author: FOX, P. J.

text:
    THE STATE v. WILLIAM WEBSTER, Appellant.
    Division Two,
    November 19, 1907.
    1. APPELLATE JURISDICTION: Misdemeanor: Former Jeopardy. Where a defendant convicted of a misdemeanor filed a plea in bar raising the issue of former jeopardy and expressly raised and invoiced the constitutional provision that “no citizen shall be twice put in jeopardy for the same offense,” and that “no citizen shall be deprived of liberty or property without due process of law,” his appeal is.to the Supreme Court.
    2. INFORMATION: Official Oath. The sufficiency, validity or force of an information founded upon the affidavit of a private citizen is not affected by the fact that the prosecuting attorney did not allege therein that it was made upon his oath of office.
    3. -:■ Verification. It is not essential that an information filed before a justice of the peace should be verified. Procedure in magistrates’ courts is governed by section 2750, Revised Statutes 1899. Section 2477 is applicable only to informations filed in the circuit or criminal courts.

      4. -: -: Sufficient on Face. An information filed by the prosecuting attorney “upon the affidavit of William Wingate with the justice herein,” charging the defendant with disturbing .the “peace of Lena Wingate and Charles Terry by loud and unusual noise,” etc., etc., is valid on its face, even though the said William had no personal knowledge of said offense.
    5. JEOPARDY: What Is. A.defendant is in legal jeopardy when he is put upon trial, before a court, of competent jurisdiction, upon an indictment or information sufficient in form and substance to sustain a conviction, before a jury charged'with his deliverance, that is, impaneled and sworn. When the case has proceeded thus far, he is entitled to a verdict which shall constitue a bar to' a new prosecution for the same offense; nor can he be deprived of this bar by a nolle prosequi entered against his will, or by a discharge of the jury and a continuance of the cause.
    6. -: Information: Insufficient Affidavit: Demurrer. Where an information was filed before a justice of the peace, charging defendant with disturbing the peace of Lena Wingate, upon the affidavit of William Wingate, and defendant was convicted and appealed to the circuit court, and there, after an unsuccessful motion to quash on the ground that William had no personal knowledge of any disturbance, a jury was impaneled and sworn and the State introduced its witnesses, and rested, and defendant offered a demurrer to the testimony and, it appearing that said William had no personal knowledge of the offense, the demurrer was sustained, the court cannot, against the objection and exception of defendant, go further and quash the information and order the jury discharged without rendering a verdict and defendant to be held for further prosecution, but the information being sufficient on its face, these things establish defendant’s plea of former jeopardy when subsequently put upon his trial to answer an information of the prosecuting attorney based upon the affidavit of the said Lena and charging the same offense as did the first information. The sustaining of the demurrer, the quashing of the information and the discharging of the jury over the objections of defendant, must be treated as an acquittal.
    7. -:-: Demurrer: Erroneously Sustained. Whether the action of the court in sustaining a demurrer to the testimony on the ground, that the person who made the affidavit upon which the information was based had no personal knowledge of the offense, was correct or incorrect, will not be determined; for, the circuit court being one of competent jurisdiction and the information valid upon its face and the jury having been ' sworn and the trial begun, by sustaining the demurrer the court acted, and that act, under the circumstances, must be treated as an acquittal.

      8. -: Constitutional Right, a constitutional provision guaranteeing protection to tbe citizen will not be lightly viewed, even though its observance may in some instances result in a guilty person escaping merited punishment.
    Appeal from Grundy Circuit Court.- — How. Geo. W. WanamaJcer, Judge.
    Reversed.

      •Platt TIubbell and George Hubbell for appellant.
    (1) Whenever a person is put upon trial before a court of competent jurisdiction, upon a sufficient information, and a jury has been impaneled and sworn, the person is then in jeopardy. Ex parte Snyder, 29 Mo. App. 256 ; State v. Snyder, 98 Mo. 555; State ex rel. v. Williams, 117 Mo. App. 564; State v. Wiseback, 139 Mo. 214; Cooley on Const. Lim. (7 Ed.), 467. (2) "When thus in jeopardy, the defendant becomes entitled to a verdict which shall constitute a bar to a new prosecution and he cannot be deprived of this bar by a discharge of the jury and continuance of the cause; and a jury unnecessarily discharged is equivalent to a verdict of not guilty. Eix parte Snyder, 291 Mo'. App. 262; Cooley on Const. Lim. (7 Ed.), 467; State ex rel. v. Williams, 117 Mo. App. 564. The authorities on this subject are reviewed and collected in two recent volumes of the Central Law Journal. 60' Cent. Law Journal 184; 62 Cent. Law Journal 295; 17 Am. & Eng. Eney. of Law (2 Ed.), 595; Grafton v. U. S., 14 Sup. C't. Rep. 749; 12 Cyc., 259 ; People v. Small, 82 Pac. 87. (3) When an information by a prosecuting attorney is based upon the affidavit of a private citizen, the sufficiency and validity of the information does not depend upon the sufficiency of the affidavit, nor the evidence in support of said affidavit. State v. Lee, 113 Mo. App. 203; State v. Brown, 181 Mo. 223; State v. Hart, 47 Mo. App. 654; State v. Ostman,- 100 S. W. 697. (4) The first information filed by the prosecuting attorney, and under which the defendant was first tried, sufficiently charged an offense. State v. Hooker, 68 Mo. App. 417; State v. Wilkson, 36 Mo. App. 373; State v. Fare, 39' Mo. App. 110; State v. Parker, 39 Mo. App. 116; State v. Fletehall, 31 Mo. App. 296; Kelley, Grim. Law (2 Ed.), p. 631. (5) The omission of the words “under his •oath of office” does not invalidate the information, because all of the official acts of the prosecuting attorney are presumed to have the sanction of his official oath. State v. Fletehall, 31 Mo. App. 300; State v. Wilkson, 36 Mo. App. 377; State v. Parker, 39 Mo. App. 1201; State v. Ransberger, 106 Mo. 145; State v. Pruett, 61 Mo. App. 159. (6) The person who swears to a com-, plaint before a justice of the peace must have actual knowledge of the offense charged, and defendant is -entitled to have the question of knowledge submitted to the jury by instructions. See. 2749, R. S. 1899; State v. Meadows, 106 Mo. App. 606; State v. Fuser, 75 Mo. App. 263; State v. White, 55 Mo. App. 356; State v. Shaw, 26 Mo. Appi. 383.

      Herbert 8. Hadley, Attorney-General, and N. T. •Gentry, Assistant Attorney-General, for the State.
    The first information that was filed was not sworn to by the prosecuting attorney, neither was it sworn to by any witness, as required by the statute. It is insisted, therefore, by the State that said first information was not sufficient to give the justice of the peace jurisdiction to try the defendant, and that the circuit court -of Grundy county did not acquire jurisdiction on appeal. The defendant recognized this fact in the first case, by the motion which he filed and by the action which he induced the trial court to take thereon. Such action by the defendant cannot be the ground of complaint in another prosecution instituted1 by the State. State v. Manning, 168 Mo. 429; R. S. 1890, see. 2477. “Consent to the action of the court in discharging a jury renders such action valid, even though there does hot exist such imperious necessity as would otherwise justify it. ’ ’ 17 Am. and Eng. Emcy. Law, 1261; People v. Higgins, 50 Cal. 358. Defendant having asked the court to discharge him, because of want of jurisdiction, and the court having properly found, in the first prosecution, that he did- not have jurisdiction, the same is no plea in bar to the subsequent jurisdiction.
   FOX, P. J.

This cause is brought to this court upon appeal by the defendant from a judgment of the circuit court of Grundy county convicting him of a misdemeanor, that of disturbing the peace of a person. The defendant in the trial court filed a plea in bar, which consisted of a recitation of a record, which defendant insists shows that he had formerly been put in jeopardy for the same alleged offense upon which this judgment is predicated, and he invokes the constitutional provision that “mo citizen shall be twice put in jeopardy for the same offense, and that no person shall be deprived of liberty or property without due process of law,” and it is under that state of the record by which this court has jurisdiction. This constitutional question having been expressly raised and invoked in the trial court, and the action of the trial court upon the plea in bar being the main question involved in this proceeding, it is appropriate to briefly state the facts relating to the basis of such plea.

