text:
    THE STATE v. ANDREW LACKEY, Appellant.
    Division Two,
    November 29, 1910.
    1. DEMURRER TO EVIDENCE: Subsequent Testimony: Assigned in Motion for New Trial. Defendant cannot complain, that his demurrer, offered at the end of the State’s case, was-overruled, if thereafter he offered evidence in his defense. But. though at the close of the whole case he did not renew his-demurrer, yet if one ground of his motion for a new trial is. that the verdict is against the evidence, the sufficiency of the evidence to-support the verdict will he considered on appeal.
    2. BURGLARY AND LARCENY: Ownership of Goods Stolen.. The ownership of the goods- stolen is not an essential element of burglary, but it is of larceny; and where defendant was. indicted for both offenses, and convicted of both, and no ownership of the goods is shown in the person to whom the indictment alleged they belonged, the judgment will be affirmed: as to the burfelary, and if reversed at all will be reversed: only as to the larceny.
    3. -: —;-: Character of Possession: Variance. The-ownership necessary to support a charge of larceny may be either general or special, and the possession of such owner may be actual or constructive. If the property stolen is in the actual possession of a person other than the general owner, the latter has a constructive possession, and the ownership in such case may be properly alleged and proven, either in the special owner having the actual possession, or in the general owner having a constructive possession. For instance, where a suit of clothes was bought by a merchant for his clerk, and while it was in transit was. stolen from the express company, the ownership was in the carrier as special owner having the actual possession, and in the merchant as general owner having the constructive possession; and had the information charged! ownership in either, the proof would have supported the charge- and there would have been no variance. But since the information charges the ownership in the clerk, and the evidence shows a shipment to the merchant as consignee and no payment by either, there is a .variance.
    4. -: -: Variance: Immaterial and Harmless. But. while there was a variance (where the information charged the ownership of the suit of clothes in the clerk and the proof shows the goods were ordered by a merchant for the clerk and sent to the merchant as consignee, and before either had. paid for them they were stolen by defendant from the express company while in transit), such variance is not material to the merits of the case and is not prejudicial to the rights of defendant, for the merits of the case in nowise depended on whether the express company, the merchant or the clerk was the owner, and under sec. 5114, R. S. 1909, the judgment will not be reversed because of variance between allegation and proof.
    5. INSTRUCTIONS: No Exception in Motion. If no exception was preserved in the motion for a new trial to the action of the court in giving instructions, no objection to the instructions given on behalf of the State can be considered on appeal.
    <3. -: On Ail Law of Case: More Than One Offense: How Saved. It is the duty of the court to instruct on all questions of law necessary for the information of the jury, whether requested so to do or not; and, while it is a rule of practice that, if defendant excepted generally to the failure of the court to instruct on all the law of the case and did not intimate or suggest the question of law upon which he desired further instructions, he cannot be heard to complain on appeal, that rule should not, in the face of the statute, be construed as meaning that the failure to instruct upon an essential element of the offense, and to designate clearly the extent of punishment the jury are authorized to assess, and, if under the charge and evidence they might find defendant guilty of more than one offense, .to indicate to them clearly that they may convict him of both or either or acquit him of both or either, would not be reversible error and unless the jury are so instructed on essential matters, it is reversible error, whether or not defendant called the court’s attention to the specific essential matters on which he desired instructions.
    7. -: -: -: Burglary and Larceny: May Convict or Acquit of Both: No Alternative: Error How Saved. Defendant was indicted for burglary and larceny, for breaking into an express office and stealing a suit of clothes, and the court instructed the jury that “under the evidence in this case you may find the defendant (guilty of both offenses, or you may acquit him of both offenses, according as you may find the facts to be from the evidence,” and no instruction authorized the jury to convict the defendant of one offense and acquit of the other, and they convicted him of both. Held, that he was entitled to an instruction upon each of the two offenses as fully as he would have been had he been tried separately for each, and the instruction is reversible error, for it requires the jury to convict him of both or acquit him of both; and while defendant did not in his motion save any exception to the instructions given for the State, he preserved his right to insist upon this error by requesting the court, before the instructions were given to tke jury, “to instruct the jury fully upon all the points of law in this case,” and hy excepting, after the instructions were given, to the action of the court in not instructing fully on all questions of law in the case.
    Appeal from St. Clair Circuit. Court. — How. Chas. A. Denton, Judge.
    Reversed and remanded.

      Ralph P. Johnson and Theodore 0. Williams for appellant.
    (1) It is necessary to allege and prove the ownership of the house alleged to have been burglarized and the ownership of the chattels alleged to have been stolen, at the time of the theft. State v. Jones, 168 Mo. 398; State v. Kelley, 206 Mo. 685; State v. James, 194 Mo. 268; State v. Horned, 178 Mo. 59; State v. Pollock, 105 Mo. App. 277; State v. James, 133 Mo. App. 300. (2) The court must instruct on all questions of law arising in a criminal case. R. S. 1899, sec. 2627; State v. Palmberg, 88 Mo. 573 ; State v. Cantlin, 118 Mo. 100; State v. "Weakley, 178 Mo. 423; State v. Urspruch, 191 Mo. 43. (3) The request for instructions and exceptions saved by defendant are sufficient. State v. Weakley, 178 Mo. 423; State v. Urspruch, 191 Mo. 43; State v. Nicholas, 222 Mo. 434.

      Elliott W. Major, Attorney-General, and John M. Atkinson■ Assistant Attorney-General, for the State."
    (1) The State proved the ownership, of the suit of clothes as charged in the information to be the property of one Roe Callón. All the evidence is positive and direct that the suit of clothes was the proprety of said Callón. The suit of clothes and the box were all positively identified by witnesses as the suit sold and shipped Callón. By instruction 1, the jury was required to find from the proof that the suit of clothes was the personal property of said Gallon. By finding appellant guilty, the jury evidently found that Callón was the owner of the suit of clothes. The credibility of the witnesses and the weight of their testimony are questions for the jury to determine, and where there is substantial evidence to support the •jury’s verdict, the appellate court will not interfere. State v. Peebles, 178 Mo. 475. (2) Appellant should have specifically requested the court to instruct the jury that they could find defendant guilty of either offense or both or acquit him of either or both, and have saved an exception to the refusal of the court to so instruct. In the transcript is the following request for instructions: “The defendant requests the court to instruct the jury fully on all the points of law in this case.” The exceptions saved to the refusal of the court to instruct on all the law of the case are as follows: “To the giving of which said instructions, by the court, the defendant then and there excepted, and now excepts, as these instructions do not fully set out and instruct the jury on all the law in the case.” Thus, it appears that no specific request was given for an instruction on the point as appellant now makes complaint. State v. Espenschied, 212 Mo. 222; State v. .West, 202 Mo. 137; State v. McCarver, 194 Mo. 742; State v. Groves, 194 Mo. 458; State v. Bond, 191 Mo. 563. (3) In his bill of exceptions appellant did not assign as error the giving of the State’s instructions, but simply said that “the defendant then and there excepted, and now excepts as these instructions do not fully set out and instruct the jury on all the law of the case.” This amounted only to a general exception for failure to instruct on all the law of the case and is not an exception to the instructions given. State v. Espenschied, 212 Mo. 222.
   KENNISH, J.

Andrew Lackey, the appellant herein, was prosecuted by information in the circuit court of St. Clair county for burglarizing the depot of the St. Louis & San Francisco Railroad Company, located at the town of Osceola, in said county, and for having stolen therefrom one suit of clothes, the personal property of one Roe Callón, of the value of $12.50. He was thereafter tried and by a jury found guilty of burglary in the second degree and his punishment assessed at three years in the penitentiary, and also found guilty of larceny, as charged, and his punishment assessed at two years in the penitentiary. After timely motions for a new trial and in arrest were filed and by the court overruled, appellant brings his cause to this court by appeal, and assigns error.

The evidence for the State tended to prove that the Sims-Burks Clothing Company is located at Springfield, this State, and is engaged in the wholesale of ready-made clothing. Sometime in the month of July, 1908, J. J. Jones, a traveling salesman for said company, called on a merchant by the name of J. H- Foster, who was engaged in business at Monegaw Springs, near Osceola, for the purpose of selling him a bill of clothing.

As appellant challenges the sufficiency of the evidence to prove the ownership of the property alleged to have been stolen, and as charged in the information, it is important to set out the evidence offered by the State upon that issue.

