text:
    THE STATE v. HORACE LOVITT, Appellant.
    Division Two,
    June 1, 1912.
    1. APPEAL: Delay: Dismissal. Where the appellant in a criminal case was not responsible for a delay of nearly two years after the trial in the filing of the transcript in this court, and the record was .filed long before the motion of the • Attorney-General to dismiss the appeal was filed, the court will overrule the motion.
    2. SUPPLYING LOST INFORMATION: Difference In Date of Crime: No Exception. Where the information is lost the court may permit the filing of another, and such other thereafter .becomes the charge upon which defendant is to be tried; and thereafter the original information, though found, becomes an abandoned pleading, and any conflict between it and the new one can be preserved for review only by making it a matter of exception; and if no exception were saved, the court will not consider a difference of one day between the two informations as to the date of the commission of the offense.
    3. CROSS-EXAMINATION OF DEFENDANT: Objection Urged at Time: Improper on Other Grounds. Where the question asked defendant on cross-exaSnination was objected to on the ground that it did not tend to prove his guilt or innocence, the propriety of the question will be considered on that ground on appeal, and not on the ground that it was improper cross-examination of defendant — that is, it will be considered as if the witness was not the defendant. The court must he advised of the specific ground of objection, and if a proper objection was not then made it will not avail on appeal that the testimony admitted was open to another' valid objection not made at the trial.
    4. IMPEACHMENT: Unchastity to Prove Consent: Rebuttal as to Reputation. Where the defendant, in a trial for an assault with intent to rape, introduced evidence tending to prove specific acts of unehastity on the part of the woman, not to impeach her as a witness, but to prove .consent and to negative the testimony of an assault by force, it is proper to permit the State in rebuttal to offer testimony to prove her good reputation for virtue and chastity, for the effect of defendant’s testimony was impeachment.
    5. ATTEMPT TO RAPE: Instruction: Element of Force. In the trial of defendant for an assault with intent to rape, an instruction which requires the jury to find, in order to authorize a conviction, that the defendant, in making the assault upon the 'woman, intended, in order to accomplish his purpose, to overcome any and all resistance which she might make, sufficiently embraces the element of force.
    6. VERDICT: Intent of Jury: Attempt to Rape or Common Assault: Aided by Punishment Assessed. In determining the sufficiency of a verdict the controlling object is to learn the intent of the jury, and the ascertainment of that intent may be aided by the instructions given and the punishment assessed. Where the court instructed the jury upon the felony of assault with intent to rape and also on the misdemeanor of common assault, the fact that the jury found the defendant guilty of the felony may be ascertained from the verdict finding him guilty and assessing “his punishment at two years imprisonment in the penitentiary,” since the law authorizes no such punishment for common assault.
    7. CONFLICT OF TESTIMONY. It is the province of the jury to weigh the evidence and find the ultimate fact; and if there was substantial evidence to support their verdict, though there were inconsistencies in the conduct and testimony of the prosecutrix, and there was pronounced conflict between the testimony of the State and defendant, it will not be held that the evidence is insufficient to support the verdict.
    Appeal from Harrison Circuit Court . — Hon. G. W. Wannamaker, Judge.
    Akjbtrmed.

      A. L. Hughes and Garlcmd Wilson for appellant.
    (1) The supplied information in this case was supplied without any showing being made that it was a true copy of the original information and therefore it is a nullity. State v. Simpson, 67 Mo. 647; State v. Burks, 132 Mo. 363; State v. McCarver, 194 Mo. 717; State v. Wilson, 200 Mo. 28; Jordan v. Vaughn, 104 Mo. App. 112. Moreover, the original information having been found, the reason for the supplied information ceases and it becomes waste paper. The original information charges the offense to have been committed “on the 19th day of .November, 1909,” while the court instructed the jury that they should find defendant guilty if they believed that he committed the offense “on the 20th day of November, 1909'.” Clearly the information does not charge the offense which the court submitted to the jury. (2) The court erred in permitting improper cross examination of the defendant, which was of a highly prejudicial nature, and which did prejudice the jury. State v. Sigenthaler, 121 Mo. App. 510; McKern v. Calvert, 59 Mo. 243; State v. Thomas, 78 Mo. 343; State v. Palmer, 88 Mo. 568; State v. Bulla, 89 Mo. 595'; State v. Taylor, 98 Mo. 240; State v. Grant, 144 Mo. 56; State v. Hudspeth, 150 Mo. 31; State v. Hathorn, 166 Mo. 229; State v. Kyle, 177 Mo. 650'; State v. Candle, 174 Mo. 388; State v. Spivey, 191 Mo. 87; State v. Trott, 36 Mo. App. 29; State v. Fullerton, 90' Mo. App. 411; Schaefer v. Railroad, 98 Mo. App. 454; R. S. 1900', sec. 5242. (3) The court erred in permitting the State to bolster up the prosecuting witness by proving her general reputation for morality, and for chastity and virtue, to be good when her character had not been attacked. State v. Thomas, 78 Mo. 343; 'State v. Patrick, 107 Mo. 147. (4) Instruction three, given at the request of the State, is erroneous. State v. Helton, 234 Mo. 564; Kelly’s Crim. Law, pp. 359-360; State v. Yocum, 117 Mo. 625; State v. Whitsett, 111 Mo. 202; State v. Plainer, 196 Mo. 132. (51) ' The verdict in itself is not sufficient on which to predicate a judgment. State v. Pierce, 136 Mo. 34; State v. Bowe, 142 Mo. 439'; State v. Jones, 168 Mo. 3Q8 ; State v. DeWitt, 186 Mo. 69 ; Clark on Crina. Prac., p. 485. (6) There was no evidence upon which to predicate an instruction for assault with intent to commit rape. State v. Priestley, 74 Mo. 24; State v. Owsley, 102 Mo. 678; State v. Scholl, 130 Mo. 396; State v, Hayden, 141 Mo. 311.

      Elliott W. Major, Attorney-General, and John M. Dcmson, Assistant Attorney-General, for the State.
    (1) There was ample evidence to take the case to the jury, and the sufficiency of the evidence, as well as the conflict in same, must be determined by the jury. (2) The fifth ground of appellant’s motion for new trial asserts that the court committed error in permitting the State to compel appellant, while testifying, to testify as to whether he had abandoned a former wife. There could be no prejudicial error in this. Appellant took the stand and the jury were entitled to know who he was, and also his history. The cross-examination of appellant is not confined to a categorical review of his examination in chief. State v. Miller, 156 Mo. 76; State v. Peeley, 194 Mo. 301. (3) It will be presumed, in the absence of evidence, that the supplied information was a copy of the original information. State v. Walker, 167 Mo. 366; Railroad v. Holliday, 131 Mo. 440; Campbell v. Greer, 197 Mo. 463. A lost indictment, like any other record, may be supplied by the court of whose record it constitutes a part. State v. Burks, 132 Mo. 367; State v. Simpson, .64 Mo. 647; State v. Paul, 87 Mo. App. 47; State v. Smith, 71 Mo. 46; State v. McCarver, 194 Mo. 717. The supplied information was the charge upon which appellant was arraigned, entered his plea of not guilty, tried, and upon which verdict was rendered, the penalty assessed, and judgment of sentence pronounced. If any part of the record or proceedings be lost or stolen, the deficiency may be supplied. B. S. 1909, sec. 5060; 1 Chitty’s Crim. Law, 722; Hughes’ Crim. Law and Proc., sec. 2874, p. 751.
   KENNISH, J.

Upon an information charging him with the crime of assault with intent to rape, appellant was tried at the January term, 1910, of the circuit court of Harrison county, found guilty, sentenced to imprisonment in the penitentiary for a term of two years, and from such sentence and judgment appealed to this court.