In April, 1904, William Wingate, the father of Lena Wingate, filed an affidavit before a justice of the peace charging in said affidavit that defendant Webster did disturb the peace of his daughter, Lena Win-gate, referring to the occasion of defendant’s dispute with Terry. On this affidavit the prosecuting attorney filed his information charging that the defendant Webster, at said time, did disturb the peace of said Lena Wingate. Afterwards, and in June, 1904, the defendant Webster was tried before the justice of the peace, found guilty and adjudged to pay a fine of one dollar for disturbing the peace of Lena Wingate. From that judgment of conviction the defendant appealed to the circuit court of Grundy county. In the circuit court the defendant first filed a motion to quash the information on the ground that William Wingate, on whose affidavit the information was based, had no personal knowledge of any disturbance of the' peace or any other offense, and that he, therefore, was not a competent person on whose affidavit to base an information, and, although it was conceded that William. Wingate had no such personal knowledge, the circuit court held the information sufficient in law. The prosecution thus begun before the justice of the peace was then tried de novo in the circuit court. A jury was empaneled and the State having introduced testimony in the cause and rested, defendant offered a demurrer to the testimony, and it appearing to the court that the prosecuting witness, William Wingate, upon whose affidavit the information was based, was not present at the time of the alleged offense and had no actual or personal knowledge of the offense, the demurrer was sustained and the information quashed, and the court dismissed the jury and ordered that the defendant be held for further prosecution, to all of which the defendant objected and insisted on his demurrer being sustained and that he be finally discharged. Afterwards, and on the same day, the present information.(the second information) was filed in the circuit court, based on the affidavit of Lena Wingate, charging the defendant with the same offense against Lena Wingate,.the same person, charging the same offense for which the defendant had been tried in the justice court and for which he had been put on trial ini the circuit court, and his demurrer sustained and the jury dismissed, as aforesaid. To this second information defendant pleaded former jeopardy. This plea is thus stated in the record:

“Now comes the defendant, 'William Webster, in his own proper person having seen and heard the information filed against him, in this canse, by the prosecuting attorney, on the affidavit of Lena Wingate, on October 3, 1904, said information having been originally filed in the office of the clerk of the circuit court of Grundy county in term time, and, for his plea and answer to said information, states the following facts:

“On April 20i, 1904, there was filed before W. B. Linney, a justice of the peace, the following:

“ 'AFFIDAVIT.

“ ‘Before W. B. Linney, Justice of the Peace in and for Trenton Township, Grundy county, Missouri.

“ ‘State of Missouri, County of Grundy, ss.

“ ‘W. M. Wingate, being duly sworn, upon his-oath states that on or about the — day of April, 1904, one William Webster, late of said county, did at Grundy county, Missouri, willfully and unlawfully disturb the peace of Lena E. Wingate and divers other persons then and there being, by loud and unusual noise, by loud and indecent language and conversation, by threatening, quarreling, challenging and fighting, against the peace and dignity of the State.

•his

“ ‘W. M. (x) Wingate.

mark

“ ‘Subscribed and sworn to before me this 20th day of April, A. D. 1904.

“ ‘W. B. Linnet,

“ ‘Justice of the Peace.’

“Afterwards and on June 7,1904, the prosecuting attorney of Grundy county filed with said justice of the peace the following:

‘INFORMATION.

1 ‘1 State of Missouri, County of Grundy, ss.

“ ‘Before W.- B. Linney, a Justice of the Peace within and for Trenton Township, Grundy County, Missouri.

“ ‘State of Missouri, Plaintiff, vs. William Webster, Defendant.

■ “ ‘Comes now C. J. Bain, prosecuting.attorney for Grundy county, Missouri, and upon the affidavit of William Wingate heretofore filed with the justice herein, informs the justice and his court that on the — day of — A. D. 1904, at Grundy county, Missouri, one William Webster did then and there unlawfully disturb the peace of Lena W. Wingate and Chas. Terry by loud and unusual noise, by indecent conversation, by threatening, quarreling and challenging, against the peace and dignity of the State.

“ ‘ Claud J. Bain,

“ ‘Prosecuting Attorney for

Grundy County, Missouri.’

“On June 8,1904, the defendant was duly arraigned and tried before said justice of the peace and fined one dollar.

“Afterwards, and on the same day, the defendant duly filed his affidavit and recognizance in appeal, and said justice granted defendant an appeal to the Grundy Circuit Court and said cause was duly transferred by appeal to said court and on June 14, A. D. 1904, said: justice of the peace duly filed his transcript in the office of the clerk of the circuit court of Grundy county.

“On Monday, October 3,1904, the prosecution and cause which had so originated before said justice of the peace, and, which had been appealed, was duly pending in the Grundy Circuit Court; and, the Grundy Circuit Court had jurisdiction of said cause; and, said cause was duly docketed and set for trial on Monday, October 3, A. D. 1904.

“Both parties announced ready for trial. Defendant was arraigned and pleaded not guilty. A jury was duly impaneled and sworn to try said cause and a true verdict render according to the law and the evidence. The prosecution read the information to the jury, made an opening statement of its case, and to prove and maintain said issues on its part, called several witnesses who were duly sworn as witnesses on the part of the State and testified as such; after the testimony of its witnesses, the prosecution announced that it rested its case; further proceedings in said cause on said day are shown by the following copy of the record of the Grundy Circuit Court in haec verba-.

“ ‘State of Missouri, Plaintiff, vs. William Webster, Defendant.

“ ‘Seventh Day, Monday, October 3, 1904.

“ ‘Defendant filed motion to quash, which was taken up, by the court considered, and by the court overruled.

“ ‘State of Missouri, Plaintiff, vs. William Webster, Defendant.

“ ‘Defendant appears in open court and waives 'formal arraignment and pleads not guilty. ’

“ ‘State of Missouri, Plaintiff, vs. William Webster, Defendant.

“ ‘Parties answering ready for trial there came the following jury, to-wit: J. M. Dunlap', C. E. Boyce, 'James Collier, Ben Ballenger, L. D. Cornwell, Theo. Bratton, J. H. Cooper, Robert Gibson, B. C. Nichols, R. E. Boyce, R. I. Sandlin, H. P. Barrows.

“ ‘The State having introduced testimony in this cause defendant offered demurrer to the testimony, and it appearing to the court that prosecuting witness, Wm. Wingate, upon whose affidavit the information was based, was not present at the time of the alleged offense and had no actual or personal knowledge of the offense, the demurrer is sustained and the information quashed and the court dismissed the jury in the case and ordered that the defendant "be held for further prosecution, to all of which the defendant objects and insists on his demurrer being sustained and that he be finally discharged.’

“This was all the proceedings with respect to the information first filed before W. B. Linney, justice of the peace, on appeal, at the October term, A. D. 1904, of the Grundy Circuit Court, which said proceedings are shown by circuit court record1 of Grundy county, book 13, at page 336, 337, except an order taxing costs against the prosecuting witness, "William Wingate. Afterwards, and on the same day, a new information, being the present one, was filed in said court and continued.

“The jury that was so impaneled on October 3, 1904, and to which reference is made in the foregoing excerpt of the record, was discharged without rendering a verdict, without the consent and against the objection of the defendant. Said1 jury was discharged and allowed to separate without disagreeing or being found wanting with respect to their duty to be performed, or failure in any manner on their part, and without any cause, but solely by mere error and irregularity. The failure of said jury to render a verdict in said cause arose solely from the reason that they were not permitted to render a verdict therein and were not allowed or instructed to pass upon the guilt or innocence of the defendant, wdth respect to the charge contained in said information.

“That William Webster, mentioned in the aforesaid information, filed on June 7, A. D. 1904, is the same William Webster, being the defendant, who is mentioned in the information filed on October 3, 1904.

“Both of the aforesaid informations allege and refer to the same transaction and facts, at the same time and place.

“The filing of the present information against the defendant places the defendant twice in jeopardy for the same alleged offense and is a violation of article 5 of the Amendments to the Constitution of the United States; and, in violation of sections 22, 23; 28 and 30 of article 2 of the Constitution of Missouri, as well as in violation of his rights at common law; and, under and by virtue of said constitutional provisions, the defendant is entitled to be finally discharged, which constitutional provisions' are hereby expressly raised and invoked.

“As to' any offense alleged in the present information, filed on October 3, A. D. 1904, the defendant says he is not guilty thereof.

“Wherefore, the defendant prays judgment and that by the court he may be dismissed and finally discharged from the present information.

“William Webster, Defendant.

“Htjbbell Bros., Attorneys for Defendant.

“State of Missouri, County of Grundy, ss.

“William Webster being duly sworn on his oath states that the facts stated in the above and foregoing plea of former jeopardy are true in substance and in fact.

“William- Webster.

“Subscribed and sworn to before me this 28th day of January, A. D. 1905'.

“R. F. Schooler.”

On February 2, 1905, defendant’s plea of former jeopardy came on for hearing; defendant introduced in evidence the documents, papers and records to which reference is made in said plea of former jeopardy and other evidence, which substantially established the truth of the allegations as set forth in said plea of former jeopardy. The court overruled defendant’s said plea of former jeopardy, holding it to be insufficient in law, to which aetion of the court defendant then and there excepted and properly preserved his exceptions. After overruling defendant’s plea of former jeopardy the defendant was pnt npon trial npon the new information filed October 3, 1904. We deem it unnecessary to reproduce the new information upon which the defendant was tried, for the reason that it is substantially the same as the first information filed, with the exception that it is predicated upon the affidavit of Lena Wingate instead of W. M. Wingate, as was done in the first information.