Roe Callón, the alleged owner of the suit of clothes was not a witness at the trial, neither was Foster, his employer, and the only evidence in the record to prove ownership in Callón is that given by Jones, the salesman, and is as follows:

“I called on Mr. J. H. Foster of Monegaw Springs, I think it was July 23d of last year, and of course, to sell a bill of clothing; that is the first time I ever met Mr. Roe Callón; he was clerking for him. . . . Mr. Foster said he didn’t have room at that time to put in clothing, but that later he expected to buy some clothing from us; and said he would like for me to 'sell his clerk a suit; that he had been talking of wanting to go to Clinton; and that he hated to spare him; and I said certainly, I will do so; and I took him down to the hotel, and he and his mother selected a suit, 6569 the number, and I took his measurement, and tried on the coat — I didn’t carry anything of the suit except the coat — and told him a 35 coat and vest would fit him nicely; I tried one of them on, and his mother decided with me; then I took his waist measure for the pants, which was 32 in the length of the leg, taking, as we clothing men do, the crotch measure, which would be 33; and, of course, I sent him the order, which was to be shipped, you know, to Mr. Foster, who said he would send a cheek immediately on receipt of the goods. Q. At what price did you sell Callón this suit of clothes ? A. $12.50. That is just what I sell the others that I sell — that is the wholesale price.”

The clothes were shipped by express to J. H. Foster, Monegaw Springs, being billed “collect,” and it was explained that the word “collect” as used in the billing, meant that the consignee, Foster, should pay the express charges on the delivery of the goods, but was not required to pay to the carrier the purchase price. No evidence was introduced as to the terms of the bill of lading or contract between the clothing company and the express company on which the shipment was made, except concerning the express charges, as already stated.

The evidence tended to prove that on the night of August 1, 1908, while the goods were in transit from Springfield to Monegaw Springs and in possession of the express company, stored in the depot of the railroad company at Osceola, the depot was burglarized by the breaking of a pane of glass in the window and through the opening thus made the suit of clothes was stolen. Shortly thereafter the defendant was seen wearing the suit of clothes, which was fully identified as the suit shipped by the clothing company and stolen from the depot at Osceola.

The defendant was a witness in his own behalf and sought to explain his possession of the property thus shown to have been recently stolen, by testifying that he bought the clothes from a peddler about the date of the burglary and larceny charged in the information. There was evidence tending to corroborate the defendant, and also evidence introduced by the State in rebuttal tending to show that the defendant had made contradictory statements as to the manner in which he acquired the suit.

I. Error is assigned in the refusal of the court to give an instruction in the nature of a demurrer to the evidence at the close of the evidence for the State.

After the court had refused this instruction the defendant offered evidence in support of his defense, and therefore is not now in a position to have the ruling of the court upon the instruction asked reviewed on this appeal. The rule, alike in criminal and civil cases upon this subject, is that when the defendant, after an unsuccessful demurrer to the plaintiff’s evidence, introduces evidence in support of his defense, he thereby waives his rights under the demurrer. [State v. Meagher, 49 Mo. App. 571; State v. Martin, ante, p. 680.]

The demurrer to the evidence was not renewed at ■ the close of all the evidence in the case; however, one ground of the motion for a new trial is that the verdict is against the evidence, and the question is thus fairly raised as to the sufficiency of the evidence to support the verdict, upon the entire record.

Counsel for appellant earnestly argues that there-is no evidence in the record to prove ownership in Eoe Callón of the property alleged to have been stolen, at the time of the burglary and larceny charged in the information, and he urges that point as entitling appellant to a reversal of tie judgment and a new trial.

The ownership of-the goods within the building alleged to have been broken into is not an essential element of the offense of burglary. [R. S. 1909, sec. 4520; State v. Tyrrell, 98 Mo. 354; State v. Goehler, 193 Mo. 177; State v. Hutchinson, 111 Mo. 257.]

Although by statute burglary and larceny may both be charged in the same indictment or information, either in the same count or in different counts, they are, nevertheless, regarded as separate offenses and should be treated as such when so charged. [State v. Hutchinson, 111 Mo. 257; State v. Hecox, 83 Mo. 537; State v. Owens, 79 Mo. 620.]

From the principles of law announced in the foregoing authorities it follows that if the correctness of appellant’s contention as to the failure to prove ownership as charged be conceded, the record being otherwise free from error, the only effect would be to require a reversal of the judgment for the larceny and an affirmance of the judgment for the burglary. This necessarily results because while ownership- is an essential element in a charge of larceny, it is not in a charge of burglary. [State v. Kelsoe, 76 Mo. 505; State v. Alexander, 56 Mo. 131.]

It is settled law that the ownership of the property stolen- is an essential element in a charge of larceny and must be properly alleged in the indictment or information if the name .of the owner is known, and proved by sufficient evidence, or the conviction cannot be sustained. [State v. Nelson, 101 Mo. 477; State v. Lawler, 130 Mo. 367; State v. Goforth, 136 Mo. 111; 25 Cyc. 125; 2 Bishop’s New Crim. Law, sec. 2788; 3 Greenleaf on Ev. (16 Ed.), see. 161.]

In Greenleaf on Evidence, supra, the law as to the proof of ownership- is stated as follows: “As every larceny includes a trespass, which involves a violation of another’s possession, it is essential for the prosecutor to prove that the goods were the property of the person named as the owner, and were taken from his possession. The property may be either general or special, and the possession may be actual or constructive; proof of either of these being sufficient to support this part of the indictment. For the general ownership of goods draws after it the legal possession, though they were in the actual custody of a servant or agent; and the lawful possession, with a qualified property as bailee or agent, is sufficient proof of ownership, against a wrong-doer. But it must appear that the goods were stolen from the prosecutor; and if he, being a witness, cannot swear to the loss of the articles alleged to have been stolen from him, the'prisoner must be acquitted.”

As stated in the preceding excerpt from Grreenleaf, the ownership necessary to support a charge of larceny may be either general or special and the possession of such owner may be actual or constructive. If the property stolen is in the actual possession of a person other than the general owner the latter has a constructive possession, and the ownership in such case may be properly alleged and proven either in the special owner, having the actual possession, or in the general owner having a constructive possession by reason of such ownership.

Bearing the foregoing principles of the law of larceny in mind let us examine the facts of the case at bar in order to determine whether or not the evidence at the trial supported the allegation in the information as to the ownership of the clothes as laid. For some reason which does not appear, neither Roe Callón, the alleged owner of the suit of clothes, nor- Foster, to whom the clothes were shipped, appeared as a witness in the case and the only evidence upon that issue is that of the salesman of the clothing company. He testified that he called upon the merchant, Foster, to sell him a bill of clothing; that Foster was not ready then to buy, but expected to make a purchase from that company later and requested the salesman to sell his clerk a suit of clothes; that the clerk’s measurements were taken; the goods selected and the price agreed upon, which was the wholesale price. In accordance with the agreement and arrangement thus made the suit was to be forwarded by express to Foster, and the latter, immediately upon receipt of the goods, was to pay the express charges and send a check to the clothing house for the purchase price. While the suit'was in course of shipment and in the possession of the express company in the depot at Osceola the alleged larceny was committed. From the facts in evidence and the law applicable thereto it is clear that ownership could properly have been laid in the information in the carrier as special owner and in actual possession of the goods stolen. And as delivery of the goods by the vendor to the carrier is a delivery to the consignee, 'unless the contract of shipment provides to the contrary, the possession of the carrier vested a constructive possession in Foster, the consignee, and therefore the ownership of the goods alleged to have been stolen could have been properly laid in him. The' transaction as to the sale, delivery of and payment for the clothes seems to have been between the clothing company and Foster, and while the suit of clothes was ordered for Callón, we are unable to see any evidence in the record showing ownership or possession in Callón sufficient to sustain the averment of ownership in the information. It follows that there was a variance between the information and the evidence as to the fact of ownership.

It remains to be considered whether such variance was material to the merits of the case and prejudicial to the rights of defendant, for if not the judgment cannot be reversed upon that ground.

Section 5114, Revised Statutes 1909, is as follows: ‘ Whenever on the trial of any felony or misdemeanor, there shall appear to be any variance between the statement in the indictment or information and the evidence offered in proof thereof, in the Christian name or surname, or both Christian and surname, or other description whatsoever, or any person whomsoever therein named or described, or in the name or description of any matter or thing whatsoever therein named or described, or in the ownership of any property named or described therein, such variance shall not be deemed grounds for an acquittal of the defendant, unless the court before which the trial shall be had shall find that such variance is material to the merits of the case and prejudicial to the defense of the defendant.”

In the case of State v. Nelson, 101 Mo. 477, a case of burglary and larceny, ownership of the stolen property was alleged in Elizabeth F. Vanduzer, while upon the trial it was shown by the evidence that Gertrude Vanduzer, a daughter, who lived with her mother, and who was over the age of’ 18 years, was in fact the owner, and that the mother had no interest whatever in the jewelry alleged to have been stolen. Discussing the facts in that case and the above statute as applicable thereto, this court (page 482) said: “"When we look at the circumstances disclosed by the evidence, it is very clear that the variance could not, and did not, in the least prejudice the defendant’s defense. The merits of the case in nowise depended upon the question whether -the husband or the wife was the owner of the house burglarized; nor upon the question whether the mother or daughter was the owner of the jewelry.”