The evidence for the State tended to show the following facts:

Mattie Miller, the prosecutrix, a married woman twenty-two years of age, with her husband Joe Miller and their two children, lived in the town of Andover in®Harrison county. The defendant, a married man twenty-eight years old, lived near Andover, and he and prosecutrix had been well acquainted for a number of years. On November 20, 1909, about 6:30 p. m., defendant drove into Andover in a two-horse buggy. He stopped at the Miller home and inquired for the husband. Being informed by prosecutrix that he had gone to a store, defendant drove to the store and asked the husband to go with him to Lamoni, Iowa, a town about six miles distant. The invitation was accepted and after Miller had gone to his home and told his wife where he was going, the two men started to Lamoni in defendant’s buggy. When they were within about a mile of Lamoni defendant said he wanted to see some person who lived northeast of the town and suggested that Miller walk the remainder of the distance to Lamoni and there wait for him. Miller then walked on to Lamoni, and the defendant, after going only a short distance to the north, drove back to Andover and immediately went to the Miller home, arriving there about eight o’clock p. m. There was no one in the house except prosecutrix and her children. He entered the house without knocking. Prosecutrix asked where her husband was and defendant answered that he was at Ike Hampton’s drunk. Prosecutrix said, “Well, you had better get out of here and bring him home.” Defendant said he was going home and went out of the house. Prosecutrix then had her baby in her arms, attempting to rock it to sleep. The other child, then a little more than two years old, was in bed asleep. In a few minutes the baby went to sleep and prosecutrix put it in bed and went out into the yard. Defendant was in the yard and said, “Hello.” She recognized his voice and being frightened by finding him still on the premises ran into the house. The defendant followed her and as soon as he was inside the house told her, in language that need not be reproduced, that he had driven all the way from Lamoni for the purpose of having intercourse with her and that he would accomplish his purpose or kill her. She replied that he would do nothing of the kind. Thereupon he threw his arms about her and dragged her into the kitchen. She demanded repeatedly that he release her but he paid no heed to her demands. In the struggle that took place while he was dragging her.into the kitchen she fought and resisted him in every way she could, by kicking him, scratching him and pulling his hair. Part of the time she was screaming. After a short struggle in the kitchen she freed herself and ran back to the front room with the defendant following her. There were only two rooms in the house and the children were in bed in the front room. They had been wakenéd by the noise of the struggle and were crying. The oldest one was trying to climb out of bed and get to its mother. Prosecutrix then threatened to shoot defendant unless he left the house and told bim she would tell her husband what he had done. He said: “You better not. Joe will leave you, and if he don’t leave you we will get in a fight and I will Mil him.” Defendant then left the house, and as he was leaving he paused in the door and said: “If it wasn’t for those two children yelling like that I would show you what I could do to you.” He then drove hack .to Lamoni, found Miller there waiting for him, and together they returned to Andover.

The defendant introduced evidence tending to show the following facts:

■Defendant and prosecutrix, before either was married, lived on adjoining farms. Improper relations existed between them then and such relations continued after both were married. On the evening in question the defendant stopped at the Miller house the first time to arrange a meeting with prosecutrix that evening, and was told by her that such a meeting would be agreeable if he could get her husband out of the way. He asked the husband to go to Lamoni with him, took him to a point near that town, promised to meet him in Lamoni later in the evening, and then drove back to Andover for the purpose of meeting prosecutrix. When he arrived at the home of prosecutrix she said she was afraid they were being watched and that he had better leave and meet her some other time. They kissed each other two or three times, but defendant made no assault upon prosecutrix, and did not make the statements testified to by her as to his purpose in coming back from Lamoni and his intention to carry out such purpose. When it was suggested that they were probably being watched defend- and left the house, drove back to Lamoni, found Miller there waiting for him and brought him back home.

The State, in rebuttal, introduced several witnesses who testified that prosecutrix bore a good reputation for virtue and chastity.

The court gave instructions authorizing a conviction of assault with intent to rape, or common assault, or an acquittal.

The jury returned the following verdict: “We, the jury, find the defendant guilty, and assess his punishment at two years’ imprisonment in the penitentiary.”

I. The Attorney-General has filed a motion to dismiss this appeal on the ground that it °was not perfected within twelve months from the date of the order allowing the appeal, and we shall give that first consideration.

It appears from the record that the appeal was granted on the 22nd day of January, Í9'10, and that an order was then made allowing defendant until and during the May term, 1910, to file his bill of exceptions. It is further shown that the time for filing the bill of exceptions was extended from time to time and that the bill was not filed until October 14, 1911.- The transcript of the record was filed in the office of the clerk of this court on February 2, 1912. It thus appears that more than two years elapsed between the time of granting the appeal and the time the transcript reached this court. Notwithstanding this inexcusable delay we have concluded to overrule the motion to dismiss the appeal, and for the following reasons. Section 5313, Eevised Statutes 1909, authorizes this court, upon the motion of the Attorney-General, to dismiss an appeal for failure to perfect the same within twelve months, “unless the defendant shall show to the satisfaction of the court good cause for not perfecting his appeal.” An examination of the record has not satisfied us that the defendant was responsible for the delay in perfecting his appeal, and as the record is now before us and was filed with the clerk of this court long before the filing of the motion to dismiss, we are not disposed to deny appellant a hearing on the merits.

Before passing from this subject it should be observed that many statutes, in accordance with a wise public policy, attest a legislative intent to bring the trial of criminal cases, as well as all iitigation, to as early a termination as is consistent with the orderly administration. of justice. To that end the trial court is given power to appoint a temporary stenographer. The circuit clerk, in case of an appeal, is required to make out a transcript of the record and to certify and return the same to the clerk of this court without delay. The appellate court is directed to proceed upon the return of the record “without delay and render judgment on the record before them.” In view of these provisions in aid of timely prosecutions of appeals in criminal cases, there is no justification for the delay disclosed by the record in this ease.

II. Before the commencement of the trial it was discovered that the papers in the case, including the information, were lost. On application of the prosecuting attorney leave was granted by the court to supply the lost papers, and another information was filed. No objection was made to the filing of said second information, but the defendant was arraigned, tried and convicted thereon. After the trial the original information was found, and because a difference of one day is shown between the two informations as to the date of the commission of the offense it is urged in this court for the first time that error is apparent in the record. ’

If such action of the court was error it is clear that it does not appear in the record proper, but was matter of exception, and the defendant having failed to object at the time to the ruling of the court, or to the action of the prosecuting attorney in filing a new information, cannot be heard to object on appeal. But we think the court was not in error in allowing the filing of the second information. This is not a case of supplying a copy of a lost indictment, which, as held in the cases cited by appellant, the court may allow, even in the absence of statutory authority. Section 5060', Revised Statutes 1900, expressly provides that: “If the affidavit or information shall be lost or destroyed, the prosecuting attorney may file another, and the case shall proceed without any delay from that cause.” When the second information was filed is was not a mere copy of an original but it became the charge upon which the accused was tried, as in the case of an amended information, and the original information thereupon became as an abandoned pleading and constituted no part of the record of the case. We therefore rule against appellant upon this complaint.

III. It was argued with much zeal by counsel for appellant that the court erred in permitting improper cross-examination of the defendant. Upon this point the record is as follows:

“Q. How many times have you been married? A. Twice.

“Q. You abandoned your first wife?

“The defendant objects for the reason that it does not tend to prove anything toward the guilt or innocence in this case.

“The State claims it affects his credibility.

“By the court: It goes to his credibility as a witness on the stand.

“To the action of the court in overruling said objection the defendant then and there excepted and still excepts.

“Q. You abandoned your first wife, didn’t you? A. Yes, sir.”

The foregoing excerpts makes it clear that the objection was not made on the ground of improper cross-examination of a defendant, as now insisted upon, but upon the sole ground that the testimony did not tend to prove the guilt or innocence of the defendant. We must therefore consider the objection as it was made to the trial court, and that is as though the witness had not been the defendant on trial.

It is well recognized, law that the cross-examination of a witness is not restricted to such matters alone as tend to prove the issues on trial. The rule is: “He may be compelled to answer any such question, however irrelevant it may be to the facts in issue, and however disgraceful the answer may- be to himself, except where the answer might expose him to a criminal charge.” [State v. Potts, 239 Mo. 403; State v. Long, 201 Mo. 675, and cases cited.]

