author: BROWN, P. J.

text:
    THE STATE v. FLOYD H. ROGERS, Appellant.
    Division Two,
    December 9, 1913.
    1. REFERENCE STATUTE: Amended by Amendment of the' Statute Referred to: Procedure. When a reference statute specifically designates the section or article of which it is made a part, such reference statute will not be changed or modified by any subsequent change in the statute to which it refers. But where it pertains only to methods of procedure and refers generally to some statute which defines how certain things may be done, such reference statute will be expanded, modified or changed as the statute referred to is changed.
    2. -: -: Filing Bill of Exceptions in Criminal Case. Sec. 5245, R. S. 1909, stating that in criminal cases “bills of exceptions shall be settled, signed, sealed and filed as now allowed by law in civil cases,” does not refer to or become a part of any particular section of any statute, but refers generally to those sections of the Code of Civil Procedure relating to appeals, of which there are several sections; consequently, when the Civil Code was amended in 1911, Laws 1911, p. 139, so as to permit the filing of a bill of exceptions after the time -had expired within which the court had required such bill to be filed, section 5245 underwent the same amendment, and since that amendment bills of exceptions in criminal cases may be filed within the same time and upon the same terms and conditions as bills in civil cases.
    3. BILL OF EXCEPTIONS: In Criminal Case. A bill of exceptions not filed within the term at which defendant was convicted nor within the time after the expiration of the term granted by the trial court, yet if filed within the time permitted by the amendatory act of 1911, Laws 1911, p. 139, will be considered on appeal.

      4. EVIDENCE: Motive: Res Gestae: Remarks Indicating Malice Made Soon'After Homicide. Where there had been discord . and trouble between defendant and Walls, and deceased had been hired to take defendant’s position as a farm hand on Walls’s farm and had become engaged to marry Walls’s niece, and defendant had gone to Walls’s house at the request of said, niece to persuade Walls and deceased, who were in a drunken condition, not to go away to church, and while there a quarrel arose and defendant killed deceased, who was unarmed, a statement made by him to the landlord of the house where he boarded, to which, two hundred yards from the scene, he haci returned immediately after the homicide and where he took down a shotgun and loaded it, that he would “go back and kill every d — d one of them,” was admissible as a part of the res gestae, and competent to establish felonious intent and motive, since it indicated a feeling of intense malice against the whole Walls family, and from it the jury might properly infer that the shooting of deceased was the product of malice or a desire for revenge.
    5. --: -: -: -: Instruction: Unwarranted Comment. But while said evidence was competent, an instruction on behalf of the State telling the jury “that anything defendant may have said after shooting deceased, if anything, to the effect that defendant had a notion to take a shotgun and go back down there and kill the whole d — d outfit, or words to that effect, is competent and admitted only for the purpose of showing the condition of mind of the defendant at that time,” was an unwarranted comment on the evidence, and error, in that it singles out certain evidence and tells the jury that it is admitted for a specific purpose.
    6. REMARKS OF COUNSEL: Disgrace to Acquit. If the prosecuting attorney believed a crime had been committed he had a right, as a matter of argument, to tell the jury that “it would be a disgrace for you to acquit the defendant under the testimony.”
    Appeal from Dunklin Circuit Court. — IIón. W. 8. G. Walker, Judge.
    Reversed and remanded.

      Fort & Zimmerman for appellant.
    (1) The law of self-defense does-imply the right of attack. State v. McDonald, 57 Mo. 13; State v. Matthews, 148 Mo. 193; 25 Am. & Eng. Ency. Law (2 Ed.), 274 et seq. (2) The instruction on self-defense is inconsistent and misleading. The court states in positive and unequivocal terms that the law of self-defense does not imply the right of attack, hut follows this statement of the law with the negative statement of the proposition that the law of self-defense does imply, under certain circumstances, the right of attack. The force and effect of such an instruction; could not do otherwise than confuse and mislead the jury in their consideration of the acts of defendant, at the time of the shooting, and was, therefore, prejudicial to defendant’s defense. 2 Ency. PI. & Pr., p. 145, sec. 6. (3) These statements made to Blankenship and Hardy were in no part of the res gestae and did not stand in immediate causal relation to the act of shooting. The shooting was admitted, no plea of insanity was made and too great a time had elapsed since the killing, to make these statements competent or material for any purpose. State v. McKenzie, 128 S. "W. 952; 3 Wigmore on Ev., p. 2253, sec. 1749 and notes. Defendant lived more than two hundred yards from the scene of the homicide. After the shooting, he walked home. On arriving home, defendant put up the gun, explained what had happened and did not seem to be excited or agitated in mind. (4) The instruction given by the court, permitting the jury to consider the statements made by defendant after going home, was an unwarranted comment on the evidence. It is error to single out, in an instruction, a particular portion of evidence, to the exclusion of the rest, and submit the part, thus particularized, to a jury; or, to comment upon any particular part of evidence. State v. Holmes, 144 S. W. 418; State v. Mitchell, 129 S. W. 917; State v. Shelton, 322 S. W. 732; State v. Chinn, 133 S. W. 1196; 3 Ency. PL & Pr. 185, sec. 12, et seq.

      John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for the State.
    (1) Where one statute adopts the particular provision of another by a specific and descriptive reference to the statute or provisions- adopted, the effect is the same as though the statute or provisions adopted had been incorporated bodily into the adopting statute. 2 Lewis’s Sutherland’s Stat. Const., sec. 405, p. 787, and cases in note 27. (2) Such adoption takes the statute as it exists at the time of adoption and does not include subsequent additions, amendments, modifications or repeal of the statute so taken, unless it does so by express intent. 3- Lewis’s Sutherland’s Stat. Const., sec. 405, p, 708-, and eases in notes 29 and 30. (3) Another form of adoption is one wherein the reference is not to any particular statute or part of a statute, but to the law generally which governs a particular subject. The reference in such case means the law as it exists from time to time or at the time the exigency arises to which the law is to be applied. 2 Lewis’s Sutherland’s Stat. Const., sec. 405-, p. 789, •and cases in notes 36 and 37. (4) “As is now provided by law,” means as is provided by law at the time of the enactment of the law. Chapman v. Holmes, 10 N. J. L. 2.6; Pike v. Kennedy, 15' Ore. 420; Fletcher v. State, 49 Ind. 124; State v. Bassa, 69 Conn. 335; Culver v. P'eople, 43 N. E. (HI.) 812. (5) The Act of 1911 repealing Sec. 2029, B. S. 1909', and enacting a new section in lieu thereof, did not change the law governing the settling, signing, sealing and filing of bills of exceptions in criminal cases. Sec. 5245, B. S. 1909, does not provide that bills of exceptions shall be settled, signed, sealed and filed as may be allowed by law in civil cases, nor does it provide that such bills shall be settled, etc., as now or hereafter allowed by law in civil cases, but emphatically, positively and unequivocally declares “as now allowed by law in civil actions,” etc. The Legislature that passed the Act of 1911 was only dealing with the subject of bills of exceptions in civil actions. The act does not purport to be dealing with the matter of bills of exceptions in criminal cases, although it could well have been made to apply to criminal cases had the Legislature intended or desired that it should do so. St. Louis v. Gunning. 138 Mo. 352; Gaston v. Lamkin, 115 Mo. 32.
   BROWN, P. J.

Charged with murder and convicted of manslaughter, defendant appeals from a judgment of the circuit court of Dunklin county fixing his punishment at two years in the penitentiary.

Defendant shot and killed one A. J. Lovins at a farm occupied by Thomas Walls, in Dunklin county, on Sunday, June 23, 1912. The circumstances surrounding and leading up to this tragedy were as follows :

In the early part of the year 1912, the defendant was hired to Thomas Walls as a farm hand. The family of Walls consisted of his wife, stepdaughter and three sons, Elmer, Jack and Tommie, all grown, or nearly grown. Thomas Walls will hereafter be referred to as Walls, Sr.