The facts of the case now before us do not differ matérially from the Nelson case so far as the question of variance is concerned. What was said in that ease as to the defendant not being prejudiced by reason of the variance is equally applicable to this case, and as the trial court did not find the variance material to the merits and prejudicial to the defense, under the authority of the Nelson case we must hold that the appellant is not entitled to a reversal of the judgment for the larceny upon that ground.

II. Error is assigned in the giving of instructions on behalf of the State over the objections of the defendant, but as no exception was preserved in the motion for a new trial to the action of the the court in giving instructions, that question cannot now be reviewed in this court. [State v. Crites, 215 Mo. 91; State v. Espenschied, 212 Mo. l. c. 222; State v. Long, 209 Mo. l. c. 384]

III. Before the instructions were given to the jury the defendant requested the court “to instruct the jury fully upon all the points of law in this case,” and again after the instructions were given excepted to the action of the court in not instructing fully on all questions of law in this' case. He did not indicate to the court any other question upon which he desired an additional instruction or instructions. Appellant now contends that the court erred in not instructing the jury upon all questions of law necessary for the information of the jury.

The jury was instructed by the court in instruction number 1 that “under the evidence in this case you may find the defendant guilty of both offenses, or you may acquit him of both offenses, according as you may find the facts to be from the evidence.” No instruction was given authorizing the jury to convict of one offense and acquit of the other, and the jury was thus left no alternative but to convict the defendant of both offenses charged, or to acquit him of bdth.

The defendant was clearly entitled under the law to instructions upon each of the two offenses charged as fully as though he had been tried separately for each felony. He had the right to have the jury pass upon his guilt or innocence of each offense and to acquit him of either, unless he was found guilty beyond a'reasonable doubt. This was not only Ms undoubted right, but it was the prerogative of the jury, regardless of whether the evidence in support of one charge was equally strong in support of the other, and regardless of how unreasonable and illogical it might appear to convict of one and acquit of the other. Neither was this a mere abstract or theoretical right wMch could not in any event have affected the result of the trial. For as every practitioner well knows from experience it is a common occurrence, when a defendant is put upon his trial on more than one charge in the same indictment, for the jury to convict of one and acquit of the others, notwithstanding the fact that the same character of evidence and of equal probative force may have been introduced in support of all.

In the case of State v. Hutchinson, 111 Mo. 257, this court, discussing the question now under consideration (page 264), said: “It is made the duty of the court to instruct the jury on all questions of law arising in the case whether asked or not. [State v. Palmer, 88 Mo. 571.] It was clearly the duty of the court to instruct the jury upon the law of both larceny and burglary. The court did instruct the jury as to what their verdict should be in case they found defendant gmlty of burglary alone, and what it should be should they find him guilty of both burglary and larceny, but wholly omitted to inform them that they might acquit of burglary, and convict of larceny, and what their verdict should be in case he should be found guilty of larceny alone. In this omission the court committed reversible error. [State v. Hecox, 83 Mo. 537, and cases cited.]”

It is ably argued by the learned Attorney-General that as the appellant excepted generally to the failure of the court to instruct on all the law of the case but did not intimate or suggest to the court the question of law upon which he desired further instructions, he cannot now be heard to complain, and the following cases are cited in support of this contention: State v. West, 202 Mo. l. c. 137; State v. McCarver, 194 Mo. l. c. 742; State v. Groves, 194 Mo. l. c. 458; State v. Bond, 191 Mo. l. c. 563.

It is the recognized law of this State that upon certain questions arising in a criminal case, which have been denominated “collateral questions” (State v. McNamara, 100 Mo. l. c. 107; State v. Brooks, 92 Mo. 587), the failure of the court to instruct the jury thereon will not amount to prejudicial error, unless an instruction was requested by the defendant upon the subject. However, the cases cited and the statute making it the duty of the court to instruct on all questions of law necessary for the information of the jury, whether requested or not, should not be construed as meaning that the failure of the court to instruct upon an essential element of the offense or to give any instructions whatever, would not be reversible error in the absence of a showing that the defendant had expressly called the attention of the court to the specific questions upon which instructions were desired. •

In the recent case of State v. Nicholas, 222 Mo. 425, it was insisted by the Attorney-General that the defendant was not in a position on appeal to complain of the failure of the court to instruct, for the reason that he had not asked an instruction upon the question referred to. Answering that contention, Burgess, J., speaking for this court, said: “But aside from all this, it was plainly the duty of the court, by its instructions, to require the jury to find all of the essential elements of an offense embraced within the charge, and designate to them the nature and character of the punishment they were authorized to assess.”

It was of vital importance to the defendant upon his trial for the two felonies charged against him that the jury should have been authorized by a proper instruction to convict or acquit the defendant of either offense, according as they should find and believe from the facts and circumstances in evidence. The defendant requested the court at the time to instruct the jury upon all questions of law in the case, excepted for the failure of the court so to do, and properly saved his exceptions in the motion for a new trial. Because of the failure of the court to give srlch an instruction, the judgment is reversed and the cause remanded.

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


source: Caselaw Access Project

author: GANTT, P. J.

license: Public Domain

text:
    THE STATE v. CHARLES H. CARSON, Appellant.
    Division Two,
    November 29, 1910.
    1. APPELLATE JURISDICTION: Constitutional Question. Where defendant insisted in his prayer for instructions and declarations of law that his conviction, under the information and evidence, would be in violation of the State and Federal Constitutions, his appeal from a judgment finding him guilty of unlawfully practicing medicine and surgery in this state, and assessing his punishment at a fine of $500, is to the Supreme Court.
    2. MOTION FOR NEW TRiAL: Sentence Immediately After Verdict. Where a jury was waived and the cause tried to the court, and the court found defendant guilty, and immediately, without giving his counsel an opportunity to file a motion for a new trial, rendered his judgment, to which action defendant at the time excepted and gave notice that he would file his motion for a new trial within the statutory time, and did so, defendant did all the law demanded at his hands and did not lose the benefit of his motion, and his exceptions will be considered on appeal.
    8. PHYSICIAN: Not Licensed After Act of 1901: Registered in 1880. Under the Act of 1901, providing that no person “except physicians now registered” shall practice medicine without a license from the State Board of Health, a physician, registered in 1880 under the Act of 1877, is not required to have a license from said board, and is exempt from the penalties of the Act ' of 1901.
    4. -: -: -: Effect of Act of 1883: Restoring Former Right. The Act of 1883 required a graduate of medicine to present his diploma to the State B'oard of Health for verification and obtain a license; but it did not require him to register, and it was repealed by the Act of 190T; and though defendant was not licensed under the Act of 1883, that fact did not require him, if he was registered in 1880 under the Act of 1877, to obtain after 1901 a license to practice. Even if the Act of 1883 impliedly rendered his. registration under the Act of 1877 ineffective, the Legislature could restore its efficacy by express provision, as it did in the Act of 1901, which expressly said it should not apply to “a physician now registered.”
    5. -: -: Misconduct. Where defendant is charged in the information with the single offense of practicing medicine without a license from the State Board of Health, he cannot be tried for misconduct that would have authorized the board to revoke his license.
    Appeal from Jackson Criminal Court. — lion. E. E. Porterfield, Judge.
    Reversed.

      Reed, Attoood, Tates, Mastín & Harvey, John T. Harding, Joseph 8. Brooks and Dana, Cowherd & In-graham for appellant.
    (1) A physician is registered under the Laws of 1901, who filed a diploma, and caused his name to be entered on the “Roll of Physicians,” in the office of the clerk of the county court, and received a license signed by the county clerk on May 15, 1880, said acts being in conformity with the requirements of the Laws of 1877. By complying with the requirements he became a “registered” physician within the meaning of the law. State v. Morgan, 96 Mo. App. 343; State v. Davis, 194 Mo. 485. (2) Repeals by implication are not favored by the law where they affect rights which have accrued under prior valid laws. There was no clause in the law of 1883 revoking licenses issued to physicians and surgeons under the Law of 1877. State v. Evans, 83 Mo. 319; State v. Andrews, 26 Mo. 171; State ex rel. v. Baker, 32 Mo. App. 98; Hannibal v. G-uyatt, 18 Mo. 515; Foster v. Dowe, 29 Me. 442; State ex rel. v. Vernon County, 53 Mo. 128; Bank v. Snelling, 35 Mo. 190; State v. Patrick, 65 Mo. App. 653. (3) The court erred in refusing to declare the law as requested by defendant in its instructions 2a and 3a, to the effect that the defendant should be discharged for the reason that it appeared in evidence that the private citizen who filed the affidavit on which the information was based had no knowledge of the facts proven at the time the affidavit and information were filed. State v. Meadows, 106 Mo. App. 604; R. S. 1899; secs. 2477 and 2478; State v. Fuser, 75 Mo. App. 263; State v. White, 55 Mo. App. 356; State v. Shaw, 26 Mo. App. 383; State v. Webster, 206 Mo. 558.

