author: POX, P. J.

text:
    THE STATE v. JOHN DINEEN, Appellant.
    Division Two,
    May 14, 1907.
    X. PERJURY: Indictment: Pleading City Ordinances. It is not necessary that an indictment for perjury charged to have been committed in a trial in a police court should set forth m haee verba the city ordinances creating the police court and authorizing the appointment of the clerk of the court and giving him authority to administer oaths, etc. A reference to such ordinances by their numbers and general, tenor is sufficient.
    2. -: Materiality of Testimony: When Question of Law. When there is no dispute as to what the party charged with perjury testified to upon an issue presented in a court of competent jurisdiction, the materiality of his testimony to the issue presented is purely a question of law for the court to determine.
    3. -: -: This Case. In order to constitute perjury, the evidence charged to be false must have been material to ■ the issue presented at the trial. On the trial, in a police courf, of a party charged with disorderly conduct “on Jefferson avenue,” defendant’s testimony that the disorderly conduct occurred, not on Jefferson avenue, but on a vacant lot some forty feet distant from said avenue, was not material to the issue presented, and, even if false, did not constitute perjury.
    4. -: -: Admission of Testimony. The admission of testimony is not sufficient, in a prosecution for perjury, to prove that such testimony was material to the issue.
    Appeal from St. Louis City Circuit Court. — Hon. Matt. O. Reynolds, Judge.
    Reversed.

      T. J. Rowe, Thomas J. Rowe, Jr., and Henry Rowe for appellant.
    (1) An ordinance is not a matter of judicial notice; and all facts that are necessary to make1 a case that are not matters of judicial notice must be pleaded. An indictment must allege every substantive fact which is necessary to establish the gnilt of the accused, and which the State is required to prove. State v. Green, 111 Mo. 585; State v. Reed, 117 Mo. 604. If the ordinances were substantive facts, which the State was required to prove, then it was necessary to plead the ordinances, because the court could not notice them judicially. (2) The materiality of the testimony, when not apparent, will not be presumed, but must be proved. Nelson v. State, 32 Ark. 192; State v. Aikens, 32 Iowa 403; Com. v. Pollard, 12 Met. (Mass.) 225; Wood v. People, 59 N. Y. 117; Stanley v. United States, 1 Okla. 336; Rich v. United States, 1 Okla. 354; Garrett v. State, 37 Tex. Crim. 198. (3) The mere fact that the testimony was admitted is not sufficient to show that it was material. Com. v. Pollard, 12 Met. (Mass.) 225; Lawrence v. State; 2 Tex. App. 479. Material testimony is such as tends to prove some issue in the cause. State v. Bailey, 34 Mo. 358; Martin v. Miller, 4 Mo. 47; State v. Blize, 111 Mo. 464. The testimony given by defendant, as alleged, was neither directly nor indirectly material to the only issue in the case, namely, was William Altherr, on Jefferson avenue, guilty of noisy, riotous or disorderly conduct? The defendant did not give any testimony which tended to prove that Altherr had said or done anything on Jefferson avenue.

      Herbert 8. Haclley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) The indictment is sufficient in form and substance, and fully informed defendant of the nature of the accusation, and also showed that the alleged false testimony was material, and that the same was given before a court of competent jurisdiction. It is fully up to the requirement of the statute; and informations and indictments similar to it have been approved by this court. State v. Cave, 81 Mo. 450; State v. Huckeby, 87 Mo. 414; State v. Walker, 194 Mo. 369; R. S. 1899, secs. 2033 and 2039; Kelley’s Crim. Law, sec. 821. (2) The State’s evidence was sufficient to justify the jury in convicting the defendant of perjury. All of the elements necessary to constitute that crime were proven, to-wit, the oath that was administered to the defendant, the materiality of defendant’s evidence, the falsity of his evidence, the' jurisdiction of the police court and the nature of the action that was pending in said court. If the defendant did testify that Mr. Altherr was guilty of using loud and profane lánguage in a public place-in said city, and that Altherr was also guilty of disturbing the peace at that time, certainly said evidence was material at the trial of Altherr in the police court.
   POX, P. J.

-The defendant in this cause appeals from a judgment of the circuit court of the city of St. Louis convicting him of perjury. On the 2d day of December, 1905, the grand jury of the city of St. Louis returned an indictment against the defendant charging him with perjury. The perjury is charged to have been committed by the defendant in testimony given by him in a certain proceeding in the second district police court, in which court Jefferson Pollard was the judge, wherein the city of St. Louis was the plaintiff and William Altherr was the defendant. The issues upon which the defendant was called upon to testify in that case are presented in the following complaint:

“State of Missouri, City of St. Louis, ss.
“City of St. Louis, Oct. 28, A. D. 1905. William Altherr, To the City of St. Louis, Dr.
“To fifty dollars for the violation of an ordinance of said city entitled ‘An Ordinance in Revision of the General Ordinances of the City of St. Louis,’ being Ordinance No. 19991, chapter 18, article 2, section 1460, approved April 3, 1900, In this, to-wit: In the city of St. Louis and State of Missouri on the 28th day of October, 1905, the said William Altherr did then and there disturb the peace by noisy, riotous and disorderly conduct, to-wit, on a public street, on Jefferson avenue between University and Dodier streets. Contrary to the ordinance in such cases made and provided.”

The indictment, after alleging the creation of the police court and the authority of such court to try the complaint as above indicated and the authority of the clerk to administer oaths, charges that the proceeding against William Altherr was instituted .by the plaintiff-city of St. Louis against the said defendant William Altherr, for violating an ordinace of the said city of St. Louis, entitled “An Ordinance in Revision of the General Ordinances of the city of St. Louis,” being Ordinance No. 19991, chapter 18, article 2, section 1460, in this, to-wit: ‘ ‘In the said city of St. Louis and State of Missouri, on the 28th day of October, 1905, the said William Altherr did then and there disturb the peace by noisy and disorderly conduct on'a public street,, to-wit, on Jefferson avenue, between University street and Dodier street.” It was further alleged that then and there upon the trial of the said cause it became and was a material issue whether the said William Altherr on the said 28th day of October, one thousand nine hundred and five, at the said city of St. Louis, violated an ordinance of the city of St. Louis, entitled “An Ordinance in Revision of the General Ordinances of the city of St. Louis,” being No. 19991, chapter 18, article 2, section 1460, in this, to-wit, of disturbing the peace by noisy, riotous and disorderly conduct on a public street, to-wit, on Jefferson avenue, between University street and Dodier street in said city of St. Louis, and whether the said William Altherr, on said twenty-eighth day -of October, one thousand nine hundred and five, at the said city of St. Louis, and on an open lot and near and adjoining a public highway, to-wit, Jefferson avenue, in a loud, boisterous and angry manner and tone of voice, and in the hearing of various and divers persons, used certain indecent, vulgar and offensive language, calculated to cause a breach of the peace, to-wit, the language and words, “Yon son-of-a-bitch, take them all in,” and “You son-of-a-bitch, you are not big enough.” Following this allegation it is further alleged that the defendant after being duly sworn to testify the truth, the whole truth and nothing but the truth then and there was examined as a witness in said cause, and did then and there in said second district police court of the said city of St. Louis, upon the trial of said cause, and before the said Honorable William Jefferson Pollard, judge as aforesaid, unlawfully, maliciously, knowingly, wilfully, corruptly, falsely and feloniously depose and testify, among other things, that the said William Altherr on said twenty-eighth day of October, one thousand nine hundred and five, at the said city of St. Louis, was on an open lot, near and adjoining a public highway of said city of St. Louis, to-wit, Jefferson avenue, and that the said William Altherr then and there in the presence of various and divers persons spoke in a loud, angry and boisterous manner and tone of voice, and that he, the said William Altherr, then and there said, “You son-of-a-bitch; take them all in,” and “You son-of-a-bitch, you are not big enough. ’ ’ The indictment then concludes with appropriate allegations negativing the truth of the testimony as' given by the defendant.

The defendant was put upon his trial upon these allegations and the testimony on the part of the State tended to prove that the defendant and one Coleman were police officers in the city of St: Louis on the 28th day of October, 1905, and that on the night of said day one William Altherr was conducting a dog and pony show under a tent on a vacant lot situate some forty feet from Jefferson avenue, and that defendant upon the trial of Altherr before the police judge testified to noisy, riotous, and disorderly conduct- on the part of said Altherr out on this vacant lot where the show was being conducted. All of the testimony tends to show that the disorderly conduct was under a part of the covering of the tent of the show and some forty feet away from Jefferson avenue on a vacant lot, and there was at the time a show being conducted under the tent. The State introduced numerous witnesses whose testimony tended to show that the testimony as given by the defendant was false.

The defendant introduced a number of witnesses who testified to his good reputation as a truthful man prior to this charge. He testified in his own behalf and substantially admitted the statements made by him on the witness stand at the trial of the Altherr case, but denied that he was sworn at said trial.

At the close of the testimony the court instructed the jury substantially upon the charge as contained in the indictment, embracing in its instructions to the jury the quantum of proof necessary to establish the offense or perjury, as well as the subjects of credibility of witnesses, the presumption of innocence- of the defendant and reasonable -doubt. We see no necessity of reproducing the instructions given, but will make such references to them as may be required during- the course of the opinion. The cause being submitted to the jury upon the evidence and instructions, they returned a verdict finding the defendant guilty as charged in the indictment and assessed his punishment at imprisonment in the penitentiary for a term of two years. Timely motions for new trial and in arrest of judgment were duly filed and by the court overruled. Sentence and judgment was entered of record in conformity to the verdict and from this judgment the defendant prosecuted this appeal, and the record is now before us for review.

OPINION.

The record in this canse discloses two legal propositions for onr consideration.

I.