The principal complaint of error ora the part of the defendant is directed to the action of the court upon the plea in bar as heretofore indicated; therefore, it is not essential that the evidence upon the trial upon the new information be set out in detail. It is sufficient to say that there was evidence offered ora both sides and the cause was submitted to the jury and they returned a verdict finding the defendant guilty and assessed his punishment at a fine of five dollars. Timely motions for new tidal and in arrest of judgment were filed and by the court overruled. Judgment was rendered in conformity to the verdict for the recovery of the fine and from this judgment defendant prosecuted this appeal and the record is now before us for consideration.

OPINION.

The record in this cause fully discloses the plea of the defendant as to his former jeopardy and we have embraced such plea in the statement made of this cause. There is no controversy as to the truth of the allegations set up in defendant’s plea: their truth is conceded, and the trial court simply ruled that they were insufficient in law to constitute a bar to his further prosecution.

The first information filed before the justice of the peace, which was finally pending before the circuit court of Grundy county by appeal, was upon its fa©& sufficient in form and substance. It is true that tbe prosecuting attorney did not allege in tbe information that it was made upon bis oatb of office, but that did not invalidate tbe information. All tbe acts ,of tbe prosecuting attorney are presumed to bave tbe sanction of bis official oatb. In tbe St. Louis Court of Appeals in tbe case of State v. Fletchall, 31 Mo. App. 296, and State v. Pruett, 61 Mo. App. loc. cit. 159, it was expressly ruled that that provision of tbe statute as to filing tbe information upon bis oatb of office may be treated as surplusage; and the failure to embrace sucb allegation in tbe information would in no way affect its sufficiency, vitality or force.

It is suggested by tbe learned- Attorney-General that tbe information filed before tbe justice of tbe peace was not verified in conformity to tbe provisions of section 2477, Revised Statutes 1899, therefore was insufficient, and the circuit court of Grundy county acquired no jurisdiction of tbe cause by appeal. Tbis is clearly a misapprehension of tbe section of tbe statute wbicb is applicable to- informations filed with a justice of tbe peace. Section 2477 is applicable alone to informations filed in tbe circuit or criminal courts. Section 2750, Revised Statutes 1899, provides for tbe procedure before tbe justice, and the information upon wbicb tbe plea in tbis cause was based, is based upon tbe provisions of that section. Under tbe provisions of section 2750' it is not essential that tbe information should be verified, and tbis has been expressly ruled by tbe Court of Appeals of tbis State. [State v. O’Connor, 58 Mo. App. 457; State v. O’Kelley, 121 Mo. App. 178, and cases cited'.]

We bave carefully considered tbe plea of former jeopardy as disclosed by tbe record, and we see no escape from tbe conclusion that it constitutes an absolute bar to any further prosecution in this cause. Tbe defendant in the circuit court had filed a motion to quash the information and this motion was overruled, and the trial court held that it was valid, and it was 'valid upon its face. Judge Cooley, in his work on Constitutional Limitations (7 Ed.), 467, thus states the correct rule of law applicable to this subject: “A person is in legal jeopardy when he is put upon trial, before a court of competent jurisdiction, upon indictment or information which is sufficient in form and substance to sustain a conviction, and a jury has been charged with his deliverance. And a jury is said to be thus charged when they have been impaneled and sworn. The defendant then becomes entitled to1 a verdict which shall constitute a bar to a new prosecution; and he casor not be deprived of this bar by a nolle prosequi entered by the prosecuting officer against his will, or by a discharge of the jury and continuance of the cause. ’' The rule as announced by the eminent text-writer is supported by all courts of the States in the Union that have constitutional provisions similar to ours. The doctrine announced by Judge Cooley in the text find's full support in the repeated announcements by this court of the rules applicable to the subject now under discussion. In State v. Snyder, 98 Mo. 555; State v. Wiseback, 139 Mo. 214; and State ex rel. v. Williams, 117 Mo. App. 564, the law as applicable to this subject was exhaustively reviewed and the conclusions announced were in full accord with the rule announced by Judge Cooley, as heretofore indicated.

We repeat that the information upon which this plea is predicated was valid upon its face. After an unsuccessful motion to quash it both parties announced ready for trial; the jury was impaneled and sworn to try the cause; the State introduced evidence and the defendant filed a demurrer to the evidence, which was sustained and the information quashed, and the court dismissed the jury in the case and ordered that the deifendant be held for further prosecution, to all of which action on the part of the court the defendant objected and insisted on his demurrer being sustained and that he be finally discharged. In our opinion this action of the court in sustaining the .demurrer to the evidence interposed by the defendant and the quashing of the information and the discharging of the jury over’ the objections of the defendant, must be treated as an acquittal ; and under the provisions of section 23 of article 2 of our present Bill of Rights, which substantially declares “nor shall any person after being once acquitted by a jury, be again put in jeopardy of life or liberty,” constitutes an absolute bar to the further prosecution of this defendant for the offense embraced in that information.

From its earliest history and ever since the organization of this State, the organic law has thrown around the citizen protection from being put in jeopardy more than once for the same offense. Commencing with the Constitution of 1820, article 13, section 10, it was there declared that “no person, after having been once acquitted by a jury, shall, for the same offense, be again put in jeopardy of life or limb.” Of similar import is section 19 of article 1 of the Constitution of 1865; and the views of those who framed our constitutional provisions, as well as the entire people of this State, are finally crystalized in the provisions of section 23, article 2, of our present Bill of Rights, as hereinbefore quoted.

As to the correctness of the action of the circuit court in sustaining the demurrer to the evidence offered by the State, for the reasons disclosed by the record, we express no opinion. Whether the action of the court was proper or erroneous, the court acted, and the jury was sworn and the trial began; this was sufficient as a basis for the plea interposed by the defendant.

We see no necessity for pursuing this subject fur-

ther. We are unwilling, even though, in some instances a guilty man may escape punishment, to view lightly the constitutional provisions as heretofore indicated, guaranteeing protection to the citizen. In this case we have no hesitancy in saying that it was the duty of the trial court, upon the disclosures of the record now before us, to have sustained the plea of former jeopardy interposed by the defendant and discharged him from further prosecution for the offense charged in the information. Entertaining these views, the judgment of the trial court will be reversed and the defendant discharged, and it is so ordered.

All concur.


source: Caselaw Access Project

author: BURCESS, J.

license: Public Domain

text:
    THE STATE v. OWEN et al., Appellants.
    Division Two,
    November 19, 1907.
    RECOGNIZANCE: Not Signed Before Officer: Criminal Case. A judicial officer before whom a criminal case is Dending acts judicially in passing upon the validity of a recognizance bond taken in such case, and in order that he may do so, the recognizance must be executed in his presence. A recognizance to appear before a justice of the peace for preliminary examination, which was not signed by the principal or sureties in the presence of the justice, is void; and this is true, notwithstanding the justice approved the recognizance and entered its approval upon his docket.
    Appeal from Lincoln, Circuit Court. — How. James D. Barnett, Judge.
    Reversed.

      B. H. Norton and Avery, Young & Woolfolk for appellants.
    Neither the principal nor the sureties signed the bond, as is shown by the evidence, in the presence of the justice of the peace. Therefore, the bond was void, not complying with the statute. State v. Pratt, 148 Mo. 402; sec. 4128, R. S. 1890; Com. v. Hickey, 33 Atl. 188; State v. Crosswhite, 195 Mo. 1; State v. Eyermann, 172 Mo. 294; State v. Woodward, 159 Mo. 680.

      B. J. Creech, Prosecuting Attorney, and Wm. A. Dudley for the State.
    Upon the record the judgment is in strict accordance with the statute and should be affirmed. R. S. 1899, secs. 2441, 2447, 2449, 2798, 2800 and 2554. Even if it had been made to appear of record here that the sureties did not go through the barren formality of appearing before justice in person, it is difficult to see how the defendants can escape without in effect repealing section 2800, Revised Statutes 1899. State v. Peyton, 32 Mo. App. 527.
   BURCESS, J.

This is an appeal from a judgment for five hundred dollars rendered against James S. Owen, Chas. S. Trail, J. C. Ellis and T. H. Moore, appellants, in the circuit court of Lincoln county, upon a forfeited recognizance.