      'Elliott W. Major, Attorney-General, and John M. Atkinson, Assistant Attorney-General, for the State.
    (1) The first act regulating the practice of medicine and surgery passed in this State, is the Act of 1874, set out in the statement of this case. Hnder the Act of 1874 no one was to be allowed to practice medicine or surgery in this State, unless he had been graduated from a medical college or university with the degree of doctor of medicine, and he was required to register his diploma in the county of his' residence. Section 3 of said act excepted from its requirements men who were engaged in the practice of medicine at the time of the passage of said act, or those who entered into the practice of medicine prior to the first day of September, 1874, and permitted said excepted class to sign the roll of physicians in the county clerk’s office the same as those having a diploma. The Act of 1877 repealed the Act of 1874, but section 1. of said act contained the proviso that said act should “not apply to any person who may now be authorized to practice medicine or surgery in this State by virtue of existing laws of this State in relation thereto.” The Act. of 1877 provided that persons having a diploma might practice medicine by having a certified copy of the same filed with the county clerk, and by signing the roll of physicians the same as was provided by the Act of 1874. Under Sec. 3 of the Act of 1874 (known as the “quack section”) any person was authorized to sign the roll of physicians who was engaged in-the practice of medicine on the first day of September, 1874. But few changes were made in the Act of 1877, and the proviso, as above quoted in the Act of 1877, was evidently inserted by the Legislature for the protection of those who had no diploma, and who had registered under section 3 of the Act of 1874. Under the Act of 1883 it was required of one who would practice medicine or surgery, that he should be a graduate in medicine, and exhibit his diploma for examination and verification to the State Board of Health, or if he should not be a graduate, he should stand an examination before the State Board of Health touching his learning, qualification and fitness to practice medicine and surgery. For the first timé said Act of 1883 required the State. Board of Health to issue certificates to those having the requirements of the law; the board was also to have two forms of certificates, one for those who were graduates of medical colleges and the other for those found on examination by the board of health to possess the necessary qualifications. The holders of these certificates were required to have them registered in the county clerk’s office of their residence. In section 11 of said Act of 1883 appears this proviso: “The provisions of this article shall not apply to those persons who have been practicing medicine five years in this State.” By this proviso the Legislature again provided for all who had registered under section 3 of the Act of 1874 by permitting such persons to practice without a diploma and without taking the examination. The appellant having registered on May 15> 1880, under the Act of 1877, he had not, therefore, been engaged in the practice for five years, and did not come within the class excepted in section 11 of said Act of 1883. If appellant had a diploma, as stated in the certificate of the county clerk, offered in evidence, he was then in a position to have filed the same with the State Board of Health, and to have obtained a certificate from said board authorizing him to practice medicine and surgery in this State. This he could have done any time after taking effect of the Act of 1883, and until it was repealed by the Act of 1901. The latter act required all physicians thereafter to take an examination before receiving a certificate from said board, authorizing such person to practice medicine and surgery. Appellant having failed to comply with the Act of 1883, and not having been engaged in the practice for five years before the passage of the Act of 1883, and, therefore, not coming within the exception mentioned in section 11 of said act, he was “not now a registered physician” within the meaning of the law to practice medicine, as provided in section 1 of the Act of 1901. State ex rel. v. Groodier, 195 Mo. 551; State v. Hathaway, 115 Mo. 36 ; State v. Smith, 60 Mo. App. 283. The cases of State v. Davis, 194 Mo. 485, and State v. Morgan, 96 Mo. App. 343, cited and relied on by appellant, are not in point, and do not sustain the appellant in his contention. (2) While it is true that repeals by implication are not favored, yet, when the last general act is so inconsistent that it and the former act cannot stand together, the courts do not hesitate to hold that the former act is repealed hy implication. Tall v. Gillham, 187 Mo. 393; State v. Taylor, 186 Mo. 608; Evans v. McFarland, 186 Mo. 703; Kreyling v. O’Reilly, 97 Mo. App. 384. (3) The record in this case shows that appellant did not file his motion for a new trial and in arrest of judgment until after judgment. Hence the motions were filed out of time, and there is nothing for review except the record proper. R. S. 1899, sec. 2689’; State v. Rosenblatt, 185 Mo. 118; State v. P'ritchett, 219 Mo. 696.
   GANTT, P. J.

The prosecuting attorney of Jackson county began this prosecution on November 19, 1906, by filing the following information in the criminal court of said county.

“Affidavit being filed according to law, now comes Isaac B. Kimbrell, prosecuting attorney for the State of Missouri, in and for the body of the county‘of Jackson, and informs the court that Charles H. Carson, on the-day of May, 1906, at the county of Jackson, State of Missouri, did then and there unlawfully practice medicine and surgery in the said State of Missouri, and did then and there attempt unlawfully to treat the sick and others afflicted with bodily and - mental infirmities, without first obtaining and having a license from the State Board of Health and without being then and there a physician registered according to law, against the peace and dignity of the State. ’ ’

The affidavit on which this information was based was made hy George Creel.

The defendant being arrested, filed his demurrer to the information, which was overruled, and he was then duly arraigned. A jury was waived and the cause tried to the court, and as will hereafter he noted, defendant was found guilty and his punishment assessed at a fine of five hundred dollars. For the reason that tlie defendant insisted in Ms prayer for instructions and declarations of law that his conviction under- the information and evidence would be in violation of the State and Federal Constitutions, and renewed these objections M his motion for new trial, this court has jurisdiction of this appeal.

When the information was filed the names of Dr. Adcock and George Creel were indorsed thereon as witnesses.

On the part of the state the testimony tended to prove that in July, 1906, the defendant treated a little boy- six years old, the child of Mrs. W.‘ H. Kemper, for a lame leg. When Mrs. Kemper was offered as a witness defendant objected on the ground that her name was not indorsed on the information, which objection the court overruled. On cross-examination, Mrs. Kemper testified she did not see Mr. Creel until the winter of 1907, long after the mformation was filed, when he came to her home to find out if Dr. Carson had treated the boy and how.

Dr. Adcock’s testimony tended to show that the defendant admitted to him he had treated a case of appendicitis. The patient had been brought to him from Kansas in October or November, 1906. To this evidence defendant duly objected and excepted on the ground it was a distinct offense from the one on which the state relied for conviction in this case and on which it had' elected to prosecute.

At the close of the state’s case the defendant requested the court to acquit him, on the grounds that the mformation did not individuate any offense and did not name any particular person whom the defendant had treated medically, basing his contention on the language of the act, “and treating each patient shall be regarded as a separate offense.”

After the court refused to acquit, the defendant offered in evidence a record kept in the office of the county clerk known as the “Roll of Physicians and Surgeons,” and especially that part of said roll-showing defendant was registered therein.

The defendant then read in evidence, after establishing the official character of the officer who issued it and after proving the genuineness of his signature and that the record was kept in the office of the county clerk, the following certificate:

PHYSICIAN’S CERTIFICATE.
Know all men by these presents, that C. H. Carson, a resident of Kansas City, in the county of Jackson and State of Missouri, has this day complied with the requirement of the law of the State of Missouri, entitled, An Act to regulate the practice of medicine and surgery in the State of Missouri; approved April 28, 1877; by filing a copy of a diploma sworn'to by him, duly issued to him on the 2nd day of June, 1879, by the American Health College of Cincinnati, which said college is located- in the city of Cincinnati, State of Ohio, and is duly established under and by virtue of the laws of the State of Ohio. Now therefore the said C. H. Carson is hereby authorized to practice the profession of medicine and surgery in the county of Jackson under and in accordance with the provisions of said act.
In testimony whereof I have hereunto set my hand and affixed the seal of the county court of said county at office in the city of Independence, this 15th day of May, 1880.
W. Z. Hickman, Clerk.
[seal] By B. G-. Wilson, Je., D. C.

