text:
    THE STATE v. MARCUS H. STEVENS, Appellant.
    Division Two,
    May 9, 1912.
    1. INFORMATION: Burglary with Explosives. The information in this prosecution for burglary with explosives is the same under which the defendant in State v. Howard, ante, p. 432, was convicted and the objections are also the same. This information is held sufficient for the same reasons.
    2. EVIDENCE: Sufficiency: Burglary with Explosives: Conduct of Defendant when Arrested. The evidence in this prosecution for burglary with explosives held sufficient to take the case to the jury. In arriving at this conclusion the court considers the conduct of defendant when arrested, his anxiety and agitation and his remark that he had “made a fool of himself.”
    3. -: Feigning Insanity. Like flight, the feigning of a state of mind (insanity) which in itself, if genuine, would constitute a defense to the charge, or at least a bar to the trial, is indicative of a disposition to evade justice and tends to prove guilt.
    4. INSTRUCTIONS: No Exception. Where no exception has been saved to the instructions their correctness is not before the Supreme Court on appeal.
    5. APPEAL: Remarks of Counsel: Not Saved: Motion for New Trial. The Supreme Court cannot on appeal consider- the ground in a motion for a new trial that the prosecuting attorney in his argument overstepped proper grounds, there being nothing in the record outside the motion to indicate what the offensive remarks were.

      Appeal from Jackson Circuit Court. — Hon. Ralph 8. Latshaw, Judge.
    Affirmed.

      W. F. Riggs for appellant.

      Elliott W. Major, Attorney-General, and John M. Atkinson, Assistant Attorney-General, for respondent.
   BLAIR, C.

The defendant was informed against jointly with Thomas Howard, the two being charged with burglary with explosives as that offense is defined in section 4526, Revised Statutes 1909. On a trial separate and apart from Howard defendant was convicted • and sentenced to twenty-five years in the penitentiary and has appealed.

The evidence showed that in the early morning of January 11, 1911, a saloon at 2404 East Eighteenth street in Kansas City, Missouri, was entered by burglars (by means of chiseling out a panel of a rear door), an iron safe blown open with nitroglycerin and some money stolen. A bottle containing a small quantity of nitroglycerine was found in the saloon building soon after the explosion in the building was heard. The safe was practically destroyed, being blown into pieces. The money stolen was taken from the back bar.

The evidence tending to connect defendant with the crime was to the effect that he and one Howard were and for some time had been rooming together on East Seventeenth street in Kansas City and that they were in the habit of leaving their room about 11 p. m. and returning thereto at 3 or 4 a. m. They were seen together at about 11 p. m. on the night of January 10, 1911, in the saloon of Henry Alpheus at 2400 East Eighteenth street where they washed their bands, remained a few minutes and departed, followed out tbe door by tbe proprietor, whose attention was attracted by the fact that Howard evinced some interest in the safe which stood in the saloon. When they left Alpheus’s place they walked down toward the saloon at 2404, but were not seen to enter. At fifteen minutes before three o’clock on the morning of the burglary they were both seen, not together but near each other, at the corner of Eighteenth and Olive streets (near the saloon subsequently burglarized) whence Howard went north past the corner and defendant along Eighteenth street east toward the.saloon at 2404. In about one half'an hour the explosion in the saloon was heard and about one minute thereafter Howard was seen in the alley in the rear of the saloon building, running away from it.

On January 13,1911, defendant and Howard were arrested in a' rooming house at 521 East Seventeenth street in Kansas City. Two revolvers and cartridges, a chisel, a burglar’s jimmy, some diamond pointed bits or steel drills, a carpenter’s brace, an electric flash light, two pairs of overalls, two caps, several sticks of dynamite, a skeleton key, a bottle of gun oil (said to be useful in drilling into iron and steel) and a glass syringe containing some dark liquid were found in the room occupied by defendant and his companion.

After his arrest defendant seemed to be in great trouble and said “he had made a fool of himself.” During the trial he cursed and reviled witnesses and officers, interrupting the proceedings with all manner of scurrility.

For the defense there was evidence that two or three weeks before the trial defendant began to indulge in violent outbursts, would lie on. the floor, had to be removed to a cell in which there was no bunk in order to prevent his tearing his bunk loose and did not answer when addressed. In rebuttal the State offered evidence tending to show that defendant was shamming insanity.

It is contended that the information charges no offense and that the evidence is insufficient to support a conviction.

I. The information in this case is the same under which Thomas Howard was tried and convicted and the objections lodged against it are the same as those urged in the case (decided this day) against him. In that case the information was held sufficient and reference is made to the opinion therein for the reasons which now induce a like ruling. [State v. Howard, ante, p. 432.]

II. It is urged that the evidence is not sufficient to support the verdict. The rule that if the record discloses substantial evidence of defendant’s guilt this court will not interfere on the ground of lack of evidence is applicable to this case (State v. DeWitt and Jones, 191 Mo. l. c. 58) and must be kept in mind in considering the contention mentioned.

That the crime charged was committed at the time and place and in the manner charged in the information is overwhelmingly established by the evidence, but it is insisted there is no sufficient evidence identifying defendant as the perpetrator thereof.

The intimacy between Howard and defendant, their presence together near the scene of the burglary at 11 p. m. on the 10th and again at 2:45 a. m. on the 11th, but a short time before the crime was committed, Howard’s presence in the rear of the burglarized saloon a moment after the explosion and his flight, the fact that a panel in the rear door of the saloon was chiseled out and that a chisel was soon thereafter found in the room occupied by defendant and Howard, the probable fact that the safe was blown open with nitroglycerin and that the usual drills, syringe, etc., ordinarily employed by yeggmen in using nitroglycerin in their nefarious work were also found in the room mentioned, and the fact that other burglars’ tools and equipment of all kinds were found in the possession of the two, were all relevant and tended to identify defendant and Howard as the guilty agents. To these things must be added the conduct of defendant when arrested, his anxiety and agitation, and his remark that he had “made a fool of himself.” This last, in the circumstances, was susceptible of the interpretation that it was an indirect admission of guilt. Another circumstance of some importance is the fact that the evidence and defendant’s conduct before and during the trial clearly showed he'was shamming insanity. Like flight, the feigning of a state of mind which in itself, if genuine, would constitute a defense to the charge or, at least a bar to the trial, is indicative of a disposition to evade justice and tends to prove guilt. [State v. Pritchett, 106 N. C. l. c. 670, 671.] Taking all the circumstances together we think there was sufficient evidence to warrant the submission of the case to the jury and, consequently, enough to preclude our interfering with the verdict on the ground of lack of evidence. In responding to a like contention in a somewhat similar case under an analogous statute the Supreme Court of Nebraska (Joyce v. State, 88 Neb. l. c. 601), observed that “it is indeed seldom that persons seeking to commit such a crime invite eyewitnesses to the act; ’ ’ and, as was also said in that case it may be said in this that while “these circumstances may only be coincidences . . . such a concurrence of incriminating circumstances goes far to satisfy the mind that the only reasonable hypothesis upon which they can be explained is that of the guilt of the defendant.” At least, and so we hold, such concurrence, together with defendant’s indirect admission and his shamming insanity, as the jury doubtless found he did, was sufficient to take the case to the jury.

III. Some objections are made to the instructions given by the court, but since no exceptions were taken to them at the time they were given there is nothing presented by this assignment for review. Neither can we consider the ground of the motion for new trial to the effect that the prosecuting attorney in his argument overstepped proper bounds, there being nothing in the record outside the motion to indicate what the offensive remarks were.

The judgment is affirmed.

Boy, G., concurs.

PER CURIAM. — The foregoing opinion of Blair, C., is adopted as the opinion of the court.