A courtship sprang up between defendant and the stepdaughter of Walls, Sr., which resulted in their marriage about six weeks before the tragedy. Walls, Sr., was very much displeased at the marriage, and, on account of the fact that they were not welcome at the Walls home, defendant and his wife went to board with one T. A. Blankenship, who resided some two hundred yards from the Walls home. After the departure of defendant from the home of Walls, Sr., one A. J. Lovins (sometimes referred to in this opinion as “Bub”) was employed to take his place as a farm hand.

On the day of the tragedy one Dora Stevens paid a visit to the Walls family. She is a niece of Walls, Sr., and was at that time engaged to marry Lovins, the hired hand. In going to town to meet her, Walls, Sr., Elmer Walls and Lovins, each procufe'd a quart of whiskey, of which Lovins and Walls, Sr,, partook quite freely. During the day defendant and his wife came along the road by the home of Walls, Sr., and he invited them into his house. This was the first time Walls, Sr., had shown a disposition to be friendly with them since their marriage. They accepted the invitation and remained there until quite late in the afternoon.

Walls, Sr., Lovins and defendant took several drinks of whiskey together during the day, and when night drew near Walls, Sr., and Lovins were quite drunk, and defendant was partially drunk. At one time during the afternoon Walls, Sr., proposed to defendant and Lovins-that they kiss all the women present. Walls, Sr., did kiss defendant’s wife (his stepdaughter), and defendant kissed Dora Stevens; but if this incident caused any friction or ill will between the parties it does not appear in the evidence.

Defendant and his wife returned to Blankenship’s (where they were boarding). After their departure Walls, Sr., and Lovins decided to attend a church service which was being conducted near-by. Dora Stevens, believing that if they attended church in their then drunken condition they would get into trouble, tried to-dissuade them from going, but failing in that effort she sent Jack Walls to request defendant to come back to the Walls home and help keep the drunken men away from church. She testified that she thought defendant could exert a greater influence over Walls, Sr., and Lovins than anyone else.

Pursuant to this request, defendant placed a revolver in his pocket and returned to the Walls home. On arriving there he found Walls, Sr., very angry over the alleged fact that somebody had stolen his whiskey. Defendant asked Lovins and Elmer Walls who took the old man’s whiskey, whereupon Lovins replied: “You would not accuse me of stealing- it, would you ? ’ ’ Defendant replied: ‘ ‘ Some of you took it, and if you will give it to him, or give him a drink, he will get quiet.” This remark seemed to anger Lovins very much and he immediately began swearing and threatening to whip defendant unless he ‘ ‘ took it back. ’ ’ Up to this point there was no conflict in the evidence. Some of the State’s witnesses testified that Lovins struck defendant on the back with his hand and stated that defendant or he (Lovins) would get a whipping unless defendant took back what he had said. Defendant became angry and, drawing his revolver, threatened to shoot Lovins. Lovins continued to swear and make a disturbance, whereupon defendant proposed to one of the Walls boys that they procure clubs and beat Lovins to death. Lovins, according to the State’s evidence, kept on quarrelling, swearing and challenging defendant to fight, until defendant shot him twice, the second shot producing almost instant death. The State’s evidence further tends to prove that Lovins was entirely unarmed, and was only seeking a fist fight or ordinary battery with defendant.

After the shooting defendant walked to the home of Blankenship, two hundred yards away, put up the revolver and took down a shotgun and loaded it, and, on being asked by Blankenship what he was going to do replied: “Go back and kill every d — d one of them.” Blankenship took the gun away from defendant, and he then remained at Blankenship’s until arrested some hours later. On the part of the defendant there was slight evidence of a secret plan between Walls, Sr., and Lovins to assault defendant.

Within a few minutes after Lovins was killed, Walls, Sr., was heard to say that defendant would be sent to the penitentiary for fifteen or twenty .years, and that he would “get shet” of him for that length of time at least.

Defendant, testifying in his own behalf, stated that it was almost dark when Jack Walls came to Blankenship’s and told him that Walls, Sr., and Lovins were iangry, and that Dora Stevens and Mrs. Walls wanted him to come down to the Walls home; that they thought he (defendant) could do more with them than anyone else. Defendant promised to go down there in about fifteen minutes. Before starting down to Walls’ a “curious feeling” came over him and he armed himself with a revolver. That Walls, Sr:, had made threats against him and that he “had no reason to know but what he meant it.” That on his arrival at the Walls home be inquired of Mrs. Walls what she wanted with him. She replied that she did not want anything, and that if she had known that he was coming she would have.told him not to come, but she did not inform him that there was any danger at hand.

He further testified that he told Lovins and Elmer Walls to get Mr. Walls’s whiskey and give him some and he would be all right, whereupon Lovins pulled off his coat and started toward defendant, but was stopped by Tommie Walls. Walls, Sr., hearing the loud talking, came out of the house and inquired about the trouble. Tommie Walls replied: “Nothing, only Bud (meaning Lovins) is out here cutting up.” Walls, Sr., then remarked that he would see ‘ that no one run over Bud.”

Defendant told Walls, Sr., that it was “all settled,” whereupon he (Walls, Sr.) went off in the direction Lovins had gone. That Mrs. Walls again suggested that defendant go home, and he had walked to the edge of the porch when Walls, Sr., and Lovins again came on the scene. Walls, Sr., seized defendant and pushed him off the porch, and pulled him around facing Lovins, saying at the time: “That has to be settled.” That Lovins cursed defendant and said: “You have got to take it back.” That Walls, Sr., slapped Lovins on the back and said: “I will stay with you.”

Defendant stated that it was growing dark and he walked back ten or twelve steps to keep out of the way of Lovins, Walls, Sr., and Elmer Walls, all three of whom pursued him; that he would have run but could not on account of a stove and wood pile which were behind him. That he then drew his revolver and warned them two or three times to stop. That Walls, Sr., and his son, Elmer Walls, fell back, but Lovins kept coming on with what appeared to be a knife in his hand and grabbing at defendant’s pistol. He (defendant) then fired the fatal shot, believing that it was necessary to do so to save his life. After the shooting defendant started home and some one called to him to stop. He looked back and saw Walls, Sr., come out on the porch of his house with a shotgun in his hands.

I. The Attorney-General alleges that defendant’s bill of exceptions is void and caail0t ]>e considered for the reason that it was filed out of time.

Defendant was convicted on December 9,1912, and granted an appeal on the same day. The court gave brm time until April, 1913, within which to file his bill of exceptions. The bill of exceptions was not filed during the time granted by the court, but on August 2, 1913, after the term during which the appeal was granted had lapsed, and after the time allowed and granted by the trial court had expired, the bill of exceptions was settled, signed by the trial judge, and filed. Hnder the foregoing facts was it filed within the time allowed by law?

Appellant contends that, under the Laws of 1911, p. 139, this bill was filed in a timely manner and must be considered, while the Attorney-General insists that Ihis appeal being in a criminal case is not governed by the amendment of 1911, and that its legality must be determined by section 5245', Revised Statutes 1909. His contention is that appeals in criminal cases are in no way affected by the amendment of section 2029, Re- • vised Statutes 1909, for the reason that said section 2029 applies only to appeals in civil cases.

Said section 5245, supra, regulating the procedure for appeals in criminal cases, reads as follows: .

“On the trial of any indictment or prosecution for a criminal offense, exceptions to any decisions of the court may be made in the same cases and manner provided by law in all civil cases; and bills of exceptions shall be settled, signed, sealed and filed as now allowed by law in civil actions, and the same proceedings may be had to compel or procure the signing and sealing of such bills, and the return thereof, as in' civil cases.”