I. The contention- of the State is that this court is restricted to a review of the record proper, for the reason it appears that the court, after finding defendant guilty, proceeded to impose its sentence before the defendant had filed his motion for a new trial, and as the statute provides in criminal cases the motion for a new trial and in arrest of judgment must be filed before sentence, the exceptions saved on the trial and attempted to be reviewed by the motion cannot be considered by this court. [Secs. 2689 and 2690, R. S. 1899.] In State v. Rosenblatt, 185 Mo. 114, it appeared the defendant withdrew his plea of not guilty and pleaded guilty and by agreement his punishment was assessed at imprisonment in the county jail for six months. Afterwards he filed his motion in arrest, and it was held too late, but as the indictment was a part of the record proper it was fully considered on his writ of error. Afterwards in State v. Pritchett, 219 Mo. 696, the jury found defendant guilty and assessed Ms punishment. “Whereupon the defendant was informed by the court that he had been convicted of murder in the second degree and his punishment assessed at ten years in the penitentiary, and the court asked him if he had any legal cause to show why judgment should not be pronounced against him according to law, and, the defendant failing 'to show such cause, judgment and sentence was passed upon him in accordance with the verdict.” Thereafter defendant filed his motion for new trial, and the question was whether it was not too late and whether he had not waived his right to file a motion for a new trial and it was ruled he had waived it. It will be observed that in Rosenblatt’s case, he pleaded guilty and his punishment was assessed by agreement and he was sentenced and he then filed Ms motion in arrest, and in Pritchett’s ease, he was expressly called upon by the court to show cause why the sentence should not be pronounced and he made no showing. In this case the record discloses that when the court came to pass upon the case, he announced his reasons for his verdict, and immediately, without giving counsel for defendant opportunity to file a motion for a. new trial, rendered his judgment, to which action of the court the defendant at the time by Ms counsel excepted and gave notice that he would file his motion for a new trial within the statutory time, and within the four days did in fact file his motion for a new trial. Thus an entirely different case, on the facts, is presented. It is obvious that there was no waiver of Ms right to file his motion, and that he could not have acted more promptly. If it is to be held that the right ■to review errors alleged to have been committed during the trial can be cut off by the court pronouncing the sentence before any opportunity is afforded to file a motion for a new trial, the statute affords no protection to a defendant against errors which may occur during the trial and will be a dead letter. As the defendant promptly excepted to this action of the court and gave notice of his motion and filed it within the time allowed by positive statute, we think he did all that the law demanded at his hands and that he did not lose the benefit of his motion.

The failure of the court to set aside its sentence after counsel excepted and gave notice of his motion, was, we are convinced, an inadvertence, in view of its subsequent action in considering the motion, but to hold that such a failure requires the motion to be ignored would set a dangerous precedent, and one which the Legislature never intended. Accordingly, if necessary, the exceptions will be duly considered.

II. It appears that the defendant on the 15th day of May, 1880, filed a copy of his diploma from a medical colleg’e in the city of Cincinnati, sworn to by him, as required by the Act of the General Assembly of Missouri, approved April 28, 1877, and thereupon was duly registered on the roll of physicians and surgeons in the office of the clerk of the county court of Jackson county, and received a license, reciting these facts, under the-hand and seal of the county clerk.

The information was filed under the Act of 1901, Laws 1901, p. 208, which provided, in section 5 thereof, that: “Any person except physicians now registered, practicing’ medicine or surgery in this state, and any person attempting to treat the sick or others afflicted with bodily or mental infirmities without first obtaining a license from the State Board of Health, as provided in this act, shall be deemed guilty of a misdemeanor,” etc. It is conceded defendant has never received a license to practice medicine from the State Board of Health. So that the question is, was the defendant, by reason of his registration under the Act of 1877, “a physician now registered” within the meaning of the Act of 1901? The state insists he was not, the defendant that he was.

After the defendant was duly registered under the Act of 1877, the Legislature passed the Act of 1883, (Laws 1883, p. 115). This act provided that every person practicing medicine and surgery should possess the qualifications required by that act. If a graduate of medicine, he should present his diploma to the State Board of Health for verification as to its genuineness, and if -found genuine the board should issue him a license. If not a graduate, the person practicing medicine should present himself to the said board and submit himself to such examination as it might require, and if satisfactory the board should license him. This act expressly exempted students who might prescribe under the supervision of a preceptor, and did not apply to gratuitous services rendered in cases of emergency nor to .commissioned surgeons of the United States Army, Navy and Marine Hospital service. In a subsequent section it was provided, that the act should not apply to those that had been practicing medicine five years in this state prior to the enactment of that law. The learned criminal court held that a physician registered under the Act of 1874 was a registered physician within the meaning of the law of 1901, and a physician registered under the Act of 1877, five years before the Act of 1883 went into effect, would be registered within the purview of the law of 1901, but inasmuch as defendant was not registered until 1880', less than five years before 1883, he was not a registered physician within the meaning of the law of 1901. But an examination of the law of 1883 reveals that it contained no provision as to prior registration. It merely provided that five years’ practice should exempt a physician from its provisions requiring a license from the board of health. The construction which the state seeks to have us give the Act of 1901 would necessitate our amending the statute so that it would read: “Any person except physicians, now registered and qualified to practice under the Laws of 1883.” Defendant was not prosecuted for violation of the Act of 1883 while it was in force. That act was in turn repealed by the Act of 1901, and five years’ practice no longer afforded protection. Thus if a physician had practiced five years before 1883, but was not registered, he would clearly fall under the condemnation of the Act of 1901, because not registered. What effect then had the Act of 1901 upon the registration of defendant’s diploma and certificate in 1880. The diploma was registered under the law of 1877, and no subsequent act required or permitted it to be registered again. While it might or might not have protected him, from prosecution during the life of the Act of 1883, what was there to prevent the Legislature repealing the Act of 1883, as it did, and providing that his registration under the Act of 1877 should protect' him from prosecution and permit him to continue his practice? No act of the Legislature had revoked the license the state had granted him in 1880, and no tribunal authorized to revoke it had done so. Even if it should be said the Act of 1883 impliedly rendered his registration ineffective, it cannot be doubted that the Legislature could restore its efficacy by express provision as it did in 1901. We are unable to see any substantial reason why a physician registered under the Act of 1874 should be within the exception to the Act of 1901,' and one registered under the Act of 1877, under the broad language of the exception of the Act of 1901, does not also fall within the Act of 190Í. Certainly the defendant was a registered physician, and it was competent for the Legislature to make that registration authority to continue the practice even though no such right attached to it under the Act of 1883. The learned criminal court took the view that if defendant had practiced medicine five years prior to the enactment of the law of 1883, he would have been protected from this prosecution, as he would then have been a “registered physician’’ within the law of 1901, but the Act of 1901 makes no reference to an actual practice for any length of time, neither does it specify a registry-under. any particular act, either 1874, 1877 or 1883. It is clear that if defendant had practiced medicine five years before 1883 but was not registered under some law, he had no right to practice under the exception to the Act of 1901. The conclusion we have reached on this question is supported by the decision of the Kansas City Court of Appeals in State v. Morgan, 96 Mo. App. 343, l. c. 345-6, and by the St. Louis Court of Appeals in State v. Hellscher, 149 Mo. App. 230, in the first of which it was ruled that, owing to the saving clauses in the subsequent acts, the competency of a physician to practice medicine under the Act of 1874 had not been interfered with by subsequent'legislation, and in the latter of the two that the Act of 1907 applied only to those physicians who had not been licensed or registered as physicians prior to the Act of 1901, and that an information which failed to charge that the accused was a physician “not registered as such on or prior to March 12, 1901” was fatally defective. Our conclusion is that as defendant was concededly registered and licensed under the Act of 1877, he came squarely within the exception to the Act of 1901, as “a physician now registered,” and that no subsequent act of the Legislature has revoked the license given him under the Act of 1877, and therefore the first instruction of the court requiring him to have been also licensed by the board of health was erroneous.

Having reached this conclusion we deem it unnecessary to pass upon the numerous other questions so ably discussed by counsel on both sides as to the'sufficiency of the information and like questions. It is to be noted that defendant is charged in this information with the single offense of practicing without a license from the board of health and without being a physician registered according to law. He is not before us on a charge of misconduct which would have justified the State Board of Health in revoking his license. The facts were fully developed and there is no occasion for remanding the cause for a new trial.

The criminal court upon the admitted and established facts should have acquitted the defendant, and for refusal so to do its judgment is réversed and the defendant discharged.