All the judges concur.


source: Caselaw Access Project

author: KENNISH, J.

license: Public Domain

text:
    THE STATE v. JOHN W. STACKHOUSE, Appellant.
    Division Two,
    May 9, 1912.
    1. INSTRUCTION: Refusal of Defendant’s. It is not error to refuse a proper instruction asked by defendant upon a question of law upon which the court has correctly instructed the jury in another instruction given of its own motion.
    2 -; Rape: Corroboration of Prosecutrix. Corroboration of the prosecutrix is not essential to sustain a conviction for statutory rape.
    3. EVIDENCE: Rape. Testimony as to sending for the doctor to examine the little girl after her condition was made known to her mother; as to the appearance and condition of prosecutrix after the alleged offense; as to what she said to defendant when he came into the house where she was alone; as to what defendant said to neighbors the same day; as to the competency of the doctor to describe -the condition of prosecutrix when he made the examination after the alleged assault, was clearly admissible.
    4. -: -: Sufficiency. Defendant, a vender of soaps, at ten o’clock on the last day of June, entered the house where the ten-year-old prosecutrix was alone. She testified that he laid her on a bed and assaulted her, but could not describe clearly what he did to her, but said he placed his private, parts between her legs. She made no outcry,, but when a young neighbor at work in the field, whose sister becoming suspicious had sent for him to investigate, arrived at the house, the defendant came out, got in his buggy and drove away, and she handed to' the neighbor a dipper to get a drink, but he noticed nothing unusual in her appearance. A few minutes later her mother returned and found her lying on a couch crying. She told her mother of the assault, and her mother washed her and found her genital organs sore and swollen. A physician, immediately called, testified that he found the child in a nervous condition and the inner lip of the vagina denuded of skin, “the skin rubbed off”; that the abrasion was within the vagina “and about a half an inch from the external part,” but' that “the hymen was not ruptured”; and that blood oozed from the abrasion. When defendant was apprehended he gave a false and assumed name. Held, that the testimony authorized a verdict either for actual rape or 'an assault with intent to rape, and the court having given proper instructions upon both offenses, a verdict for rape is approved.
    5. RAPE: Penetration: No Ruptured Hymen. The slightest penetration, though not of sufficient depth to injure the hymen, is sufficient to constitute the crime of rape.
    Appeal from St. Louis County Circuit Court. — lion. J. W. McElhinney, Judge.
    Affirmed.

      Zach J. Mitchell for appellant.
    The evidence was not sufficient in law to justify the jury in returning its verdict of guilty of rape. State v. Dalton, 106 Mo. 470; State v. Scott, 172 Mo. 545; State v. Lacy, 111 Mo. 541; State v. Bell, 194 Mo. 264. Upon all the evidence in this case it should have been given to the jury upon an instruction upon which they might from the evidence have found a verdict of guilty of felonious assault or attempt to rape.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    (1) Eape is the carnal knowledge of a female forcibly and against her will. Hubert v. State, 104 N. W. 276. Any penetration, however slight, is sufficient to complete the.offense. Posey v. State, 38 So. (Ala.) 1019; People v. Estell, 94 N. Y. Snpp. 748. Force is a necessary element. Perez v. State, 87 S. W. 350. It is not necessary that physical force be used. Constructive force is sufficient, as by duress or putting in fear. Posey v. State, 38 So. (Ala.) 1019. An outcry is not essential to the proof of the crime, and failure to make an outcry raises no presumption of law that the prosecutrix has sworn falsely. State v. Miller, 90 S. W. 838. Failure of the female to immediately make complaint, or if she delays in making complaint, raises no presumption of law that her statements are untrue. State v. Diltz, 90 S. W. 782; State v. Miller, 90 S. W. 838. (2) ’ The clothing worn by the accused, is sufficiently identified, may be shown in evidence. Roszczyniala v. State, 125 Wis. 414. The identification may be either by direct or circumstantial evidence. Jones v. State, 1 Tex. App. 87; Bill v. State, 5 Hum. (Tenn.) 155. It is sufficient that prosecutrix identify appellant, if she is corroborated by circumstances, notwithstanding he may offer contradictory evidence. Johnson v. State, 128 G-a. 102; People v. Brobst, 237 111. 390; State v. Becker, 106 la. 99; People v. McGuinness, 15 N. Y. Supp. 230. (3) The refused instructions were all covered by those given by the court. The instructions given were full, fair, complete and covered every phase of the issues presented by the evidence.
   KENNISH, J.

At the September term, 1910, of the circuit court of St. Louis county, appellant was convicted of the crime of statutory rape and his punishment assessed at imprisonment in the penitentiary for a term of twenty-five years.

The evidence tended to prove these facts: At the time of the alleged offense the defendant resided in a rooming house in the city of St. Louis, having but recently become a resident of this State. He was about forty-two years of age and was engaged in the business of peddling soap and collecting soap wrappers in St. Louis county. The prosecutrix, Hazel Ludwig, then under ten years of age, resided with her parents on Manchester Road in said county. On the morning of June 30, 1910, the mother of prosecutrix and two other children went some distance from their home to pick blackberries, leaving Hazel at the home of a neighbor near by and in plain view of the Ludwig home. Shortly before 10 a. m. Hazel went to her home and was in the house alone when defendant drove up in a single buggy, hitched his horse and went into the house. He had previously on that day visited other homes in the neighborhood, offering to sell soap and soliciting soap wrappers, and was identified at the trial by a number of witnesses as the man who had been seen there and who went into the Ludwig home on that day. The prosecutrix testified that the defendant came into the house, inquired of her as to where her mother was and talked about selling soap. He told her to tell her mother to save the soap wrappers for him and he would give her (prosecutrix) a dress, shoes and stockings. After having had her stand upon a chair and measuring her he had her go into the bedroom, where he laid her on the bed and assaulted her. She could not describe clearly what the defendant did to her, but testified that he placed his privates between her legs, and also to other acts which tended to prove an assault with intent to rape. Her testimony alone did not prove penetration. A young lady at the home where Hazel had been left by her mother saw the man, whom she afterwards identified as the defendant, enter the Ludwig house. After he had remained inside some time she became uneasy and sent her sister to the field to tell her brother to come home to investigate the matter. The brother went to Ludwig’s and just as he arrived the defendant came out, got into his buggy and drove away. Hazel made no outcry, and when the young man came from the field and to the house she handed him a dipper to get a drink at the well and received it from him again, but he noticed nothing unusual in her appearance. A few minutes thereafter her mother returned and found Hazel on the couch crying. She was informed by Hazel of the conduct of the man who had visited the house in her absence. The mother testified as to the condition in which she found her daughter, and that she washed her and found her genital organs sore and swollen. A physician was immediately called. He made an examination and testified that he found the child in a very nervous condition and that the genital organs disclosed ‘ ‘ an abrasion of the inner lip of the vagina. ’ ’ Asked what he meant by an abrasion he answered: “It means a place where the parts were denuded of skin — the skin rubbed off.” He further testified that the abrasion was within the vagina ‘ ‘ and about a half an inch from the external part,” but that “the hymen was not ruptured.” The defendant, testifying in his own behalf, said he had never seen the prosecutrix until he saw her at the trial, and denied that he was guilty of the charge against him.

The court submitted the case to the jury upon instructions authorizing a conviction of the crime of rape, or of an assault with intent to rape, or acquittal on the ground of reasonable doubt, accordingly as they should find 'and believe from the facts and circumstances in .evidence.

I. Appellant complains that the court erred in refusing to give instructions numbered 1, 2 and 3 asked by the defendant. Instruction numbered 1 was upon the subject of penetration, and number 2 submitted the law as to the credibility of the witnesses. Both of these subjects were covered by correct instructions given by the court of its own motion, and it is well settled that it is not error to refuse even a proper instruction upon a question of law upon which the court has correctly instructed the jury in another instruction. [State v. Driscoll, 235 Mo. 377; State v. Gow, 235 Mo. 307; State v. Sharp, 233 Mo. 269; State v. Nelson, 166 Mo. 191.]

Instruction numbered 3 asked by the defendant declared it to be the law that in prosecutions for rape the prosecutrix must be corroborated and that a conviction could not be sustained upon her testimony alone. That instruction was properly refused for the reason that it was not a correct statement of the law. This court has held in a number of cases tha-t corroboration of the prosecutrix is not essential to siistain a conviction for rape. [State v. Tevis, 234 Mo. 276; State v. Welch, 191 Mo. 179; State v. Dilts, 191 Mo. 665; State v. Day, 188 Mo. 359; State v. Marcks, 140 Mo. 656.]

II. One ground of the motion for a new trial is that the court admitted incompetent evidence over the defendant’s objections. We have carefully examined the record upon this point. Many objections were made by the defendant to the testimony offered by the State and except in a few instances they were sustained. Those that were not sustained were objections to testimony as to sending for the doctor to examine prosecutrix; as to the appearance and condition of prosecutrix after the alleged offense; as to what she' said to the defendant when he came into the house; as to what the defendant said to neighbors the same day; and as to the competency of the doctor to describe the condition of prosecutrix when he made the examination. All of the testimony thus objected to is so clearly admissible under the well recognized rules of criminal evidence that we do not- consider it necessary to cite authority in support of the rulings of the court.