This section is what is generally termed a reference statute; that is, it does not itself designate' or set out in detail the steps necessary to secure a bill of exceptions in a criminal case, but refers or points to the .Code of Civil Procedure and engrafts itself upon said code as a part and parcel thereof.

When a reference' statute specifically designates the section or .article of the statute of which it is made a part, such reference statute will not be changed or modified by any subsequent change in the statute to which it refers. It has even been held that the provisions of a repealed law may be referred to and thus become a part of a new statute. [2 Lewis’ Sutherland’s Statutory Construction (2 Ed.), p., 789.] But where the reference statute pertains only to a method of procedure and refers generally to some statute which defines how certain things may be done, such reference statute will be expanded, modified or changed every time the statute referred to is changed by the Legislature. [Gaston v. Lamkin, 115 Mo. l. c. 33.]

The gist of the Honorable Attorney-General’s contention is that, because section 5245*, supra, provides that bills of exceptions in criminal cases “shall be settled, signed, sealed and filed as now allowed by law in civil actions,” the Act of 1911 amending section 2029, supra, is inoperative as to appeals in criminal cases, and that no valid bill can be filed in a criminal case after the time allowed by the trial judge for filing same has expired. He even contended, ore terms, that, as said section 5245 was originally enacted at a time when the law required bills of exceptions in civil cases to be filed during the same term at which such cases were tried,dt is impossible to secure a valid bill of exceptions in a criminal case after the end of the term at which the judgment was rendered.

The phraseology of section 5245, supra, furnishes some color for the Attorney-General’s insistence, but we find that the construction he contends for is entirely too narrow.

Section 5245, supra, does not refer to or become a part of any particular section of any statute, but refers generally to those provisions of the Code of Civil Procedure. regulating appeals, of which there are several sections; consequently, when the civil code was amended in 1911 so as to permit the filing of bills of exceptions after the time would expire within which the court might require such bills to be filed, section 5245, supra, underwent the same amendment, and bills of exceptions may be filed in criminal cases within the same time and under the same terms and conditions as in civil cases.

The bill of exceptions in this case was neither' filed during the term at which defendant was convicted, nor within the time granted by the trial court, but was filed within the time permitted by Laws of 1911, p. 139, as construed by this court in the case of Craig v. St. Louis & San Francisco Railroad Co.,- 248 Mo. 270.

The learned Attorney-General’s contention that said bill of exceptions was filed out of time must be disregarded.

II. For reversal defendant alleges that the trial court erred in admitting and refusing to strike out the evidence of T. A. Blankenship and Nora j_jar(jy †0 the effect that after defendant returned home, and within a few minutes after the shooting, he took down a shotgun, loaded it, and on being asked what he was going to do, stated that he would “go back and kill every d — d one of them.” It is contended that what defendant said to Blankenship and Nora Hardy was not part of the res gestae.

Wharton in the tenth edition of his work on Criminal Evidence, vol. 1, at pages 501-2, announces the rule that when ‘ ‘ there is an unexpected collision between the men, entire strangers to each other, then the res gestae of the collision is confined to the few moments that it occupies. But in case of feuds and riots and strikes or disturbances, where parties are arrayed against each other for weeks, and people are so absorbed in the collision as to be conscious of little else, then all that such parties say and do under such circumstances is as much a part of the res gestae as the blows given in the homicides, for which particular prosecutions may be brought. ’ ’

The same author at page 1747 of the second volume of said treatise says that it is permissible for the prosecution to introduce evidence ££to show that accused told deceased’s sister immediately following the homicide, that if you do not hold your mouth, I will blow your brains- out,’ . . . or to show that immediately after the homicide, accused fired at two persons with whom deceased had been walking; or to show other circumstances that establish a knowledge.of the crime, or show malice toward the deceased, or indifference to the fact of the crime.”

The doctrine announced by Wharton is strongly supported by the decision of this court in the case of State v. Bailey, 190 Mo. 257. After Bailey had assisted in murdering a nonunion hack driver he was admonished that “the union hack drivers could never expect to win a strike by shooting people,” and replied,: “That was the only way to win, and they all ought to be killed.” It was held that this statement made by Bailey the next day after the killing was competent to establish his felonious intent and motive in assaulting the man who was killed. [Fitts v. State, 102 Tenn. l. c. 146.]

In the present case the defendant admits that he shot and killed deceased, so there is no issue as to the identity of the person who committed the crime (if one was committed). Testimony for the State strongly tends to prove that deceased was entirely unarmed; consequently, the motives and mental condition of defendant when he fired the fatal shot are very important. If the acts of deceased frightened defendant and gave him reasonable cause to believe that his life was in danger, then he may be entitled to an acquittal on that ground. On the other hand, if defendant shot deceased through a spirit of malice, or to obtain revenge, at a time when he was in no real or apparent danger from said deceased, then he is guilty.

The alleged remarks of defendant in the presence of witnesses Blankenship and Hardy indicated a feeling of intense malice against the whole Walls family, and as they were the friends and immediate associates of deceased, the jury might properly infer that the shooting of Lovins was the product of malice or a desire for revenge upon the part of said defendant.

If the testimony of Blankenship and Hardy is true, then defendant was only prevented from killing other members of the Walls family by the timely act of Blankenship in taking the shotgun from him. The cases of State v. McKenzie, 228 Mo. 385, and State v. Porter, 213 Mo. 43, cited by appellant, are not in point, because they relate to self-serving statements made by accused persons after they had had time to formulate statements which would tend to exonerate them.

We hold, that the remarks of defendant, testified to by witnesses Blankenship and Hardy, made so soon after the homicide and before anything had occurred which could be reasonably calculated to interrupt or change the condition of defendant’s mind, are part of the res gestae. Consequently, the evidence of Blankenship and Hardy was properly admitted.

III. The defendant also complains of instruction “A” given by the court on its own motion, on the ground that said . ° instruction is an unwarranted comment on certain evidence in the case. Said instruction reads as follows:

“The court instructs the jury that anything defendant may have said after shooting deceased, A. J. Lovins, if anything, to the effect that defendant had a notion to take a shotgun and go back down there and kill the whole d — d outfit, or words to that effect, is competent and admitted only for the purpose of showing the condition of mind of the defendant at that time; and whether or not it has any weight in showing the condition of his mind at the time of the shooting is a question of fact for you to determine.”

We find that defendant’s objection to this instruction is well taken. The evidence regarding defendant’s. expressed desire to kill the whole Walls family tended to prove that the defendant killed Lovins to gratify a desire for .revenge, rather than through fear of injury to himself, and, for the reasons explained in a preceding paragraph, was properly admitted.

But, notwithstanding the evidence was competent and strongly pointed to defendant’s guilt, the court was not justified in calling special attention to it in an instruction,- thereby giving it more prominence than other evidence in the case.

There are certain well-defined classes of evidence, such for instance, as evidence of recent possession of stolen goods, evidence of former conviction of . crime, and evidence of an accomplice, which may properly be commented upon and the legal effect thereof explained by trial courts in their instructions to juries, but not only our statute (Sec. 5-244, R. S. 1909), but many rulings of this court forbid trial courts from singling out other evidence and telling the jury that it is competent and that it is admitted for a specific purpose.

For instance, it would have been highly improper and unfair to the State for the court in this ease to have told the jury that evidence tending to prove that defendant did not voluntarily go to the Walls home, but was invited there by Walls, Sr., or a member of his family, was competent and admitted to prove that he went there on a peaceful mission and not with the intention of shooting deceased.

- For this same reason it was unfair to the defendant to specifically call the attention of the jury to the evidence tending to prove that very shortly after the killing, and after he was out of danger, he (defendant) entertained a murderous design upon the whole- Walls family, where Lovins had been stopping, and who, by the evidence, appeared to be his associates and friends.