On the 27th day of September, 1905, one Sol Owen was arrested and brought before Stuart L. Penn, a justice of the peace of Lincoln county, the warrant for his arrest being based upon the affidavit of one John Hearn charging him with having committed a felonious assault upon one Maggie Hearn. By agreement of both the defendant and prosecuting attorney, the preliminary examination was set forward by the justice to the 24th day of October, 1905. On the following day, September 28, Sol Owen, with the appellants as sureties, entered into a recognizance for five hundred dollars for the appearance of Owen before said justice on the 24th day of October, 1905'. The defendant failed to appear before the justice for examination on said day, and his default and the forfeiture of his recognizance were duly declared and entered of record by the justice in his docket. After another continuance, and failure of the defendant to appear, said recognizance and transcript of the docket entries, duly certified, were filed by the justice with the clerk of the circuit court on the 16th day of November, 1905. At the following term of the circuit court, being the spring term, 1906, scire facias issued against Owen, the principal, and all of his sureties, returnable to the next term of the court, commencing the 2nd Monday of October, 1906. Sol Owen, the defendant, did not appear in obedience to the scire facias, but the sureties did, and1 filed their demurrer thereto', which demurrer was overruled;.the appellants excepted, and then filed their answer, which omitting the formal parts, stated: ■ “That the forfeiture heretofore taken should not be made final, and execution issue thereon, for the reason that no such recognizance as described in the scire facias was ever entered into or executed by them, or either of them, and no such recognizance is now on file in this court, forming a part of the record of this case, nor was any such recognizance on file in this court, forming a part of tbe records of this court, at the time judgment of forfeiture was entered against them as shown by scire facias; that Sol Owen, while in the presence of the justice of the peace, Stuart L. Penn, never entered into any recognizance, with these sureties, as alleged in the scire facias, and they further allege, as a reason why judgment should not be made absolute against them, that the records of this court will not support that judgmetít. ’ ’

The cause was submitted on the pleadings and evidence, counsel first having entered into and filed the following written agreement: “It is further agreed by counsel in this cause that the bond' taken in this cause by the justice was in the usual form; that the parties, the principal and sureties, signed the same at different times and places, as it was presented to them by James Gentry, sheriff of Lincoln county, Missouri; that the signing by the principal and sureties was not in the presence of the justice; that none of the parties appeared before him at any time for that purpose, and the same at no time was acknowledged by said principal and securities before said Justice Penn, and that when the bond was presented to him by the sheriff, he marked on it ‘approved.’ It is further agreed that the' record of the justice may be considered as to what the facts were in his certificate made to this court.” It was further orally admitted and agreed before the court that the penal amount of the bond was five hundred dollars, and that the sureties thereon were residents of Lincoln county, Missouri.

The appellants asked, and the court refused to give, the following instructions or declarations of law:

“1. The court, sitting as a jury, is instructed that, under the pleadings and evidence, the plaintiff cannot recover, and the verdict should1 be for the defendants.

“2. The court is instructed that, if it believes from the evidence that defendants Moore, Trail, Owen' and Ellis did not sign the bail bond offered in evidence', before the justice and did not appear at any time before Justice Penn, either to sign or acknowledge the same, then the verdict will be for the defendants, even though you may believe from the evidence that they did sign their names to said bond at the time stated therein, before or in the presence of the sheriff of Lincoln county, Missouri, and the said bond was after-wards filed with the justice by the sheriff and the prisoner was then discharged by the justice.” To the action of the court in refusing to give said instructions the appellants duly excepted.

On the 1st day of December, 1906, at the regular October adjourned term of said' court, judgment for five hundred dollars and costs was rendered against the appellants, from which judgment, after unavailing motions for a new trial and in arrest, an appeal was taken to this court.

It is claimed by the appellants that the recognizance in question was not valid as to them because not signed by them in the presence of the justice who approved the same.

Section 2547, Revised Statutes 1899, reads as follows:

“Sureties in recognizances in criminal cases and proceedings shall be residents of this State, and shall be worth, over and above the amount exempt from execution and the amount of their debts and liabilities, the sum in which bail is required; and the person or persons offered as sureties may be examined on oath in regard to their qualifications as sureties, and other proof may be taken in regard to the sufficiency of the same. The officer authorized to take any such recognizance is authorized to administer all necessary oaths in that behalf.”

A very similar case to this was before this court in State v. Pratt, 148 Mo. 402, wherein Judge Sherwood, in construing the above section of the statute, said:

“This section evidently contemplates and requires not only that the sureties shall be residents of this State (of which there is no evidence as to these sureties), but that the recognizance is to be signed in the presence of the officer taking the same. Nothing of the kind occurred in this instance ; it seems it was signed even by the principal himself after he had left the presence of the sheriff, and it certainly was signed with the names of the sureties after that time. The law does not countenance such a loose way of doing business since it might lead to just such difficulties as this case presents. This view of the necessity of a recognizance being signed and taken in the presence of the officer who appears to take the same is supported by the recent case of Com. v. Hickey, 33 Atl. 188.

“Besides, section 4128 [sec. 2548, R. S. 1899'] confirms the idea that snch a recognizance is to be taken in the presence of the officer who purports to take the same, by providing that ‘no recognizance shall be taken unless the court or officer authorized to take the same shall be satisfied, from proof and examination on oath or otherwise, of the sufficiency of the sureties according to the requirements of this and preceding sections. ’ No such course was pursued in the case under comment.”

That case is cited with approval in the case of State v. Woodward, 159 Mo. 680, and again in State v. Crosswhite, 195 Mo. 1.

If the recognizance was not signed in the presence of the magistrate, or signed, and the signing acknowledged before him, he did not take it, and it makes no difference that he thereafter entered its approval upon his docket. The law does not contemplate that a defendant under arrest for felony may take a blank recognizance bond, send it around among his friends and have them sign it as bis sureties, and then take it to the justice before whom the case is pending and have him approve it. A judicial officer before whom a criminal case is pending acts judicially in passing upon the validity of a recognizance bond taken in such case, and in order that he may do so the recognizance must be executed in his presence.

For these considerations the judgment is reversed.

All concur..


text:
    THE STATE v. JAMES CAMPBELL, Appellant.
    Division Two,
    November 19, 1907.
    1. SUNDAY LAW: Constitutional.' The statute (see. 2243, R. S. . 1899) providing that “every person who shall expose to sale any goods, wares or merchandise ... on the first day of the week commonly called Sunday, shall, on- conviction, be adjudged guilty of a misdemeanor,” etc., is constitutional.
    2. -: What Are Goods? The General- Assembly did not mean, by providing in section 2244, Revised Statutes 1899, that the preceding section (sec. 2243) “shall not be construed to prevent the sale of drugs or medicines, provisions or other articles of immediate necessity,” that drugs, medicines, provisions and other articles of immediate necessity are not goods, wares or merchandise, but simply meant to classify the character of goods, wares or merchandise that might be sold without violating the provisions of the preceding section. It meant to except the things mentioned in section 2244 from the operation of section 2243.
    3. -: -: Instruction: No Exception. The instruction told the jury that “if the defendant on Sunday, the 23rd day of July, 1905, did unlawfully expose to sale any lemons, and that said lemons were goods, wares or merchandise, then they will find the defendant guilty,” etc. Held, error; for, if the court was warranted in submitting the case to the jury at all, the instruction should have required them to find that lemons were ' not “drugs or medicines, provisions or other articles of immediate necessity.”
    4. -:-: Lemons. Lemons are so universally regarded as possessing medicinal virtue and so- generally used by all classes of people, both as medicine and food, that it is the duty of the court, when a defendant is charged with exposing them to sale on Sunday, to declare as a matter of law that they are embraced within the exceptions-of the Sunday Law (sec. 2244, R. S. 1899), and that it is not unlawful to sell or expose them to sale on Sunday.
    Appeal from Barry Circuit Court. — New. Howard Gray, Special Judge.
    Reversed. ■

      T. D. Steele, Mayhem & Safer and J. S. Davis for appellant.
    (1) The statute never contemplated prohibiting the sale of lemons, apples, oranges, bread, pies, chili and things of that sort any more than it would prevent a hotel or restaurant man from serving ice cream and eatables on the table. The section of the statute 2243 upon which this prosecution is based, in prohibiting the exposure to sale of goods, wares or merchandise, never had in view such things as chili, hot tamales, oranges or lemons; besides section 2244 excepts from the provisions of section 2243 drugs, medicines, provisions or other articles of immediate necessity. There was an- absolute failure to prove that lemons were either goods., wares or merchandise. Lemons could with much greater force and reason be classed as drugs and medicines; certainly not as an article of merchandise as contemplated by the statute under consideration. (2) The trial court erred in holding that lemons were goods, wares or merchandise, and in giving instruction 2. The jury should have been instructed that if- they found that lemons were drugs, medicines or provisions or other articles of immediate necessity, then they should acquit defendant. In other words, where there is an exception the State must prove the negative averment and the jury should be instructed that if the matter charged comes within the exception then they should acquit. State v. Schuerman, 70 Mo. :App. 521; State v. Hirsch, 45 Mo. 430; If it was necessary to negative the averment it was just as necessary to prove it and the jury should have been instructed so as to allow them to pass upon the exceptions. TarMo v. Loyd, 109- Mo. App. 175; State v. Sparrow, 52 Mo. App. 374; State v. Raymond, 54 Mo. App. 4251.