The question of the prosecuting attorney we think was improper in view of the fact that the witness was the defendant on trial and that it was upon a matter not referred to in his examination in chief. The credibility of a defendant as a witness cannot be attacked in that manner. [State v. Barrington, 198 Mo. 23.] On the other hand, the court must be advised at the time" of the specific ground on which the objection is made, and if a proper objection is not then made it will not avail to show on appeal that the testimony admitted was open to another valid objection not made at the trial. [State v. Witherspoon, 231 Mo. l. c. 720, and cases cited.]

In the Barrington case, supra, it was held that an objection to an improper question asked the defendant on cross-examination, on the ground that it was irrelevant and immaterial, was not sufficiently specific, but that the objection that the question was irrelevant, immaterial and not proper cross-examination, was specific enough to direct the court’s attention to the fact that the statute limiting the scope of the cross-examination of a defendant was thereby invoked. The objection under review clearly was not based upon the ground of the immunity granted to a defendant by said statute, and it is too late to adopt that ground on appeal to this court.

IV. The defendant introduced evidence tending to prove specific acts of unchastity of the prosecuting witness. In rebuttal, the State, over the defendant’s objection, was permitted to offer testimony tending to prove her- good reputation for virtue and chastity, and appellant now complains of the admission of such evidence as error.

Substantially the same question was before this court in the case of State v. Jones, 191 Mo. 653, and .it was there held, as stated in the syllabus, that: “Where witnesses have testified as to improper conduct of the prosecutrix in improper and promiscuous association with men at night, and to admissions by her of having sexual intercourse with other men and being pregnant by another man, this is a sufficient assault upon her character to entitle the State to introduce testimony, in rebuttal, as to her good reputation.” See also State v. Speritus, 191 Mo. 24; Underhill on Criminal Evidence (2 Ed.), sec. 418.

We do not regard the testimony so offered by the State as being in conflict with the rule of evidence that a party will not be permitted to prove the good reputation of a witness before it has been attacked by his adversary. It -is competent to impeach a witness by proving a bad reputation for morality, virtue and chastity. In this case testimony of particular acts of unchastity was admitted, not to impeach the witness, but to prove consent and to negative the testimony of an assault by force, but while such testimony was not admitted for the purpose of impeachment, it would most certainly have that effect if uncontradicted. It was an attack upon her character, and it would be unreasonable to allow an array of witnesses for the defendant to testify to specific acts of lewdness and unchastity of the prosecuting witness, as was done in this case, and not permit the State to meet it by proof of her good reputation for virtue 'and chastity. .We think the testimony was properly admitted.

V. Appellant complains of error in the giving of instruction number 3 at the request of the State. The particular complaint lodged against it is that in defining the offense charged it leaves out of consideration the element of force. We have considered this complaint and find that said instruction, as well as instruction numbered 6, given at the request of the defendant, required the jury to find, in order to authorize a conviction, that the defendant, in making the assault upon the prosecuting witness, intended, in order to accomplish his purpose, to overcome any and all resistance which she might make. That is all the law requires.

VI. The court instructed the jury upon, the felony of assault with intent to rape. An instruction was also given, at the request of the defendant, upon the misdemeanor of common assault. The jury returned the following verdict: “We, the jury, find the defendant guilty, and assess his punishment at two years’ imprisonment in the penitentiary.”

Complaint is made that the verdict is insufficient in that it does not appear therein of which of the two offenses defined in the instructions the defendant was convicted.

The instructions authorized the assessment of the penalty of imprisonment in the penitentiary only in case óf a conviction of the higher offense, and a penalty of a fine or imprisonment in the county jail in cape of a conviction of common assault.

In determining the sufficiency of a verdict the controlling object is to learn the intent of the jury, and if such intent may be ascertained and the verdict made definite and certain by reference to the pleadings and instructions it' will be sustained, “and all reasonable presumptions are indulged to sustain the verdict and that the jury has found all the facts necessary to support it.” [State v. Bohle, 182 Mo. 68; Muller v. St. Louis Hospital, 73 Mo. 242 ; 22 Ency. Pl. & Pr. 955 et seq. 29 Am. & Eng. Ency. Law, 1017.]

Under the rule laid down by the foregoing authorities, the verdict leaves no doubt of which offense the defendant was convicted

VII. It is finally contended that the evidence is insufficient to sustain the verdict. It is shown by the record that this was a hotly contested case, in which there was the most pronounced conflict in the testimony of the respective parties. While it is not difficult, as is usual in such cases, to point out inconsistencies in the conduct and testimony of the prosecuting witness, the testimony of the defendant is equally open to attack. If he had long been unduly intimate with the prosecuting witness, as he testified, it is most improbable that being in the house with her after dark and in the absence of her husband he would have thought it necessary to have taken the husband to a town six miles distant in order to have an opportunity to carry out his purpose. The husband was a laboring man. The defendant resided near by, and the elaborate scheme to get the husband away does no.t lend support to the verity of defendant’s testimony as to the former improper relations existing between him .and the prosecuting witness. Besides, his admitted perfidy towards the husband, who regarded him as a friend, was not likely to give the jury a high opinion of his veracity. However that may be, it cannot be said that the testimony of the prosecuting witness, if true, did not tend to prove the charge of which the defendant was convicted, and it is the province of the jury, not this court, to weigh the evidence and find the facts. As there was evidence to warrant their finding, the verdict will not be disturbed. . We have carefully examined the entire record and having failed to find error the judgment is affirmed.

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


source: Caselaw Access Project

author: BROWN, P. J.

license: Public Domain

text:
    THE STATE v. CLARENCE PIERCE, Appellant.
    Division Two,
    June 1, 1912.
    1. PRELIMINARY HEARING. Parties charged with an ordinary-felony are not entitled to a preliminary examination before a committing magistrate.
    2. INSTRUCTIONS: Comment on Evidence. In criminal cases the instructions should declare the law in the plainest possible language; and needless and incorrect comments upon the evidence should be omitted.
    3. -: Subtle Definitions.. Instructions containing subtle definitions of what constitutes- reasonable doubt, asked by defendant, should be refused, and their refusal is cured by correct ones given on behalf of the State.
    4. ATTEMPTED RAPE: Force. To constitute the crime of an attempt to rape, it is not necessary that the accused should in fact overcome all resistance of the intended victim. If he actually made the assault with the intent to overcome all resistance the female could offer, the crime is complete. But the force used by him must be actual force, and not mere solicitations or peaceable pursuasion.
    5.' -: -: This Case. About eight o’clock at night defendant and prosecutrix left a town, in a buggy, to go to their home about thirteen miles in the country. When they were at a lonely place along the road, he suddenly threw his arms about her and commenced kissing her and trying to raise her dress. She slapped him in the face and urged him to desist, but he became so persistent in his lascivious advances that she threatened to jump out of the buggy and walk home. Finally she did jump out, and defendant, after hitching his team, ran after her, caught her, and after a severe scuffle threw her to the ground, held her hands, raised her dress and touched her with his private parts. She screamed, struck him in the face and pulled his hair and fought him to such an extent that after a few minutes he desisted. Held, that these facts, established by the testimony of prosecutrix alone, made out a prima facie case for the State of an attempt to rape; and the fact that she was resolute and stout enough to successfully resist his brutality .does not purge him of the crime which he intended to commit when he commenced the assault.
    Appeal from Ray Circuit Court. — Hon. F. H. 1 Trimble, Judge.
    Affirmed.