Where, as in this case, the evidence is very conflicting, and the trial court singles out and specifically comments upon some of such evidence, the jury are liable to place undue significance upon the evidence thus singled out, because the court has directed their attention to it. The jury should be allowed to weigh all evidence which is admitted and not stricken out by the court, and, with the aid of the argument, to form their own conclusions of what it proves or tends to prove. This doctrine is supported by the following authorities: State v. Rutherford, 152 Mo. 124, l. c. 133; State v. Reed, 137 Mo. l. c. 138; State v. Hibler, 149 Mo. 478; State v. Mitchell, 229 Mo. 683, and State v. Holmes, 239 Mo. 469.

IV. The defendant also complains of instruction numbered 6, given by the court on behalf of .the State, as follows:

“You are further instructed upon this matter of self-defense that a danger existing only in the imagination of the defendant will not ex-CIlse or the killing of Lovins, there must have been the apparent danger, affording a reasonable ground for an apprehension on the part of the defendant, that unless he killed or disabled Lovins, his own life or limbs were in imminent danger, whether the appearances of danger to the accused were such as to afford such reasonable ground of apprehension is a question for the jury.

“The law of self-defense does not imply the right of attach, nor does it permit, of acts done in retaliation or for revenge, therefore, if you believe from the evidence that the defendant shot and killed said Lovins at a time when defendant had, because of the acts of the deceased, no reasonable cause to apprehend the approach of immediate danger to himself, and did so in the heat of passion or from a spirit of an utter disregard for human life, or for the purpose of gratifying-spite or ill will toward Lovins, then the defendant cannot avail himself of the law on self-defense and you cannot acquit him on that ground.”

, It is asserted that this instruction is erroneous, in that it tells the jury that the “law of self-defense does not imply the right of attack,” citing State v. Matthews, 148 Mo. 185. This last-mentioned instruction seems to be slightly argumentative and we think it would be less objectionable if the italicized words had been omitted, but whether the giving of it in the form in which it was given would constitute reversible error, we do not decide.

Y. Defendant complains that tbe trial court approved tbe action of the prosecuting attorney in making tbe following remarks to tbe jury:

“Men, it would be a disgrace for you to acquit the defendant under tbe testimony:”

We are unable to agree with the defendant on this point. If the prosecutor believed that a crime was clearly proven, be bad the right to tell the jury, as a matter of argument, that be believed that it would be a disgrace for them to acquit the defendant.

For the error of the trial court in giving instruction numbered “A” o.f its own motion, which commented upon the evidence in an unwarranted manner, we reverse the judgment and remand the causé for new trial.

Fans, J., concurs in result and in all of opinion except paragraphs 2 and 5. Walker, J., concurs in all of opinion except paragraph 3 and dissents from the result announced.


source: Caselaw Access Project

author: PARIS, J.

license: Public Domain

text:
    THE STATE v. L. M. DUFF, Appellant.
    Division Two,
    December 9, 1913.
    1. BURGLARY: Breaking: Circumstantial Evidence. It is not necessary to a conviction for an eyewitness to be present at every burglary. That the defendant did the breaking or opening may be inferred from the circumstance that the outer door of the crib in which he was found at about two o’clock at night, was closed at ten o’clock of the same night, and was not afterwards seen to be open until defendant was found in the crib.

      2. EVIDENCE: Other Crimes. Testimony by former deputy sheriffs of another county that several years before the commission of the burglary for which defendant is being tried they had occasion to arrest him upon a similar charge is incompetent and prejudicial, as is also a cross-examination of defendant by the prosecuting attorney as to his having been arrested upon that charge; yet if no objection was made to the testimony or to the cross-examination, or no proper objection was made, the judgment will not be reversed on account of those errors.
    3. -: —-: Duty of Prosecuting Attorney. It is the duty of the prosecuting attorney to see to it that the defendant has a fair and impartial trial, and that he is not convicted by incompetent testimony. He ought not to introduce testimony that is incompetent, or' ask questions that are prejudicial and unfair.
    4. JUDGMENT: Guilty of Burglary: Sentenced for Larceny. Where defendant was charged with both burglary and larceny, and was convicted of the burglary, but not of the larceny, a judgment reciting that he “stands charged with larceny and pleads not guilty as charged in the information” and is therefore sentenced to imprisonment for a term of two years, cannot stand, for defendant was not sentenced for the crime he was convicted, but for one he had not committed; but if no other reversible error appears in the case, the Supreme Court will only remand the cause to the trial court in order that defendant may be properly sentenced.
    5. JURY:. Impaneled and Sworn: Not Shown by Record. If it clearly appears that the jury was sworn to try the cause, the use of the word “sworn,” or “duly sworn” or “duly impaneled and sworn” will be held to import a regular and legal oath. But where the transcript fails to show that the jury which tried defendant had been sworn, the verdict and sentence will be set aside. In this case the record nowhere shows that the trial jury was impaneled, or that the jury whose names it recites was sworn to try the case.
    Appeal from Vernon Circuit Court. — Nora. B. G. Thurman, Judge.
    Reversed- and remanded.

      Lee B. Ewing for appellant.
    (1) This case should be reversed for the reason that the jury was not sworn to try this cause. They were sworn touching their qualifications to sit as jurors in the case, hut were not sworn and impaneled after their selection as jurors. State v. Mitchell, 199' Mo. 105; State v. McKinney, 221 Mo. 467; State v. Randolph, 139 Mo. App. 311; State v. Duncan, 237 Mo. 195; Lewis v. State, 51 Ala. 1; Harper v. State, 25 Ark. 83. (2) The court erred in permitting the prosecuting attorney to ask the defendant if he had not been arrested in Lawrence county, and if he had not been in jail down ■there. State v. Wigger, 196 Mo. 90. (3) The transcript of record in this cause does not show that the jury returned any verdict into court. (4) The final judgment in this cause does not show that appellant was convicted of any crime. If it is held that the judgment does show' a conviction, it is for the crime of larceny. The verdict shows appellant was acquitted of larceny. The judgment it therefore erroneous. State v. Hesterly, 173 Mo. 43. (5) Appellant’s demurrer to the testimony should have been sustained. Upon the whole evidence it is not shown that the barn and corucrib in question were broken into, much less that appellant broke into them. 3 Greenleaf on Evi. (14 Ed.), secs. 74-76; State v. Henderson, 212 Mu. 208; State v. He-cos, 83 Mo. 538; State v. Tu'tt, 73 Mo. 595.

      John T. Barker, Attorney-General, and Thomas J. Higgs, Assistant Attorney-General, for the State.
    (1) The verdict is certain, positive and free from all ambiguity. This is. not general, but specifically states that the defendant is found guilty as to burglary and not guilty as to larceny. The form fulfills the requirements of this court. State v. Rowe, 142 Mo. 439. (2) A motion for a new trial which merely complains that “illegal and irrelevant” testimony was admitted is not sufficiently definite to induce the court to go through the record to search for erroneous rulings on the question of evidence. State v. Holden, 203 Mo. 284. “ A motion for a new-trial must so* definitely set ont the reasons therefor as to direct the attention of the trial court to the precise error of which complaint is made. ’ ’ State v. Davis, 159 Mo. 534; State v. Brown, 168 Mo. 474. (3) On the other hand, a general clause in a motion for new trial was sufficient to preserve for review rulings upon specific objections made at the time of the admission or exclusion of the evidence: State v. Noland, 111 Mo. 492; State v. Barrington, 198 Mo. 76. (4) The only exceptions of material consequence occur first in the cross-examination of the defendant, when he was asked: ‘ ‘ Did this man arrest you ? ’ ’ which he then denied; and second, in the testimony of Cherry, a witness for the State in rebuttal, wherein he testified that he had seen and arrested the defendant in Lawrence county, and a similar occurrence in the testimony of Broym, who was with Cherry in .Lawrence county at the time. The defendant had testified to the fact as to where he had lived before he moved to his present address. The question as to where he had lived, therefore, had been brought out in direct examination, and .the State in cross-examination of the defendant simply pursued this same line of questioning to a greater extent and detail. This was not a violation, therefore, of Sec. 5242, R. S. 1909. A wide range should be given to the cross-examination on any question mentioned in direct examination. 40 Cyc. 2509; State v. Avery, 113 Mo. 500; State v. Anderson, 126 Mo. 546; State v. Myers, 221 Mo. 612. The defendant had testified and had left the jury in total ignorance of the fact that he had practically been a rover, moving over the country roads from place to place. Certainly a witness cannot be allowed to testify to one certain fact as to where he has lived and as to what his associations have been, which would give the jury great respect for him in that particular, and then prevent the State from showing that a false impression had been left with the jury. (5) Again, the court should be reminded of the fact that there was no exception nor objection to the question. There is a motion to strike from the record, but the reason therefor is not .given and is general in its nature. The objections during all this part of the cross-examination of this defendant are general in their nature and do not once refer to the improper cross-examination of the defendant. Unless an objection be made and an exception saved to cross-examination of the defendant in regard to matters not called out in the examination in chief, the same would be waived. State v. McDonald, 8 Mo. 539; State v. Mills, 88 Mo. 417; State v. Turner, 110 Mo. 196.
   PARIS, J.