The sufficiency of the indictment is challenged on the ground that the ordinances creating the police court and authorizing the appointment of the clerk and his authority to administer oaths were not properly pleaded in the indictment. In other words, we take it from the brief of counsel that it is insisted that the provisions of the ordinances should be set forth in the pleading in haec verba. To this contention we cannot give our assent. The ordinances áre referred to by their number and their general tenor is recited. -This we think was sufficient and is supported by authority. [Apitz v. Railroad, 17 Mo. App. l. c. 425; Moberly v. Hogan, 131 Mo. l. c. 25; Hernán v. Payne, 27 Mo. App. l. c. 482.]

II.

The most serious proposition confronting us as disclosed by the record is the one urged by learned counsel for appellant, that the testimony as given by the defendant in the police court upon the complaint against Altherr and upon which the charge of perjury is predicated, was immaterial upon the issues presented upon the trial in which the defendant testified and therefore cannot be made the subject of perjury.

It is fundamental that in order to constitute the crime of perjury the testimony given, which is charged to be false, must be material to the issue presented at the trial. This proposition is fully recognized in State v. Blize, 111 Mo. 464, and in numerous cases-in other jurisdictions. [Nelson v. State, 32 Ark. 192; State v. Aikens, 32 Iowa 403; Com. v. Pollard, 12 Metc. (Mass.) 225; Wood v. People, 59 N. Y. 117; Stanley v. United States, 1 Okla. 336; Rich v. United States, 1 Okla. 354; Garrett v. State, 37 Tex. Crim. 198.]

The indictment in the case at bar proceeds upon the the.ory that the complaint against Altherr in the-police court presented a material issue and that the testimony given by the defendant was material to the issue therein presented. . In the cases of State v. Aikens, 32 Iowa 403, and Nelson v. State, 32 Ark. l. c. 197, it was expressly ruled that the materiality of the testimony on which perjury is assigned must be established by evidence and cannot be left to presumption or inference. In other words, we take it that the law is well settled that, where there is no dispute as to what the party charged with perjury testified to upon a certain issue presented in some court of competent jurisdiction, then it is purely a question of law for the court to determine whether such testimony as given was material to •the issue thus presented. We have in this case the'complaint against Altherr in the police court clearly setting forth in what respect section 1460 of Ordinance No. 19991, chapter 18, article 2, was violated. This complaint clearly presented the issue to be determined upon the .investigation of that complaint; therefore, the remaining crucial question is as to whether or not the testimony given by defendant upon that issue was material to it and can be made the subject of perjury under the well-settled rules of law.

At the very inception of the discussion of this proposition it is well to fix in our minds the issue upon which the defendant was called to testify. The complaint charged Altherr in the police court with a violation of section 1460' of Ordinance No-. 19991, in this, to-wit: “In the said city of St. Louis and State of Missouri on the 28th day of October, 1905, the said William Altherr did then and there disturb the peace by noisy, riotous and disorderly conduct on a public street, to-wit, on Jefferson avenue, between University street and Dodier street.” That charge was predicated upon section 1460 of the ordinance heretofore indicated, which provides, so far as applicable to this charge, that “any person who shall, on Sunday or any other day of the week, disturb the peace by any noisy, riotous or disorderly conduct, in any park, street, alley, highway, thoroughfare, or other public place of public resort for pleasure or amusement or other purposes . . . shall de deemed guilty of a misdemeanor.” It will be noted that this ordinance provides that the commission of such acts as above stated shall constitute a misdemeanor, and while the recovery of the fine imposed by an ordinance is a civil proceeding, it is quasi-criminal in its nature, and therefore the provisions of the ordinance imposing such fine must be strictly construed.

It will be observed that section 1460' provides that the noisy, riotous or disorderly conduct, in order to constitute the misdemeanor denounced by the ordinance, must be committed in a park or in the street, alley, highway or thoroughfare, and we take it that, under the provisions of that ordinance and as applicable to the complaint made against Altherr, the material issue presented was as to whether or not the defendant Altherr was guilty of noisy, riotous or disorderly conduct in the street known as Jefferson avenue. Having thus made apparent the issue upon which the defendant was called to testify, the remaining' crucial question confronts us as to whether the testimony given by the defendant upon that issue was material to the issue there presented. If such testimony was material upon that issue and he corruptly, wilfully and knowingly swore falsely upon that issue, then he was guilty of perjury. If the testimony given was ■ immaterial, then under the well-settled rules as applicable to this offense, he cannot be convicted of the crime of perjury, even though he swore falsely as to an immaterial matter. It is practically conceded by the State that the 'testimony given by the defendant upon the investigation of the complaint against Altherr in the police court was not in reference to disorderly conduct in the street known as Jefferson avenue, but was on a vacant lot some forty feet away from the street and in a tent where Altherr was conducting a dog and pony show. Witness Patrick J. Grainey, who was captain in the Ninth district, testified in this cause and he detailed the testimony as given in the police court. He stated in his testimony that the defendant testified, to the best of his recollection, that the disorderly conduct occurred outside of the tent, but upon cross-examination the inquiry was made of him as to whether he made a memorandum of the testimony of Dineen given in that case and he answered that he did not, but that he made a memorandum of Coleman’s testimony and then stated that Coleman and Dineen both testified exactly the same way. Objection was then made to this statement and it was moved that it be stricken out for the reason that it was apparent that it was merely his conclusion that Dineen had testified in the same way that Coleman had, and that the only way to determine whether they both testified exactly the same was to detail what both of them had stated there. This motion was sustained and that testimony in reference to the defendant and as to what he testified to was excluded; therefore, we must look to the other testimony in the ease for the place where this disorderly conduct occurred, and as. to where the defendant testified that the disorderly conduct did occur. Captain Pickel, who was captain of the Fifth police district, testified, and we take it that he located the place where the defendant testified that the disorderly conduct of Altherr took place; at least, there is no substantial testimony that is in conflict with it, and he says that to the best of his recollection the defendant testified upon the trial of Altherr before the police court that “he was inside of the tent, when he heard a loud noise, and he looked around and he saw officer Coleman addressing Mr. Altherr; that he went over towards him when he had heard Mr. Altherr abuse officer Coleman, calling him a son-of-a-bitch and telling him to bring them all in, and stated that the officer says, ‘If you repeat that to me I’ll lock you up,’ and he did repeat it and officer Coleman placed Mr. Altherr under arrest, and as he came to the outside of the marquee, the entrance to the marquee, Mr. Altherr broke loose from him and fell down and struck his head on a peg and cut his eye.” Now the simple question is as to whether or not this testimony as given by the defendant upon the complaint against Altherr was material to the issue there presented. We have reached the conclusion that it was not material. The issue presented in the complaint against Altherr was whether or not he was guilty of disorderly conduct in the street known as Jefferson avenue. The testimony of the defendant that Altherr was guilty of disorderly conduct at a place not embraced in the complaint, in our opinion, was clearly immaterial, and it makes no difference whether the testimony was admitted or rejected; its admission is not sufficient to show that it was material. [Commonwealth v. Pollard, 12 Metc. (Mass.) 225; Lawrence v. State, 2 Tex. App. 479.]

It is insisted by the learned Attorney-General that, even though the defendant did testify that such language was used on a vacant lot and inside of a tent, and even though other witnesses testified to the same, yet the fact of the use of such language by William Altherr on said occasion was a material fact, and it is insisted that the city might have proved by other witnesses, and for aught that appears did prove by other witnesses, that William Altherr used said language on said public-street. The fundamental error of this insistence consists of an effort to separate the disorderly conduct and the place where it occurred. The disorderly conduct about which the police court had the right to inquire was only disorderly conduct in the street known as Jefferson avenue. If-the contention of counsel for the State, is to be maintained, then, if the defendant had testified that the disorderly conduct occurred in South St. Louis, several miles away from Jefferson avenue, on the same principle as urged it would be held as material. This certainly cannot be -so held. We take it that the inquiry must be confined to the issue presented, “Did this disorderly conduct occur in the street?” And we see no way of separating the elements of the offense denounced by the ordinance, that is,’that there must be disorderly conduct and it must be at a particular place, and unless the defendant testified that the disorderly conduct occurred at the place charged in the complaint against Altherr, then we take it that his testimony upon that complaint was absolutely immaterial. It will certainly not be seriously contended: that if he had testified that this defendant was guilty of making a noise and disorderly conduct at some remote portion of the city and nowhere near the place charged in the complaint, such testimony would be material upon the complaint as made against Altherr in the police court.

Our conclusion upon this proposition is that the testimony given by the defendant in the trial before the police court upon the issue there presented was immaterial..

It will further be observed that the indictment in this cause as well as the instructions of the court undertakes to broaden the issue as presented in the complaint in the police court against Altherr. It will be observed that the indictment charged very properly, first, that it was a material issue as to whether the said William Altherr on the said 28th day of October, 1905, was guilty of disturbing the peace by noisy, riotous and disorderly conduct in the public street known as Jefferson avenue, between University street and Dodier street in said city of St. Louis. Then follows the further allegation, which in our opinion was not an issue presented by that complaint, as to whether “the said William Altherr on the said 28th day of October, 1905, at the said city of St. Louis, and on an open lot and near and adjoining a public highway, to-wit, Jefferson avenue, in a loud, boisterous and angry manner and tone of voice, and in the hearing of various and divers persons, used certain indecent, vulgar and offensive language, calculated to cause a breach of the peace.” The latter allegation as to a material issue was certainly not embraced in the complaint charging Altherr with a violation of the city ordinance, and instruction 1 erroneously declared the law in accordance with the allegation in the indictment, which undertook to broaden the issue presented in the complaint against Altherr.

We have thus indicated our views upon the legal propositions disclosed by the record, which results in the conclusion that upon the facts as developed at the trial of this case the defendant cannot be convicted of the crime of perjury, and the judgment of the trial court should be reversed and the defendant discharged.