      Farris & Farris for appellant.
    (1) The plea in abatement should have been sustained for the reason that the defendant was not accorded a preliminary examination. Laws 1907, sec. 2476a. This ease was appealed before decision in case of State v. Schenk, 238 Mo. 429, and we ask the court to again consider this point. (2) The demurrer to the evidence should have been sustained because the evidence is insufficient to convict the defendant of the crime of assault with intent to commit rape. State v. Priestley, 74 Mo. 24; State v. Owsley, 102 Mo. 678; State v. Scholl, 130 Mo. 396; State v. Hayden, 141 Mo. 311. (3) Instruction 2 is erroneous in that it fails to require the jury to find before they can convict the defendant, that the intention of the defendant, if it became necessary, was to force compliance with his desire at all events and regardless, of any resistance the prosecutrix might offer. State v. Neal, 178 Mo. 63. (4) Instruction 4 is erroneous for the same reason set out in point 3. (5) Instruction 6 did not clearly and definitely call to the attention of the jury the effect of the failure of Euth Oldham to make complaint. State v. Miller, 191 Mo. 587; State v. Boyd, 178 Mo. 2; State v. Goodall, 210 Mo. 215. (6) Instruction D, asked by the defendant and refused by the court should have been given for the reason that in cases of this character, jurors act upon prejudice ag’ainst the defendant, and by this instruction it was sought to confront them with their prejudice and remove it, thus giving to the defendant a fair and impartial trial. State v. Boyd, 178 Mo. 11. (7) Instructions B, C, E, F, asked by defendant and refused by the court should have been given because they were based on the evidencó and properly declared the law of the case as to the failure of prosecutrix to make outcry. And for the further reason that they differentiate between an outcry and merely telling a story in answer to interrogatories, which latter is in fact no outcry and should be governed by the law laid down in these instructions. State, v. Bell, 101 N. W. 189; State v. Welmot, 72 Pac. 838; State v. Halford, 54 Pao. 819; State v. Patrick, 107 Mo. 158; State v. Whitten, 100 Mo. 528.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    (1) Assault with intent to rape is a crime at common law. Glover v. Commonwealth, 86 Va. 382; State v. Pickett, 11 Nev. 255; Rookey v. State, 70 Conn. 104. If a man assaults a woman, meaning to ravish her, and he desists, he is still guilty of assault with intent to commit rape. 1 Bishop’s New Crim. Law, secs. 733 and 766; 33 Cyc. 1436; State v. Smith, 33 Atl, 441; State v. Elick, 7 N. C. 68; Lewis v. State, 35 Ala. 380; State v. Cross, 79' Am. Dec. (Ia.) 519; State v. Hartigan, 78 Am. Dec. (Vt.) 609; Commonwealth v. Slattery, 18 N. E. (Mass.) 3i99; State v. Long, 93 N. C. 542. (2) The sufficiency of the evidence was for the jury. Prosecutrix’ evidence was convincing, and strenuous cross-examination did not shake her testimony; in fact, it tended to corroborate her direct examination. Appellant undoubtedly, had the offense well thought out, as they started to Lawson and, against the will of prosecutrix, he took her to Excelsior Springs. The sufficiency of the evidence is ample, and the jury should have given him the maximum punishment. State v. Neal, 178 Mo. 63; State v. Espenschied, 212 Mo. 215. (3) Refused instructions A, B and C are fully covered by instruction 6 given. Refused instruction D is an abstract proposition of law, and the law of the case had been fully covered in the instructions given. While this instruction was in effect approved in State v. New, 178 Mo. 11, it does not follow that it is error not to give it. Refused instruction E does not correctly state the principles of law. State v. Miller, 191 Mo. 587; State v. Diltz, 191 Mo. 655; State v. Bateman, 198 Mo. 212. An instruction on reasonable doubt had been given, and it is not necessary to define reasonable doubt. State v. Bond, 191 Mo. 555'. When instructions given cover the case, it is not error to refuse other instructions covering the same points.as those already given. State v. Atchley, 186 Mo. 174; State v. Crittenden, 191 Mo. 17; State v. Barrington, 198 Mo. 23; State v. Speyer, 194 Mo. 459.
   BROWN, P. J.

Defendant was convicted of the crime of assault with intent to ravish one Ruth Old-ham in Ray county, Missouri. He appeals from a judgment of the circuit court of that county fixing his punishment at two years in the penitentiary.

The defendant, a farmer, twenty-seven years old, resided with his grandmother. Prosecutrix, eighteen years old, lived with her father on a farm near defendant. Both ol them bore a good reputation prior to the commission of the crime of which defendant was convicted.

Defendant was a suitor of prosecutrix for a pe^ riod of twenty months prior to August 1, 1911. He frequently took her in his buggy to church and also to near-by towns. According- to the evidence of both parties, their courtship had not ripened into an engagement, and their conduct was not considered in any way unusual, except that they were sometimes out buggy-riding until a late hour at night.

About three p. m. on August 1, 1911, prosecutrix started with defendant ostensibly to drive to the town of Lawson, about eleven miles distant, to do some trading. After arriving at a road which led to Excelsior Springs, defendant decided to go to that point instead of Lawson, in order that he might telephone his mother, who was then at Kansas City. They arrived at Excelsior Springs about 6:30' p. m., after the stores had all closed, so that prosecutrix could not make the purchases she desired. While at the Springs, defendant left prosecutrix for about three-quarters of an hour, while away on some unexplained errand.

About eight p. m. defendant and prosecutrix started for the .home of prosecutrix some thirteen miles distant. Up to this point, there is no conflict in the testimony. Prosecutrix testified that at a lonely place on the road, defendant suddenly threw his arms around her and commenced kissing her and trying to ráisé her dress. She slapped him in the face and tried to make him behave himself, but he became so persistent in his lascivious advances that she threatened to jump out of the buggy and walk home. Finally she did jump out, and defendant after hitching his team, ran after and caught her; when after a severe scuffle he succeeded in throwing her to the ground, raising her dress and touching her with his private parts. She claims to have screamed and fought the defendant by striking him in the face and pulling his hair to such an extent that after a few minutes he desisted from his attempt to have intercourse with her against her will, and began looking for his ring and pipe which he claimed to have lost in the scuffle. During the assault, defendant told prosecutrix to scream all she wanted to, that there was not a house within three miles. Prosecutrix got in the buggy and was driven home by defendant. They reached her father’s home about the hour of one a. m., and she then informed defendant she never wanted to see his face again. Prosecutrix then went to bed with her sister, and made no complaint of the assault until the following evening, when she told her sister. Other members of the family were not informed of the assault until thirteen days afterward, when this prosecution was instituted.

The report of the attempted assault spread rapidly through the neighborhood; but just how the report was first started, does not fully appear. Some days after the crime, an old man named Newt McAdams, who* cultivated the same farm where defendant resided, asked defendant why he attempted to have intercourse with prosecutrix when she was not willing to submit to such- conduct. Defendant did not deny the criminal conduct attributed to him, but gave a vulgar answer, indicating that his acts were inspired by uncontrollable lust. In a conversation with Lawson Cox, another neighbor, regarding some witnesses summoned before the grand jury, defendant said, “If that girl tells what she knows, I will be in a pretty tight box.”

The morning after the alleged crime, the defendant seemed to be in a worried and peevish mood. He was asked by one Mabel Brown, who was living with his grandmother, why he swore at such trifles as breaking a shoestring; to which he replied that that was not what really worried him; that he was full as a goose last night and lost his ring and pipe. Witness asked defendant what he was doing the night before. To which he replied that he “done enough to put him in the penitentiary all right. If that d — d fool keeps her mouth shut, I will be all right.”

Witness did not explain who defendant referred to by this last remark; but as'he had been with no other woman except prosecutrix the night before, he undoubtedly referred to1 her. Defendant testifying in his owm behalf, denied that he made any criminal assault on prosecutrix, and also denied making the incriminatory statements testified to by witnesses Newt McAdams, Mabel Brown and Lawson Cox.

Defendant stated that on the return trip from Excelsior Springs, he had a quarrel with prosecutrix about another young man she had been keeping company with, and in effect informed her that he was going away and would not keep company with her any more.

For reversal, defendant relies:

(1) Upon the failure to accord him a preliminary examination;

(2) Erroneous.instructions given by the court;

(3) Error of the court in refusing to give instructions prayed by defendant; and,

(4) Insufficiency of the evidence to support the verdict.

I. In the case of State v. Schenk, 238 Mo. 429, after an exhaustive review of the statutes of this State and the authorities, we held that parties charged with an ordinary felony, were not entitled to a preliminary examination before a committing magistrate. We still adhere to that decision.

II. The instructions given by the court were fair to defendant, and correctly defined all the issues of law necessary for the guidance of the jury in reaching their verdict.

III. All proper issues presented in defendant’s refused instructions were covered by the instructions given.

Below, we reproduce two of defendant’s refused instructions:

“The court instructs the jury that the charge with intent to commit rape, made by Ruth Oldham, against the defendant, remains uncorroborated by any evidence in the cause; if the jury shall believe from the evidence in the cause that said Ruth Oldham concealed the alleged assault to commit rape until several days after the commission of such alleged assault upon her, then the law presumes such concealment inconsistent with defendant’s guilt.