Prom the conviction of defendant in the circuit court of Vernon county of the crime of burglary, wherewith, as also with larceny, he stood charged, by an information, he has appealed to this court.

The jury found defendant guilty of burglary, but not guilty of larceny charged, and fixed his punishment at imprisonment in the penitentiary for a term of two years.

Since the facts are, in the view which we take of this case, not pertinent and not necessary to be stated in order that a complete understanding of the points in judgment may be had, we will not take space in reciting them further than to say that the burglary complained of consisted in the burglarious breaking and entering by defendant on the night of January 18, 1913, of a barn and cornerib belonging to or in the possession of one Claude T. Beedle, and situate in the county of Vernon.

The record entry as made by the clerk purporting to show the impaneling and swearing of the trial jury, is as follows:

Now on this day, this cause coming on for hearing, comes the plaintiff in person and by attorney, and comes the State of Missouri by J. B. Johnson, the duly elected and qualified prosecuting attorney of Vernon county, Missouri, the jury being by the clerk sworn, and after the selection the following good and lawful men of the body of the county are chosen to try this cause are as follows, to-wit: John Blotti, J. F. Lang, J. M. Palmer, Frank Hereford, A. C. Ogier, Jim Dinnis, Claud Hereford, O. B. Wallace, H. V. Swearingen, L. L. Cummins, G. Lile and H. C. Lyons are chosen as jurors to try this cause.

The sentence, and judgment of the circuit court, as shown by the record proper, certified to us by the clerk, is as follows:

Now, at this day, comes the prosecuting attorney for the State and also comes the defendant herein, in person, in the custody of the sheriff of this county, and in the presence of his attorney and counsel in open court, whereupon said defendant is informed by the court that he stands charged with larceny and pleads not guilty as charged in the information, and being now asked by the court if he had any legal cause to show why judgment should not be pronounced against him according to law, and still failing to show such cause, it is therefore sentenced, ordered and adjudged by the court, that the said defendant, L. M. Duff, having plead not guilty as aforesaid, be confined in the penitentiary of the State of Missouri, for the period of two years from the 19th day of February, 1913, find that the sheriff of this county, shall, without delay, remove and sa'fely convey the said defendant to the said penitentiary, there to be kept, confined and treated in the manner directed by law, and the warden of said penitentiary is required to receive and safely keep him, the said defendant in the penitentiary aforesaid, until the judgment and sentence of the court herein be complied with or until the said defendant shall be otherwise discharged by due course of law.
It is further considered, ordered and adjudged by the court, that the State have and recover of said defendant the costs in this suit expended and that hereof execution issue therefor. .

Immediately, upon the conviction of defendant, that is to say, on or about February 19, 1913', he was incarcerated in the penitentiary,, where he ever since has been and now is.

• The above .statement we deem sufficient, regard being had to the points which we are compelled by the condition of the record before us to hold in judgment here. Should', however, other facts be necessary, they will be adverted to in the opinion.

I. Learned counsel for appellant insists that there is not sufficient evidence of the breaking charged in the information to constitute the crime of burglary. While this point is not necessary to a decision of this case, at this time, in the view which we take of it, it is perhaps well for us to say that in our view counsel is in error. The testimony shows that the outer door of the crib in question, and in which defendant was found at about the hour of two o’clock on the night of January 18th, was closed at about the hour of ten o ’clock on the identical night; that' said) door was not again seen by anyone until about the hour of two o’clock that night, at which time it was found to be open and defendant was himself found to be in the crib. We think that this circumstance inevitably points to a breaking on the part of the defendant with such unerring certainty as to preclude any doubt thereof either in law, or in common sense. If this were not so, it would, we think, become almost impossible to prove the crime of burglary. When a witness swears that a. door is closed or locked, or that a window is down or locked at a given hour; that subsequently and shortly thereafter a burglary occurs in the building or structure to which such door or window belongs, and that following the burglary, or following the larcenous or felonious entry, such door is found to be open, or the fastening broken, or such window is found to be open or the fastening thereon broken, the prima-facie conclusion which necessarily follows is that the one who committed the larceny or the felony within, the premises also did the breaking or opening, and that such breaking or opening was done within the purview of our statute defining bur glary, in order that ingress could be obtained. Any other view, it seems to us, would make it necessary for an eyewitness to be present at every burglary before a conviction would be possible. The point involves a well-known and well-settled phase of circumstantial evidence. This point is. not involved in the case now, and we suggest and pass on it only that it may not get in the way hereafter.

II. Appellant also complains that upon the trial the court permitted the prosecuting attorney to cross-examine defendant as to his having been arrested some seven or eight years prior in Lawrence county upon the charge of burglary and theft. Corn-plaint is also made that C. J. Cherry and "Will T. Brown were permitted to testify that while they lived in Lawrence county in the year 1904 and while acting as deputy sheriffs, they had occasion to arrest defendant and defendant’s daughter, who, we may say in passing, was shot and killed while engaged as an accomplice of defendant in the alleged commission of the burglary here in issue. This arrest seems to have been, as somewhat obscurely and vaguely appears, upon 'the charge of burglary and larceny, arising in some way out of the theft of a load of wheat, whereof defendant, his deceased daughter and his entire family, were accused. While we are unable to see upon what theory this testimony was offered, except for the purpose of prejudicing defendant before the jury, and' while we are unable to take any possible view, upon the facts here, which would make it competent (State v. Hess, 240 Mo. 147), yet in the one case no objection whatever was made to its reception, and in the other no proper objection. [State v. Colvin, 226 Mo. 446; State v. McKenzie, 228 Mo. 385.] It may well be that had a proper objection been interposed, or even a half-way proper objection, the learned trial court would have sustained the same. We will not therefore in this case convict the trial court of error for either permitting 'the wrongful cross-exam ination .of defendant or for permitting Cherry and Brown to testify, as they did; a fortiori, since it must be reversed for other reasons. Questions so clearlyincompetent, so verging upon unfairness and so hurtful withal ought not to be asked by any prosecuting attorney. It is the duty of this officer to see to it that the defendant shall have a fair and impartial trial, and that he shall not be convicted by incompetent evidence. [People v. Carr, 64 Mich. 702; People v. Derbert, 138 Cal. 467.] The attorney for the State owes a duty to the State to see that justice is meted out, and to the defendant, that he be given a fair and impartial trial; he cannot square these duties with the act of presuming upon or taking an advantage of his opponent’s lack .of information touching the technical details of the criminal law. There is much of respectable authority holding that while great allowance will be made by the courts for that zeal which is the natural growth from a hard-fought legal contest, yet if such zeal shall so outrun discretion as to trench upon unfair, oppressive and unjust methods, the court may on this ground alone reverse. [12 Cyc. 571, and cases cited.]