All concur.


source: Caselaw Access Project

author: FOX, P. J.

license: Public Domain

text:
    THE STATE v. BILLY BARNETT and JIM BAKER, Appellants.
    Division Two,
    May 14, 1907.
    1. INFORMATION: First Degree Murder. Information charging first degree murder, set out in the statement, helH sufficient.
    2. NOTES OF TESTIMONY: Taken by Defendant on Habeas Corpus: Compelling Delivery.. It was error for the court to compel defendant’s counsel to deliver to the prosecuting attorney for his inspection stenographer’s notes of the testimony taken hy defendant in a habeas corpus proceeding before the probate judge for the purpose of securing bail for defendant.

      3. DEPOSITION: Regular: Improper Examination of Defendant's Counsel. Where the deposition of a witness for defendant is regularly taken, is read without objection, and no motion is filed to suppress it for any irregularity, the prosecuting attorney should not be permitted to conduct an examination of defendant’s counsel for the purpose of showing that the witness’s testimony was of little value because the State was not represented at the taking of the deposition.
    4. DEFENDANT AS WITNESS: Character: Impeachment. When a defendant offers himself as a witness, lie is subject to impeachment in the same manner as any other witness, and for that purpose the State may attack his general reputation for morality.
    5. INSTRUCTIONS: Defendants Jointly Indicted and Tried: General Objection. Where defendants are jointly indicted and tried, an objection to the instructions given as not being all the law of the ease is not sufficient to convict the court of error in failing to instruct that the jury might find one or both of the defendants guilty, or acquit one or both. Defendants should have requested such an instruction, or called the court’s attention to its failure to instruct upon this particular feature of the case.
    6. MURDER: Motive: No Instruction Necessary. Where, in a prosecution for murder, the defense is justifiable homicide, an instruction as to motive is properly refused.
    7. MANSLAUGHTER: Erroneous Instruction. An instruction is erroneous which tells the jury that if defendant killed deceased while in a violent passion suddenly aroused by a reasonable apprehension that deceased was about to kill him or inflict upon him some personal injury, he is guilty of manslaughter in the fourth degree. Apprehension of danger is applicable only to the theory of self-defense.
    8. INSTRUCTION: On Manslaughter: Conviction of Murder. A defendant convicted of murder in the second degree has the right to complain of an erroneous instruction on manslaughter.
    Appeal from Pemiscot Circuit Court. — Bo». Henry G. Riley, Judge.
    Reversed and remanded.

      G. G. Shepard and Faris é Oliver for appellants.
    (1) The order of the court compelling defendants to furnish testimony against themselves was error. Boyd v. United States, 116 U. S. 616; Cons, of Mo., sec. 23, art. 2; Cons, of U. S., amendment 5; 1 Green-leaf on Evidence, sec. 451; Cooper v. State, 4 L. R. A. 766; Rice v. Rice, 9 L. R. A. 591; 1 Wharton on Evidence, secs. 533, 536, 751; Connselman v. Hitchcock, 142 U. S. 547; Wagram on Discovery, 61; Cooley, Cons. Limitations, 370; State v. Davis, 108 Mo. 666; State ex rel. v. Hardware Co., 109 Mo. 128; State v. Yonng, 119 Mo. 495. (2) It was error for the court to allow' the State to put C. G. Shepard, Esq., of counsel for the defendants, upon the stand and question said Shepard as to the manner of taking the deposition of E. Parks. This deposition had heen offered by the defendants, without objection by the State absolutely, and no motion to suppress the same was at any time filed. The State could not upon the trial discredit the same by evidence offered in the ease in rebuttal. Parks being a valuable witness for the defendants, this action of the court was damaging to the defense, and was error. Delventhal v. Jones, 53 Mo. 460; State ex rel. v. Dunn, 60 Mo. 64; Holman v. Bachus, 73 Mo. 49; Bell v. Jamison, 102 Mo. 71; Deane Pump Co. v. Green, 31 Mo. App. 269. (3) It was error to permit the State to offer testimony as to the character of the defendants prior to and without their having put their character in issue. State v. Beckner, 194 Mo. 281; 1 Wig-more on Evidence, secs. 57, 58, 59; State v. Pollard, 174 Mo. 607; State v. Nelson, 101 Mo. 464; State v. Smith, 125 Mo. 7. (4) The court erred in failing to instruct on all of the law in the case, in this respect, among others, that though defendants were jointly indicted, and though there was no sufficient testimony to go to the jury as to the guilt of Baker, yet the court did not instruct the jury that they might find one or both of the defendants guilty or acquit one or both of them as they might find the facts to be as to guilt or innocence. Under the instructions as given by the court the jury evidently believed that they should find both or neither guilty. State v. Vaughan, 200 Mo. 1; State v. Kaiser, 124 Mo. 651; sec. 2627, R. S. 1899. (5) Considering the theory of the State and the instructions given by the State, defendants were entitled to have presented to the jury an instruction as to motive. This instruction the defendants offered, but the court refused. Under all the facts this was error. State v. Foley, 144 Mo. 600. (6) The information is repugnant and contradictory in its terms and it attempts to charge an impossible thing. 1 Wharton’s Precedents (3 Ed), 114; State v. Bradford, 156 Mo. 91; Kelley’s Crim. Law, 474.

      Herbert 8. Hadley, Attorney-General, and John Kenmsh and N. T. Gentry, Assistant Attorneys-General, for the State.
    (1) The information, which was accompanied by the affidavit of the prosecuting attorney, is sufficient in form and substance. State v. Gleason, 172 Mo. 263. (2) Prejudicial error was not committed by the court in making the order that defendants’ counsel produce for the inspection of the prosecuting attorney a copy of the testimony of a witness given upon a public trial before the probate judge of said county upon a habeas corpus proceeding brought by the defendants. State v. Lentz, 184 Mo. 223; State v. Black, 12 Mo. App. 531; State v. Reppetto, 66 Mo. App. 251. (3) Prejudicial error was not committed by the court in permitting the examination of C. G. Shepard, Esq., of counsel for defendants, as to the manner of taking the deposition of witness E.. Parks. The only question asked the witness, Shepard, to which an objection was made and overruled and an answer given thereto, was the question as to whether or not the circuit court of that county was in session when the deposition of witness Parks was taken. All other objections were sustained by the court. As it was a matter of no materiality or importance whether or not the circuit court was in session when the deposition was taken, defendants could not have been prejudiced by the testimony of this witness. No citation of authorities is necessary on the proposition that this court will not reverse and remand a cause for the commission of non-prejudicial error. (4) The court did not err in permitting the State to prove the reputation of the defendants for morality. Each of the defendants testified in the cause. A defendant who testifies in his own behalf may be impeached in the same manner as any other witness, and it is settled law that the reputation of a witness for morality may be proven for the purpose of impeachment. This question has been fully considered by this court in the recent case of State v. Beckner, 194 Mo. 281, and decided against the contention of appellants. (5) It is assigned as error that the court failed to instruct the jury on all questions of law arising in the case, in this: That, though the defendants were jointly indicted and tried, the court did not instruct the jury that they might find one or both of the defendants guilty, or acquit one or both, as they might find the facts to be as to guilt or innocence. It is conceded that such an instruction was not given in this case, neither was such an instruction requested by the defendants. The case of State v. Vaughan, 200 Mo. 1, in which this question was fully considered by this court, is cited and relied upon by the defendants as authority that error was committed by the trial court. It will be observed that in the Vaughan case an instruction upon this question of law was asked by the defendants and refused by the court, and it was the action of the court in refusing to give such instruction that was'held to have been error by this court. The defendants did not ask an instruction upon this question of law, and having failed to do so, they cannot now, for that reason, convict the trial court of error. State v. Weatherman, 202 Mo. 6; State v. Bond, 191 Mo. 555; State v. McCarver, 194 Mo. 717; State v. West, 202 Mo. 128. (6) The court did not err in refusing instruction C, asked by defendants. State v. Lynn, 169 Mo. 664.
   FOX, P. J.

This cause has reached this court by appeal on the part of the defendants from a judgment of the circuit court of Pemiscot county convicting them of murder in the second degree. Since reaching this court the death of the defendant Baker has been suggested; therefore, we will confine our attention to the complaints of the defendant Barnett.

On the 16th day of January, 1905, an information was filed, duly verified, by L. L. Collins, prosecuting attorney of Pemiscot county, charging the defendant with murder in the first degree. As the sufficiency of this information is challenged it is well to here reproduce it. Omitting formal parts, it is as follows:

“L. L. Collins, prosecuting attorney within and for the county of Pemiscot and State of Missouri, upon his official oath and upon his hereto appended oath informs the court that Billy Barnett and Jim Baker, late of the county of Pemiscot and State of Missouri, on the 13th day of January, 1905, at the county of Pemiscot and State of Missouri, did then and there in and upon the body of one Joe Morgan, then and there being, feloniously, willfully, deliberately, premeditatedly, on purpose and of their malice aforethought, did make an assault, and that the said Billy Barnett and Jim Baker with a certain pistol, then and there charged and loaded with gunpowder and leaden balls, which said pistol they, the said Billy Barnett and Jim Baker, in their hands then and there had and held, then and there feloniously, willfully, deliberately, premeditatedly, on purpose and of their malice aforethought, did discharge and shoot off, to, against and upon the said Joe Morgan. And that the said Billy Barnett and Jim Baker, with the leaden halls aforesaid, out of. the pistol aforesaid, then and there hy force of the gunpowder aforesaid hy the said Billy Barnett and Jim Baker discharged and shot off as aforesaid, then and there feloniously, willfully, deliberately, premeditatedly, on purpose and of their malice aforethought, did strike, penetrate and wound him the said Joe Morgan, then and thereby feloniously, willfully, deliberately, premeditatedly, on purpose and of their malice aforethought, giving to him the said Joe Morgan in and upon the. right side of the body of him, the said Joe Morgan, one mortal wound of the depth of ten inches and of the breadth of one-half of an inch, of which mortal wound he, the said Joe Morgan, then and there instantly died. And so L. E. Collins, prosecuting attorney as aforesaid, upon his official oath as aforesaid, doth say that the said Billy Barnett and Jim Baker, him, the said Joe Morgan, in the manner and hy the means aforesaid, at the county and State aforesaid, feloniously, willfully, premeditatedly, deliberately, on purpose and of their malice aforethought, did kill and murder, against the peace and dignity of the State.”