III. A new trial was asked upon the ground that the court had erred in its instructions to the jury. The court gave twelve instructions which fully presented every question of law arising in the case, and they were as favorable to the defendant as he was entitled to.

IV. The defendant asked an instruction in the nature of a demurrer to the evidence at the close of the State’s case, which was refused, and in the motion for a new trial and again in this court he complains that the evidence was insufficient to sustain the verdict. This assignment requires a brief review of the incriminating facts in evidence. The alleged offense was committed at ten o’clock in the morning of the last day of June. We gather from the testimony that the Ludwig home was in a thickly settled community. The defendant had visited a number of houses in that neighborhood the same day. He left his cards at the places he visited and similar cards were found in the buggy which he had hired and used for a number of days in his business. He was identified by the people he had visited both in personal appearance and by the horse he drove. The liveryman recognized him as the man who had used his horse and buggy. He was also identified by those who saw him going into the Ludwig house and coming out of it. He was therefore identified by the most satisfactory evidence as the man who had entered the Ludwig home on that day and committed the offense upon the prosecutrix, if any offense was committed upon her.

As to the facts tending to prove the corpus delicti the evidence is not so direct and satisfactory as it is upon the question of identity. This may have been because of the youth and immaturity of the prosecutrix. Bui in addition to her testimony it was in evidence that the prosecutrix was found crying shortly after the defendant left the house; that her genital organs were swollen; and the physician found an abrasion from which blood oozed, half an inch within the external parts of her body. Besides, when the defendant was apprehended he gave a false and assumed name, thus showing a consciousness of guilt. Such testimony leaves little doubt of the commission of one of two offenses, namely, rape and assault with intent to rape, upon which the court, under proper instructions, authorized a conviction. The only room for uncertainty is as to whether the evidence tended to prove the higher offense, of which the defendant was convicted, or only the lesser crime of assault. If there was satisfactory testimony from which the jury could find that there was a penetration of the body of the prosecutrix, then they were authorized to find the defendant guilty of the crime of rape, and the verdict should stand. The law as to what penetration is sufficient to constitute the crime of rape is stated in Kelley’s Crim. Law & Prae., sec. 539, as follows: “The slightest penetration, though not of sufficient depth to injure the hymen, has been held sufficient to constitute the crime of rape. Penetration may be presumed from the circumstances.” The law as thus stated is supported in 1 Wharton’s Crim. Law (10 Ed.), secs. 554, 555; 2 Bishop’s New Crim. Law (8 Ed.), sec. 1132; 33 Cyc. 1422.

Under the foregoing rule it must be held that the court properly refused the demurrer to the testimony, and that the jury was fully warranted in finding the vedict returned.

Because' of the seriousness of the charge against the defendant we have gone over this record with the utmost care, and our conclusions are that the defendant was accorded a fair trial; that the evidence sustains the verdict; and therefore that the judgment should be affirmed. It is so ordered.

Ferriss, P. J., and Brown, J., concur.


author: FERRISS, P. J.

text:
    THE STATE v. ROBERT HURLEY, Appellant.
    Division Two,
    May 9, 1912.
    1. INDICTMENT: No Date of Offense: Rape. An indictment charging statutory rape on a girl under the age of fourteen years, is not defective because it does not fix a date for the commission of the offense. The time is not material. There is no limitation to the prosecution, and if there were error in this regard it is cured after verdict by the provisions of section 5115, Revised Statutes 1909.
    2. ELECTION: Several Acts of Sexual Intercourse: After Opening Statement. An assignment that the prosecuting attorney should have been compelled immediately after his opening statement, to elect upon which act of sexual intercourse with prosecutrix the State would go to the jury, since that statement revealed that he knew of and expected to prove several separate and distinct acts, will not be considered on appeal unless said statement is preserved in the record.
    3. -:-: At Close of Prosecutrix’s Testimony. It will not be held that it was error on the part of the trial court to refuse, at the close of the testimony of prosecutrix when she was first on the stand, to compel the prosecuting attorney to elect upon which of several acts of sexual intercourse with the little girl the State would go to the jury, where an election was later directed and made, and thereafter the State recalled prosecutrix and she testified concerning the act upon which the State had elected to stand, and ample opportunity was given defendant to cross-examine her; especially should this be the ruling where the prosecutrix, when first upon the stand, did not undertake to detail the various acts of intercourse.
    4. -: -: Prior Testimony of Other Acts Subsequent to Elected Act: Identity. The prosecuting attorney, in a rape case, cannot be required to elect upon which of distinct acts of sexual intercourse the State will stand until he can do so intelligently, and usually the proper time is at the close of the State’s case; and the admission of testimony of acts committed subsequently to the one the State elects to stand upon, admitted prior to an election timely made, is not error. Then the only thing the trial court can do is to withdraw the testimony of the subsequent acts from the jury, but it is not held that such withdrawal is necessary. Besides, the competency of the testimony as to the subsequent acts as tending to establish the identity of the defendant, while discussed, is not decided, since not squarely raised.

      5. VERDICT: Passion and Prejudice: Seven Years for Rape.. It cannot be said that a verdict assessing defendant’s punishment at seven years’ imprisonment, where the minimum is five, in a case, of the most flagitious character, or carnal knowledge with a child under the age of fourteen years, is the result of passion and prejudice.
    Appeal from Wright Circuit Court. — Eon. G. E. Skinker, Judge.
    Aeiikmed.

      Jackson, Evans & Green for appellant.
    (1) The indictment is defective for the reason that it fails to specify any certain and specific date when any crime was committed. Each act of intercourse, with an unmarried female under the age of fourteen years, being a separate and distinct offense, the defendant should be apprised, from the pleadings in the indictment lodged against him, of the specific date the crime was committed for which he is called upon to defend against. State v. Dalton, 106 Mo. 463; State v. Miller, 111 Mo. 545; State v. McCinnis, 126 Mo. 564; State v. Ferguson, 221 Mo. 524, and do not affirmatively hold this to be necessary, but do so by implication. State v. West, 21 Mo. App. 311; State v. Bach, 25 Mo. App. 556; State v. Hughes, 82 Mo. 86, and affirmatively hold this doctrine to be true. (2) It was made known to the court by the opening statement of the prosecuting attorney to the jury that the State would show the commission of several separate and distinct offenses similar to the one charged in the indictment and the court erred in not requiring the State at that time to elect upon which act of intercourse the State would rely for conviction. State v. Palmberg, 199 Mo. 233; People v. Williams, 133 Cal. 168; People v. Flaherty, 166 N. T. 532. (3) The court erred in not requiring the State to elect upon which act of intercourse it would rely for a conviction after the testimony of the prosecutrix had been offered. (4) Ail acts of intercourse subsequent to the one relied upon for a conviction were inadmissible and prejudicial to the defendant in influencing the minds of the jury. Smith v. State, 73 S. W. (Tex.) 401; State v. Palm-berg, 199 Mo. 233. An instruction to the jury to disregard evidence erroneosuly admitted will not cure the error if said evidence is prejudicial to the defendant. State v. Mix, 15 Mo. 153; State v. Frederick, 85' Mo. 145; State v. Kuehner, 93 Mo. 193; State v. Thomas, 99 Mo. 235; State v. Martin, 229' Mo. 620.