      Herbert S. Hadley, Attorney-General, and Bush C. Lake, Assistant Attorney-General, for the State.
    (1) The constitutionality of this statute is definitely settled in State v. Ambs, 20 Mo. 214, and St. Louis v. De Lassus, 205 Mo. 578. (2) The construction which the trial, court placed on the evidence and' the law was that oranges and lemons did not come within' the exceptions, and that they were articles of. merchandise. "Webster’s dictionary thus defines merchandise: “The objects of commerce; whatever is bought or sold in trade, or market, or by merchants, wares, goods, commodities.” This definition is quoted in “Words and Phrases Judicially Defined,” volume 5, page 4478. In the quotations from decisions therein this definition seems to- have been adhered to by the court. Lemon is defined by the Standard Dictionary, “The fruit of the tropical or subtropical tree,” etc. Its juice is used principally as a flavoring extract. It does not seem to be used as a medicine. It is not a drug, and cannot be regarded as either provisions or an article of necessity.
   FOX, P. J.

This cause is now pending in this court upon appeal by the defendant from a judgment of conviction in the Barry Circuit Court for the offense of exposing for sale goods, wares and merchandise on the first day of the week commonly called Sunday. The information upon which this prosecution is predicated, which was duly verified, omitting formal parts, is as follows:

“D. H. Kemp, prosecuting attorney within and for the county of Barry, in the State of Missouri, acting herein under his oath of office, and upon his knowledge, information and belief, informs the court that Jim Campbell and John W. Campbell at and in the county of Barry and State of Missouri, on the 23rd day of July, 1905, said day being the first day of the week commonly called Sunday, did then and there, unlawfully expose to sale goods, wares and merchandise, to wit, lemons, candy, ice cream, ice cream soda, chill., in the city of Moriett, Barry county, Missouri, said goods, wares and merchandise, to-wit, lemons, candy, ice cream, ice cream soda and chili, not being drugs, medicines or provisions or other articles of immediate necessity, against the peace and dignity of the State.”

. Defendant filed an application for a change of the venue of said cause on the ground of the bias and prejudice of the Hon. F. G. Johnston, who was the regular judge of that court. Said application was sustained and it was ordered that Hon. Howard Gray of Carthage, Missouri, be called to sit as judge in this cause on the 4th day of December', 1905, the same being the 3rd day of the September adjourned term of said court, 1905. Court met pursuant to adjournment on December 4, 1905, and the Hon. Howard Gray appeared to sit in the trial of said cause. The defendant interposed a demurrer to the information, “asserting, among other reasons, that it violated certain provisions of the Constitution of the United States and' of this State, designating in the demurrer the particular provisions of the Constitution to which the grounds were specially applicable. This demurrer was by the court overruled and the trial proceeded before a jury.-

With the views we entertain respecting this cause it is unnecessary to detail the evidence developed at the trial. It may be conceded for the purposes of this case that there was exposed in the ice cream and chili parlor of the defendant the articles designated in the information. The defendant James Campbell is the only defendant appealing, but James Campbell and John Campbell were both put upon trial. At the close of the evidence the court gave an instruction in the nature of a demurrer directing the jury to find John Campbell not guilty. Counsel for appellant also requested an instruction in the nature of a demurrer to the evidence, directing the jury to find James Campbell not guilty, which request was denied, and proper exceptions were preserved to the action of the court. The court then proceeded to instruct the jury as follows :

“1. The court instructs the'jury that the law of this case will be found in the following instructions, and it is the duty of the jury to accept these instructions as the law of the ease. And by the information herein'"filed in this case on the 24th day of July, 1906, the State of Missouri charges .the defendant with the crime of exposing goods, wares and merchandise for sale on Sunday, and he pleads not guilty, and it is upon the question of his guilt or innocence that you have now to pass.

“2. The court instructs the jury that if they find and believe from the evidence in this case that the defendant, Jim Campbell, at the county of Barry, and State of Missouri, on Sunday, the 23rd day of July, 1905, did unlawfully expose to sale any lemons, and that said lemons were goods, wares, or merchandise, then you will find said defendant guilty, and assess his punishment at a fine of not exceeding fifty dollars.

“3. The court instructs the jury that by the term * expose for sale,’ the court means keeping and showing, for the purpose of selling the same, and it is not necessary for the State to prove an actual sale.

“4. Even though the jury find the defendant, James Campbell, did expose to sale or did sell lemons in the month of July, yet unless the jury further find that he did so on Sunday, the 23rd day of July, 1905, they should find him not guilty.

5. The court instructs the jury that the information in this case is merely a formal accusation against the defendant, and is not of itself any evidence of guilt, and no juror should permit himself to in any degree be influenced against the defendant because of or on account of the information in this case.

“6. The court instructs the jury that the burden of proof to establish the guilt of the defendant rests upon the State, and the defendant is presumed to be innocent of the charge against him, and this presumption of innocence attends and protects him: throughout the trial until overcome by evidence which shows the guilt of the defendant beyond a reasonable doubt. If the jury have a reasonable doubt of the defendant’s guilt, you should give him the benefit of such doubt, and acquit him. By a reasonable doubt - is meant a doubt which has reason for its basis, and arising from a consideration of all the evidence in the case, and not a mere possibility of his innocence.

“7. The court instructs the jury that to expose to sale means to place in view with the purpose and intention of selling; and, although you may find from the evidence that lemons were in sight or could be seen by parties going into the defendant’s place of business, yet, unless you further find that the lemons were thus in view by the defendant with the purpose and intention of selling on Sunday, you will find him not guilty. ”

To the giving of said instructions and each of them, the defendant excepted at the time, and still excepts. The cause was submitted to the jury and they returned a verdict finding the defendant guilty and assessing his punishment at a fine of one dollar. • Timely motions for new trial and in arrest of judgment were duly filed and by the court overruled. Judgment was duly entered for the recovery of the fine imposed by the jury and from this judgment the defendant prosecuted his appeal to the St. Louis Court of Appeals and that court certified the cause to this court on the ground of the constitutional question properly raised by the motion to quash the information, and the record is now before us for consideration.

OPINION.

It is apparent from the disclosures of the record' in this cause that the questions confronting us are brought within a very narrow compass. It is sufficient to say upon the constitutional question suggested in the motion to quash this information, that this statute, embracing substantially the same provisions as it does now, was reviewed and held constitutional in the early case of State v. Ambs, 20 Mo. 214. In the recent case of City of St. Louis v. DeLassus, 205 Mo. 578, Judge G-antt exhaustively reviewed all of the authorities applicable to the constitutional question presented in the case at bar, and the statute now assailed was in that case fully recognized as a valid and constitutional law.

Numerous complaints are urged against the action of the trial court in this case as grounds for the reversal of this judgment. It is manifest, however, that the overshadowing proposition confronting us is embraced in the assignment of error that the trial court refused to give an instruction in the nature of a demurrer, directing the jury to acquit the defendant, and erroneously submitting' this cause to the jury by instruction number 2, as heretofore indicated in the statement of this cause.

It will be observed that the trial court narrowed this cause down to the simple question as to whether or not in exposing to sale by the defendant in his ice cream parlor near the railroad station in Monett, Barry county, Missouri, any lemons, was a violation of the provisions of section 2243, Revised Statutes 1899'. This section provides: “Every person who shall expose to sale any goods, wares or merchandise, or shall keep open any ale or porter house, grocery or tippling shop, or shall sell or retail any fermented or distilled liquor on the first day of the week, commonly called Sunday, shall, on conviction, be adjudged guilty of a misdemeanor and fined not exceeding fifty dollars.”

This section is followed by section 2244, which undertakes to construe the provisions of section 2248 above cited. This section provides: “The last section shall not be construed to prevent the sale of any drugs or medicines, provisions or other articles of immediate necessity.”

It is clear that the General Assembly did not mean to say that drugs, medicines, provisions or other articles of immediate necessity which are embraced within the exception of the provisions of section 2244, were not goods, wares or merchandise, but simply sought to classify the character of goods, wares or merchandise which might be sold without violating the preceding provisions of section 2243. In other words, the articles embraced in section 2244 might fall within the definition of goods, wares or merchandise and the sale of them might not constitute any offense, for the reason that they fall within the exception provided for by section 2244.