Burgess and Kennisfo, JJ., concur.


text:
    THE STATE v. JESSE HANSON, Appellant.
    Division Two,
    November 29, 1910.
    1. INFORMATION: Felonious Wounding. An information charging that defendant, “with a deadly weapon . . . did then and there feloniously, willfully, on purpose and of his malice aforethought, forcibly strike and beat,” etc., charges that the wounding was feloniously done.
    2. EVIDENCE: Res Gestae: Other Difficulties. Testimony as to what parties to other and independent difficulties occurring on the same night said and did, and as to what witnesses who were' present said and did about those difficulties, is not a part of the res gestae and should be excluded.
    3. MANSLAUGHTER IN THIRD DEGREE: Design to Effect Death. Under the statute declaring that “the killing of another in a heat of passion, without a design to effect death, by a dangerous weapon, in any case except where the killing is justifiable or excusable, shall be deemed manslaughter in- the third degree,” no instruction should be given for manslaughter in the third degree where the killing was intentional and the act of defendant can only be ascribed to a design to effect death; but if in a heat of passion he struck the deceased with a dangerous weapon under such circumstances that a jury might well say he did not design to effect death by the blow, then such instruction is proper.
    4. -: -: Facts of Case. There had been no previous grudge between defendant and deceased. They and others had attended religious services at a schoolhouse, and after the services they went into the yard, and one of them kicked a club, and defendant remarked that the club was deceased’s, who at once called defendant a liar, to which defendant replied, “Don’t call me a liar.” Thereupon deceased advanced in a hostile manner and was warned by defendant to stand back or he would hit him with a stick he had picked up after the altercation began. Deceased continued to advance, with his .right hand in the bib of his overalls, and thereupon defendant struck him upon the head with the club, and as deceased fell a revolver fell out of his hand. Held, that there was ample evidence of heat of passion, without a design to effect death, to submit the question of manslaughter in the third degree under Sec. 4462, ,R. S. 1909.
    6. -: Heat of Passion. Words alone, however provoking or insulting, do not furnish an adequate cause for passion. But the abusive or insulting language may be 'given in- evidence as tending to explain and give character to the act of deceased, such as a demonstration of intended violence. And in this case the calling of the defendant a liar was properly admitted as bearing on the issue of whether defendant struck deceased in a heat of passion.
    6. PRIOR OPINIONS: Explained by Facts and Context. All adjudications are to be considered only in connection with, and as explained by and limited to, the essential circumstances constituting the case or that portion of the case on which the decision rests.
    Appeal from Crawford Circuit Court. — Hon. L. B. Woodside, Judge.
    Affirmed.

      Frank H. Farris and Harry Clymer for appellant
    (1) The information in this case is insufficient to support the judgment, and it is fatally defective in that it fails to charge the wounding was done feloniously. The homicidal act itself must he charged to have been done feloniously, and this information, does not meet that requirement of the law. State v. Green, 111 Mo. 585; State v. Williams, 184 Mo. 261; State v. Johnson, 191 Mo. 177; State v. Woodward, 191 Mo. 617. (2) The court erred in excluding parts of the testimony of George Chandler, Ellis Huitt, and Ike McGeethin, for the reason that the same was a part of the res gestas. All of the circumstances and incidents of the fatal act, or difficulty, and all of the circumstances leading to or forming the basis of the action of the defendant or deceased, are said to be of the res gestae. Acts and statements of parties to a homicide from the beginning to the conclusion of the fatal difficulty form part of the res gestae, and are admissible as such. This rule covers the acts and declarations of others than the accused and deceased, who participate in the difficulty. Acts and statements of third persons present at the homicide which form part of the transaction are competent as part of the res gestae. Circumstances immediately before or preceding the homicide, which form part of the transaction, and circumstances immediately following the homicide, and forming a continuation of the transaction are admissible as a part of the res gestae. 11 Ency. Ev., pp. 404, 405 and 506 ; 6 Ency. Ev., pp'. 610, 611 and 612; State v. Woodward, 191 Mo. 633 ; State v. Cavin, 199 Mo. 158; State v. Yaughan, 200 Mo. 17; State v. Baker, 209 Mo. 450-. (3) The court erred in giving-an instruction authorizing a verdict for manslaughter in the third degree, as there was no evidence which tended to show that the defendant was guilty of such offense. Under the testimony the defendant was guilty of either murder in the second degree, or manslaughter in the fourth degree, or he should have been acquitted on the ground jof self-defense. State v. Watson, 95 Mo. 411; State v. Pettit, 119 Mo. 410; State v. Nocton, 121 Mo. 537; State v. Bowles, 146 Mo. 6; State v. Barutio, 148 Mo. 249; State v. Reed, 154 Mo. 122; State v. Hollingsworth, 156 Mo. 178; State v. Yinso, 171 Mo. 576; State v. McKenzie, 177 Mo. 699; State v. Robertson, 178 Mo. 496; State v. Darling, 199 Mo. 168. This court has repeatedly held that there can be no manslaughter in the third degree where the killing is either willful or intentional. State v. Yhitson, 95 Mo. 415; State v. Robertson, 178 Mo. 503. There can be no. such thing as manslaughter in the third degree under this statute where the killing is intentional, or done with a deadly weapon in a manner likely to produce death, even though there is no express purpose or intention to kill. State v. Pettit, 119 Mo. 416; State v. Nocton, 121 Mo. 550; State v. Strong, 153 Mo. 555; State v. Vinso, 171 Mo. 591. If the defendant was aroused to a sudden passion by the attack of the deceased, and in the quarrel with deceased, struck the deceased, without malice, and killed him, then it was only manslaughter in the fourth degree. State v. Bowles, 146 Mo. 15. Even an intentional killing done with a . deadly weapon in hot blood and without malice, was but manslaughter at common law, and under our statute is manslaughter in the fourth degree. State v. Eeed, 154 Mo. 131. There can be no question but that the defendant was entitled to the instruction on the theory of self-defense. If this is true, then the court erred in instructing on manslaughter in the third degree. Self-defense, as defined by the Supreme Court of this state, is an affirmative, positive, intentional act, and it necessarily follows that if this is true, an instruction in relation to manslaughter in the third degree should not be given in conjunction with an instruction relative to self-defense, since the latter embraces every self-protective intention known to the law, even though it embrace the taking of life. State v. Strong, 153 Mo. 555.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    (1) The appellant’s first assignment of error in his brief, that the homicidal act was not charged to have been done feloniously, is not well taken. These facts are specifically alleged, and every essential element necessary to constitute the crime of murder in the second degre¿ is charged. State v. Little, 228 Mo. 273; State v. Heath, 221 Mo. 570; State v. Barrington, 198 Mo. 36; State v. Privet, 175 Mo. 223; State v. Kindred, 148 Mo. 270; State v. Richardson, 194 Mo. 329. (2) Gregory and Green had nothing to do with the difficulty between the appellant and the deceased, and there is no evidence offered to show that either, the appellant or the deceased was present when these parties came into the house. There is no evidence introduced showing that appellant struck the fatal blows before or after Green and Gregory came into the schoolhouse. Underhill on Criminal Evidence, secs. 95; 118. "Whatever Green or Gregory might have said as they came into the house after the row would not tend to prove any issue before the jury, as the appellant admits that he struck deceased a fatal blow. Declarations must be contemporaneous. Underhill on Ev., secs. 96, 119. It is impossible to fix any general rule. Lund v. Inhabitants, 9 Cush. 3643. Gregory and Green were bystanders, or third persons, unconnected with the homicide. Their declarations' must possess the character of declarations forming a part of the res gestae before they are received, and the statements accom.panying and explanatory of the act must-be the natural concomitants of the act before admitted. They also must show the means and mode of the killing, and the declarant whose language is offered as evidence must have been more than a mere observer or bystander at the occurrence he describes. It must not only appear that he was present, but that he was an active participant, either by word or act, in the event. There is no pretense that Gregory or Green was a participant in the homicide. Underhill on Ev., sec. 101; Wharton’s Crim. Ev. (9 Ed.), secs. 262, 263, 264, 266; 1 Roscoe’s Criminal Ev. (8 Ed.), sec. 26; 1 Bishop’s Criminal Proced., sec. 1087; Bradshaw v. Commonwealth, 10 Bush (Ky.) 576-578; State v. Moore, 38 La. Ann. 66; Flynn v. State, 43 Ark. 289. Testimony as to what was said and done after the difficulty was over, unless confined to the actual participants, should be excluded. State v. Long, 209 Mo. 382. (3) Appellant takes the position that there was no evidence which tended to show that he was guilty of manslaughter in the third degree. He says in his brief, that if he was guilty of anything it was murder in the second degree, or man-, slaughter in the fourth degree, and cites numerous authorities of this court in support of this contention. An examination of these authorities goes to the effect that where the killing is either willful or intentional, it is not manslaughter in the third degree. This question must be decided in the light of the evidence, and this court will search the record in reviewing the action of the trial court in the giving- of instructions on manslaughter to ascertain if the trial court was mistaken in his view of the evidence where the charge is murder, when he found that the killing was susceptible of being manslaughter in any degree. The charge was murder in the second degree. The court was authorized under our criminal procedure to instruct upon that degree of crime, or any inferior degree of manslaughter. Sec. 4462, E. S. 1909, is one of the sections of our statute which defines manslaughter in the third degree, and it was under this section that the court instructed the jury that the offender must have been in a heat of passion, without a design to effect death, and use a dangerous weapon, and the killing must not have been justifiable or excusable. The term “heat of passion” has been construed by this court in the following cases: State v. Wieners, 66 Mo. 13; State v. Andrew, 76 Mo. 101; State v. Wilson, 98 Mo. 440; State v. Bulling, 105 Mo. 204; State v. Berkley, 109 Mo. 665. As to whether or not the appellant committed the crime without a design to effect death, we must know only from the evidence. The evidence does not reveal that the deceased was a participant in the row before the fatalt blow, but appellant was a participant in the whole difficulty. There is some evidence that deceased had a revolver and that it dropped from his hand when he was struck. The preponderance of the evidence was that one hand was in the bib of his overalls; the other one was hanging down by his side at the time he was struck. It cannot be said that the appellant had an express purpose or intention to kill the deceased, or that the killing was intentional, and the jury found that the killing was not done in self-defense. Hence the instruction of' manslaughter in the third degree was appropriate and proper under the evidence in this case. State v. Luke, 104 Mo. 563; State v. Wilson, 98 Mo. 449; The appellant had the club in his hand at the time the quarrel began. It is not shown that the fight between the appellant and deceased was preconcerted, and that there was not sufficient time for the passion to subside. 3 Greenleaf on Ev., sec. 121; 1 Russell on Crimes (9 Ed.), 783; 1 Wharton’s Criminal Law (9 Ed.), sec. 101.
   GANTT, P. J.