“The court instructs the jury that the law clothes the defendant with the presumption of innocence which attends and protects him until it is overcome by testimony which proves Ms guilt beyond a reasonable doubt, which means the evidence of his guilt as charged must be clear, positive and abiding, fully satisfying the minds and conscience of the jury, and it is not sufficient in a criminal case to justify a verdict of guilty that there may be strong suspicion or very strong probabilites of guilt, nor is it sufficient that the greater weight or preponderance of the evidence supports the allegation of the information; nor is it sufficient that upon the doctrine of chance it is more probable that the defendant is guilty than that he is innocent, but in order for a' conviction, the law requires the proof by legal and credible evidence of such a nature that where it is all considered it produces a clear, undonbting and entirely satisfactory conviction of defendant’s guilt, and the burden of establishing the guilt of defendant, as above required, is on the State, and if the jury can as readily say from the evidence that the defendant is innocent 'as well as they could say he was guilty, then, in such case, it would not be sufficient evidence on which to convict defendant, then it would be the jury’s duty to give him the benefit of the doubt and acquit him.”

In criminal cases, courts should declare the law to the jury in the plainest language possible; and incorrect or needless comments upon the evidence, such as are found in the first instruction above set out; and subtle definitions of what constitutes reasonable doubt, as found in the last instruction above copied, should always be omitted. [State v. Stanley, 123 Mo. App. 294; State v. Hale, 238 Mo. l. c. 511; section 5244, R. S. 1909; State v. Shaeffer, 89 Mo. 271.]

We will not encumber this opinion with a further comment upon the instructions given and refused.

IV. The defendant’s main contention, is that if the evidence of the prosecutrix be taken as true, it does not prove such an assault as constitutes the crime of assault with' intent to ravish. He cites the following cases: State v. Priestley, 74 Mo. 24; State v. Owsley, 102 Mo. 678; State v. Scholl, 130 Mo. 396; State v. Hayden, 141 Mo. 311. The cases of State v. Priestley and State v. Owsley, supra, do hot present anything like such a persistent and aggravated assault as the case at bar; and therefore they are not in point. The case of State v. Scholl, 130 Mo. 396, was a prosecution for an assault in some respects much like the one with which defendant is charged. However, in the Scholl ease there was no outcry by the prosecutrix, when such outcry would have brought help and relief to her; while in the case at bar there was an outcry at a place where no one was near enough to give aid to the party assaulted. The evidence in the case of State v. Hayden, 141 Mo. 311, shows an attempted housebreaking or burglary, but no evidence of an attempt to rape.

In the case at bar, the ’ court told the jury that before they could convict the defendant of assault with intent to rape, they must find and bélieve beyond a reasonable doubt from all the evidence in the ease that the defendant at the time intended to have sexual relations with the said Ruth Oldham against her will and regardless of any resistance she might offer and at all hazards.

To constitute the crime of attempt to rape, it is not necessary that the accused should in fact overcome all resistance of the intended victim. In some cases the female may be able to successfully resist the most brutal attempt to despoil her of her virtue, or she may be able to inflict such punishment upon her assailant as to force him to abandon his felonious purpose. If the defendant actually made the assault with the intent to overcome all resistance the prosecutrix could offer, the crime was complete. [1 Bishop’s New Criminal Law, secs. 732 and 733.] But of course, in cases of this character, the force used must he actual force, and not mere solicitation or peaceable persuasion.

In the case at bar, if the prosecutrix swore the truth, the defendant toot her to a place where he thought no one could see him nor hear any outcry of his intended victim, and in spite of her most vigorous objections to his embraces, threw her upon the ground and by holding her hands, attempted to force her to submit to sexual intercourse with him. This made out a prima facie case for the State. The fact that the prosecutrix was resolute and stout enough to successfully resist his brutality does not purge defendant of the crime which he intended to commit when he began the assault.

The jury were the judges of the evidence, and from a careful reading of the record, we see no indication that they failed to weigh the evidence correctly and return a proper verdict. The judgment is affirmed.

Ferriss and Kennish, JJ., concur.


author: BLAIR, C.

text:
    THE STATE v. WILLIAM SCHMULBACH, Appellant.
    Division Two,
    June 1, 1912.
    1. IMPANELING JURORS: Opinions Based on Rumor: Appeal. Tlie action of the trial court in impaneling veniremen who had formed opinions solely from rumor and newspaper reports, hut who satisfied the court they could give defendant a fair trial, is not ground for reversal in this case.
    2. INSTRUCTIONS: Murder: Using Deadly Weapon. Instructions on murder and as to the presumption arising from the use of a deadly weapon, couched in the form approved in State v. Grant, 152 Mo. 57, and State v. Hudspeth, 159 Mo. 178, are approved without comment other than that the evidence warranted them.

      3. -: Flight: Mob Violence. There was evidence .that after the .shootifig for which, the defendant is on trial, he lay in hiding for five weeks, in the city where it occurred, and that meantime, as he knew, armed men scoured the country and there were threats of mob violence. At the end of the five weeks defendant fled the, State. The trial court instructed the jury that flight raises the presumption of guilt, but refused an instruction asked by defendant containing a paragraph substantially like that given upon flight and a further paragraph to the effect that though the jury might believe defendant fled, yet if he fled from fear of mob violence and not for the purpose of avoiding arrest and trial, the jury should not consider the circumstance of flight in making up their verdict. Held,, that the judgment of conviction must be reversed and remanded for the failure to instruct as requested. ■
    4. EVIDENCE: Threats. In a prosecution for murder, testimony to the effect that some twenty minutes before the defendant shot and killed a policeman who held his wife under arrest, he had said that “they [the police] will keep on until some of them get blowed up,” was competent. The implied threat was directed against the class to which deceased belonged and its vagueness affected its weight, not its competency.
    Appeal from Jasper Circuit Court. — Eon. J. D. Perkins, Judge.
    Reversed and remanded.

      George A. "Neal and Clay & Davis for appellant.
    The court erred in giving instruction 6 for the State upon flight, 'and in refusing to give instruction 25 for defendant upon mob violence. State v. Minor, 193 Mo. 597; State v. Foster, 130 N. C. 666; Smith v. State, 106 Ga. 673; State v. Gates, 20 Mo. 461; State v. Reed, 137 Mo. 125; State v. Hyeron, 157 Mo. 395.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    Threats made by appellant were admissible even a week or two prior to the homicide. State v. King, 203 Mo. 560; Underhill on Crim. Ev., secs. 328, 329, 576, 577, 578.
   BLAIR, C.

Defendant was convicted of mnrder in the second degree and sentenced to thirty years in the penitentiary. He appealed.

The evidence for the State tended to show that on the night of November 15,1909, Officers Smith and Graney of the Joplin police force, acting under a general order to arrest all women of bad character, arrested defendant’s wife and one Minnie McDonald at 803 Main street in Joplin. When arrested the women demanded to know whether the officers had a warrant and were told they had not. They at first refused, on this account, to submit to arrest but changed their minds on condition that they be permitted to use the telephone to arrange for bond. This Mrs. Schmulbach did, leaving word with the prospective bondsman to inform her husband of her plight and have him also go to the police station. The message was delivered as requested. The officers and the women then left the place to go to the station, the former, at the suggestion of their prisoners, walking some little distance in advance in order that the fact the women were under arrest might not be advertised more than necessary. For the same reason the party proceeded westward toward Joplin street, a less traveled thoroughfare. As they crossed the street at the intersection óf Eighth and Main and after the officers hád passed some thirty or thirty-five feet west of and beyond the corner and the women had reached the corner and were on the sidewalk at the northwest corner of the street intersection, defendant, who had come south on Main street and reached a point near the corner,, called to his wife, who walked north on Main street to meet him, her companion remaining on the corner. The officers were attracted by defendant’s speaking to his wife, and by the fact their prisoners were no longer following them and one had started up another street, and started quickly back. Officer Graney testified that when he and Smith reached a point five or six feet west of the door across the southeast corner of the building on the northwest corner of the intersection of Eighth and Main he heard some one say, “What’s the matter here?” or, “What the hell is the matter here?” and defendant’s wife replied: “They are taking us to jail and Graney struck me.” Graney stepped past and in front of Smith and defendant came into view, stepped off the sidewalk at a point about eighteen feet from the officers, fired three or four times, ran into Main street and fired three or four shots more. Another eyewitness testified that defendant commenced the shooting, firing three shots; that the officers stepped back toward the building and fell against each other and then two or three more shots were fired, the reports being louder than before and witness thought these shots were fired by one of the officers. He had seen officer Smith’s pistol in his hand before defendant fired. He heard no other shots. He heard some one say just before the shooting began: “There’s the son-of-a-bitch, shoot him,” and the firing immediately began. After firing, defendant ran and passed out of sight near the entrance to the alley next east of Main street. Graney was shot through both legs at the knee, and Smith was shot through the body, the latter dying of his wound on the following day'. The evidence further showed that the officers were both in full uniform, and were wearing helmets and the usual policeman’s badge. There were electric lights on the corner and the store buildings were lighted. There was also evidence tending to show that officer Graney’s pistol was not fired on the night of the tragedy. ■

