beating and wounding the deceased upon the head, neck and body, from which wounds the deceased died on the 29th day of November, 1905. The case coming pn for trial, the defendant, on January 2, 1906, filed an application for change of venue, alleging prejudice in the minds of the inhabitants of Jasper county, which application was on January 6, 1906, overruled by the court. Upon the application of the defendant a continuance was granted until February 15, 1906. Another application for continuance was filed and overruled on the same date. After being duly arraigned the trial occurred and on February 17, 1906, the jury brought in a verdict finding the defendant guilty of murder in the second degree, and assessing his punishment at ten years»in the State penitentiary. Motions for new trial and in arrest of judgment .were filed and overruled. The motion in arrest charged that the information “is insufficient to sustain the verdict and does not charge 'murder in the second degree.” An appeal was after-wards granted to this court and upon extension of time to file bill of exceptions to April 14, 1906, and no bill having been filed by that time, application for extension of time to file bill was made on May 12,1906, which said application was denied by the court. The case is therefore here on the record proper.

We have carefully examined the information upon which this judgment is predicated and find that it properly charges the offense of murder, and is in accord with, approved precedents by this court. The record discloses the formal arraignment of the defendant and plea of not guilty and the trial seems to have proceeded in regular order. The jury were empaneled and sworn to try the cause and they returned their verdict in proper form finding the defendant guilty of murder in the. second degree and assessing his punishment at imprisonment in the penitentiary for a period of ten years. Judgment and sentence in accordance with the verdict are in every way regular and conform to the requirements of the statute. Finding no error in the record before us, the judgment of the trial court should be affirmed, and it is so ordered.

All concur.