III. As we have stated in setting out the facts in this case, the defendant was by the verdict of the jury' .acquitted of the larceny charged and found guilty of burglary in the second degree. The record shows that when sentence was pronounced defendant was sentenced to the penitentiary, not for the burglary of which he had been convicted, but for larceny, to which the record of the sentence and judgment before us says, he pleaded not guilty. The inextricable confusion of this record renders it almost impossible to tell what was done by the court and gives color to the view that careless clerks are costly luxuries. Fully a third of the cases which we are called upon to reverse are reversed on account of bald errors in making up the record, which might have been avoided by the exercise of even a small amount of care.

Clearly there is no judgment here. First, because it appears from the judgment before ns, as the record shows it, that defendant was sentenced to the penitentiary for two years for larceny, a crime of which he was found hot guilty, and, second, that this sentence was given him, not, because he had been tried by a jury and found guilty of burglary, but because he had pleaded not guilty to the crime of grand larceny, for which he was sentenced, but of which he was found not guilty. Under the authority of State v. Kile, 231 Mo. 59, as well as other eases decided by this court, it will become our duty, if no other error appears, to reverse this case and remand it back to the Vernon Circuit Court in order that the defendant may be properly sentenced. This will be so, even if no error meet for reversal and remanding for a new trial shall be found' by us.

IV. It is insisted, however, that the order found in the record, and which purports to show the impaneling and swearing of the trial jury, is not sufficient to show such impaneling and swearing of this jury, or to show that the jury was ever sworn at all to try the case. .A reference to this order, as we have set it out in the statement, will disclose that it nowhere shows that the trial jury was ever impaneled; nor does it show that the jury was sworn to try the case. The manner of impaneling, examining upon their voir dire, of challenging and swearing a jury to try a criminal cause, is well known to the profession in this State. Part of the procedure is statutory, but some of it rests in practice, coming down to us, we take it, from the common law. Our statute as to the impaneling of jurors and the manner of rendering their verdicts in criminal cases provides that the same procedure shall prevail as is prescribed by the procedure in civil cases. [Sec. 5229, R. S. 1909.] We find, however, a paucity of prescription in our statute touching all these things when we turn to the provisions prescribing the details of jury trials in civil cases. Onr statute as to criminal procedure seems largely to take it for granted that the trial jury will he sworn to try the case, for we find it saying: “The jury being impaneled and sioorn, the trial may proceed in the following order.” [Sec. 5231, R. S. 1909.] The oath at common law, which was required to be administered to- a trial jury of twelve, was somewhat formal (24 Cyc. 370; 12 Ency. Pl. & Prac. 523); from this formality we have drifted a long way, and have reached the very salutary view that if it appears clearly and not ambiguously that.the jury was sworn to try the ease, the use of the word “sworn,” of the words “duly sworn,” -or of the words “duly impaneled and sworn,” will be held to impart ex vi termini a regular and legal oath, even though the oath at common law or that prescribed by statute, where such is prescribed, has not been used. But on the other hand it has been uniformly held that where the transcript fails to show that the jury which tried the defendant-had been sworn, the verdict and sentence will be set aside. [Johnson v. State, 47 Ala. 9; Lacey v. State, 58 Ala. 385; Harper v. State, 25 Ark. 83; Chiles v. State, 45 Ark. 143; State v. Calvert, 32 La. Ann. 224; Baird v. State, 38 Tex. 599; McHenry v. State, 14 Tex, App. 209; State v. Mitchell, 199 Mo. 105; State v. McKinney, 221 Mo. 467; State v. Duncan, 237 Mo. 195.] “In criminal cases,” says 24 Cyc. 369, “it is absolutely essential to- the validity of the proceedings that the jury should be sworn and that this fact should affirmatively appear from the record.’’

In the case -of State v. Mitchell, supra, Gantt,, J., delivering the opinion of this court, touching the identical point in question, said:

“The sole error upon which a reversal is sought is that the record upon its face discloses that the jury which tried and convicted defendant was not sworn to' try the cause and a true verdict render according to the law and the evidence. . . . As it is everywhere held that the record proper in a criminal appeal must show that the jury was sworn to try the cause and this record' fails to do so, the judgment must be reversed and the cause remanded for a new trial. ’ ’

In the case of State v. McKinney, supra, Burgess, J., held, touching this point, even stronger language, as note the following:

“Among the first things required by the statute to be .done in the trial of a- criminal case before a jury is that the jury be impaneled and sworn. This same question underwent full consideration, and the authorities were extensively reviewed by Gantt, J., in the recent case of State v. Mitchell, 199 Mo. IOS-, in which case it is held that if the record proper in ai criminal case fails to show that the jury was sworn to try the cause, the judgment will be- reversed and the cause remanded. That case is decisive of the case at bar, and leaves nothing further to be said upon the subject. The judgment is reversed, and the cause remanded.”

It is true that the word “sworn” is used in this order as copied in the record by the clerk, but all lawyers know the facts to which we above advert as to the manner of impaneling a jury in a felony case, and that in selecting and impaneling such jury and prior to an examination of them upon their voir dire, they are sworn to answer questions. The record entry before us avers that they were sworn, but this swearing, by the language used in the record, occurred prior to the selecting of the jury. If we say that the word ‘ ‘ selection” as used by the clerk, is equivalent to impaneling and examining upon their voir dire, then they were not sworn ait all to try the cause. If we say that the clerk means that they were sworn after selection, then they were not impaneled, examined upon their voir dire, or an opportunity given for -challenging them either for ’cause or peremptorily; in other words, they were not impaneled, nor any words from which we might presume a proper selection of them shown by this- record. We simply say that this record does not show, even haltingly that the trial jury was sworn to try the case which resulted in the conviction of this defendant. We concede that it is difficult to tell what this record, taking it by and large, does actually mean; we have never seen one like it and may be pardoned therefore for being entirely at sea as to either the genus or species of it.

It results, therefore, for the error noted, that this case should be reversed and remanded for a new trial in accordance with these views.

Broim, P. J., and Walker, J., concur.


author: "WILLIAMS, C.

text:
    THE STATE v. JAMES R. MILES, Appellant.
    Division Two,
    December 9, 1913.
    1. APPEAL: Preserving Exceptions: Motion for Continuance Overruled. The trial court’s action in overruling appellant’s application for a continuance is not for review on appeal when there is no showing in the bill of exceptions that an exception was saved to the ruling.
    2. WITNESS’S REPUTATION: Collateral Issue: Discretion of Trial Court. Six witnesses testified for defendant that the general reputation of a State’s witness for truth and veracity was bad. For the State in rebuttal three witnesses testified that the general reputation of the witness in that regard was good. When, thereafter, defendant offered three additional witnesses to testify further concerning the general reputation of the witness, the trial court refused to admit their testimony. Held, not error. The general reputation of the witness was a collateral issue, and the trial court is allowed a rather wide discretion in limiting the number of witnesses that may testify on such issues.
    3. SELF-DEFENSE: Instructions: Reasonable Ground for Belief. In a prosecution for murder an instruction was, under the evidence of the case, rightly refused which in part declared that when a person has reasonable ground to apprehend that some one is about to do him great bodily harm, etc., “he may act upon appearances,” etc. An instruction given by the court fully covered the law of self-defense, and as to the above point told the jury that it was not necessary that the danger should have been actual, etc., but that the defendant must have believed and also had reasonable cause to believe that deceased was about to take his life or do him some great bodily harm; and that, in determining whether defendant had reasonable 9ause to so believe, they should take into consideration “all the facts and circumstances given in the case.”
    4. --: -: Continuing to Shoot: Evidence. Where there is no evidence tending to show that deceased was advancing toward defendant after the first shot was fired, defendant is not entitled to an 'instruction that if he “shot to prevent the deceased from killing him or doing him some great bodily harm then defendant had a right to shoot and keep shooting until such danger, or apparent danger, had passed.”
    5. HOMICIDE: Instructions: Presumption of Innocence: Point Already Covered. Defendant cannot complain of the refusal of an instruction as to the presumption of his innocence, when that matter was fully and fairly covered by an instruction given for the State.
    6. -: -: As to Bad Man or Good. In a prosecution , for murder where there is evidence that deceased was a bad man, it is not improper to instruct that “in law it is the same offense to kill a bad man as it is to kill a good man,” etc.
    Appeal from Christian Circuit Court. — Eon. John T. Moore, Judge.
    Affirmed.