The prosecuting attorney, after the return of this indictment, elected ' to prosecute the defendants for murder in the second degree. The testimony introduced upon the trial is conflicting and it -will be sufficient to indicate the facts that the testimony offered by the opposing sides tended to prove.

The testimony on the part of the State tended to establish that the difficulty which resulted in the death of the deceased, Joe Morgan, occurred at Cottonwood Point, a small town in Pemiscot county, situated on the Mississippi river several miles below Caruthersville, and that at the time of the killing of the deceased he was marshal of the town of Cottonwood Point as well as constable of that township. The defendant Barnett was the proprietor of a saloon which was located outside of the town limits of Cottonwood Point. The defendant Baker resided a few miles in the country but was in the habit of doing most of his trading at Cottonwood Point. At about half past seven o’clock on January 13, 1905, the deceased was in Watson’s store in company with members of the town board. Steve S. Pate, who was a member of the board, testified that he heard defendant Baker maldng some noise out on the street that night before the shooting. He says first in his testimony that he was “hollering” and cutting up; he afterwards said ‘ ‘he was just hollering, is all I know,” and the witness did not remember whether he was-swearing or not; he finally said, “He hallooed two or three times, or something that way, tolerably loud.” He further says that Baker was intoxicated. This witness further states that Morgan left Watson’s store and went out on the street; went out of the front door. “There is a porch in front of that building. After Joe Morgan got out of the house and went into the street it wasn’t but a few minutes until they began shooting. To the best of my knowledge about ten shots were fired. • When the first shot was fired I was in Watson’s store at the place of the council meeting; as soon as the first shot was fired I ran out of store into the street.” He further states that the firing was up close to the Gay saloon in the street, which is the same street that Morgan went into when he left the store. “I suppose it is about 135 or 140 feet from the Watson store building to the point where this shooting occurred. I ran out into the street when the first shot was fired.” This witness further says that he did not see anyone but Barnett and Baker and that Morgan was back over on the west side of the street, back next to. the old Gay building. This witness was some distance from the place where the shooting occurred and the tendency of his testimony is that the defendants and Morgan were not close together when the shooting was going on; at least,- he says, “if Joe Morgan was anywhere about the defendant while the shooting was going on, I didn’t see him.” He says further, “I did not see him when I first ran out into the street,” and that if he was in the street he did'not see him, and gives it as-his impression that if he had been anywhere close to the defendant he could and would have seen him. This witness further testified that he was about 100 feet or something that way from the defendants and says it was a light night, tolerably cold and the ground was frozen, probably an inch or two inches thick. He further states that, after the deceased fired three or four shots, he, the witness, walked upi' there a little piece towards them, and he says, “I saw Morgan kind of weaken and I rushed up to him and he said, ‘They have killed me;’ I caught hold of him and went to Watson’s store with him. He was badly hurt and suffering a great deal. He lived ten or twelve minutes after that. I don’t remember his saying anything about the defendant after that. ” Dr. Tipton was summoned, but did not reach Watson’s store until after the death of the deceased. He testified that the bullet entered the deceased’s body on the right side of the eleventh rib near the median line; that it passed through the body at an angle of about thirty degrees and lodged near the seventh rib, one inch to the left and about three inches below the nipple on the.left side. He further testified that in his opinion the deceased died from the effect of said gun-shot wound.'

The State’s evidence further tended to show that the defendant Baker stated on the next day after the shooting that he was drinking and that they made some noise after going out of the barber shop and someone tried to arrest him and defendant Baker said, “God damn you, you can’t arrest me;” that the deceased commenced shooting and that Barnett shot the deceased over the shoulder of the defendant Baker. There was further evidence introduced by the State tending to show that the defendants concealed themselves for something like two weeks after the difficulty. After arrangements had been made or attempted to be made for their release upon bond, they, with their attorney, came to see Sheriff Franklin at his office in Caruthersville and surrendered themselves.

The testimony on the part of the defendants tended substantially to show about the following state of facts: That Barnett, one of the defendants, lived about a half mile and the other some two miles from and north of Cottonwood Point; that they came into town about sundown on the 13th day óf January, 1905. Upon reaching Cottonwood Point defendants went into the store of Ed Watson and ate a lunch; after they had eaten this lunch they went to a barber shop and one of the defendants, Billy Barnett, was shaved and had his hair cut. Immediately after this work was finished the defendants started back north, leaving the town to return home. Shortly after they left the barber shop defendant Baker hallooed, and used this expression, “Give me some fire crackers.” After proceeding some hundred feet, he again hallooed, using, as he said, the same expression. At this time the village board of trustees was in session, and deceased, who was town marshal and constable of the township, was present at this board meeting. That immediately after defendant Baker had hallooed, deceased left the room in which the board meeting was being held and went out on the street. Witness Parks for the defendant testifies that as the deceased went out of the door he reached back as if to draw a pistol. Shortly after the deceased went out of the Watson store building where the town board was holding a session, the testimony for the defendant tends to show there were seven or eight shots fired. The defendants both testified that they were going along a path some four feet wide and had reached a point about two hundred and eleven feet from the barber shop when the deceased came upon the right side of the defendant Baker and'placed his hand on defendant Baker’s shoulder, at the same time saying, “Consider yourself under arrest.” That defend-^ant Baker said, “Is that you Joe Morgan?” and deceased replied, “Yes.” Thereupon, defendant Baker said, “You can’t arrest me.” That thereupon deceased instantly raised his right hand, which contained a pistol, and fired across the shoulder of defendant Baker at defendant Barnett. Defendant Baker threw his right hand up, and striking the pistol of deceased, deflected this shot. Defendant Barnett then drew his pistol and as deceased fired again struck deceased’s pistol and deflected his (deceased’s) second shot. Defendant Barnett then fired one shot at deceased, which deceased deflected by striking Barnett’s pistol, and deceased fired a third shot at defendant Barnett. Thereupon, the pistol of deceased snapped twice, failing to explode, defendant Barnett in the meantime fired three shots at deceased in rapid succession. Deceased, who during all the time of this shooting had hold of the right arm of defendant Baker, while Barnett held to Baker’s left arm, then released Baker’s arm and fell back or staggered back'and when some six or eight feet away again fired his fourth and last shot. Upon an examination of the ground immediately after the shooting, it was found that the ground was kicked up and disturbed- at a point about seven or eight feet from the corner of a building used as a residence by witness Julius Taylor. Taylor was only some seventeen or twenty feet from the scene of the difficulty, but was inside of his house so that he could not see by whom it was done. Taylor testified that all eight of the shots were fired from apparently the same point; that after the shooting he immediately investigated and found the ground kicked up, as if by men scuffling, and that at or near this point he found the cap which deceased had on when he left the board meeting. It further appears in evidence that deceased was armed with a six-shot 41-calibre Colt’s pistol, from which it was found he had fired four shots during the difficulty. Two loaded cartridges, both of which had been snapped or struck with the hammer of the pistol, but not exploded, were found in the pistol of deceased. Defendant Barnett was armed with a thirty-eight calibre pistol of the Smith & Wesson make. The testimony on the part of the defendant tended to show that the pistol of the deceased was much larger than that of defendant Barnett, and when fired made a much louder report, and that the first two shots were louder than the succeeding ones till the last two. It further appears from the testimony that Baker was not armed at all; did not even have a pocket knife. There was no testimony introduced by the State showing any prior ill-feeling on the part of the defendants against the deceased. There was other testimony introduced by the defendant showing that the- deceased had made prior threats against the defendant Barnett and his brother to the effect that if the deceased ever had to arrest them he would give them no show but kill them. There was some testimony offered by the defendants tending to show that the deceased was of a rash, turbulent and violent disposition.

In rebuttal, the State offered testimony tending to prove that no threats were made by the deceased at the time testified to by defendant’s witnesses. There was also testimony offered by the State showing the bad reputation of the defendants who had testified as witnesses, and that some of the witnesses for the defendants were of bad reputation for truth and veracity.

At the close of the testimony the court instructed the jury upon murder in the second degree and manslaughter in the fourth degree and upon self-defense, reasonable donbt, and gave other instructions upon questions to which the testimony was applicable. The errors complained of respecting the instructions will be given proper attention during the course of the opinion. This is a sufficient statement of the testimony developed at the trial to enable us to determine the legal propositions arising from the disclosures of the record. The cause was submitted to the jury upon the evidence and instructions of the court, and they returned a verdict finding both of the defendants guilty of murder in the second degree and assessing their punishment at imprisonment in the penitentiary for a term of ten years. Timely motions for new trial and in arrest of judgment were filed and by the court overruled. Sentence and judgment were pronounced and entered of record in accordance with the verdict and from this judgment the defendants in due time and proper form prosecuted their appeal to this court, and the record is now before us for consideration;

OPINION.

The record in this cause discloses the assignment of numerous errors as a basis for the reversal of this judgment.

I.

It is insisted by learned counsel for appellant that the information in this cause is not sufficient to support the judgment and that the demurrer to the information should have been sustained. It is sufficient to say upon this insistence that we have carefully analyzed all of the allegations of the information and find that they are substantially in harmony with approved precedents by this court.

II.

It is insisted that the court committed error in compelling defendants to deliver to the prosecuting attorney certain notes of testimony taken upon a proceeding before the probate judge upon a writ of habeas corpus for the purpose of securing bail.