Defendant fled and was arrested in 1911 in Seattle, Washington, where he was living under an assumed name. To the officers who arrested him he gave his name as Harry Nye.

Considerable evidence was introduced by the State to the effect that the reputation of defendant’s wife and her companion, Minnie McDonald, for chastity was bad. This evidence was admitted over defendant’s objection and the trial court, at the close of the evidence, both orally and in writing instructed the jury that they must disregard it. The women mentioned did not testify in the case.

There was evidence for defendant tending to show that his possession of a pistol the night of the shooting was the result of circumstances which showed he carried the weapon for no evil purpose.

Defendant testified in his own behalf that when he was told of his wife’s telephone message and that she was under arrest he attempted to telephone her but could get no response. He then left the saloon in which the message was delivered to him and started to his home at 803 Main street, proceeding south until he saw the two policemen and his wife and Minnie McDonald following them. He called to his wife and she came north on Main street to meet him. She was crying and defendant asked her what was the matter. She replied that she was arrested. Defendant then asked her what she was crying about and she answered that “Tim” (Officer G-raney) had struck her. Just then the officers who had been just around the corner, “turned the corner with a rush” and as they did so one of them, according to defendant, said: “There is the son-of-a-bitch! Shoot him.” Officer Smith had a pistol in his hand. Defendant declared that both he and the officers then began to fire, and he was not certain who fired the first shot. He testified that he fired at this time five shots and the officers fired one, firing a second shot after he (defendant) turned to run. He said the reason he fired was that “when he made that remark I thought he was going to shoot me, that was the only thing I could figure out, and probably kill me.”

The information, with sufficient clearness and certainty, charges defendant with murder in the first degree, and need not be set ont in this opinion, no •question concerning it being raised by counsel.

Neither need the exception saved in connection with the impanelment of the jury be discussed at length since, under the statute and the settled rule in this State, as counsel concedes, the action of the court in impaneling veniremen who had formed opinions solely from rumor and newspaper reports but who satisfied the court they could' give defendant a fair trial, is not ground for reversal in this case.

One of the grounds of motion for new trial is that the court erred in its instructions on murder and that as to the presumption arising from the use of a deadly weapon. These instructions are in a form heretofore approved (State v. Grant, 152 Mo. 57; State v. Hudspeth, 159 Mo. 178) and further comment is unnecessary, except to say that the evidence warranted the court in giving them.

Upon the subject of flight the trial court instructed as follows:

“The court instructs the jury that flight raises the presumption of guilt, and if the jury believe and find from the evidence that the defendant after the alleged shooting of William Smith, charged in the information, fled from the State of Missouri for the purpose of avoiding arrest and trial for said offense, you may take this fact into consideration in determining his guilt or innocence.”

In this connection defendant’s counsel requested and the court refused an instruction containing a paragraph substantially like the instruction given and a further paragraph to the effect that though the jury might believe defendant fled, yet if he fled from fear of mob violence and not for the purpose of avoiding arrest and trial the jury should not consider the circumstance of flight in making up their verdict. There was evidence that in a short time after the shooting defendant went to the home of his brother-in-law in Joplin and remained there in concealment about five weeks, then left the State and went to Washington. There was evidence that the shooting immediately created great excitement, that armed men scoured the country for defendant, that threats of mob violence were made and that sentiment was much aroused against him. Defendant’s brother-in-law testified he informed him of these facts and, on account of them, urged him to remain in hiding. There was evidence that it was for these reasons defendant first concealed himself and subsequently left the State.

In State v. Harris, 232 Mo. 317, the question now presented was passed upon and that judgment was reversed and the cause remanded solely by reason of the trial court’s omission to instruct as the court below refused to instruct in this case. The reasons then given need not be rehearsed. It is enough to say that the principle upon which that case was decided is exactly applicable in this and, consequently, this judgment must be reversed and the cause remanded.

In view of the fact that the cause must be reversed for reasons already given it is not necessary to discuss the question whether the evidence as to the reputation of Mrs. Schmulbach and Minnie McDonald was prejudicial to defendant. Doubtless the trial court will exclude that evidence on a retrial, unless other circumstances make it competent. Drain’s testimony to the effect that some, twenty minutes before the shooting, speaking of the action of the police in arresting numerous women, defendant said that “they [the police] will keep on until some of them get blowed up,” was competent. The implied threat was directed against the class to which deceased belonged and its vagueness affected its weight, not its competency.

As to other questions argued here it is only necessary to say that we cannot, in the circumstances, safely undertake to forecast the evidence upon another trial and rule in advance thereof upon the issues which should be submitted to the jury.

The judgment is reversed and the cause remanded.

Roy, C., concurs.

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

All the judges concur.


author: ROY, C.

text:
    THE STATE v. AUSTIN GREAVES, Appellant.
    Division Two,
    June 1, 1912.
    1. MURDER: Evidence: Motive. It was not error, in this prosecution, for murder, to admit evidence of the- arrest of defendant, before the killing, upon a charge of attempted arson made by the deceased. Such evidence was competent to show motive.
    2. -: In First Degree: Instructions. Where there was evidence from which- the jury could draw the conclusion that the killing was done willfully, deliberately, premeditatedly and of malice aforethought, the question of defendant’s, guilt of murder in the first degree was properly submitted to the jury.
    S. MANSLAUGHTER: Heat of Passion: Instructions. Where the defendant’s own testimony shows that he left his seat on his upstairs porch, went into- the house and got his pistol, returned to -the porch, walked down a stairway and shot deceased, saying deceased threatened to kill him and “reached to his hip-pocket,” there was no error in failing to give an instruction on manslaughter in the fourth degree, as for a killing done in the heat of passion.
    4. MURDER: Self-defense: Appearances: Instructions. Where an instruction on self-defense told the jury that the defendant had the right to act upon appearances, error cannot be grounded on appeal upon the insistence that the instruction should have said further,' “the defendant had the right to act upon appearances, though it might thereafter turn out that the appearances were false.” The .attention of the trial court was not called to this alleged omission either at the trial or in the motion for a new trial.

      5. -: Threats: Instructions. In a prosecution for murder the jury should he limited in the instructions to the consideration of communicated threats in determining whether the defendant was justified in acting on appearances and hilling deceased.
    6. -: Counsel Appointed by Court Over Defendant’s Objection: Appeal. Where the record shows that only benefit came ' to defendant from the efforts of his counsel, error cannot be grounded upon the fact that the defendant objected to the appointment of such counsel to defend him.
    7. -: Insanity: Instructions. Where thé Supreme Court can find in the record no foundation for the claim that the defendant was insane at any time, and the trial judge could have observed any indications thereof in the trial, the refusal to give an instruction upon insanity as a defense in a trial for murder, was not error.
    Appeal from St. Louis City Circuit Court. — Row. Eugene McQuillin, Judge.
    Aeeiemed.