This prosecution was commenced by filing in the office of the clerk of the circuit court of Crawford county, the following information, omitting caption and oath of prosecuting attorney:

“Now on this day comes Henry W. Smith, prosecuting attorney within and for Crawford county, Missouri, upon his oath of office as said prosecuting attorney and as he is informed and believes and informs the court that Jesse Hanson at and in Crawford county, Missouri, on the 15th day of November, 1908, then and there being, did then and there in and upon one William Arthur ITuitt feloniously, willfully, on purpose and of his malice aforethought, make an assault and with a dangerous and deadly weapon, to-wit, a stick of wood of the length of four feet and of the thickness of two and one-half inches, which he, the said Jesse Hanson, then and there held in his hands, the said Jesse Hanson, did then and there feloniously, willfully, on purpose and of his malice aforethought forcibly ■ strike and beat him, the said William Arthur Huitt, with the stick of wood aforesaid, in and upon the head of him, the said William Arthur Huitt, crushing, fracturing and breaking the skull of him, the said William Arthur Huitt, giving* him, the said William Arthur Huitt, with the stick of wood aforesaid, a mortal wound, of which said mortal wound he, the said William Arthur Huitt, from the 15th day of November, 1908, until the 17th day of November, 1908, in the county of Crawford, and State of Missouri, did languish, and languishing did live, and on the said 17th day of November, 1908, the said William Arthur Huitt in said county of Crawford, and State of Missouri, of said mortal wound aforesaid, did die.
“And so the said Henry W. Smith, prosecuting attorney within and for Crawford county, Missouri, aforesaid, upon his oath of office as said prosecuting attorney as aforesaid, does say that the said Jesse Hanson, him the said William- Arthur Huitt, in the manner and by the means aforesaid, feloniously, willfully, on purpose and of his malice aforethought, did kill and murder; against the peace and dignity of the state.”

The defendant had previously been given a preliminary examination before a justice of the peace.

At the February term, 1909', "the defendant was duly arraigned. At the June term, 1909, of the circuit court of Crawford county, the defendant was put upon his trial before a jury duly impaneled, and under the evidence and instructions of the court was convicted of manslaughter in the third degree, and his punishment assessed at three years’’imprisonment in the penitentiary. From the sentence imposed on that verdict, he has appealed to this court.

The testimony tended to establish these facts. The deceased, Arthur Huitt, was an unmarried man who resided with his father, J. T. Huitt, in Crawford county, about three miles from Davisville. On Sunday, the 15th of November, 1909, the deceased and one Wisdom left his father’s home about three or four o’clock in the afternoon and went to Davisville to attend religious services in a schoolhouse in that village. At Davisville they met three other young men, Gregory, Green and Davis, and among them they had a quart of whiskey, of which they all drank. That night they all went into the schoolroom where- the services were being held. About the closing of the sermon, the deceased, the defendant and other young-men left the room and went out into the yard in the front of the schoolhouse, where the general row ensued, resulting in Davis getting his throat cut and the deceased,. William Arthur Huitt, receiving two licks from a round club about four or five feet long and two inches thick, in the hands of the defendant, Hanson.

Various witnesses detailed their knowledge of the difficulty. It was dark in the schoolyard, the only light being that which came through the door from the room, and two or three lanterns. Arthur Wisdom testified that he saw deceased and defendant at church that night; deceased was standing- out in front of the door, and defendant 'and Walter Davis came out in front of deceased; one McGeethen came out and kicked a club lying on the ground, and defendant said “That’s Arthur Huitt’s,” and deceased said, “No, I aint had no club to-night;” and McGeethen went on and kicked another club and said, “Here’s another one,” and defendant said, “That’s Arthur Huitt’s,” and Arthur said, “Ton are a liar, I never had any club.” Whereupon defendant ran up and said, “Don’t you call me a liar,” and struck him across the head with a club. Witness did not see deceased doing- anything and did not see anything in his hands. The lick knocked Huitt down and some one helped him up. Deceased was about eight or nine feet from defendant just before he was struck,-and was-about four and a half feet from him when he was struck. When they helped Huitt up, witness took him home, horseback. When they reached his home, witness helped him off of the horse and laid him on the ground and the parents of deceased helped take him in the house. When they started home, Huitt, the deceased, got on his horse without any help from witness. (George Gregory rode behind deceased and Charles G-reeu behind witness.

Ike Cassidy corroborated the testimony of Wisdom, but added that Huitt, the deceased, was advancing slowly toward defendant when defendant struck him the first lick. He was about three feet from him when he hit him. He heard deceased call defendant a liar, and defendant struck him a light lick. Heard defendant say to deceased, “Stand back, stand back.” Defendant had nothing in bis hands when he first noticed him. He saw Huitt after-wards near the defendant and heard him call defendant a damn liar. Heard someone say, “Damn you,' I’ll kill you,” but did not know'who it was.

Mrs. Joseph Peak testified that she heard defendant say after church that he got the brake pole off of a wagon and knocked Huitt. down with it and he thought he had killed him. • The evidence further disclosed that deceased had a revolver on his person and was wearing a pair of bibbed overalls, and several witnesses testified be had his right hand in the overall pocket when defendant struck him, and he pulled the revolver out of his pocket as he fell from the blow. One witness testified the blow did not knock deceased down but caused him to stagger.

The father of deceased testified that when Wisdom came home with the deceased, he gave the deceased’s revolver to his mother. Wisdom contradicted this statement and stated that deceased did not have a pistol to his knowledge that night, and denied he gave one to the mother of deceased. A post-mortem examination disclosed that Huitt’s death was caused by a fracture of the skull and concussion of the brain. There was much testimony to the effect that there were other fights in the school yard that night just-prior to and about the time of the difficulty between Huitt and defendant, Hanson, and one Davis had his throat cut

On the part of the défendánt there was testimony to the effect that Huitt, the deceased, was advancing on defendant with his hand raised and talking loud, and defendant said, “Art, stand; back,” just before defendant struck him; that deceased was crowding upon defendant, with his right hand in his pocket or in the bib of his overalls, and defendant warned him back and told him if he didh’t stop he would hit him with the club, but deceased continued to advance and defendant struck him with the club or stick:

Defendant testified he was nineteen years old; that he struck deceased to defend himself, to keep him from hurting him. He was coming at him with his right hand in his bib and it looked like he had something; that before he struck deceased he warned him to stand back three or four times, but he continued to come on. He was applying all kinds of abusive epithets to defendant.

The court instructed the jury on murder in the second degree, and manslaughter in the third and fourth degrees. As the jury convicted defendant of manslaughter in the third degree, it is unnecessary to discuss the'correctness of the instruction on murder in the second degree. The instructions on manslaughter are as follows:

“2. The court instructs the jury that if you find from the evidence that the defendant killed the deceased at the time and place charged in Crawford county, Missouri, on the 15th day of November, 1908, with a club, and that the same was a dangerous weapon, and if such killing was done in a heat of passion and without design to kill him, and if you further find that such killing was not done in self-defense as in these instructions defined, yon will find him guilty of' manslaughter in the" third degree and assess his punishment at imprisonment in the state penitentiary for a term of not less than two nor more than three years, or hy imprisonment in the county jail not less than six months or hy a fine of not less than five hundred dollars, or hy both a fine of not less than one hundred dollars and imprisonment in the county jail not less than three months.
“3. Manslaughter in the fourth degree is the intentional killing of a human being in a heat of passion on a reasonable provocation and without malice aforethought, as these terms are hereinbefore explained and defined, and under circumstances that are not justifiable or excusable;' and if the jury believe and find that the. defendant in Crawford county, Missouri, on the 15th day of November, 1908, in a sudden passion aroused by reasonable provocation, intentionally struck and killed the deceased with a club, but without malice aforethought as hereinbefore defined, and not in self-defense as defined in these instructions, then the jury should find him guilty of manslaughter in the fourth degree and assess his punishment at imprisonment in the state penitentiary for a term of two years, or imprisonment in the county jail not less than six months, or by a fine of not less than five hundred dollars, or by both a fine of not less than one hundred dollars and imprisonment in the county jail not less than three months.
“The term heat of passion as used in these instructions means a condition of quick or sudden anger aroused by some reasonable provocation.”