It is disclosed by the record that there was an application for bail before the probate judge and upon that application the testimony of witnesses was taken. It also appears that counsel for the defendant, for the purpose of preparing for the trial of the case and the proper management of the case, had their stenographer present who took the testimony of these witnesses and transcribed it for counsel for the defendant. During the progress of this trial at which the defendants were convicted, upon the application of the prosecuting attorney, the court made the following order:

“The court makes an order on the defendants’ counsel, Messrs. Faris & Oliver and Shepard, upon the representation to the court that defendants’ counsel have in their possession testimony of witnesses taken upon application of the defendants in this case for bail before the judge of the probate court of this county and with the prosecuting attorney representing that he desires to examine this testimony, not having any himself, the court makes an order on the gentlemen to produce it for his inspection. ’ ’

To the making of this order counsel for defendants objected and earnestly protested against the delivery of the notes of their testimony to the representative of the State. The court overruled their objections and compelled them to deliver their notes to the prosecuting attorney for his inspection.

We are unable to see upon what theory the action of the court in making this order can be maintained. While it is true this was a public trial, yet this testimony was taken by the stenographer simply for the use of the defendants’ counsel and fhere was no power in the court or any other person to compel the production of the private notes of testimony taken by the private stenographer for their own nse to he used by the prosecuting attorney in aiding him in the management and conduct of the prosecution of the defendants in this cause. It would certainly not be contended that if the defendants’ counsel had taken notes of this testimony with a lead pencil or pen and ink themselves, the court would be authorized to compel them to furnish such notes to the .prosecuting attorney, yet there is absolutely no distinction to be drawn between the taking of notes by the counsel and having it done by a stenographer. There was no law requiring this testimony to be taken by a stenographer and transcribed, and therefore it can only be treated as simply a precaution on the part of the defendants’ counsel to properly prepare and manage their case, that they sought to preserve the testimony of the witnesses taken upon this' application for a writ of habeas corpus, and these notes of the testimony as taken by the stenographer were as much their private property and absolutely under their control as notes taken of the testimony by calling witnesses into their office and inquiring of them what they knew about the case and preserving their statements by having a stenographer take the questions and answers that might be made by such witnesses in the office of counsel. That this was error, in our opinion, is too plain for discussion, and the order of the court should have never been made. Howéver, we deem it unnecessary to express an opinion as to whether such error would constitute reversible error, and while it may not fall directly within the inhibition of the Constitution which prohibits the compelling of a defendant to testify against himself, it is clearly very close to the verge of violating that constitutional provision by compelling the counsel for defendants to furnish their private notes taken by their stenographer in order to aid the prosecution in conducting the prosecution against their clients. We are unwilling to sanction that method of conducting prosecutions by the prosecuting officers of this State.

nx

The record discloses that the defendants took the deposition of witness E. Parks. This deposition was read in evidence by the defendants’ counsel without objection by the State and there had been no previous motion to suppress the same on account of any irregularity in the taking of the deposition. In other words, the record discloses that it was practically conceded that the deposition was taken upon due notice and filed in the circuit court of Pemiscot county and read in evidence for the defendants. It is disclosed by the record that after the reading of the deposition of E. Parks in evidence the prosecuting attorney called C. Gr. Shepard, one of the counsel for the defendant, and over the objections of the defendant proceeded to an examination of him in respect to the taking of the deposition. We will not burden this opinion with a reproduction of the examination of Mr. Shepard, but it is sufficient to say that we have read such examination carefully and duly considered it, and we are of the opinion that this examination was entirely unauthorized and it is apparent that the only purpose was by an illegitimate and illegal method to destroy whatever force and effect might be given by the jury to the testimony of the witness whose deposition was taken. The prosecuting attorney had due notice of' the taking of this deposition and the court should not have permitted him to even indulge in an examination of counsel for defendant in respect to the taking of that deposition that had no other purpose in view except to impress the jury that the witness’s testimony was of little value for the reason that the State was not represented at the taking of the deposition.

While it is the province and the duty of counsel representing the State to avail himself of all legal methods to contradict and impeach witnesses introduced by the defendant, yet it was clearly not his duty, the deposition having been regularly taken, read without objections, and no motion having been filed to suppress for any irregularity, to undertake to weaken and destroy the force of the testimony of the witness whose deposition was taken, in a manner that is entirely unauthorized in the legitimate and proper administration of justice. The examination of Mr. Shepard was simply for the purpose of showing that the circuit court of Pemiscot county was in session, therefore impressing the jury that the prosecuting attorney was unable to be present at the taking of it, finally emphasizing what the deposition should have shown by asking the question as to whether or not any one was there representing the State; then follows the question as to whether or not counsel for the defendant had not agreed to let him know on what date the deposition would be taken so that he could have some one present to represent the State; and the deposition shows that the prosecuting attorney had notice as to what date the deposition would be taken. Then follows in such examination of Mr. Shepard questions propounded to him respecting the testimony of the witness, Mr. Parks, before the probate judge in the proceeding for habeas corpus. It is apparent from the record that these questions were propounded from the testimony preserved by defendants’ counsel which the court compelled them to deliver to the prosecuting attorney, and while the court excluded these questions, the representative of the State insisted not only on propounding the questions, but in violation of the ruling of the court read the questions and answers of this witness. While the learned and esteemed trial judge very promptly sustained objections to such questions and answers, yet the record discloses that counsel for the State did not heed such, ruling and insisted upon getting before the jury improper testimony which was taken in the proceeding for habeas corpus.

This examination cannot be too strongly condemned, and the court should have promptly stopped any examination along that line, and if counsel for the State insisted upon violating the injunction of the court, then such methods as are plainly within the power of the court should have been exercised to have compelled obedience to its rulings.

IV.

Appellants complain of error on the part of the trial court in admitting testimony of the moral character of the defendants in the neighborhood in which they reside. The defendants had offered themselves as witnesses in this case and under the rules of law as uniformly announced by this court they were subject to impeachment in the same manner as any other witness, and for that purpose the State had the right to attack their general reputation for morality. This proposition was thoroughly reviewed and settled by this court in the recent casé of State v. Beckner, 194 Mo. 281.

V.

It is assigned as error that the court failed to instruct the jury on all questions of law arising in the case. Upon this proposition our attention is specially directed to the failure of the court to instruct the jury “that though the defendants were jointly indicted and tried the court did not instruct the jury that they might find one or both of the defendants guilty, or acquit, one or both, as they might find the facts to be from the evidence.”

The record upon this question discloses the following: After the instructions were read to the jury counsel for the defendants stated to the court that “defendants desire to except to the instructions as given by the court as not being all the law in the case.

‘ ‘ Court: Come now the defendants and object to the instructions as offered by the court, because they do not contain all the law in the case. Then the court requests the gentlemen to present any additional law they may desire or suggest to the court any additional law.

“Mr. Faris: We have already suggested, and desire to say on the part of defendants, that we have already suggested certain instructions which the court has refused, and except to the refusal of the instructions. ’ ’

The record fails to disclose that the defendants’ counsel offered an instruction or suggested that the court instruct the jury along the lines of finding one or both of the defendants guilty or not guilty. In support of this contention our attention is directed to the recent case of State v. Vaughan, 200 Mo. l. In that case, however, the record discloses that the defendants’ counsel offered an instruction upon the subject now under consideration and the instruction was refused by the court, and it was for the refusal of that instruction that the Yaughan case was reversed and remanded. We see no reason to depart from the rule as announced in the case of State v. Weatherman, 202 Mo. 6, in which it was expressly ruled by this court that “Keets Weatherman, one of the parties informed against as an accomplice of the defendant, testified in behalf of the State, but the court failed to give the usual cautionary instruction as to such testimony, although the defendant asked the court at the time the instructions were read to the jury to instruct upon all the law of the case. But no intimation was given the court by this motion as to what particular points of law had been neglected or overlooked by the court in its instructions, or upon which defendant desired instructions.. Defendant now insists that the court should have given the usual cautionary instruction upon the testimony of the accomplice. But, in fairness to the court, the defendant, if he desired such an instruction, .should have asked for it, or have called the attention of the court to its failure to instruct upon this feature of the case. [State v. Bond, 191 Mo. 555; State v. McCarver, 194 Mo. 717; State v. West, 202 Mo. 128.]”

VI.

Complaint is made hy appellants’ counsel of error in the giving of instructions 1 and 5. The errors complained of in these instructions relate entirely to the defendant Baker, and the death of the defendant Baker having been suggested, we deem it unecessary to discuss the errors complained of in those instructions.

vn.

Complaint is made that the court erred in refusing instruction “C” requested hy the defendants. This instruction directed the jury that if the evidence failed to show any motive on the part of the defendants to commit the crime charged, this was a circumstance to he considered hy.the jury in connection with the other facts and circumstances in the ease in making up their verdict.

We are of the opinion that there was no error in the refusal of this instruction. The defense in this case was upon the theory that the defendants were justified in lulling the deceased under the facts developed at the trial, and the testimony of the defendants. fully furnishes the motive for such shooting, and the record further discloses upon the theory advanced hy the defendants that the motive in shooting the deceased was to prevent him from accomplishing a design to do them some great personal injury, and what was said in the case of State v. Lynn, 169 Mo. l. c. 673, by Burgess, J., in responding to a contention made in that case, is applicable to the disclosures of the record in the ease at bar. It was there said: “The point is made that the court erred in' refusing an instruction asked by the defendant, numbered one, which told the jury that in case they failed to find any motive, on the part of the defendant for the commission of the crime charged against him, then this ought to be considered with the other evidence in making up their verdict. There was no error in refusing this instruction. There was nothing upon which to predicate it. Defendant admitted the killing and testified that he shot deceased in self-defense, and to save his own life. This, according to defendant’s own testimony, furnished the motive for the homicide.”

yin.