      Elliott W. Major, Attorney-General, and John M. Atkinson, Assistant Attorney-General, for the State.
    (1) The indictment charges the alleged crime to have been committed “on or about the--day of September, A. D. 1907.” The indictment follows the approved form as set out in the case of State v. Prather, 136 Mo. 20, except that no specific day in September is named. Sherwood’s Orim. Law, p. 91. There is no Statute of Limitations against this prosecution for the crime charged in the indictment. Secs. 4471 and 4944, R. S. 1909. Appellant failed to file a motion to quash the indictment or to require the prosecuting attorney to state what day of September the crime was charged to have been committed. In no way was the attention of the trial court called to this alleged assignment of error. The proof clearly shows that the crime for which appellant was convicted was committed in the spring or summer of 1906', and this date is long prior to the month of September, 1907, as charged in the indictment. Furthermore, time is not of essence of the offense charged, and any failure to charge the alleged offense to have been committed on any specific day is cured, after verdict, by the Statute of Jeofails, sec. 5115, R. S. 1909'. State v. Hughes, 82 Mo. 86; State v. Findley, 77 Mo. 338. (2) It is next contended by appellant that the court erred at the time the prosecuting attorney .was making his opening statement by not requiring the State at that time to elect which act of intercourse the State would rely upon for a conviction. The record in this cause does not contain any part of the alleged opening statement of the prosecuting attorney, hence this assignment of error cannot now be reviewed. The State had a perfect right to prove prior acts of intercourse as tending to prove the particular act upon which the conviction was sought. State v. Palmberg, 199 Mo. 233. (3) Subsequent acts may be shown in evidence on the ground that they are admissible to corroborate the specific act charged. 4 Elliott on Ev., sec. 3105; Woodruff v. State, 101 N. W. (Neb) 1114; State v. King, 117 la. 768; People v. Edwards, 73 Pac. (Cal.) 416; State v. Borchert, 68 Kan. 360; Smith v. Comm., 22 Ky. L. E. 1349; State v. Eobertson, 121 N. C. 551; Sykes v. State, 82 S. W. (Tenn.) 185; State v. Petterly, 33 Wash. 599; Lanphere v. State, 114 Wis. 193.
   FERRISS, P. J.

Conviction for statutory rape, committed on the prosecutrix, Bertie Breedlove, under the age of fourteen years, in 1906. The indictment was returned in August, 1909, and trial had at the September term of the Wright Circuit Court, in 1910. Punishment was assessed at seven years in the penitentiary.

The evidence for the State shows that the prosecutrix was born in January, 1894. A few years later the defendant made his home in the house of her parents, coming there as a hired hand. He was treated as a member of the family, and trusted by the parents of the prosecutrix so fully that they frequently left him in charge of the children. The prosecutrix was called to the stand, and told her story. She testified that before she was eleven years of age the defendant was in the habit of holding her on his lap and taking liberties with her person. As she puts it, “He taught it to me that way.” She further testified that the defendant had intercourse with her when she was eleven years old; that then, and for some time thereafter, she did not know it was wrong; that this relation continued at various intervals until the last act of intercourse, which occurred July 25,1908, at which time she became pregnant, and gave birth to a child the following April. The prosecutrix, in this testimony, does not undertake to give the details as to the exact time and place of any particular act of intercourse, except that she fixes the date of the last act as above stated. She also testified that she told no one of the situation until after the birth of the child, when for the first time she stated that the defendant was the guilty party. It appears in evidence that about a week after the birth of this child, .and after the prosecutrix had mentioned the defendant, he left the country for parts unknown. The indictment was returned against him, as above stated, and he was subsequently arrested in Oklahoma in 1910, and brought back to Wright county for trial.

Defendant denied all acts of intercourse testified to by the prosecutrix, and testified further that he fled the country because his father and others had advised him to do so, stating to him that, although he was innocent, yet “if she swore the child onto me it would be just the same as if I had had something to do with her. ’ ’

Before any evidence was taken, counsel for the defendant moved the court to require the State to elect upon which act of intercourse it would go to the jury; basing this motion on the statement that the prosecuting attorney, in his opening address to the jury, had stated that he would prove several separate and distinct acts of intercourse. The record, however, does not preserve the address of the prosecuting attorney, and we cannot know what statements were made in this regard.

When the prosecuting witness finished her evidence there was no cross-examination by the defendant, but a motion was then made to compel the State to elect, which motion wa,s overruled. Other witnesses were then introduced in behalf of the State, including the girl’s parents, but none of this testimony bore upon any particular act of intercourse. After several witnesses had been examined, the court announced that it had decided that the State should be required to elect upon which act it would rely for a conviction, whereupon counsel for defendant made a formal motion that the State be required to elect; and the State did elect to stand upon an act of intercourse in the year 1906, the prosecuting attorney stating that such act oc- . curred in the summer or fall of that year. The prosecutrix was recalled to the stand, and gave evidence in detail as to the time, place and manner of an act of intercourse which she said occurred in the spring of 1906. She was cross-examined at great length by defendant’s counsel concerning this alleged act. Her father was recalled to the stand, and gave evidence corroborating the statements of the prosecutrix regarding certain circumstances which she relied upon to fix the time and place.

At the close of the State’s case the court orally stated to the jury that they should disregard evidence of all acts subsequent to that last testified to by the prosecutrix as having occurred in 1906, and at the close of the case an instruction to the same effect was given to the jury in writing.

In his motion for new trial the defendant complains that the indictment is defective in that it fails to specify any certain and specific date when any crime was committed; that the court erred in refusing to compel the State to elect at the conclusion of the prosecuting attorney’s opening statement; erred in refusing to compel the State to elect at the close of the testimony of the prosecutrix, and erred in admitting testimony on the part of the State of alleged acts of intercourse subsequent to the one upon which the State elected to stand.

I. It is claimed that the indictment is defective because there is no date fixed therein for the commission of the offense. The indictment charges that the act occurred “on or about the-day of September, 1907.” There is no merit in this claim. The time is not material. There is no Statute of Limitations against this prosecution; and if there were any error in this regard it is cured after verdict by the provisions of section 5115, Revised Statutes 1909.

II. Defendant claims that it appeared from the opening’statement of the prosecuting attorney that he knew that he expected to prove several separate and distinct acts of intercourse, and that therefore he should have been compelled at that time to elect. This claim is made in reliance upon State v. Palmberg, 199 Mo. 233, which intimates that the election should be made so soon as the State is able to make an election intelligently. This assignment cannot be considered because of the fact that the record does not contain the opening statement referred to.

III. It is next contended that the State should have been compelled to elect at the close of the testimony given by the prosecutrix when she was first upon the stand. In view of the fact, however, that an election was made by the State, and before its testimony was closed, and that thereafter the prosecutrix was recalled to testify concerning the act upon which the State had elected to stand, and ample opportunity was given defendant to cross-examine her thereon, the failure of the court to order an election at the close of her testimony in chief is immaterial, even if the defendant had a right to an election at that time. Especially is this true in view of the further fact that, when first upon the stand, the prosecutrix did not undertake to testify in detail as to the various acts of intercourse.

IV. The main insistence of the defendant is that error was committed in permitting any testimony to go to the jury of acts which occurred subsequent to the act in 1906', upon which the State elected to go to the jury; and reliance is placed upon the case of State v. Palmberg, supra. That case, however, holds that there is no hard-and-fast rule as to the time when the State shall elect, and that each ca,se must be determined upon its merits. It holds in effect that the prosecuting attorney cannot be required to make an election until he can do so intelligently, and that ordinarily the proper time is at the close of the State’s case. We think the court committed no error in its ruling on this question, and that in this case the election ploperly was made after the testimony of the prosecutrix was taken. That being true, the testimony now objected to had been given before the election was made, and properly so. After the election the court could do nothing more than it did do; that is, seek to withdraw this testimony of subsequent acts from the jury. Whether such withdrawal was necessary we need not now decide. Whether necessary or not, it was all that could be done. It is obvious that it is impossible to state what acts are prior and what acts are subsequent until after the election is made, and it must follow that if an election is not required until all of the acts have been testified to it is then too late to object to the admission of evidence of subsequent acts. It may be, as defendant claims, that the attempt to withdraw such testimony from the jury accomplishes very little so far as preventing its consideration by them; but we are not very kindly disposed toward a claim that a case should be reversed, not because the State has proved too little, but because it has proved too much.

This is a ease of the most flagrant character. The defendant took advantage of the confidence reposed in him by the parents of this child to debauch her while she was still too young to understand the moral nature of the act. He kept up the relation of intimacy until pregnancy occurred, and after the birth of the child fled the country to avoid prosecution. He admits that he fled to avoid prosecution, although he claims at the same time that he is innocent. It is apparent from the testimony that the defendant designed to continue the illicit relation which he had established with this child, and did so by a long series of acts, each one criminal in character. He denies his identity. The girl testifies that the same man who had intercourse with her when she was eleven years old was the father of her child, born in 1909. We are not prepared to say, under the rule laid down by us in the case of State v. Hyde, 234 Mo. 200, concerning the admission of evidence of other offenses, that the evidence of all these acts testified to by the prosecutrix was not competent as bearing upon the questions of design and identity, but, as stated above, we do not regard that question as being squarely raised by this record, and therefore do not decide it.