      G. A. Watson, G. W. Thornberry, G. Purcl Bays and Robert Derryberry for appellant.
    It was an abuse of tbe court’s discretion in refusing defendant’s application for a continuance. Distilling Co. v. Yan Frank, 88' Mo. App. 50; State v. Tettation, 150 Mo. 354; State v. Hesterly, 182 Mo. 16; State y. Warden, 94 Mo. 648; State v. Anderson, 96 Mo. 250; State v. Maddox, 117 Mo. 667; State y. Tat-low, 136 Mo'. 682. As to tbe court’s discretion in limiting tbe number of witnesses, see S't. Louis M. & Ser. Co. y. Aubucbo'n, 199 Mo: 352.

      J ohm T. Barker, Attorney-General, and Thomas J. Higgs, Assistant Attorney-General, for the State.
    The trial court did not abuse its discretion in limiting the number of the character witnesses. Furthermore, witnesses had been introduced by the defendant as to the bad reputation of the State’s witness, Henry Lewallen, and in its rebuttal the State had put on witnesses as to his good reputation. The defendant now having put the matter in issue attempts to come back in his rebuttal and introduce three more witnesses as to the reputation of Lewallen. - This was not proper rebuttal testimony and the irregularity of the introduction of testimony was a matter for the trial court and within its discretion. State v. Bailey, 190 Mo. 329; State v. Dilts, 191 Mo. 673.
   "WILLIAMS, C.

Upon an information charging murder in the first degree, defendant was tried in the circuit court of Christian county, Missouri, resulting in his being convicted of murder in the second degree and his punishment being assessed at ten years in the penitentiary. The case originated in Taney county, Missouri; but was removed by change of venue to the circuit court of Christian county, Missouri. Defendant by proper steps appeals from the judgment of said circuit court.

The State’s evidence tends to prove the following facts: Defendant shot and killed one Enos Rush, at about five o’clock p. m., January 4, 1912, at Bran-son, Taney county, Missouri, where both the defendant and the deceased lived. The shooting occurred in the grocery store and meat market of M. L. Heflin. Up until about a week prior to the shooting, Rush, the deceased, had been working for said Heflin in the meat market; but had been drinking for about a week and had quit the employment. About an hour before the shooting, deceased went into Heflin’s store and again applied for liis old position and upon promising to cease his drinking was again employed, his work to begin on the following morning. Abont five p. m., defendant came to the door of Heflin’s grocery store and called to Rush, saying: “I want to speak to you.” Thereupon deceased went out of the store; and in about ten or fifteen minutes deceased and defendant came back into the store. Deceased went behind the counter on the south side of the store and up to a drawer, behind the counter, where envelopes, stationery and waybills were kept. He pulled out the drawer and closed it again and walked back; in the direction that he had entered, to an opening between the ends of the two counters. Deceased had his hands in his pockets and leaned back against the shelving on the side of the store. Defendant then spoke to deceased about some money, which he claimed the deceased owed him, and deceased replied that he would never pay it. At this point Mr. Heflin asked defendant to leave and not cause any trouble; and deceased raised one of his hands, motioning toward defendant, saying: “Go on off, we don’t want no trouble in here. I will never pay it.” Thereupon defendant drew his revolver and deceased said: “You can’t bluff me,” or “You can’t scare me. I am not afraid of you or afraid of your gun. You can’t bluff me.” Defendant said “I can’t, ha,” and thereupon shot the deceased three times, one shot entering the body a short, distance above the heart, another shot a short distance below the heart; and then the defendant, taking one step toward the door, shot a third time, this last shot striking the deceased in the arm. Deceased died in about fifteen minutes, as a result of the bullet wounds. Defendant was about five feet from the deceased at the time of shooting. Mr. Heflin and his wife and a Mr. Carey were eyewitnesses to the shooting. Mr. Heflin further testified that he was about two and one-half feet from deceased and about six feet from defendant, at the time of the shooting, and that deceased made no attempt to nse any weapon at the time he was shot and that deceased was unarmed at that time; that deceased wore an overcoat and had one hand in his overcoat pocket and was leaning hack against the shelving at the time he was shot; that a person in front of thei counter could not see the drawer which deceased had manipulated just before the shooting; that there was no gun in the drawer at the time. About two days before the shooting, Mr. 'Heflin had taken a revolver, which-was used about the meat market for the purpose of killing cattle, and hidden the same in a sack of nuts, about five feet from the place where deceased was. shot; that a few . days before the deceased had taken the revolver from the place where it was formerly kept, and was in the act of going across the street, to get some cartridges, when he was arrested for disturbing the peace; and, on the day of the shooting, deceased pleaded guilty, in the justice court, to the above charge and paid a fine, part of which fine Mr. Heflin had paid. Heflin testified that he hid the gun in the sack of nuts so that deceased could not get it and Heflin be called upon to help pay another fine. The pistol was found in the sack of nuts after the' shooting. Mrs. Heflin testified that after deceased opened the drawer and came back to the opening between the counters, deceased and defendant began quarreling about some money that one owed the other, and that the deceased, in a loud tone, said to the defendant: “ You get out of here, sir.” That thereupon defendant drew his pistol and deceased said: “I am not afraid of you; I am not afraid of your gun;” and thereupon defendant shot deceased and she became frightened and ran out the back door of the store, and did not see what occurred after the first shot. J. W. Bennett testified that he was in Heflin’s store about forty minutes- before the shooting,' and heard a conversation between the defendant and Andy Evers ole, in which Ever sole told defendant that deceased was going to have defendant “pulled for bootlegging whiskey” and that defendant started out the door and said: “I will whip that s— of a b— for that.” John Humphries, a grocery man, testified that about a week before the killing defendant told him he would “whip the s— of a b— when his hand got well,” because Rush had had him indicted for selling whiskesy: George Berry testified that about thirty minutes before the shooting defendant, with a pistol in his hand, was in a near-by barber shop and said that if Rush fooled with him he -would whip him when his hand got well, if not before. O. T. Thurman testified that, a short time before the killing, defendant came into the barber shop, took a pistol out of a drawer and put it in his belt and left the barber shop; that, later, he saw defendant call deceased out of Heflin’s store and saw deceased and defendant go out of the store and in a few minutes return to the store and a short time thereafter he heard a shot and turned and walked'up close to the store and saw defendant fire the last two shots. William Stark testified that defendant said, on the afternoon of the shooting, “I will whip him (Rush) before the sun goes down.” Henry Lewallen testified that about an hour before the shooting, defendant, in referring to the deceased, said he was “going to shoot that s— of a b — - so high before the sun goes down that he will never come down, and you see if I don’t.” E. S. Pelton testified that defendant, as he came out of Heflin’s store just after the shooting, said, “He can’t run no bluff on me.”