I. The information is assailed as insufficient, because, it is asserted by counsel for defendant, “it fails to charge the wounding was done feloniously.” The proposition that the wounding must be charged to have been feloniously done is clearly sound, but is unsupported by the facts in this case. The information is sufficient.

II. The circuit court did not err in excluding the testimony of the witnesses as to statements made by various witnesses after the assault of defendant upon the deceased, nor in excluding the different difficulties that night between other parties. The trouble between deceased and defendant was independent of the other altercations. What these parties said and did under the evidence in this case could and would not haye thrown any light upon the guilt or innocence of defendant of the particular charge made in the information in this case, and their acts and statements were no part of the res gestae. The circuit court admitted all the testimony that could enlighten the jury as to the part played by defendant and deceased, and the exclusion of the mere expressions of outside parties as to what other parties also were saying and doing, under the evidence in this case, was entirely correct.

III. Counsel for defendant earnestly insists that the circuit court erred in giving the instruction authorizing the jury to find defendant guilty of manslaughter in the third degree. Their contention calls for the most careful consideration and discrimination, in view of the statute defining manslaughter in the third degree, and the opinions of this court in various cases to the effect that “there can be no such thing as manslaughter in the third degree when the killing is intentional.” [State v. Pettit, 119 Mo. l. c. 416; State v. Nocton, 121 Mo. l. c. 550; State v. Strong, 153 Mo. l. c. 555; State v. Vinso, 171 Mo. l. c. 591.]

Section 1828, Revised Statutes 189$, in force at the time the offense, if any, was committed in this case, and now section 4462, Revised Statutes 1909', provides: “The killing of another in a heat of passion without a design to effect death, by a dangerous weapon, in any case except such wherein the killing of another is justifiable or excusable, shall be deemed manslaughter in the third degree.”

Opinions of courts “to be properly understood must be read in the light of the facts adjudged to which they are intended to apply.” [State ex rel. v. Smith, 172 Mo. l. c. 460.]

As well said by the Supreme Court of Mississippi in Pass v. McRoe, 36 Miss. 148: “Such is the flexibility of language, and even of sentences disconnected from their context, as well as the special state of facts to which they have been applied, that in courts it has become a settled rule that all adjudications are to be considered only in connection with, and as explained by and limited to, the state of circumstances appearing in the record,” that is, the essential circumstances constituting the case or that portion of the case on which the decision rests.

It is to be observed that the statute reads: “The killing of another in a heat of passion, without a design to effect death, by a dangerous weapon, in any case except wherein the killing is justifiable or excusable, shall be deemed manslaughter in the third degree.”

From tins language, this court in a number of decisions deduced the conclusion expressed in State v. Dunn, 80 Mo. l. c. 689: “There can be no manslaughter in the third degree, when the killing was with the design to effect death. In this case it is manifest from the testimony that the killing was intentional. ’ ’ -That language was well guarded. It meant and means that, where the evidence discloses that the act of the defend-» ant could only be ascribed to a design to effect death, that he intended to kill his adversary, there could be no manslaughter in the third degree, and did not mean that one could not be guilty of manslaughter in that degree, if in a heat of passion he struck his adversary with a dangerous weapon, under such circumstances that a jury might well say he did not design to effect death, or intend to hill him, by the blow, or homicidal act. This view, we think, is strengthened by the language of the court in Dunn’s case, wherein it says: “If one inflict a mortal wound with a deadly weapon, upon a vital part, as in this ease, he must be presumed to have designed the natural consequences, of his act," which would be death. This was reasserted in State v. Strong, 153 Mo. l. c. 555, wherein the.court said: “And although defendant swears he did not intend to kill Gastine, though he stabbed him once in the arm and twice in the side, yet his testimony on this point is not to be received or made the basis of an instruction.” [State v. Nelson, 118 Mo. 126.]

In State v. Nocton, 121 Mo. 550, 551, it was said: “It is well enough to remark that under the more recent rulings of this court, defendant’s statement that he did not ‘intend to kill’ Clume when shooting directly at him and hitting him three times when only six feet away, is not to be believed in the face of the incontrovertible physical facts thus disclosed by the evidence. And if defendant shot at Clume with intent to kill him, and as he had a right to do in his proper self-defense, then he certainly could not have been guilty of an unintentional killing, to-wit, manslaughter in the third degree.” [State v. Pettit, 110 Mo. 410.]

The foregoing adjudications establish without doubt that where it clearly appears that the killing is with the design to effect death, that it was intentional, there can be no manslaughter in the third degree, and in each of the cases commented upon, such was the •case, but it must sometimes happen that the weapon with which the killing was done, may or may not be a dangerous one, according as the witnesses describe it, and its character is a fact which the jury must find, rand whether the blow is given in passion must be determined by the jury.

In State v. Elliott, 98 Mo. 150, the facts were that there had been no previous difficulty. The quarrel arose without previous threats on the part of the defendant. This court said: “It is also clear that the evidence tends to show that the defendant acted from a passion, suddenly aroused; but- the passion to be of any avail to him must have arisen from an adequate cause; and the question whether instructions should have been given upon manslaughter must turn upon the further question whether there is any evidence of such a cause or provocation. The principle of law is too well established to admit of question, that words alone, however provoking or insulting, will not reduce the killing to manslaughter. They alone do not furnish an adequate cause for the passion. [State v. Branstetter, 65 Mo. 153.] The abusive or insulting language of the deceased may, however, be given in evidence, for it tends to give character to and explain the act of the deceased. ‘Hence,’ says Bishop, ‘if there is a present demonstration of impending violence, which alone would be insufficient, accompanying words, added to physical facts, may create such peril as will justify the killing of the aggressor, or reduce it to manslaughter.’ [2 Bish. Crim. Law (6 Ed.), sec. 704.]”

Accepting this as the settled law of this State, the facts here are that there had been no .previous grudge between defendant and deceased; the deceased had been drinking whiskey, according to the testimony, and under these circumstances, when defendant remarked that the club which McGreethen had kicked, was Arthur Huitt’s, deceased at once called defendant a, liar, and when defendant replied, “Don’t call me a liar, ’ ’ deceased ■ advanced in a hostile manner and was warned by defendant to stand back or he would hit him with the stick or club, which the evidence tends to show he had picked up after the wordy altercation had begun. Deceased, however, continued to advance with Ms right hand in the bib of Ms overalls, and thereupon defendánt struck him over the head with the stick or club, and as deceased staggered or fell, a revolver fell out of his hand. While the epithet of .liar, under settled law of this State, did not alone furnish an adequate cause for passion, that epithet accompanying the demonstration of intended violence by deceased was sufficient to arouse the passion of a normal man, and furnished a sufficient provocation which is one of the essentials of manslaughter in the third degree.

This court in State v. Wilson, 98 Mo. l. c. 451, adopted with approval the following statement of Russell on Crimes: “It has been shown that the most grievous words' of reproach . . . will not free the party killing from the guilt of murder, if upon such provocation a deadly weapon was made use of or an intention to kill or to do some great bodily harm was otherwise manifested. But if no such weapon be used, or intention manifested, and the party so provoked give the other a box on the ear or strike him with a stick or other weapon not likely to kill, and kill Mm unluckily and against Ms intention, it will be only manslaughter.” [1 Russell on Crimes (9 Ed.), 783; 3 Greenleaf, Ev., sec. 122; 1 Wharton’s Crim. Law (9 Ed.), secs. 101-455.]

That defendant struck the fatal blow in a heat of passion upon reasonable provocation, we think the evidence abundantly established, and taking all the. circumstances into consideration, the absence of previous grudge or malice, the suddenness of the difficulty, the size of the deceased, shown to have been a man weighing 165 pounds, the character of the stick or club with which the blow was struck, we think the jury were properly allowed to pass upon the question whether the defendant designed to effect the death of Huitt, and if he did not, even though he unluckily killed Huitt, he was guilty only of manslaughter in the third de~ gree. [State v. Wilson, 98 Mo. l. c. 449, 451; State v. Elliott, 98 Mo. 151.]

We Bold therefore the circuit court did not err in giving the instruction on manslaughter in the third degree.

The judgment of the circuit court is affirmed.

Burgess and Kennish, JJ., concur.