YI. The minimum punishment provided by statute for this offense is five years. Notwithstanding the flagitious character of the offense the jury gave the defendant only seven years. We think this fact demonstrates that the verdict was not the result of passion and prejudice, and that therefore in no event was the defendant injured by the admission of the testimony complained of.

We find no reversible error in the record, and the judgment therefore is affirmed.

Kenmsh and Brown, JJ., concur.


text:
    THE STATE v. WALTER S. DIPLEY and GOLDIE SMITH, Appellants.
    Division Two,
    May 9, 1912.
    1. CIRCUMSTANTIAL EVIDENCE: Instruction: Accomplice. Where there is any direct evidence an instruction on circumstantial evidence should not be given; and a statement by deceased in his dying declaration that “I guess they have got me” is direct testimony that both the principal and his accomplice took part in the homicide.
    2. -: Must be Consistent. Circumstantial evidence must be consistent with the guilt of the accused and inconsistent with any reasonable theory of his innocence.
    3. -: -: Conjecture: Accomplice. A conviction of criminal participation in a homicide cannot be based on a mere conjecture that the accused so placed deceased at the dining table as to enable the principal to there kill him without peril to' himself, there being no other fact upon which to base the conjecture except a bare statement in the dying declaration of deceased that “I guess they have got me,” which the facts show was called forth by deceased’s knowledge that the principal had been informed of deceased’s insulting conduct towards the accused, and to which therefore little weight can be attached.
    4. SHERIFF: Disqualified to Summon Jury: Indiscreet Conduct. Indiscreet conduct on the part of the sheriff, public and unconcealed, such as that, in response to a written invitation of an interested friend of deceased to visit his town and attend a moving-picture show, at which were exhibited pictures of deceased in a prize fight with another, he did so at his own expense, is not alone sufficient to authorize the Supreme Court to say that the refusal of the trial court to disqualify the sheriff was error, the rule being that the appellate court will not reverse the ruling of the trial court in such a matter unless the ruling amounted to an abuse of discretion.
    5. JURORS: Challenge. A general request that certain jurors "be excused and discharged from the panel” made on their- voir clire examination, is no challenge at all, and will not authorize their discharge. A specific ground of disqualification must be urged.
    6. -: Examination Out of Order. Where no objection was made to the examination of two talesmen out of their order on the list until after they had been examined, there was no reviewable error.

      7. -: Number of Challenges. Where more than one defendant are jointly tried in a murder case, each is not entitled to twenty peremptory challenges.
    8. EVIDENCE: Carrying of Weapon by Deceased: General Objection. A statement of deceased as to why he was carrying a pistol is incompetent as hearsay, but not reversible error in this case for two reasons: first, the testimony was not objected to as hearsay, and a general objection is not sufficient; and, second, the statement was made by a State’s witness on redirect examination, after defendant on cross-examination had brought out the fact that deceased had been carrying and shooting the pistol for the same purposes the statement indicated.
    9. -: Dying Declaration: Credibility of Deceased. When a dying declaration is admitted in evidence, the credibility of declarant may be attacked and sustained in the same way as may that of a living witness.
    10. -: Impeachment: Judgment of Conviction in Another State. A copy of a judgment of conviction rendered by a police judge of another State, adjudging deceased guilty of the offense of cruelty to animals, certified under the hand and seal of the police judge, but with no showing that the police judge was ex officio clerk of his court, nor of any other authentication of the judgment, is not authenticated in accordance with the requirements of the State and Federal statutes, and it is not error to exclude it.
    11. -: -: Rebuttal. Testimony offered by defendant that deceased was a prize fighter and that he had made a criminal assault upon the female defendant, out of which the homicide grew, was such an attack upon the character of deceased as authorized the State to introduce testimony of his good moral character in support of the credibility of his dying declaration.
    12. -: Dying Declaration: Admissibility. The evidence showed that deceased while in the dining room was shot through the lung with a rifle, in the back, the ball entering below and near the shoulder-blade and about an inch from the spinal column; that the pleural cavity immediately began to fill with blood, making his breathing difficult; that when wounded, he did not leave the house to give the alarm but ran to his bed and did not leave it until removed by others to a hospital in another county; that within a half hour after he was shot, two physicians arrived and later another from the hospital town, but they were unable to give him relief; that after being removed to the hospital he died, within twelve hours after he was shot; that after he was wounded his condition continued to grow worse and he suffered great pain and was groaning; and that he could tell from his breathing that he was shot through the lung, and repeatedly stated, “I guess they have got me.” Held, that his dying declaration was admissible in evidence.
    13. -: -: Instruction. It is not error to refuse to instruct the jury that a dying declaration is or is not entitled to the same weight as the sworn testimony of a living witness.
    14. INSTRUCTION: Repeating. Where the words “feloniously,” “wilfully,” “deliberately,” etc., were properly defined in one instruction, it is not necessary to define them in each instruction in which they are used.
    15. -: No Definition of “Sufficient Cause,” “Provocation,” etc. Where the court told the jury that the assault on the previous day upon the principal’s supposed wife and his knowledge thereof, would not furnish a sufficient cause of provocation to reduce the killing to murder in the second degree, and there was no evidence of such just cause of provocation as would reduce the grade of the crime, the use of the words “without sufficient reason, cause, justification or excuse” and “lawful provocation,” without defining them, was not error.
    16. -: Self-defense. An instruction telling the jury that if defendant voluntarily sought, provoked or invited the difficulty with the felonious intention of killing deceased or of doing him some great bodily harm, then he could not avail himself of the law of self-defense, is unobjectionable.
    17. -: Refusal of Defendant’s. If proper instructions are given upon every question of law necessary for the information of the jury, it is not error to refuse all those asked by defendant, though they correctly declare the law.
    18. REMARKS OF COUNSEL: Addressing Juror by Name, etc. The counsel for the State, in his argument to the jury, addressing a juror by name, said: “Mr. Barnard, it is not the first time in your knowledge that an unsuspecting victim was placed at a door or window where he could be shot; you know of a case where a man was placed at a window and foully assassinated.” Held, highly improper, but as the court, upon objection, said the remarks were improper and admonished counsel to keep within the record, they were not prejudicial to the substantial rights of defendant.
    Appeal from Webster Circuit Court. — Hon. G. H. Skinker, Judge.
    Affirmed as to appellant Dipley; reversed as to appellant Goldie Smith.