The record discloses the preservation of exceptions to the giving of all the instructions on the part of the State; therefore, we have carefully considered the instructions as given. The statement of the evidence as disclosed by the record authorized an instruction upon manslaughter in the fourth degree. This was recognized by the trial court by the giving of an instruction embracing that grade of the crime; however, in our opinion the instruction as given on manslaughter in the fourth degree was erroneous. The instruction was as follows:

“The court instructs the jury, if you believe from all the evidence that at the time the defendant Billy Barnett shot and killed the said Joe Morgan, if you believe from the evidence that defendant Barnett did kill him, by shooting him with a loaded pistol, the defendant was acting under a violent passion suddenly aroused by reason of a reasonable apprehension on the part of the defendant Barnett that Morgan was in the act of drawing some weapon upon Mm for the purpose of Mlling him or inflicting upon him some personal injury, you cannot find the defendant guilty of murder, for in that case the law presumes that such shooting was done without malice hut by reason of such passion; on the other hand, although you may believe that defendant Barnett shot and Mlled Morgan, while in a violent pas-' sion, suddenly aroused as above stated, yet if you shall further believe from all the evidence that such Mlling of Morgan was done by defendant Barnett and that the same was not necessary to the self-defense of said Barnett, as explained in other instructions, you will find the defendant Barnett guilty of manslaughter in the fourth degree, and assess his punishment at imprisonment in the penitentiary for a period of two years or at imprisonment in the county jail for a period of not less than six months nor greater than one year, or by fine of not less than five hundred dollars, or by both a fine of not less than one hundred dollars and imprisonment in the county jail not less than three months.”

The error of that instruction consists in telling the jury that if the defendant shot and Mlled the deceased while under a violent passion suddenly aroused by reason of a reasonable apprehension on the part of the defendant Barnett that Morgan was in the act of drawing some weapon upon him for the purpose of Mlling him or inflicting upon Mm some personal injury, etc., then the jury would find him guilty of manslaughter in the fourth degree. The apprehension of .danger could only have reference and be applicable to the theory of self-defense. The mere apprehension of danger cannot be made the basis of an instruction authorizing the lessening of the grade of the crime, and therefore it may be that the jury, if they had been properly directed that if this shooting was done under a violent passion by reason of the assault and struggle going on about the time mf the shooting, and snch instruction had been predicated upon the .testimony of witness Taylor who investigated the ground and said it had been kicked up as if by men scuffling, would have found that the de-. fendant did the shooting while under a violent passion aroused by such state of facts, but were unwilling to believe that his passion was aroused by reason of the apprehension of danger. This instruction was erroneous, and we are unwilling to guess or surmise as to what the finding of the jury would have been if the instruction for manslaughter had been predicated upon the state of facts as disclosed by the record.

The law is well settled in this State that the court should properly instruct the jury upon all grades of the crime to which the testimony may be applicable, and while it may be true that if the defendant was convicted of a lower grade of the offense.he would have no right to complain of an erroneous instruction upon some higher grade, for the reason that he was not convicted of that grade of the offense, yet it needs no citation of authorities to show that, if the defendant is convicted of the higher grade of crime, he has the right to complain of an instruction given by the court upon a lower grade of offense of which he may have been convicted, and might justly contend that if the law had been properly declared upon the lower grade of crime, the jury may have convicted him of that lower grade.

We have indicated our views upon the. main propositions disclosed by the record, and while we will not undertake to say that there was not sufficient testimony to support the verdict of the jury, yet it is clear that the testimony in this case was conflicting, and while the defendants may have'unnecessarily taken the life of a human being, yet if we are to longer regard the forms of law and respect the rule that the defendant is entitled to a fair and impartial trial, with the errors as heretofore pointed out, we are unable to conclude that the verdict of the jury should he permitted to stand. We feel that the ends of justice would he best subserved by awarding the defendant a new trial in which the errors indicated may he avoided.

The judgment of the trial court should he reversed and the cause remanded, and it is so ordered.

All concur.


author: GANTT, J.

text:
    THE STATE v. HARRY VAUGHAN, GEORGE RYAN and EDWARD RAYMOND, Appellants.
    Division Two,
    May 14, 1907.
    1. CONSPIRACY: Indictment: Evidence. It is not necessary, in order to the admission of evidence of a conspiracy between defendant and others, that such others be included in the indictment.
    2. MURDER, FIRST DEGREE: Escaping from Prison: Killing Guards. Defendants who killed a penitentiary guard while they were attempting to escape from the penitentiary where they were lawfully confined, were guilty of murder in the first degree, and the court properly refused to submit to the jury instructions as to murder in the second degree. [Following State v. Vaughan, 200 Mo. 1.]
    Appeal from Cole Circuit Court. — Hon. Wm. H. Martin, Judge.
    Affirmed.

      E. L. King and Edwin Silver for appellants.
    (1) The indictment charged only the defendants with having jointly committed the homicide, and it was improper, as was done in instruction 2, to instruct on the theory of a conspiracy between the defendants and one Hiram Blake, who was not named in the indictment. Taylor v. Commonwealth, 90 S. W. 581. (2) (a) The court erred in refusing to give at the request of defendants ’ instructions 7, 8, 9 and 10. Ve submit said instructions have the support of the following authorities: State v. May, 142 Mo. 135'; People v. Knapp, 26 Mich. 112; Frank v. State, 27 Ala. 37. Where two persons conspire to fight with their fists, and one resorts to the use of a deadly weapon without the other’s knowledge or consent, the other cannot be held responsible for the act of the former in so doing. State v. May, 142 Mo. 135; People v. Knapp, 26 Mich. 112; Mercensmith v. State, 8 Tex. App'. 211; Frank v. State, 27 Ala. 37. (b) It is not proper or sound to hold a participant in an attempt to escape guilty of murder in the first degree where one of his associates departs from their joint plan and purpose and commits a homicide — he lacking the specific intent to kill, and the homicide not being committed in the perpetration, or attempted perpetration, of one of the offenses enumerated in section 1815, Revised Statutes 1899 — he would be guilty, at most, of only murder in the second degree.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) The indictment is sufficient in form and substance. In one count it charged defendant Vaughan with shooting and killing one John A. Clay, and the other defendants with being present, aiding and abetting; and, in the second count it charged that all three of the defendants shot and killed said Clay. Kelley’s Crim.-Law, sec. 474; State v. Wilson, 172 Mo. 423. (2) The instructions given at the request of the State were correct; they properly defined the crime of murder in the first degree, which is the only crime of which the defendants could have been convicted. Murder committed in the perpetration of another felony, or in the attempt to commit another felony, is murder in the first degree. Even if the defendants armed themselves solely for the purpose of making their escape from prison (which ho person can believe), still they were guilty of murder, which was committed as an attendant result of such effort to escape. Mayes v. People, 106 111. 306; State v. Bailey, 190 Mo. 288; Evans v. State, 109 Ala. 22; 2 Bishop’s New Crim. Law, sec. 641; 2 Wharton’s Crim. Law, sec. 1405; Martin v. State, 89' Ala. 118; Peden v. State, 61 Miss. 270; 1 Bish. Crim. Law, sec. 636; Boyd v. TJ. S., 142 U. S. 455; Ferguson v. State, 32 Ga. 658; State v. Walker, 98 Mo. 105; Kirby v. State, 23 Tex. App. 25; State v. Vaughan, 200 Mo. 1. (3) Neither was error committed in refusing to give instruction 7, asked by the defendants, on murder in the second degree. There was no murder in the second degree, or manslaughter, in this case; hence, said instruction was properly refused. State v. Vaughan, supra; State v. Cusheuberry, 157 Mo. 182. (4) The act of breaking out, or of attempting to break out of the penitentiary, was an unlawful act and a felony in itself. R. S. 1899, secs. 2067 and 2072; State v. Johnson, 93 Mo. 317. All of the defendants and Blake having conspired to commit that felony, and working together for that purpose, the commission of murder by one of the four in the presence of the others, and while all of them were still engaged in the common undertaking, fixes the guilt for that crime upon them all.
   GANTT, J.

This is the second appeal in this cause. The first is found reported in 200 Mo. l.

The defendants were indicted at the November term, 1905, for the murder of John A. Clay on the 24th of November, 1905. When the cause was here at the October term, 1906, of this court, it was reversed for the sole reason that the circuit court refused to instruct the jury that they were at liberty to find one or more of the defendants guilty and the others not guilty as they might deem right and proper under the instructions of the court and the evidence in the ease. On the re-trial of the cause on January 12, 1907, the circuit court gave said instruction in addition to those which it gave on the former appeal, and the jury under the evidence and the instructions of the court found each of the defendants guilty of murder in the first degree as charged in the indictment. And after motions for new trial and in arrest were heard and overruled, sentenced each' of the defendants separately to he hung on the first day of March, 1907. From that sentence the defendants have in due and proper form appealed to this court.