Directing our attention to instruction number 2, which sought to present this ease to the jury, it is sufficient to say that if the cause should have been submitted to' the jury at all, this instruction did not fully present the law as applicable to the facts of the case. This instruction simply told the jury that “if the defendant on Sunday, the 23rd day of July, 1905', did unlawfully expose to sale any lemons, and that said lemons were goods, wares or merchandise, then you will find said defendant guilty and assess his punishment at a fine not exceeding fifty dollars.” Now we repeat, if the court was warranted in submitting this cause to the jury, it should have embraced in instruction number 2 the qualification embraced in the provisions of section 2244, for the reason that while lemons may be regarded as falling within the definition of goods or merchandise, they may belong to that class of goods and merchandise which are embraced in the exception to the statute as provided by section 2244. Under the law as declared in instruction number 2, it was only necessary to find that the articles were goods, wares or merchandise, and it would make no difference how apparent it was that the goods, wares and merchandise were within the exception to the statute, yet unless the attention of the jury was directed to the provisions of the statute making the exception, they could reach but one conclusion, and that is, under the instructions of the court the articles enumerated fall within the definition of merchandise, and they were sold, and the court simply directed them, if they find that state of facts, to find the defendant guilty. This instruction under any theory of this case was manifestly erroneous in failing to embrace the qualification as heretofore suggested. But aside from all this, while every good citizen in this State should have the highest respect for the Sabbath, and as to those who fail to properly observe it, it is the province of the courts when legally brought before them, to teach them, by the imposition of proper punishment, that they must respect the Sabbath, in fact, we are unable to reconcile good citizenship with a non-observance and the want of proper regard for the first day of the week commonly called Sunday; yet the people of this State, and their views find embodiment-in the provisions of section 2243 and section 2244, fully recognized for many years that there were certain articles of necessity, such as drugs, medicines, provisions and other articles of necessity, which ought to be excepted from the general class of goods, wares and merchandise, and the sale or the exposure to sale of such articles should not in good morals be regarded as a violation of the Sunday law. In our opinion, lemons, the articles charged to have been exposed for sale in the case at bar, are so universally recognized as possessing medicinal virtue and so universally used by all classes of people, both as a medicine and as a food; that it was the duty of the court to declare as a matter of law that they were embraced within the exception provided for in section 2244. It is but common knowledge that the use of lemons is frequently recommended by the most eminent physicians of the country, and the response comes from thousands of households in this commonwealth that lemons are used, not only to relieve colds, hoarseness and other ailments to which the human family are subjected, but in many families are daily used in the preparation and as part of the provisions which relieve the hunger of the respective members of the family. It is but common practice for those who talk in public, ministers, lawyers and lecturers, to have conveniently near them a piece of lemon to relieve any interference with proper conditions of the vocal organs. It is a favorite remedy for public singers for the purpose of clearing up the throat and keeping the vocal organs in proper condition to furnish the expected entertainment for their audiences.

We are unwilling to say that the lawmaking power intended, by the provisions of section 2243, to embrace lemons' in that class of goods, wares and merchandise which are1, under the provisions of that section, prohibited from being sold or exposed to sale on Sunday. The many uses for which lemons may be required, both as a medicine and as a food, properly entitles it, if the proper conditions exist, to be classed as an article of even immediate necessity, and as an article of that character the defendant had the right to sell it, and if he could sell it, it logically follows that he had the right to expose it for sale.

Having reached the conclusions as herein indicated' upon this branch of the case it is unnecessary to give any attention to the other errors complained of by appellant. The judgment of the trial court in this cause should he reversed and the defendant discharged, and it is so ordered.

All concur.


author: GANTT, J.

text:
    THE STATE v. GEORGE ARNOLD, Appellant.
    Division Two,
    November 19, 1907.
    1. EVIDENCE: Cross-Examination: Excluded For Time Being. Where the counsel for defendant asked a State witness If the prosecuting witness had not told him that he would on a previous occasion have killed defendant hut for the prosecuting witness’s wife, and the State’s attorney objected to that as not yet competent, and the court sustained the objection to the evidence as not competent at that time, that is not an absolute denial of the right of defendant to show the threats against him by the prosecuting witness; and its exclusion then was not error. The order in which testimony is to be admitted is largely a matter within the discretion of the trial court; and if defendant wished to insist on the inquiry, he should have renewed it after he had developed his theory of self-defense.
    2. -: Threats: No Proffer of What Threats. The exclusion of evidence of threats, where no effort was made to show what threats, if any, were made, is not error. A mere refusal to hear an answer is not alone sufficient to constitute error, but the party alleging error must at the time of the refusal indicate the nature and character of the evidence he proposes to elicit.
    3. -: Impeachment of Witness: Former Conviction. The prosecuting witness was asked if he had not entered a plea of guilty to having drawn a pistol on defendant, and replied that he had pleaded guilty to carrying a pistol, but not to drawing it. He was then asked if that was the only conviction that had ever been made against him for carrying concealed weapons or for assault upon any person. Held, that the judgment should not be reversed for the exclusion of an inquiry so broad and unlimited as this, no tender being made of any such conviction.
    4. -: Communicated Threats. It was not error to refuse to permit defendant to testify to what a subpoenaed and present witness told defendant in regard to alleged threats made by the prosecuting witness, in view of the whole record, which shows, according to defendant’s own version, that the prosecuting witness was thirty or forty yards distant when he shot him with a. gun, and had said no word, and made no display of weapons, but was shot in the back as he was fleeing from defendant.
    5. SHERIFF: Talking to Jury. The mere fact that the sheriff' told a member of the jury that two noted horse thieves, then in jail, were going to plead guilty and take four years in the penitentiary, is no ground for reversing the judgment, if an examination of the jurors shows that such statement did not influence them in affixing defendant’s punishment, and they were otherwise guilty of no misconduct.
    6. INSTRUCTION: Apprehension. Where the instruction given for the State on the subject of apprehended danger is all that, defendant could have asked upon his own testimony, a refusal of an instruction on the same subject asked by him is not error.
    7. -: Threats: Uncommunioated. Where the only difference between the State’s given instruction and the defendant’s refused instruction on the subject of threats is that defendant’s, refers to uncommunicated threats, while the State’s does not, and there was no evidence of uncommunicated threats, it was not error to refuse defendant’s instruction. '.
    Appeal from Ripley Circuit Court. — No». J. G. Sheppard, Judge.
    Aefirmeu.

      John M. Atldnson- for appellant.
    (1) Emmons was a witness for the State, and, as-such, it was competent to cross-examine him upon the whole case — even as to threats made by the prosecuting-witness, Rutherford. Laws 1905', p. 307, sec. 4655a;, State v. Soper, 148 Mo. 235; State v. Hudspeth, 159 Mo. 200. (2) The court erred in not permitting the-witness, Mrs. Julia Arnold, to testify as to the threats made by the prosecuting witness on Friday, prior to-the shooting on Monday — the day of the trouble at the Arnold gate. (3) It was competent for defendant to cross-examine the prosecuting witness as to former convictions, and' the court thereby committed reversible error in denying to defendant that right. R. S. 18991, sec. 4680; Land & Lumber Oo. v. Chrisman, 172 Mo. 617; State v. Blitz, 171 Mo. 530; State v. Heusack, 189 Mo. 311; State v. Thornhill, 174 Mo. 370; State v. Woodard, 191 Mo. 633; State v. Barrington, 198 Mo. 80; State v. Spivey, 191 Mo. 87; State v. Brooks, 100 S. W. 416. (4) The court erred in refusing defendant the right to testify to the threats made by the prosecuting witness at the time of the first trouble at Grandin, and afterwards communicated to defendant before the shooting. State v. Hudspeth, supra. (5) It was competent for defendant to testify as to the threats communicated to him by Stephenson. Such a statement was original evidence, for the purpose for which it was offered. Greenleaf on Evidence (15 Ed.), sec. 101. (6) The testimony of witnesses Lee, Whitwell and O’Neal show that the sheriff violated the provisions of section 2629, and the court erred in not granting a new trial on the showing on the motion. (7) Instruction 1, asked by defendant and refused by the court, correctly states the law of self-defense, and the court erred in refusing it. No instruction given by the court, on its own motion, sufficiently covered this part of the case. State v. Higgerson, 157 Mo. 400; State v. Palmer, 88 Mo. 568; State v. Hudspeth, supra. (8) Instruction 2, asked by defendant and refused by the court, correctly declared the law on threats. Some of the threats were not communicated (or at least the evidence is in doubt as to whether they were communicated or not, before the shooting), to the defendant, until after the shooting.