      W. E. Rush, T. J. Delaney and Clay & Davis for appellants.
    (1) Defendants’ request to instruct on all of the law, indicating in such request the particular' points to be covered, is sufficient upon which to .predicate error for non-instruction. Laws 1901, p. 140; State v. Weatherman, 202 Mo. 611; State v. Bond, 191 Mo. 555; State v. Chenault, 212 Mo. 132; State v. Barnett, 203 Mo. 657. Where instructions have been asked by defendant which are improper in form, this so far brings the matter to the attention of the court that it becomes the duty of the court to then give proper instructions. State v. Hendricks, 172 Mo. 670; State v. Moore, 160 Mo. 443; State v. Hawthorne, 166 Mo. 229; State v. Barton, 214 Mo. 316. (2) The court erred in admitting in evidence the declaration of Ketchel, as follows: “They got me.” This evidence was admitted as a dying declaration, as shown by the record disclosing the examination by the court. It was improperly admitted as a dying declaration; none of the conditions existed justifying the statement as a dying declaration. In truth it was not a statement of any fact, or especially of any act done by G-oldie Smith, but a mere conclusion signifying nothing that imports guilt. It is not a statement of any fact of the res gestae. State v. Parker, 172 Mo. 191; State v. Elkins,-101 Mo; 344; State v. Birks, 199 Mo. 263; State v. Partlow, 90 Mo. 608; State v. Parker, 96 Mo. 382; State v. Chambers, 87 Mo. 406; State v. Simon, 50 Mo. 370; State v. Kellerher, 201 Mo. 614. Even if such testimony were admissible as a dying declaration, the court should have declared the law thereon. The direct positive request was made by defendants upon the court so to do. When such evidence is admitted, it should be weighed with great caution, and the jury should have been so instructed. State v. Horn, 204 Mo. 546; State v. Parks, 172 Mo. 191. The defendants requested the conrt to instruct on the law of dying declarations and the failure of the court to do so is error. This was done in a special request in writing. The failure of the court to so instruct was called to the attention of the court in the motion for a new trial, and exceptions to the action of the court were saved in the bill of exceptions. State v. Finley, 193 Mo. 202; State v. Cantlin, 118 Mo. Ill; State v. G-roves, 194 Mo. 452; State v. McGarver, 194 Mo. 717; State v. Bond, 191 Mo. 555; State v. Weatherman, 202 Mo. 6; State v. Chenault, 212 Mo. 132. (3) It is not sufficient to correctly state the law authorizing, on the producing of certain facts, a finding of guilt, or declaring a certain conclusion from the producing of certain facts. The other party is entitled to the converse proposition. Thus it is not sufficient to declare that if certain facts are found, the defendant is guilty. The converse should also be stated that unless certain facts are found, the defendant is not guilty. We were entitled to clear cut declarations on the law of threats, law of self-defense, law of good character, without the tailings which rob defendant of the force of such declarations. Harwood Co. v. Dent, 121 Mo. App. 108; State v. Shour, 196 Mo. 202; State v. Walker, 196 Mo. 73. (4) The instructions given by the court do not properly declare the law. Instruction 2 (a) does not explain or define the terms feloniously, wilfully, deliberately, etc.; (b) nor does it make reference to any other instruction by which these terms are defined; (c) it does not submit to the jury the question whether or not the defendant Dipley feloniously, wilfully, deliberately, premeditatedly and of his malice aforethought shot deceased. State v. Emerich, 87 Mo. 110. Instruction 6 is erroneous in this: In addition to the use of the well understood terms “just cause, justification, extenuation or excuse,” the further words are used “or sufficient reason.” This term is not defined in any instruction. To a legal mind this might convey the same idea as the other clauses; but juries are not required to possess legal acumen, and the rights of a defendant are not to be jeopardized by putting up to them questions of construction. State v. Darah, 152 Mo. 532. This term leaves the jury to its own notions of what constitutes “sufficient reason.” The use is not justified by precedent, and like all innovations is dangerous and likely to be misleading. Under such an instruction, the jury might well find there was “just cause or excuse” in a legal sense for the act of defendant Dipley, as those terms are defined by the court, and yet from their own personal views and opinions the reason for his conduct may not appear sufficient. To a layman, it must have a. different meaning from the other terms, else why use it? What might appear to one mind as sufficient reason may not satisfy another; and where language used is susceptible of various meanings, the meaning intended should be defined. Instruction 10 does not correctly advise the jury how to weigh circumstantial evidence. It is not sufficient to advise the jury that “the evidence must be inconsistent with any reasonable theory of her innocence.” It should have declared that such evidence must be strong enough “to exclude every reasonable hypothesis other than the guilt of defendant.” Instruction 34 should have been given, as immorality does not impair the right of self-defense. This instruction tells the jury that the facts that Dipley was living in adultery and was a deserter did not impair his right of self-defense. Especially should this have been given for the State to be fair as prejudice naturally arose against defendants on account of the relations maintained.

      Elliott W. Major, Attorney-General, and John M. Atkinson, Assistant Attorney-General, for the State.
    (1) The discretion of the trial court in refusing to disqualify a sheriff on motion of either side will not be disturbed on appeal unless the proof clearly shows an abuse of the trial court’s discretion in such ruling. State v. Leabo, 89 Mo. 252; State v. Mathews, 98 Mo. 121; State v. Hultz, 106 Mo. 51; State v. Lanahan, 144 Mo. 38; State v. Hunter, 181 Mo. 333. (2) The statement made by deceased was before any trouble arose between him and Dipley. It was competent to show in proof that Ketchel was in the habit of carrying the pistol for target practice. This refuted the theory of the defense that he was only carrying the pistol on the morning of the shooting, anticipating trouble with Dipley, for the alleged insult offered to appellant Smith on the afternoon prior thereto. This assignment is without merit and should be ruled against appellants. (3) The dying declaration was properly admitted in evidence. All the physical facts show Ketchel had received a mortal wound and that death was on him in less than an hour after he was shot. . These facts speak louder than mere words of deceased. The law of dying declarations recognize such to be the rule. State v. Brown, 188 Mo. 460-62; State v. Kelleher, 201 Mo. 637; State v. Craig, 190 Mo. 338-41; State v. Nocton, 121 Mo. 549; State v. Kelleher, 224 Mo. 145; State v. Gow, 235 Mo. 326.
   KENNISH, J.

Upon an information charging murder in the first degree for the killing of Stanley Ketchel, appellants were tried and convicted of that offense at the. January term, 1911, of the circuit court of Webster county, and were sentenced to imprisonment in the penitentiary for life. They appealed to this court.

The crime was charged to have been committed on the 15th day of October, 1910, at said county, by the shooting of Ketchel with a rifle in the hands of the appellant Walter Dipley. Appellant Goldie Smith was charged as an accessory before the fact. No point is made on this appeal as to the sufficiency of the information.

' The evidence tended to prove the following facts:

B. P. Dickerson, a resident of the city of Springfield, Missouri, owned a ranch in Webster county, upon which he employed four or five men, including a foreman. Stanley Ketchel was a noted young pugilist from Michigan. He had been visiting his friend Dickerson in Springfield for about two months preceding the homicide. It was understood that Bailey, the foreman of the ranch, was to quit the services of Dickerson and that Ketchel was to succeed him as foreman. Appellants were then respectively twenty-four and twenty-two years of age, Dipley being the older. They had been brought up in Christian county, which adjoins Webster county. They had known each other as school children, but both had left their home county a number of years before. Dipley had lived in Jasper county and had entered the naval service of the United States Government, while appellant Goldie Smith had also resided at a number of different places. She had been twice married and was not divorced from her second husband. She had been leading a wayward life, and Dipley was a deserter from the navy. Without pre-arrangement, on the 11th day of September, 1910, both had returned to Christian county to/visit relatives and were thrown together in driving from the railway station to the neighborhood where their relatives resided. After recognition and a renewal of their acquaintance, it was agreed on the drive that they should represent themselves as husband and wife, and afterwards it was agreed that they should live in that relation and form it in fact as soon as Mrs. Smith was free to marry. After a short stay with their relatives they went to Springfield, representing themselves as husband and wife, under the assumed name of ITnrtz. They applied at an employment agency for a situation and were referred to Dickerson, who was looking for a man and wife to keep house and work on his ranch. They were employed and left Springfield in company with Dickerson and Ketchel for the ranch, October 12, 1910, arriving there the same day about 12:30 p. m. Within a radius of two hundred yards there were two small dwelling houses on the ranch, and one larger house where the foreman lived and in which Dickerson and Ketchel had a room reserved for their own use; also a large barn. Bailey had not removed all of his furniture from the main house where appellants were to reside and so they were placed temporarily in one of the smaller houses about a hundred and fifty yards distant. Dipley did not commence work for his employer until the next day. He worked Thursday and Friday. On Friday he was in the field some distance from the house, putting in wheat. Friday afternoon Ketchel and appellant Mrs. Smith moved appellants’ effects from the smaller house to the larger one. That evening after supper Dipley went to one of the other houses in which Brazeal’s family was living and where Bailey was stopping for the night preparatory to leaving the ranch the next day. He called Bailey out and told him he expected to have trouble with Ketchel and was going to quit the ranch and return to Springfield. He inquired if he and his wife could ride in the hack with Bailey to the railroad station the next .day, and was informed that he could.

Appellants testified that soon after supper Friday evening, Mrs. Smith warned Dipley to be on his guard for Ketchel. That the latter had made bad threats against both of them that afternoon. That she then told Dipley she did not want to remain there and that they decided to leave. They further testified that about midnight, at the solicitation of Dipley as to what had happened, Mrs. Smith told him that while she and Ketchel were moving the goods that afternoon Ketchel assaulted her, throwing her upon the bed and partly accomplishing his purpose, and that he thereafter threatened that he would kill her and her husband if she should tell what he had done. Mrs. Smith testified to the truth of the facts so said to have been communicated to appellant Dipley.