As on the former trial, the testimony on behalf of the State tended to prove that all three of the defendants and one Hiram Blake were on the 24th of November, 1905, lawfully imprisoned in the State penitentiary situated in the eastern portion of Jefferson City, Missouri. That around the penitentiary buildings and grounds, there is a high stone wall, and the entrances into the penitentiary are through the western walls. A short distance north of the north wall are situated the tracks of the Missouri Pacific Railroad and a few feet north of the tracks is the Missouri river. In the testimony of the witnesses two entrances are referred to, one being through the office in the administration building of the penitentiary, entering the grounds through an ordinary door opening into an iron cage, the other one, the wagon entrance; this last-named entrance was used by all vehicles that had occasion to go in and out of the prison walls, and consisted of two sets of double doors situated some distance from each other. On the 24th of November, 1905, Matt. ~W. Hall was warden, R. E. See was deputy warden and John A. Clay, Ephraim Allison, J. K. Young and John Bruner were guards at the prison. It was the duty of Mr. Clay, to stand in the wagon entrance between the two double doors, inspect the contents of the various loads that passed through said entrance, and attend to the locking and unlocking of the doors. Mr. See’s duties as deputy warden required that he spend most of his time in his office, which was some seventy-five feet north of the iron cage entrance, and this entrance was some fifteen or twenty feet north of the wagon entrance. Mr. See’s office was on the ground floor and opened out into the yard of the prison, and this yard opened into the stockade in which were located the prison shops where the three defendants and one Blake were working. Warden Hall and several of the prison officials were absent from the city on official business, having left Jefferson City on the forenoon of that day. About three o’clock on the afternoon of said day two gentlemen from Osage county were admitted as visitors to the prison and were sitting in the deputy warden’s office talking to a prisoner,, when the three defendants and Blake appeared at the door of the said office with pistols in their hands and commanded deputy warden See to hold up his hands, threatening to kill him if he refused. Mr. See endeavored to draw his pistol and one of the four convicts fired his pistol, striking See in the wrist and also wounding defendant Yaughan in the hand. Yaughan was in the act of grabbing Mr. See’s hand when Blake shot at Mr. See. See was then disarmed by them, dragged out of his office and ordered to march between Bláke and the defendant Yaughan to the wagon entrance; and the two visitors were also ordered to march, one by the side of the defendant Ryan and the other by the side of the defendant Raymond. The wagon entrance was reached just as the inner doors were being opened to admit a two-horse wagon into the prison yard, and the four convicts rushed through said doors, taking with them Mr. See and one of the visitors, the other visitor managed to get loose and escaped. The four convicts ordered Mr. Clay, who was on duty at that point, to hold np his hands, which he did; they then ordered him to hold his hands np higher. Someone in the wagon entrance then fired at Olay, striking him in the neck and killing him instantly. As the space in this wagon entrance was tolerably dark, neither Mr. See nor "Weggeman, one of the visitors, could state who it was who fired the shot, bnt the driver of the team, Charles Woodland, testified'positively that the defendant Yanghan was the first man to push into said wagon entrance and that Yanghan fired the shot. Other shots were fired by the defendants and Blake in said entrance, some of which were so close as to burn Mr. See’s face with powder. These defendants then ordered See to unlock the outside doors, but he told them that he could not and did not know how, and finally suggested to them that he could show them a better way through the office. The defendants and Blake then went with Mr. See to a door that opens into this wagon entrance from the guard room, where Mr. Allison appeared at the door and ordered the men to throw up their hands, whereupon one of the four shot and killed Mr. Allison. One of the four then shouted, “Kill them all, let’s shoot our way out.” About that time one of them shot Mr. See in the shoulder and in the side, and he fell to the ground. One of them then said, “Captain See is dead, now get to work, we are losing time.” Mr. Young was. up stairs in the armory and hurriedly came down to discover the cause of the disturbance. He saw the body of Mr. Allison on the floor, and walked toward the door opening into the wagon entrance, when some one in this entrance shot him. Hearing the firing, Mr. Bruner, another guard, ran from the dining-room building to the inner doors of the entrance and looked in through a small hole in the door; some one in the wagon entrance commanded him to go away, and shot at him. Thereupon, these four convicts, having made one ineffectual effort to .blow open the outer door with nitroglycerin, again applied it to the outer doors of the wagon entrance, and this time succeeded, and by its explosion a large strip was blown off of one of the said doors, maldng a hole sufficient in size for them to jump through and make their escape, which they did. After getting out of the prison, the three defendants and Blake ran together towards the Missouri Pacific railway tracks and west along said tracks toward the station. They stopped a moment to re-load their pistols and ran around on the north side of some freight cars. Captain See and the guard, Bruner, followed them towards the depot. Bruner soon came within range of them and exchanged several shots with them. He succeeded in wounding Blake in the leg. Blake was then captured and taken back to prison, where he soon died from thé effects of his wound. In the meantime, the police of Jefferson City had been notified of the escape and joined in the pursuit of the three defendants herein, and after a running fire they were all three captured and returned to the prison. At the time of the capture each defendant had a 44-calihre pistol in his hand, and from forty to one hundred cartridges in his pocket; and the defendant Vaughan had a stick of dynamite, a bottle of nitroglycerin, and some fuse and caps. The State’s evidence showed that Mr. Clay’s death was caused by a gun-shot wound in the neck, which was made by a bullet from a forty-four calibre pistol. The defendants Vaughan and Ryan testified in their own behalf; the defendant Raymond did not testify. Vaughan and Ryan stated that a few days prior to the commission of the homicide in question, they were in the same cell in the prison and agreed with Blake and Raymond to make an effort to escape; that a friend of theirs, whose name they declined to give, had sent them the pistols, cartridges, nitroglycerin, dynamite, etc., which they took for the purpose of frightening the prison officers. They testified that it was distinctly agreed among them that no one should he hurt or killed; they both testified, however, that they went to the deputy warden’s office, and covered him with their pistols; that Blake shot Captain See in the wrist; that they marched with See to the wagon entrance where they and Blake fired their pistols a number o£ times; that they all ordered Mr. Clay to hold up his hands; that no one else in that hall way had any pistols or revolvers except these four and that Mr. Clay, Judge Allison and Captain See were all shot. Each of the two defendants denied that he shot either Clay or Allison. They expressed the opinion that Blake did it. They admitted that they blew open the outside door with nitroglycerin, passed through the opening, ran west to the freight depot, jumped into a wagon and carried on a running battle with the officers and police and citizens who were pursuing them, and that finally they were captured with their revolvers in their hands. The court gave the same instructions on this trial as on the former trial, save and except, as already noted, that the court gave the instruction that the jury might find one or more of the defendants guilty and others not guilty, as they might deem right and proper under the instructions of the court and the evidence in the case.

1. It is insisted that- the court erred in giving the instruction 2 for the State, for the reason that this instruction authorized the jury, if they found that the defendants and another person, named Hiram Blake, entered into the criminal conspiracy to escape from the prison, and while acting in concert with each other, and in the furtherance of a common design to make such escape, either' of the said four persons, did in the presence of the other three, wilfully, feloniously, premeditatedly, deliberately and of malice aforethought kill John A. Clay, to find all three of the defendants guilty, because the said Blake was not named in the indictment. The proposition is thus advanced that, in order to admit testimony as to a conspiracy between the defendant and other persons, such other persons must also be included in the indictment. Both at common law and in this country, the law is well settled adverse to this contention. [State v. Collins, 181 Mo. l. c. 261; State v. Kennedy, 177 Mo. l. c. 164, 165; State v. Boatright, 182 Mo. l. c. 46, and authorities there cited.]

2. It is further contended that the court erred in refusing instructions 7, 8, 9' and 10, asked by the defendants in which the defendants sought to have the court submit to the jury that if the defendants killed Mr. Clay with premeditation, and malice aforethought, but without deliberation, they were only guilty of murder in the second degree. And the further proposition that although the jury might find and believe all three of the defendants mnd Blake were convicts in the Missouri State penitentiary, and while so confined in said prison, they agreed and combined together to effect their escape therefrom, .but it was expressly understood and agreed among them that no officer or guard of the prison should be killed or injured, but that said escape should be effected solely by means of intimidating the officers and guards, and that while said convicts were carrying out their said purpose, the deceased, John A. Clay, was killed by one of said defendants, and that this killing was a departure from the purpose and plan agreed upon by said Blake- and the defendants, then the defendant or defendants not so instigating, counseling, abetting, aiding or advising said killing, was not guilty of the offense charged in the indictment, but that the party killing said deceased alone was guilty. These instructions were fully considered -on the former appeal in this case, and it was ruled that the court properly refused them on the ground that according to their own testimony, in addition to that of the State, they were all equally guilty of murder in the first degree and of no less grade of that offense. With the conclusion reached at that time we are entirely satisfied. While it is true that on this appeal the defendants Vaughan and Ryan testified that it was agreed between them that they would make an effort to escape and that a friend of theirs, whose name they refuse to divulge, had furnished them with pistols, cartridges, nitroglycerin, dynamite, etc., to enable them to make their escape, and that it was agreed between them that no officer of the prison should be hurt or killed, still, they testified that each of them went armed with a loaded revolver into the deputy warden’s office and without warning to him covered him with their pistols, and that when he attempted to draw his pistol, one of their number, Vaughan, grabbed him by the wrist, and another of them, Blake, shot Warden See through the wrist, and that they together thereupon seized the deputy warden and two visitors, who were then in the office, and compelled him and the visitors to accompany them to the wagon entrance of the penitentiary, and that immediately upon entering this entrance they compelled the deceased, Mr. Clay, to throw up his hands, and then and there one of their number, without the slightest provocation on the part of the deceased, shot and instantly killed him. Not only this, but they shot the deputy warden twice and killed Captain Allison and wounded another guard, Mr. Young, and shot at another guard, Bruner, who was coming to the assistance of the deputy warden. Thus, it appears that their conspiracy was to commit a felony and that in the prosecution of the purpose of that conspiracy they shot and killed two of the officers of the State and seriously wounded another, and under such circumstances the law of this State is that they were each and all of them guilty of murder in the first degree in killing the two guards Clay and Allison, and there is nothing to reduce their offense to murder in the second degree. [State v. Vaughan et al., 200 Mo. l. c. 19; State v. William Walker, 98 Mo. 95 l. c. 107.]

In view of their own testimony and all the evidence on the part of the State as to their acts and conduct, their statements that they did not intend to hurt or kill any one amounted to nothing in the eyes of the law and was so utterly inconsistent with the physical facts of the case that the circuit court would not have been justified in submitting to the jury that their offense was anything less than murder in the first degree, and this we ruled on the former appeal, and we are still of that opinion.

3. A careful consideration of all the evidence discloses no error in the admission of testimony nor in any rejection of any offered on behalf of the defendants. All questions as to the evidence were fully settled by the opinion of Judge Burgess on the former appeal, and it is unnecessary to repeat what was said at that time, or to discuss the various authorities so carefully collected by the Attorney-General sustaining our rulings on that occasion.

No. error appearing, the judgment of the circuit court is affirmed and the sentences which the law pronounces are directed to be carried into execution.