      Herbert 8. Hadley, Attorney-General, and N. T. Gexrvtry, Assistant Attorney-General, for the State.
    (1) At the time of the cross-examination of Emmons, the record does not show that defendant had disclosed what his defense was going to be; hence, the trial court could not tell whether the threats were material or not. If defendant had denied the shooting, had sought to prove an alibi, or claimed that the shooting was done by some one other than himself, the threats alleged to- have been made by the prosecuting witness against defendant would have been wholly immaterial. But if it was- proper for defendant to' prove threats at said time, this court cannot review said alleged error, as defendant made no offer of proof and did not state what he expected to prove. The materiality of the excluded evidence cannot, therefore, be considered by this court. State v. Hodges, 144 Mo-. 54; State v. Martin, 124 Mo. 514. (2) Much stress is laid by counsel for defendant upon refusal of the trial court to permit him to prove by the prosecuting witness that the prosecuting witness had been convicted for carrying concealed weapons and1 for assault. It is submitted that this question was too broad, as it covered the entire life, almost, of. the prosecuting witness. (3) Counsel for defendant insists that error was committed in refusing to allow the defendant to testify to what Stephenson told him. Stephenson, at that stage of the trial, had not testified, and did not testify in the case. What Stephenson stated, either about defendant or the prosecuting witness, was the merest hearsay, and all evidence in regard thereto was properly excluded. There was no statement made by counsel for defendant that he expected to prove by the defendant that Stephenson detailed to the defendant any threats made to the prosecuting witness; hence, the matter cannot be considered by this court.
   GANTT, J.

At the March adjourned term of the Ripley Circuit Court, 1906, the defendant was tried and found guilty of an assault with intent to kill George Rutherford, in Ripley county, on the 4th day of September, 1905. The prosecution was commenced by information filed' by the prosecuting attorney, and the defendant was duly arraigned and convicted by jury regularly impaneled. From his conviction he has appealed to this court. The errors for which he seeks a reversal of the judgment are those which he conceives were committed in the admission and the rejection of testimony and in the giving and refusal of instructions and the alleged misconduct of the prosecuting attorney in his argument and of the sheriff in relation to his duties with the jury. All of these alleged errors will be considered in the course of the opinion.

The testimony discloses that some time prior thereto and on the 4th day of September, 1905, the prosecuting witness, George Rutherford, was living in the north part of Ripley county. About four weeks prior to the difficulty out of which this prosecution has grown, the defendant, George Arnold, moved from the town of Grandin in Carter county to a vacant house just across the lane and about fifty yards from the house of the prosecuting witness, Rutherford. It appears that Rutherford and the defendant had been acquainted with each other for some seven or eight years, and they were both tie-choppers, and Rutherford had invited the defendant to come up and occupy the house in which he was living at the time of the difficulty. It appears that some two weeks prior to the assault upon which this prosecution is based, there was some trouble between the defendant and Rutherford at a store in the town of Grandin. Rutherford reminded the defendant that he, the defendant, had purchased an axe at McDowell’s store, which Rutherford had stood good for. Defendant admitted that he had' not paid for the axe, and Rutherford demanded that he should pay for the same. Later on during the same day, they renewed their conversation about the axe, and defendant became angry and threatened to strike Rutherford with a bottle of coal oil, but some one interfered and defendant then picked up a rock and threatened to knock Rutherford’s brains out. Rutherford declined to fight, saying he was not able to fight. It seems that Rutherford made complaint to a justice of the peace and had defendant arrested for assault, and defendant in turn made complaint to a justice of the peace and had Rutherford arrested for carrying a pistol. There was evidence that Rutherford requested one or two persons to loan him a pistol, which he desired to take home and protect himself with, but he did not get one. On the day that the case against the defendant was to come up before the justice of the peace, he appeared, but for some reason not explained in the record neither the prosecuting witness nor the justice was present and the defendant accordingly went home. On his way home about three o’clock in the afternoon, defendant saw Rutherford in the little lane which runs between the two houses. According to the State’s evidence, Rutherford was about one hundred yards from his house picking up some stove wood to carry to his home. He saw the defendant some twenty steps away carrying two guns; one the defendant had in his hands, and the other strapped over his shoulder. Rutherford being unarmed, threw up his hands and said, “Don’t shoot” and started to run. The defendant fired one shot, which took effect in Rutherford’s left side, and then fired1 another shot which took effect in Rutherford’s back. Both shots were fired from a shotgun. The State’s evidence further tended to show that Rutherford was in his shirt sleeves and had no weapon upon or about his person, and made no motion indicating that he was going to draw a weapon. Immediately after the firing of this second shot Rutherford fell to the ground, and the defendant went to a neighbor’s and told Mr. Thompson and Mr. Emmons that he had shot Rutherford and left him lying in the road, and these two gentlemen went to the house of the mother-in-law of Rutherford and went with her to where Rutherford was lying and carried him home. The defendant’s version of the trouble is about this, that he was going along the road to his home and all of a sudden Rutherford jumped into the road from the south ahead of him some thirty or forty yards, his left side towards the defendant and his right hand on Ms right hip pocket as though about to draw a revolver; that no words were spoken, that defendant immediately began to shoot, firing as rapidly as he could; that he shot believing that the proseeutmg witness was there for the purpose of killing him. Upon examination it was discovered that there was some twenty-five holes in the back and body of Rutherford made by double-aught shot, and that some of them entered the body just above the Mdneys. There was evidence on the part of the defendant that he had been told of divers threats that Rutherford had made against him, and there was also evidence tending to show that Rutherford’s reputation for peace was bad, but on rebuttal the State proved that Rutherford’s general reputation for peace was good.

I. The first ground upon which defendant seeks a reversal is that the court refused to permit defendant to cross-examine State’s witness Emmons, in regard to a threat made by the prosecuting witness. An examination of the record discloses that the counsel for the defendant inquired of the witness if he had a conversation with the prosecuting witness with reference to some trouble between Rutherford and Arnold on Friday before the shooting, and asked him if the prosecuting witness told him that he would have killed Arnold but for his, Rutherford’s, wife:. The prosecuting attorney objected to that as not yet competent and the court sustained the objection to the evidence as not competent at that time. Conceding, as we do, that the defendant had the right to cross-examine this witness as to snch alleged threats, we think it is perfectly evident that this was not an absolute denial of the right of the defendant to show threats made against him by the prosecuting witness, but as was said in State v. Zorn, 202 Mo. l. c. 30, “If the defendant had not sufficiently developed his defense to the charge as to advise the court of its nature and character, then there could be no prejudicial error in delaying the introduction of that testimony until the defense upon which the defendant relied was sufficiently developed to authorize its admission for the purpose of adding force to the defendant’s plea of self-defense.” And it clearly appears that the learned circuit court tried the cause upon the theory that if the defendant should develop a defense of self-defense then evidence of threats, communicated and uncommunicated to defendant, were competent and on that theory admitted the testimony of Crider and others. Fully advised of this ruling, counsel for defendant did not, after developing his defense of self-defense, recall Emmons to cross-examine him as to the alleged threat, as he had the right to do'. The order in which testimony shall be admitted is largely a matter within the discretion of the court. And where counsel is advised by the court that the evidence he offers is simply excluded for the time-being and not absolutely, and no further effort is made to introduce it, the temporary exclusion of the evidence is no ground for the reversal of the judgment. This ruling applies also in regard to the question propounded to this same witness in reg’ard to what the prosecuting witness said with reference to the shotgun he had in the woods with him. The court merely ruled that it was inadmissible at that time.

II. As to the exclusion of the evidence of the defendant’s wife as to the threats made by the prosecuting witness on the Friday before the shooting occurred on Monday, the defendant is in no attitude to complain for the further reason that defendant mad© no effort to show what threat, if any, was made. It has heen uniformly ruled by this court that a mere refusal to hear an answer is not alone sufficient to constitute error, but that it is the duty of the party alleging error to indicate to the court the nature and' character of the evidence which he proposes to elicit. [Aull Savings Bank v. Aull, 80 Mo. 199; Jackson v. Hardin, 83 Mo. 175; State v. Martin, 124 Mo. l. c. 523, 524; State v. Hodges, 144 Mo. l. c. 54, 55.]