Ketchel was fatally shot by Dipley the next morning at the breakfast table, between 6 -.30 and 7 o ’clock. He was shot in the back with a rifle, below and near the shoulder-blade and about an inch to the right of the spinal column. The bullet ranged slightly upward and to the right, causing the pleural cavity to fill with blood and making it difficult for him to breathe. As soon as Ketchel was shot he ran through an adjoining room to his bedroom upon the west side of the house and lay'down upon the bed. Some of the employees were soon there, ministering to him as best they could. In half an hour a physician arrived and later two physicians from Springfield, but they were unable to give him relief, and after having been removed to the hospital in Springfield he died there that day about 6:30 p. m.

After he was shot deceased made a statement which was admitted in evidence as a dying declaration. In this statement he said a number of times, “I guess they have got me,” and also said, “Yes, he told me to put up my hands and I didn’t do it and he shot me.”

There was much testimony, direct and circumstantial, tending to prove that Dipley borrowed the rifle from Ketchel that morning, on the pretext that he wanted to shoot a groundhog or some other object, when his real purpose was in fact to kill Ketchel, and that after the shooting he gave as the reason for his act that Ketchel had assaulted his wife the day before. There was also evidence tending to prove that Dipley followed Ketchel into his bedroom after he was shot and struck him on the forehead with the rifle and took from him a revolver which Ketchel was carrying on his person at the time he was shot.

Appellants ’ version of the shooting, briefly, in addition to the occurrences of the day before as heretofore stated, was to the effect that an altercation arose between Dipley and Ketchel when the latter sat down to his breakfast, because Dipley had not gone to work; that Dipley referred to Ketchel’s misconduct of the day before; said he had quit; that Ketchel then threatened to shoot Dipley, and that the latter sprang and got the rifle and shot as Ketchel was trying to draw his revolver.

After the shooting Dipley left appellant Goldie Smith at Brazeal’s and fled from the ranch, taking Ketchel’s revolver with him. He was arrested at a farmer’s house the next morning where, giving an assumed name, he had stopped over night:

The foregoing is but a summary of the evidence, a detailed statement of which is not deemed essential and would unduly extend this opinion. Additional facts will be referred to when necessary in the discussion of the errors assigned.

I. At the close of all the testimony appellant Mrs. Smith requested an instruction in the nature of a demurrer to the evidence, which the court refused. In the motion for a new trial, as well as in one of the assignments of error in this court, it is urged that the court erred in refusing said instruction, and that the evidence is insufficient to support the verdict. That contention stands at the threshold of a consideration of the alleged errors, for if it should be sustained it removes from the case many of the grounds relied upon as reversible error.

The theory of the State was that the evidence of Mrs. Smith’s guilt was entirely circumstantial, and the jury was so instructed. In adopting that theory, little reliance was placed upon the words of the dying declaration, “I guess they have got me,” for that is not circumstantial but direct testimony, and the rule is that where there is any direct evidence an instruction on circumstantial evidence should not be given. [State v. Crone, 209 Mo. 316.] But waiving the technical question suggested and viewing the testimony broadly, let us examine the record as to the facts and their probative weight tending to prove the criminal participation of this woman in the tragedy which resulted in Ketchel’s death. And in considering the question we must do so mindful of the rule of law as recognized by the court in this case that circumstantial evidence must be consistent with the guilt of the accused and inconsistent with'any reasonable theory of innocence.

At the outset we are confronted with the remarkable fact that although there were three eye witnesses to the homicide, each of whom was seen immediately thereafter by others than the parties to the tragedy, and talked about the facts, yet, aside from Ketchel’s general words, “I guess they have got me,” not one word was said by either tending to prove the woman’s guilt. The most searching scrutiny of her conduct immediately after the homicide, is equally barren of any act indicating a consciousness of guilt. We are not disposed to attach much weight to the words of the victim, “I guess they have got me,” so far as Mrs. Smith is concerned. It is evident that she ’ told Dipley the evening before of some improper conduct of Ketchel toward her. This fact is proven by Dipley’s-visit to Bailey after supper, and by what he then said. The further fact that Ketchel was carrying a revolver in a scabbard, before breakfast and at the breakfast table, at the time of the homicide, has little less significance as to his knowledge. Ketchel knew Dipley and the woman as husband and wife. If, when lie made said statement, he was aware, as we think he was, that the woman had communicated to her supposed husband the information which caused the latter to shoot him, how natural that he should have used the words under review, without intending to implicate the woman as a party to the crime. Besides, when Ketchel stated the facts as to the shooting, there is no mention of any act or word connecting the woman with what had been done.' The suggestion that she so placed Ketchel at the table as to enable Dipley to kill him without peril to himself, is the merest conjecture and wholly insufficient to support a conviction of the highest crime known to the law. Our conclusion is that as to the áppellant Mrs. Smith the evidence is in- • sufficient to support the verdict, and that the court should have given the instruction directing a verdict of acquittal.

II. The defendants filed a motion to disqualify 'the sheriff on the ground that he was prejudiced against them. After hearing testimony thereon the motion wa,s overruled, and appellants now assign such ruling as error.

It was shown by the testimony that Dickerson was Ketchel’s friend; that he was interested in the prosecution of the defendants; that a few days before the trial he wrote to the sheriff, inviting him and his friends to come to Springfield and attend a moving-picture show of the Johnson-Ketehel prize fight and that the sheriff and his friends attended the show in' response to the invitation. But the sheriff testified that they paid their own expenses, and there was no testimony tending to show any attempt on the part of Dickerson to influence the sheriff in his official conduct. The voir dire examination of the jury is contained in the record and there is an absence of any testimony tending to show prejudice of the sheriff in summoning the jury, or in the discharge of his official duties. While it must be said that it was a most indiscreet act in the sheriff to accept such an invitation under the circumstances disclosed, yet we cannot overlook the fact that the incumbent of that office may be and frequently is a man who has not the highest sense of propriety in such matters. And it does not follow that because of such conduct, public and unconcealed as it was, there was official wrongdoing, or that an inference should be drawn that the sheriff was prejudiced against the defendants and unfit to discharge the duties of his office in their case. The rule is well settled in this State that an appellate court will not reverse the ruling of the trial court in such a matter, unless the action reviewed amounted to an abuse of discretion, and clearly such a showing was not made in this case. [State v. Leabo, 89 Mo. l. c. 252; State v. Mathews, 98 Mo. l. c. 121; State v. Hultz, 106 Mo. l. c. 51; State v. Lanham, 144 Mo. l. c. 38; State v. Hunter, 181 Mo. l. c. 333.]

III. Complaint is made that the court refused defendants ’ request to disqualify jurors Pleggan and Brown upon their voir dire examination. No reason was given for the challenge as to said jurors except the general request that they “be excused and discharged from the panel.” Such a challenge does not direct the court’s attention to the specific ground of disqualification and, under the repeated rulings of this court, is no challenge at all. [State v. Fields, 234 Mo. l. c. 622; State v. Wooley, 215 Mo. 620; State v. Bobbitt, 215 Mo. 10.]

IV. It is claimed that the court erred in permitting the examination of certain talesmen before two others whose names appeared earlier on the list. Also that the court erred in not allowing each of the defendants twenty peremptory challenges. As to the former complaint it is sufficient to say that no objection was made to the order of examination until after the juror had been examined, and that no possible prejudice could have resulted from the action of the court complained of; and as to the latter, that the statute, section 5224, Revised Statutes 1909, expressly denies the right asserted.

Y. A number of errors are assigned to the rulings of the court in the exclusion and admission of testimony over the defendants’ objections. We have carefully examined such rulings and have concluded that they are free from prejudicial error. Space forbids that we should take up each of these complaints, and we shall therefore notice only those of most merit.

A witness for the State had been cross-examined by defendants’ counsel upon the subject of the deceased carrying a revolver upon his person, and an unfavorable inference was sought to be created by such fact. The prosecuting attorney, on redirect examination, asked the witness if he knew why the deceased carried a gun. No objection was made to this question, but when the witness answered that the deceased said he carried it to practice target shooting and that he was ambitious to become a good shot, the defendants then objected to the testimony and asked that it be stricken out for the reason that it was incompetent, irrelevant and immaterial. The court refused to strike out the answer, and appellants assign’ error in' such ruling.