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


author: BURGESS, J.

text:
    THE STATE v. THOMAS TOOHEY, Appellant.
    Division Two,
    May 14, 1907.
    1. BURGLARY AND LARCENY: Sufficiency of Evidence. Evidence in a prosecution for burglary and larceny held sufficient to justify the submission of the case to the jury.
    2. -: Proof of Other Crimes: Common Design: Evidence. In a prosecution for burglary of and larceny from a certain Pullman car, it was not error to admit evidence tending to show that another car coupled to the former had been burglarized and articles stolen therefrom, the property taken from both cars having been sold at the same time and place by defendant and his coindictee. The evidence tended to show a common design to burglarize both cars, and the two crimes were so closely related that proof of the One tended to establish the other. And, for the same reason, it was not error to permit the State to prove that defendant and his coindictee were seen together on the afternoon of the day on which the crime was committed, in the cab of a locomotive engine, defendant breaking oE pieces of brass from the engine, and his coindictee picking them up.
    3. -: Disposition of Stolen Property: Evidence. No error was committed in permitting a witness for the State to testify that on the afternoon of the alleged burglary and larceny de- . fendant and his coindictee came to witness’s junk shop and sold to him some of the articles alleged to have been stolen. Although the stolen property may have been partly or even' exclusively in the possession- of defendant’s coindictee at the time it was sold, yet defendant’s presence was a circumstance tending to show his guilt.
    Appeal from Jackson Criminal Court. — How. Jno: W. W<offord, Judge.
    Arríeme».

      Philip D. Clear for appellant.
    (1) The demurrer to the evidence should have been sustained. State v. Huff, 164 Mo. 480. (2) The evidence admitted relative to car “Nubia,” over defendant’s timely objection, was error, because that car is not mentioned in the information, and because said, evidence relates to a separate transaction. State v. Goetz, 34 Mo. 85; State v. Harold, 38 Mo. 496.; State v. Reavis, 71 Mo. 419; State v. Turner, 76 Mo. 350; State v. Reed, 85 Mo. 194; State v. Tabor, 95 Mo. 590 ; State v. Spray, 174 Mo. 569; State v. Jackson, 95 Mo. 328; State v. Parker, 96 Mo. 328; State v. Crow, 107 Mo. 346; State v. Young, 119 Mo. 495; State v. Smith, 125 Mo. 6.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) (a) No error was committed in admitting evidence tending to show that the Nubia had been broken into and bronze hooks stolen from it. Said evidence tended to show a common scheme or plan embracing the commission of two or more crimes, so related to each other that proof of one tends to establish the other. State v. Bailey, 190 Mo. 280; People v. Molineux, 168 N. Y. 264; Underhill on Crim. Evidence, sec. 88; 1 Wigmore on Evidence, sec. 306. (b) Neither was error committed in permitting the State to prove that the defendant and his co-indictee were found on the afternoon of the same day, between six and seven o’clock, in the cab of an engine, defendant breaking off pieces of brass and his codefendant gathering them up. This evidence was admissible for the reason given above, and for the additional reason that it tended to identify the defendant. State v. Walker, 194 Mo. 262; State v. Folwell, 14 Kan. 105; Yarborough v. State, 41 Ala. 405; Underhill on Crim. Evidence, sec. 91; 1 Wigmore on Evidence, sec. 414; 4 Elliott on Evidence, sec. 3058; Bishop’s New Crim. P'roc., 1129. (c) No error was committed in permitting State’s witness Epstein to testify that defendant and James Carrigan came to his junk store together about four o’clock p. m. on the day of the alleged larceny, and that they brought with them the stolen brass and stolen bronze, and sold the same to said witness. These articles were identified as the property stolen from the Bolton and the. Nubia, and proof that the defendant and his associate had them in their possession so recently after the larceny thereof, was a strong circumstance tending to show that they had stolen the same. State v. Scott, 109' Mo. 228; State v. Castor, 93 Mo. 250; Wharton’s Crim. Evid., sec. 758; 3 Greenl. on Evidence, sec. 32; 4 Elliott on Evidence, sec. 2725. Even if the stolen property was partly or exclusively in the possession of defendant’s co-indictee, James Carrigan, at the time the same was sold at the junk store, still this recent possession was a circumstance against the defendant, in view of his association with Carrigan on said day, his presence with Carrigan at the junk store, his presence with and participation with Carrigan in the old engine and the denial of his name, when arrested. State v. Wohlman, 34 Mo. 482; State v. Dawson, 90 Mo. 149. (2) The evidence was sufficient to justify a submission of the case to the jury, and sufficient to justify the jury in finding the defendant guilty.
   BURGESS, J.

On the 11th day of September, 1906, the prosecuting attorney of Jackson county filed an information, duly verified, charging the defendant and one James Carrigan with burglariously breaking into and entering a certain railroad -car called the “Bolton,” the property of the Pullman Company, a corporation, and taking and stealing therefrom certain brass hat and coat hooks and a brass guardrail and other articles of value then and there kept and deposited.

A severance being granted the defendant, he was tried on the 1st day of October, 1906, and convicted of burglary, and his punishment assessed at three years in the penitentiary. After filing an unsuccessful motion for a new trial, defendant appealed.

The State’s evidence tended to prove that on the 7th day of September, 1906, the Pullman Company was the owner of two sleeping cars, one called the “Bolton” and the other called the'“Nubia,” and that they were coupled together and standing on a side track in the Burlington yards, a little east of the roundhouse in Kansas City. On the morning of that day the doors of both cars were locked and the windows all down. At two o’clock in the afternoon of that day, it was discovered that one of the doors of the Bolton, as also one of the doors of the Nubia, had been broken open, and a number of brass hooks and brass guardrails and several other articles had been torn from their fastenings and removed from the interior of each of said cars, the brass hooks being worth about $1.50' each. Between sis and seven o’clock of the same evening the defendant and his co-indictee, James Carrigan, were discovered by the night watchman in the cab of an old engine in the railroad yards, some distance away from where the cars Bolton and Nubia were standing. Defendant at the time was in the act of breaking off pieces of the brass attachments on the engine, using a hammer and chisel for that purpose, while Carrigan was picking up the pieces of brass that defendant had knocked off1. The night watchman arrested the defendant, who on his way to the police station said that his name was Charley Smith, but he afterwards gave his' true name. It appears from the evidence that about four o’clock on that afternoon, the defendant and Carrigan went together to a junk shop owned by Epstein & Son, about, a quarter of a mile distant from where the two cars were standing, and sold some of the stolen brass hooks and the brass guardrail. ■ The articles in question were identified by several officers and employees of the Pullman Company as the stolen property.

On behalf of the defendant, his annt and his grandmother both testified that he was at home the afternoon of the day of the alleged burglary and larceny until four o’clock, when he left the house and did not return that evening.

Defendant contends that the demurrer to the evidence at the close of the State’s case should have been sustained. It is true, the evidence was circumstantial, but it was sufficient to justify the submission of the case to the jury. The burglary was committed between two and four o’clock on the afternoon of the seventh of September, and the fact that the property taken from the cars was sold to a junk dealer about four o’clock of the same afternoon by the defendant and his accomplice tended strongly to establish the defendant’s guilt. The property having been shown to have been in the possession of defendant and his companion shortly after the burglary and larceny was committed, raised the presumption that the defendant was guilty of the burglary and larceny. [State v. James, 194 Mo. 268.] Not only this, but it was further shown that the defendant and this same companion were seen, between six and seven o’clock the same afternoon, engaged in committing the same sort of larceny. True, the defendant offered evidence tending to prove an- alibi; but the weight of the evidence was for the consideration of the jury. [State v. Smith, 190 Mo. 706.]

We are of the opinion that no error was committed in admitting evidence tending to show that the car called Nubia had been broken into and brass hooks and other articles of brass stolen therefrom. The two cars, Bolton and Nubia, were coupled together and were evidently burglarized about the same time, and the property taken from them was sold at the same time and place by the defendant and his co-indictee. The evidence tended to show a common design, scheme or plan, to burglarize both ears for practically tbe same purpose, and the two acts of burglary and larceny were so closely related to each other that proof of the one tended to establish the other. [State v. Bailey, 190 Mo. 257; People v. Molineux, 168 N. Y. 264; Underhill on Criminal Evidence, sec. 88; 1 Wigmore on Evidence, sec. 306.] Nor was there error committed in permitting the State to prove that the defendant and his coindictee were seen together between six and seven o’clock in the afternoon of the same day, in the cab of a locomotive engine, the defendant breaking off pieces of brass from the engine, and James Carrigan, his coindictee, picking them up. [State v. Walker, 194 Mo. 253; State v. Folwell, 14 Kan. 105; Yarborough v. State, 41 Ala. 405; Underhill on Criminal Evidence, sec. 91; 1 Wigmore on Evidence, sec. 414; Elliott on Evidence, sec. 3058; Bishop’s New Crim. Proc., 1129.]

No error was committed in permitting Abe Epstein, a witness for the State, to testify that the defendant and James Carrigan came to his junk shop together about four o ’clock in the afternoon of the day of the alleged burglary and larceny and that they brought with them the brass articles alleged to have been stolen, and sold the same to him. These articles were identified as the property taken from the Bolton and Nubia, and the fact that defendant and Carrigan had them in their possession was an important fact as tending to show that they were the thieves. [State v. Scott, 109 Mo. 226; State v. Castor, 93 Mo. 242.] And when a burglary and larceny are committed at the same time, the law indulges the presumption that the person in whose" possession the stolen property is' recently thereafter found is guilty of the burglary as well as of the larceny. • [State v. Warford, 106 Mo. 55.] Although the stolen property was partly or "even exclusively in the possession of James Carrigan at the time it was purchased from him and the defendant by the junk dealer, yet his presence and association with Carrigan at the junk store and at the time of the sale, his participation with Carrigan in the work of breaking off and stealing the brass attachments of the old engine, and his denial of his name when arrested, were all circumstances which tended to establish defendant’s guilt. [State v. Wohlman, 34 Mo. 482.]

A final contention is that the court committed error in pérmitting the prosecuting attorney, in his closing address to the jury, over the objections of defendant, to go outside the record and make statements which were not warranted or authorized by the evidence, to the prejudice of the defendant; but after a careful reading of the remarks complained of, we are of opinion that there is nothing in them of which defendant has just cause to complain; certainly, nothing which would justify a reversal of the judgment.

Finding no reversible error in the record, the judgment is affirmed.

All concur.