ni. When the prosecuting witness, Rutherford, was on the stand, the counsel for the defendant asked him if he did not enter a plea of guilty before the justice of the peace, Lassiemen, of having drawn a pistol on the defendant, and he answered that he had entered a plea of having a pistol, but not of drawing it. He was then asked if that was the only conviction that had ever been against him for carrying concealed1 weapons, or for assault upon any person, to which conn-, sel for the State objected, and the court sustained the objection, to which ruling the defendant excepted. And this is assigned as error. In support of this assignment we are referred by the learned counsel for the defendant to a line of decisions by this court commencing with State v. Blitz, 171 Mo. 530, in which for the first time section 4680, Revised Statutes 18991, was construed. That section provides: “Any person who has been convicted of a criminal offense is, notwithstanding, a competent witness; but the conviction may be proved to affect his credibility, either by the record or by his own cross-examination, upon which he must answer any question relevant to that inquiry, and the party cross-examining shall not be concluded by his answer.” Prior to the enactment of that section, it was a settled law of this State that the only convictions of a witness admissible for the purpose of imr peachment were those for felony or petit larceny. In the Blitz case, the trial court had admitted evidence that the witnesses had been convicted of certain misdemeanors, and it was assigned as error, but this court held that the evidence was competent. Afterwards, in Land & Lumber Co. v. Chrisman, 172 Mo. l. c. 617, it was held to be error to refuse to permit the witness to answer this question: “Were you not indicted for stealing lumber a short time ago, and did you not plead guilty?” In State v. Heusack, 189 Mo. 311, the witness was asked if he had ever been convicted of a crime, and without any objection to the generality of the question, he answered that he had been convicted of a misdemeanor once twenty-five or thirty years before. He was then asked if he was ever convicted in Arkansas, and answered he had' not been. It was ruled that it was not reversible error to have permitted these questions and answers. In State v. Thornhill, 174 Mo. 370, the State offered in rebuttal evidence that the witness had been convicted' of gambling, but the circuit court struck out the evidence and instructed the jury to disregard it. It was held that gambling, under our laws, was a misdemeanor, and the evidence was proper and that no error had been committed by admitting it. In State v. Woodward, 191 Mo. l. c. 633, it was said by this court: “As to the evidence of prior convictions of criminal offenses, defendant having testified in his own behalf, it was competent to show that fact in a legitimate way, in order to affect his credibility; however, it should be shown by competent evidence. ’ ’ In State v. Brooks, 202 Mo. 106, the record of the former conviction was duly offered by the State and read in evidence. Accepting the construction given to section 4680 in the foregoing cases, the question still arises, ought this judgment to be reversed on an inquiry as broad and unlimited as that which the court refused to compel the witness to answer? The witness had just promptly admitted that he had been convicted of carrying concealed weapons and that he had pleaded guilty to the charge. Thereupon counsel for the defendant, without limiting his question to any time, place or court, asked the witness if that was the only conviction that had ever been against him for carrying concealed weapons, or for an assault upon any person, without calling his attention to either time, person, place or court in which the conviction might have occurred. And in this connection, it is to be noted that if such other conviction had occurred, it was entirely competent for the defendant to have offered it as original evidence for the purpose of impeachment, and no such proof was tendered. In our opinion, the judgment should not be reversed for the refusal to require the witness to answer this question.

IV. It is insisted that the court committed reversible error in refusing to allow the defendant to testify to what Chester Stephenson told him in regard to alleged threats made by the prosecuting witness. When this evidence was offered, counsel for the State objected because the witness Stephenson had been summoned, and had not testified that the prosecuting witness had made any threats. In State v. Harris, 76 Mo. l. c. 364, a similar question was propounded to the defendant, and upon the objection of the State it was excluded. It appeared in that case that the person who had communicated the threat to the defendant was ■ dead, and this court cited the case of Carico v. Com., 7 Bush (Ky.) 124, in which it was. held that the accused had a right to prove that a person then dead had, but a short time before the homicide, told the defendant that the deceased had armed himself with a shotgun to kill him; that while it was not legal evidence that deceased had armed1 himself to kill the accused, it was competent to prove that accused had so heard and may have had the right to so believe, and to that extent and for that purpose, it was admissible. The effort in this case then was to prove a communicated threat, and the alleged threat, if made, was made in the presence of Bass Crider and Chester Stephenson, both of whom had been supoenaed in the case, and Crider had testified on that point. Stephenson’s testimony would have been only cumulative at best. Moreover, it is extremely doubtful whether the alleged threats were admissible for any purpose, because taking the defendant’s own version of the shooting the prosecuting witness was thirty or forty yards distant and had not said a word, and had displayed no weapon, and the witnesses sent by defendant to his aid found him in a semi-conscious condition, in his shirt sleeves, with no weapon on his person, so that the prosecuting witness at the time he was shot was making no effort to carry, said alleged threat into execution or doing any overt act in that direction, and there is-nothing* in the testimony to indicate that defendant was in any such imminent or apparent danger as would have justified his shooting the prosecuting witness; on the contrary, the physical facts all tend to corroborate the evidence of the prosecuting witness that he was fleeing from defendant, as both shots took effect in his back. [State v. Hays, 23 Mo. 287.] It has often been ruled by this court that neither courts nor juries are required to accept as true evidence which contradicts the admitted physical facts in- a case. [State v. Turlington, 102 Mo. 642; State v. Nelson, 118 Mo. 124; State v. Fraga, 199 Mo. 127; State v. King, 203 Mo. l. c. 571.] Our conclusion is that in view of the whole record the exclusion of Stephenson’s statement to defendant was not reversible error.

V. Among other grounds for new trial, the defendant assigns misconduct on the part of the sheriff in that after the jury was placed in his charge, he informed the jury that John and Mart Hnson, two noted horse-thieves and jail-breakers, who were then in the jail of said county, were going to plead guilty and take a sentence of four years for their offenses, and that this fact was used as an argument by some member of the jury in affixing the punishment of the defendant. To sustain this charge, counsel for defendant called two of the jurors, one of whom, Mr. Lee, stated that, to the best of his recollection, the sheriff made the statement, in answer to an interrogatory by some one, that the Huson boys were going to plead guilty and take four years. Other members of the jury called on behalf of the State heard no such statement made by the sheriff, and all, as well as Mr. Whit-well, testified that it had no effect upon their verdict. The circuit court found that there was no evidence to sustain the charge of misconduct on the part of the sheriff, and we think the evidence, even if competent, fully justified the court in so finding.

VI. Error is assigned upon the refusal of the court to give instruction number one asked by the defendant. That instruction is in words and figures as follows: “The court instructs the jury that if at the time the defendant, shot the prosecuting witness, Rutherford, he had good reason to believe that said Rutherford was about to inflict upon him some bodily, harm, and defendant acted in a moment of apparently impending peril and shot for the purpose of averting such apprehended harm, it is not required of him to nicely gauge the proper quantum of force necessary to repel such apprehended harm, and you must acquit him on the ground of self-defense. It is not, however, necessary that the danger should have been actual or real, or that the danger should have been about to fall upon him. All that is necessary is that- the defendant should have had reasonable cause to believe that state of facts, and did so believe, and shot to prevent the consummation of such design on the part of Rutherford. ’ ’

On the subject of self-defense, the court gave instruction number 8 in words and figures as follows: “The court instructs the jury that if they believe from the evidence that at the time defendant shot Rutherford, he had reasonable cause to apprehend a design on the part of Rutherford to take his life or do him some great personal injury and that there was reasonable cause for him to apprehend immediate danger of such design being accomplished, and to avert such danger he shot, and at the time he shot he had reasonable cause to believe, and did believe, that it was necessary for him to shoot Rutherford in the manner in which he did to protect himself from such apprehended danger, then the jury should acquit him on the ground of self-defense. It is not necessary that the danger should have been actual or real or impending and about to fall; all that is necessary is that defendant had reasonable cause to believe and did believe these, facts. On the other hand', it is not .enough that defendant should have so believed; he must have had reasonable cause to so believe. Whether or not he had reasonable cause is for the jury to determine under all the facts and circumstances given in evidence. If the jury believe from the evidence that the defendant did not have reasonable cause to believe they cannot acquit him on the ground of self-defense, although they believe the defendant really believed he was in danger. ’ ’

This instruction was all that the defendant could have asked even upon his own testimony, and the court committed no error in refusing to give his instruction number one.

Defendant also assigns as error the refusal of his instruction number two, which is in words and figures as follows: “The court instructs the jury that you should take into consideration the evidence of threats made by tbe prosecuting witness, Rutherford, prior to the shooting by- defendant. If you believe that any such threats were, communicated to defendant, then such threat or threats may be considered by you as explaining the conduct and apprehensions, if any, of defendant, at the time of the shooting. You will also consider any threats you may believe were made by the prosecuting witness, Rutherford, and not communicated to defendant, if any, for the purpose of explaining the conduct and demeanor of said prosecuting witness Rutherford, at the time of the shooting.” There was no error in refusing this instruction, because the court fully covered this point in instruction number two given for the State. Ik' fact the only difference between the two instructions is that the defendant’s instruction refers to “uncommunicated threats,” and there was no evidence of any such threats in the case. All the threats were communicated to the defendant.

We have carefully examined all the testimony in this case and are of the opinion that the defendant had a fair and impartial trial, and the evidence was amply sufficient to sustain the verdict of the jury. Finding no reversible error in the record, the judgment of the circuit court must be and is affirmed.

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