      Aug. Wals, Jr., for. appellant.
    (1) The court erred in admitting the testimony as to the arrest of defendant, on the charge of arson, at least twenty days before the commission of the crime with which this defendant is charged, the testimony being incompetent and irrelevant in that such testimony is prejudicial to defendant and tends to prejudice the minds of the jury against him and was compelling defendant to meet charges of which the information gives no notice and permits the jury to infer from the commission of one crime that the defendant is guilty of the crime charged. State v. Speyer, 194 Mo. 460; State v. Speyer, 207 Mo. 540; State v. Hyde, 234 Mo. 201. (2.) The court erred in submitting to the jury the question of murder in the first degree; there was nothing in the evidence that would have justified a conviction of murder in the first degree. For in the prosecutions for murder in the first degree, deliberation and premeditation are never presumed. They must be shown in order to make out the offense — State v. Lane, 64 Mo. 319 — as the law is well settled in this' State that, where it is shown that the accused shot and killed his victim with a deadly weapon, and nothing more appears, then the law will presume the crime was murder in the second degree. State v. Anderson, 98 Mo. 461; State v. Fitzgerald, 130 Mo. 434; State v. Minor, 193 Mo. 598. If deliberation means prolonged premeditation, as defined by this court in State v. Speyer, 207 Mo. 552, the instruction as to murder in the first degree was not justified by the evidence. There is testimony that tends to show that a few minutes prior to the shooting, Frank Steve-son, who testified for the State, says, there was a quarrel .before the shooting. For if a quarrel arose after he went down' stairs to order Hunter away and If the killing was without malice aforethought, it is manslaughter in the fourth degree. State v. Speyer, 207 Mo. 556. (3) The court failed to instruct the jury that the defendant had the right to act upon appearances, though it might thereafter turn out that the appearances were false if he had reasonable cause to believe,' and did believe, it to exist. State v. Darling, 202 Mo. 163. Whenever the court, in a criminal case, undertakes to instruct on a question of law, the instruction should guide the jury fairly whether the attention of the court is drawn to the matter, or proceeds of its own motion. State v. Harris, 232 Mo. 317'. (4) The court erred in giving instruction five; on the grounds that this instruction is erroneous and confusing, and deprives the defendant of his rights under the law. State v. Darling, 202 Mo. 150. This instruction made it incumbent upon the defendant to show that threats had been made prior to the shooting and that they were communicated to him and does not justify the defendant acting upon appearances at the time of the shooting, unless threats had been made and. communicated to Mm prior to the shooting. (5) The court erred in refusing to give the instructions asked by the defendant as to whether or not the defendant was insane at the time of the commission of the offense, since the commission of the offense or since the impaneling of the jury. As the record of this case will show that the defendant’s actions were such that a jury should have had an opportunity to pass' upon the man’s mental condition during the progress of the trial, the question as to Ms sanity or insanity should have been submitted to them. The instruction asked, though it may be erroneous, is sufficient to require the court to instruct as to questions presented by such erroneous instruction. State v. Moore, 160 Mo. 443; State v. Reed, 154 Mo. 122. (6) The court erred in refusing to permit the defendant to try his own case and without the assistance of counsel. The court can only appoint or assign counsel for a defendant charged with a felony when requested by the defendant, and when the defendant fails to request that counsel be appointed he waives his statutory right. In this case the defendant most strenuously objected to the court appointing counsel, but insisted that he be granted his right to conduct his case without counsel, and which he had a right to do under art. 2, sec. 22 of the Constitution. State v. Moore, 121 Mo. 522. Sec. 5164, R. S. 1809, imposes a duty on the court to appoint counsel for a defendant charged with a felony, when requested by the defendant. State v. Terry, 201 Mo. 701. ^

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    (1) The court did right in appointing counsel. The record shows that counsel was very considerate in permitting the appellant to represent himself throughout the trial, at the same time preserving all of appellant’s rights in questioning the witnesses and filling np the gaps as to matters which, the appellant had not covered by his own inquiry. (2) The instructions (a), as to murder in the first degree, defining the terms willfully, deliberately, premeditatedly, malice and malice aforethought; (b), presumption of intention in the use of a deadly weapon at some vital part, infers presumption from same; (c), murder in the second degree; (d), self-defense; (e), threats; (f), the reason of the admission of threats; (g), as to defendant’s declarations; (h), information, formal charge, presumption of innocence, reasonable doubt and credibility of witnesses; (i), competency of defendant’s testimony; (j), refused instructions, are in proper form, (a), State v. G-atlin, 170 Mo. 354; State v. Spaugh, 200 Mo. 571; State v. Rasco, 239 Mo. 535; (b), State v. Brown, 188 Mo. 451; (c), State v. Todd, 194 Mo. 377; (d), State v. Darling, 202 Mo. 150; (e), State v. Darling, 199 Mo. 168; State v. Edwards, 203 Mo. 528- (f), State v. Parker, 172 Mo. 191; (g), State v. Clow, 131 Mo. App. 548; State v. Chappell, 179 Mo. 324; (h), State v. Speritus, 191 Mo. 24; State v. Bond. 191 Mo. 555; (i), State v. Taylor, 134 Mo. 109; (j), State v. Coates, 174 Mo. 396. The court properly refused the instruction asked by the defendant for the reason insanity is not made a defense and there is no evidence that the defendant was insane. The appellant did not ask an instruction on’ manslaughter in the fourth degree, and is therefore in no position to complain. If he desired an instruction upon manslaughter in the fourth degree, he should have asked the court to give said instruction. R. S. 1909, sec. 5231; State v. McCarver, 194 Mo. 717; State v. West, 202 Mo. 128. Instruction 4 follows the law of self-defense. The authorities cited by appellant do not mitigate against this instruction. Instruction 5 told the jury they must consider all the threats which they might believe from the evidence were made by the deceased against the appellant. State v. Smith, 114 Mo. 406, This instruction does not fall within the line of the Darling case, because it tells the jury that “they should consider all the threats which you may believe from the ^evidence were made by the deceased against the defendant.” R. S. 1909, sec. 4451. If the defendant'desired an instruction on manslaughter, or on any other phase of the case, that he thought was not covered by the instructions given by the court, he should have first saved his exceptions to the court’s failure to so instruct and then requested the court to instruct upon those phases of the case upon which he desired instructions by pointing them out. The trial court is entitled to the fair treatment rule. State v. Yinso, 171 Mo. 591. The court submitted to the jury the questions of murder in the first and second degrees, and that question was properly left to the jury under appropriate instructions. The jury convicted of the higher grade of offense, that is to say, murder in the first degree. Appellant is in no manner prejudiced by reason of the verdict as murder in the second degree was submitted to them and they found him guilty of murder in the first degree. He is, therefore, in no position to complain. State v. Fitzgerald, 130 Mo. 435.
   ROY, C.

The defendant having been convicted of murder in the first degree in the circuit court of the city of St. Louis, and sentenced to life imprisonment, has appealed.

He lived on “Dago Hill” in that city; and the deceased, Hunter, lived near him in the same block.

Defendant was the janitor of a “flat” building, which seems to have been untenanted at the time, except by the defendant and his family, consisting of his wife and several children. The deceased had several children. The defendant was charged by Ms neighbors with persecuting their children, and there were some countercharges.

A member of the police force, over defendant’s objection and exception, was permitted to testify that shortly prior to the hilling he arrested the defendant on a charge of attempted arson made against defendant by-Hunter, and that defendant knew that Hunter was the cause of the arrest.

The evidence showed that the prosecution, for arson was dropped.

The evidence for the State tended to prove that defendant was sitting on an upstairs porch, and that he got up, went into the house, got a pistol, came back on the porch, passed down the steps into his back yard and looked around a coal shed and then turned and ■went back to his gate and stepped out beyond the view of the State’s witnesses, and in a few seconds two shots were fired. Hunter fell and died with one shot in his back and one in the back of his neck, both about two and a half inches to the left of the spine. No weapon of any kind was found on Hunter.

Defendant’s evidence tended to prove threats by Hunter against defendant and in his presence. That defendant had been mistreated by the neighbor' children. That just before the shooting defendant was sitting on his porch with his family, when some missile was thrown from below, striking near defendant and falling on the porch, and that defendant got his pistol and went downstairs and got into a quarrel with Hunter who was daring him to come down. The defendant testified that Hunter threatened to kill him and “reached to his hip pocket” as if to draw a gun, and that defendant shot in self-defense.