It is competent for the accused, in a homicide case, to prove why he was carrying a weapon at the time of the encounter, in order to negative a criminal purpose. [State v. Kretschmar, 232 Mo. 29.] But it would not be competent to prove such fact by statements made by the defendant when he was not under oath, and we have been unable to find any exception to the rule against hearsay which would make Ketchel’s statements competent as to why he carried a weapon. However, the ruling of the court cannot be held prejudicial error, for two reasons:

First: The defendants did not object to the evidence for the reason that it was hearsay, and a general objection was not sufficient to direct the attention of the court to such ground of incompetency. [State v. Pyles, 206 Mo. l. c. 632.]

Second: The fact had been brought out by the defendants, on the cross-examination of the State’s witnesses, that the deceased had been carrying the same revolver around there and shooting with it before the difficulty with the defendants. Therefore the answer asked to be stricken out was merely a restatement of the same matter brought out by defendants, and we are unable to see how they could have been prejudiced by such testimony.

The defendants offered in evidence a certified copy of a judgment of conviction rendered by a police court in the State of Montana, against Ketchel, for the offense of cruelty to animals, which, upon objection by the State, the court excluded. The State offered evidence tending to prove Ketchel’s good character for morality at Springfield, where he had resided for about two months, which evidence the court admitted over defendants’ objection, and appellants now complain of both of said rulings.

When a dying declaration is admitted in evidence, the credibility of the declarant may be attacked and sustained as in the ease of a living -witness. Under this rule it was competent for the defendants to attack Ketchel’s reputation and for the State in turn to sustain it. A witness may be impeached by proving that he was convicted of a criminal offense. The purported transcript of the judgment offered in evidence was certified under the hand and seal of the police judge. There was no showing that the police judge was ex-officio clerk of his court, nor was there other authentication of the judgment. The transcript of the judgment was not authenticated in accordance with the requirements of the State or Federal statutes, and the court did not err in excluding it. [Section 6331, Revised Statutes 1909; Section 905, vol. 3, p. 3711; Revised Statutes of Missouri 1909 (Sec. 905, U. S. Compiled Statutes 1901); Stevens v. Oliver, 200 Mo. 492; State v. Foreman, 121 Mo. App. 502; Crone v. Dawson, 19 Mo. App. 214.]

The defendants’ testimony tending to prove-that Ketchel was a prize fighter and the assault upon Goldie Smith, was such an attach upon his character as authorized the State to introduce testimony of his good moral character in support of his credibility. [State v. Lovitt, 243 Mo. 510; State v. Speritus, 191 Mo. 24; State v. Jones, 191 Mo. 653; Underhill on Criminal Evidence (2 Ed.), sec. 418.]

VI. It is contended that the court erred in admitting the alleged dying declaration in evidence, for the reason that it was not shown by the testimony that the declaration was made under the belief of impending death.

It was in evidence that the deceased was shot through the lung and that the blood commenced flowing into the pleural cavity immediately, thereby making his breathing difficult. That when wounded, de- • ceased did not go outside of the house to give the alarm, but ran to his bed and did not leave it until removed by others. That his condition continually grew worse and he was suffering great pain and was groaning. That he said he could tell from his breathing that he was shot through the lung, and repeatedly stated, “I guess they have got me.” These facts and others detailed by the witnesses proved that the declarant believed he was fatally wounded and that he was conscious of the near approach of death. All the requirements of the law as to the admissibility of a dying declaration were met by the facts and circumstances in evidence, and we hold the court did not err in admitting it. [State v. Lovell, 235 Mo. 343; State v. Gow, 235 Mo. 307; State v. Kelleher, 201 Mo. 614.]

VII. Defendants requested the court to instruct the jury upon certain questions of law, including the law upon dying declarations, and they now complain that the court failed to instruct upon the subject of such testimony.

This court has held it error to instruct that a dying declaration is entitled to the same credibility as if the declarant had been examined under oath as a witness and testified in court to the same facts. [State v. McCanon, 51 Mo. 160; State v. Vansant, 80 Mo. 67.] On the other hand, it was held in the case of State v. Reed, 137 Mo. 125, that the court did not err in refusing an instruction asked by the defendant telling the jury that such declarations were not entitled to the same weight as the testimony of the declarant, were he a witness testifying in court. It was further held in the B.eed case that such an instruction would have been objectionable as a comment upon the evidence. Under these authorities the court properly refused to give the instruction requested.

VIII. Many errors are assigned to the giving of' instructions for the State. The main complaints are lodged against instructions numbered 2, 6, 7, 14 and 15.

Number 2 is attacked upon the ground that it does not define the adverbial terms “feloniously,” “wilfully,” “deliberately,” etc., and because it does not submit to the jury the question whether or not the defendant Dipley “feloniously, wilfully,” etc., shot the deceased.

The words referred to were properly defined in instruction numbered 5, and it was not necessary to define them in each instruction in which they were used. [State v. Renfrow, 111 Mo. 589.]

The second complaint as to said instruction numbered 2 is not borne out by the facts in the record. The instruction, in form, is in accord with approved precedents of this court.

Instructions numbered 6 and 7 are criticized because of the use therein of the words “without sufficient reason, cause, justification or excuse,” and “lawful provocation,” without defining them.

In instruction numbered 7 the court correctly told the jury that the assault upon Goldie Smith the day before the homicide, and the defendant Dipley’s knowledge of that fact, would not furnish a sufficient cause or provocation to reduce the killing to murder in the second degree. And as there was no evidence of such just cause of provocation as would reduce the grade of the crime, a failure to define said terms was not error. [State v. Ellis, 74 Mo. 207; State v. Grant, 152 Mo. 57.]

Instruction numbered 6 is substantially a copy of an instruction approved by this court in the case of State v. Cushenberry, 157 Mo. 168, and number 7 is in accord with the law as declared in the cases of State v. Ellis and State v. Grant, supra.

Instruction numbered 14 contains the principle of the law of homicide that if the defendant Dipley voluntarily sought, provoked or invited the difficulty with the felonious intention of killing Ketchel or of doing him some great bodily harm, then he could not avail himself of the law of self-defense. Complaint is made both as to the form of this instruction and that there was no evidence on which to base it.

The instruction is unobjectionable in form. [State v. Bailey, 190 Mo. 257.] Without repeating the testimony bearing upon this subject, already set forth in the statement of facts herein, it is sufficient to say that in our opinion the court was fully warranted in giving this instruction. [State v. Kretschmar, 232 Mo. 29.]

IX. Thirty-six instructions were asked by the defendants and refused by the court. Proper instructions were given to the jury upon every question of law necessary for their information, and it is well settled that when correct instructions are given it is not error to refuse others, though they correctly declare the law. [State v. Driscoll, 235 Mo. 377; State v. Gow, 235 Mo. 307; State v. Sharp, 233 Mo. 269.]

X. It is finally urged as error that counsel for the State made improper and prejudicial remarks in the argument of the case to the jury. Mr. ITaynes, counsel for the State, in his argument, addressing a juror by name, said: “Mr. Barnard, it is not the first time in your knowledge that an unsuspecting victim was placed at a door or window where he could be shot; you know of a case where a man was placed at a window and foully assassinated.” Upon objection by counsel for defendants the court said the remarks were improper and admonished counsel to keep within the record. The defendants objected and saved their exceptions. While the remarks of Mr. Haynes were highly improper, yet, as the court promptly so characterized them in the hearing of the jury and admonished counsel to keep within the record, we are of opinion that, considered in connection with the corrective action of the court, they were not prejudicial to the substantial rights of the defendants and a reversal of the judgment would not be warranted on that ground.

The other remark complained of, to the effect that the eyes of the people of Webster county and of the United States were upon the jury to see if they were going to do their duty and convict the defendants, was a mere rhetorical appeal to the jury such as is commonly made in the trial of criminal cases. The court admonished counsel that the remarks were improper and that he must keep within the record. Without passing upon the question as to whether such admonition was deserved, we have no hesitancy in holding that the remark did not constitute reversible error.

After a painstaking examination of the long record in this case and the numerous errors assigned, we have reached the conclusion that as to appellant Walter Dipley the record is free from prejudicial error and the judgment is accordingly affirmed. As to appellant Goldie Smith, for the reasons heretofore stated, the judgment is reversed and the appellant Goldie Smith is discharged.

Ferriss, P. Jand Brown, J., concur.