During the giving of defendant’s testimony the following occurred:

“ Q. ' For what purpose did you go into the house and get the gun? A. For what purpose?

“Q. What caused you to go into the house and get your gun? A. The cause was that he throwed that missile, I guess. I thought the children was in danger, and I was not going down to have any friction. It is just for such emergencies as that we kept onr gun in the house. I could have shot that man instead from the house, hut he was not doing anything to me then. He threatened my life, and this time he was threatening my life.

“Q. How far was he standing from the porch? A. Not far. It is immaterial. I know I stepped off and got up and walked down deliberately. My wife didn’t know I had anything near my hand.

“Q. When you went into the room to get the gun, had you made up your mind then that you was going to shoot this man Hunter’? A. No. I had in my mind that I would go down and draw his fire.

“Q. Had you made up your mind that you was going to kill him, or try to shoot him? A. No, sir, I had not thought of it.

“Q. What did you get the gun for? A. To protect my life in case he tried to carry out his threat.

“Q. Why did you go down after he threatened to kill you, if you went down? Why didn’t you stay upstairs? A. Why didn’t I stay upstairs?

“Q. Yes. A. I was looking fbr more rocks, when one was thrown. Do you think if I was in danger of my life — my children were more to me than my life — . ’ ’

The trial court over the objection of the defendant appointed Aug. Walz, Jr., a member of the bar, to represent defendant in the trial. The defendant was given every privilege he claimed in the examination of witnesses, in the argument of the case and in all other respects. Mr. Walz and the court were extremely considerate of the defendant in every way. He addressed the jury in an argument in his own behalf, and he testified as a witness. Mr. Walz has, at his own expense, filed a brief herein on behalf of the defendant.

The defendant admitted doing. the killing. In-. structions were given on murder in the first and second degrees, but not on manslaughter in the fourth, degree.

The fourth, fifth and sixth instructions were as follows:

“4. The defendant admits the shooting and wounding, but claims that he acted in self-defense. Upon this question the court instructs you that if you find from the evidence that when defendant shot and wounded said Hunter he had reasonable cause to believe, and did believe, that said Hunter was about to take his life or do him some great personal injury; and further; that he had reasonable cause to believe, and did believe, that it was necessary for him to shoot and wound said Hunter in order to protect himself from such danger, then he ought to be acquitted on the ground of self-defense. Whether defendant had reasonable grounds to believe that such danger existed, and whether he shot and wounded said Hunter in the honest belief that it was necessary for the protection of his life, or person, are questions which you must determine from all the evidence in the case. If you believe from the evidence that the defendant shot and wounded the deceased Hunter unnecessarily, and when he did not have reasonable cause to believe that the said Hunter was then about to kill him or do him great bodily harm or personal injury, then there is no self-defense in the case, and you cannot acquit the defendant on that ground.

“5. In determining whether the defendant was justified in acting upon appearances and shooting the deceased, you may take into consideration any threats that may have been made by deceased against the life of the defendant and communicated to defendant prior to the killing, if you find from the evidence that any such threats were made and communicated. You should consider all the threats which you maj^ believe from the evidence were made by the deceased against the defendant, and may give them such weight in determining the nature of the transaction giving rise to the charge for which the defendant is now on trial as you deem proper. Mere threats, however, will not justify on the ground of self-defense the shooting of one by another, nor will threats alone warrant the party against whom they are made in attacking and killing the party who made them.

“6. Threats of deceased towards defendant (if you believe and find from the evidence that such threats were made), were admitted solely for the purpose of showing the attitude of said deceased towards defendant, and you are instructed that you cannot consider such threats (if you believe from the evidence that they were made) for any other purpose.”

The defendant asked the following instruction which was refused:

“The court instructs the jury that if you find and believe from the evidence that the defendant was not justified in the killing of Hunter, and if you further find and believe from the evidence and from the demeanor of the defendant that he was of unsound mind when the shooting was committed and that he is of unsound mind this day you must acquit.”

I. There was no error committed in the admission of the evidence as to the arrest of the defendant under the charge of attempted arson, which .charge was made by Hunter. It was competent to show a motive on the part of defendant for killing Hunter. [1 Bishop’s Crim. Proc., secs. 1124 and 1126.] It tended to show a motive of revenge.

II. There was evidence from which the jury could draw the conclusion that the killing was done wilfully, deliberately, premeditatedly and of malice aforethought, and the question of defendant’s guilt of murder in the first degree was properly submitted to the jury.

III. ‘‘ In order to reduce the offense from murder to manslaughter, the killing must be done in the heat of passion on a reasonable provocation without malice and without premeditation, and under circumstances that will not be justifiable or excusable homicide.” [State v. Weakley, 178 Mo. l. c. 423.]

It will not do, in light of the defendant’s own testimony, to say that the killing was done “in the heat of passion.” There was no error in failing to give an instruction on manslaughter in the fourth degree.

IV. The instructions on the subject of self-defense were sufficient and proper. Appellant insists that the jury should have been told “that the defendant had the right to act upon appearances, though it might thereafter turn out that the appearances were false.” That idea is certainly embodied in the instructions given.

The jury were told that defendant had the right to act upon appearances. We must suppose that the jury understood ordinary language, and that they understood the instruction to cover false as well as true appearances. The court would, no doubt, have given the additional instruction had the defendant in any way called its attention to it. That was not done, and we hold the instruction sufficient.

In State v. Eaton, 75 Mo. l. c. 591, the jury were instructed: “If defendant had reasonable cause to apprehénd a design on the part of deceased to do him some great personal- injury, and there was reasonable cause to apprehend immediate danger of such design being accomplished, without the fault of defendant, they should acquit him.”

The defendant in that case asked an instruction to the same effect, with the addition “then the defendant had the right to act upon appearances, and even kill Hatter if necessary to avoid the apprehended danger, and such killing was justifiable, although it might afterward turn out that the appearance was false, and there was, in fact, neither design on the part of Hatter to do him serious injury, nor danger that it would be done.” It was held reversible error to refuse that offered instruction.

The case of State v. Hollingsworth was similar and thé same conclusion was reached. In both those cases the given instructions fell far short of the instruction in this case; and in both of them the additional instruction was requested. Moreover, the instruction in this case on self-defense being correct as far as it went, if it did not go far enough, it was necessary that the court’s attention should have been called to the omission in the motion for a new trial. [State v. Conway, 241 Mo. 271.]

Y. , Complaint is made by appellant that the fifth instruction limits the jury to the consideration of communicated threats in determining whether the defendant was justified in acting on appearances. Such is the law, and the instruction was correct. [State v. Edwards, 203 Mo. l. c. 546; State v. Birks, 199 Mo. l. c. 276.]

It was held in State v. Barrett, 240 Mo. 161, that the violent disposition of deceased must have been known to the defendant in order to justify an instruction that the jury should consider the evidence as to such violent disposition in determining whether there were reasonable grounds of apprehension of danger.

Moreover, a careful examination of the record shows that there was no evidence of any threats except those that were made to or in the presence and hearing of the defendant.

YI. Section 5164, Revised Statutes 1909, requires the court to appoint counsel to conduct the defense if the defendant be without counsel and unable to employ any and shall request such appointment.. Nothing is said in that statute on the subject of the appointment of counsel by the court when the defendant objects to such appointment.

Mr. Walz; as such counsel, in this court insists that such appointment was reversible error. No authority for such position is called to our attention. We have clearly examined the record to see whether any harm has befallen the defendant by reason of anything done by Mr. Walz in the trial. We are satisfied that nothing indiscreet or harmful was done by Mr. Walz, and that the case of the defendant was benefited and not injured by his participation in the trial.

VII. We cannot find in the record any foundation for the claim that the defendant was insane at any time. If there had been anything in the appearance or demeanor of the defendant which the trial judge could observe to indicate insanity, we have a right to presume it would have been noticed by the court. The refusal of such an. instruction furnishes the presumption that nothing was observed indicating insanity, and the refusal was proper.

The judgment is affirmed.

Blair, G., concurs.

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

All the judges concur.