Defendant testified, in his own behalf, as follows :

“On the 4th day of January, 1912, about five-o’clock in the evening, or half past five, I started to go home for supper and I was going by Major Heflin’s after some butter and going by Mr. Patterson’s to pay some of what I owed and when I got down to Mr. Troutman’s store Mr. Rush was standing talking to somebody on the porch, and I says: ‘Mr. Rush, I want to see you when you get through,’ and stopped between the two buildings, and he says: ‘All right,’ and they talked a second or two and Mr. Rush came where I was, and this fellow walked down the street and I says: ‘How did you come out with the trial?’ and he says: ‘I plead guilty and it cost me twenty-seven dollars, and I says, ‘Mr. Rush, I owe Mr. Patterson a little bill and they are wanting their money and I would like for you to pay me,’ and he says: ‘Yes, come into Major Heflin’s and I will pay you,’ and we went down and went in and he went behind the counter, and I thought was pulling out the drawer to get the money, and he put this hand iipon the show case, and put this hand (indicating to right hand) on the drawer and pulled it out, and he put his hand this way in his pocket and turned round and says, ‘See that door,’ and I says, ‘Yes, sir,’ and he says, ‘Get out,’ and I says, ‘What do' you mean, you said you would pay me that $1.15 if I would come in here, now why don’t you?’ and he says: ‘I pay you nothing, you get out, ’ and he started to draw his gun and I says: ‘Don’t do that, Rush, don’t do that,’ and drew my gun, and when he saw my gun he says: ‘You can’t bluff me, you can’t scare me,’ and I says: ‘I know I can’t, but don’t pull your gun on me,’ and then he stepped a step or two and started to pull his gun and I fired twice and then I stepped east one step and fired once more and walked out.”

Defendant further testified that he at no time made any threats to kill deceased; that he knew the deceased had made an attempt to file complaint against him for selling whiskey; that he fired the first shots while holding the revolver down at his side and that he shot because he thought the deceased was going to kill him. Defendant testified that he had heard of deceased’s threats against him but paid no attention to them, and thought deceased was too good a friend to make an attempt to carry out the threats. Other testimony, in behalf of the defendant, was, in substance, as follows: Wash Carey testified that he was in Heflin’s store at the time of the shooting and, after the deceased had gone to the drawer and back to the opening between the two counters, defendant demanded an amount of money from the deceased; the deceased braced! himself up in front of the defendant and told defendant that he wasn’t afraid of him and that he didn’t have him bluffed; that he did not see the deceased making any motion with the hand that he had in his pocket but' saw the deceased motioning defendant out of the store with the other hand, and at about this time defendant drew his gun, and defendant said, “Don’t do that, don’t do that, Rush,” (Mr. Heflin and wife testified that they did not hear deceased make the statement), and immediately afterwards fired the first shot at the deceased. Witness did not see the other shots, on account of being occupied in helping Mrs. Heflin out of the store. Ben Carson testified that, about a week before the killing, he saw Rush in Heflin’s meat market and Rush said that he did not think defendant was a law-abiding citizen and he did not want that kind of a man to undertake to arrest him and that if he did undertake it, ‘ ‘ one or the other would get his lights put out;” and that deceased pulled a revolver out of a drawer behind the counter and said: “That is my old stand-by;” and made motions with his hands and arms and stated that Miles “Couldn’t face him with them things” and that “he was- a little bit handy with his fists.” Andy Eversole testified that, on the day of the killing, he had a talk with the deceased on Heflin’s porch, and, in discussing the fine which the deceased had just paid, witness said to deceased: “This will be a little hard on the whisky men’s business,” and deceased replied, “You are d— right, it is a starter.” At about that time defendant passed and deceased said: “We will get that s— of a b— before night.” About an hour before the shooting witness told defendant what deceased had said. Robert Maddox testified that, about an hour before the shooting occurred, he heard deceased say, concerning the defendant: “I am going to kill that s— of a b— before night;” fifteen minutes later witness told defendant what Rush had said. Elizabeth Schneller testified that, several days before the killing, she was in Branson and passed Rush and his wife on the street and heard Rush say: “I am going to kill every d— man in Branson; that d— s— of a b— of Jim Miles the first one; if I had got the cartridges I would have killed him this evening.” Six witnesses testified that the general reputation of witness Henry Lewallen for truth and veracity, in the community in which he lived, was bad; three witnesses testified that the reputation of the deceased for being overbearing, quarrelsome and dangerous was bad; one of said witnesses saying that deceased was all right when he was sober. Cecil Snapp, the son of the justice of the peace before whom deceased pleaded guilty for peace disturbance on the morning of the day of the killing, testified that he was in his father’s office when deceased was settling the disturbance case and that deceased was drunk that day and had a revolver or something that looked like a revolver in his hip pocket; that it might have been a whisky bottle, and that deceased threatened to kill the defendant and that witness communicated that fact to defendant and told him to be on his guard.

The State offered the following testimony in rebuttal: Mary Breeden testified that she saw the defendant and deceased come out of Heflin’s store about ten or fifteen minutes before the shooting occurred. Mrs. Rush, wife of deceased, testified that she had never heard her husband make any threats against the defendant and that they were friends, as far as she knew. She denied that she and deceased passed Mrs. Schneller in front of the post office, and denied that her husband made the threat mentioned by Mrs. Schneller. G-. B. Wilson, prosecuting attorney, testified that he was in the justice’s office when the deceased was settling up the disturbance case, on the day of the killing, and that Rush made no threats there against the defendant and that Rush was drinking some and was “in good fighting trim” when the witness left Branson, on the afternoon of the shooting. The State then introduced three witnesses testifying to the good reputation for truth and veracity of witness Henry Lewallen. The defendant then offered three other witnesses to testify to the bad reputation of the witness Henry Lewallen; but they were not permitted to testify, by the circuit court, on the ground that six witnesses had already been sworn and testified on that point in behalf of the defendant.

OPINION.

I; Appellant contends that the circuit court erred in overruling his application for a continuance. The motion for a continuance, together with a recital that the court overruled the same, is properly set forth in the bill of exceptions; but nowhere in the bill of exceptions does it appear that an exception was saved to the action of the court thereon. The point is therefore not properly raised for appellate review. [State v. Prather, 136 Mo. 20, and cases therein cited.]

II. Witness Lewallen testified for the State as to threats made by defendant upon the life of deceased. Defendant produced six witnesses who testified that the general reputation of the witness for truth and veracity was bad; three of said witnesses testified about his general reputation at Branson and three about his general reputation while he resided at Springfield. Later the State, in rebuttal,' used three witnesses who testified that the general reputation of Lewallen, in that regard, was good. The defendant, thereafter, offered three additional witnesses to testify further concerning the general reputation of said witness and the trial court refused to allow the three additional witnesses to testify, assigning as reason therefor that defendant had used six witnesses for that purpose. Appellant contends that this constituted error. The general reputation of the witness, Lewallen, was a collateral issue in the case. The trial court is, and should be, allowed a rather wide discretion in limiting the number of witnesses that may testify on such issues. [Railroad v. Aubuchon, 199 Mo. 352, l. c. 360; State v. Lamb, 141 Mo. 298.] It is not apparent that the trial court abused its discretion, in that regard, and the point is ruled against appellant.

III. Appellant next contends that the court erred *n refusing to give his instruction A, which in part declared that when a person has reasonable ground to apprehend that some one is about to do him great bodily harm, etc., “he may act upon appearances,” etc. Instruction 13, given by the court, fully covered the law of self-defense and, as to the above point, told the jury that it was not necessary that the danger should have been actual, etc., but that the defendant must have believed and also had reasonable cause to believe that said Rush was about to take Ms life or do Mm some great bodily harm; and that, in determining whether defendant had reasonable cause to so believe, they should take in consideration “all the facts and circumstances given in the case.” This sufficiently declared the law of self-defense, on that point, under the evidence of the case.

Appellant’s refused instruction D declared that if “defendant shot to prevent the deceased from killing him or doing him some great bodily harm then defendant had a right to shoot and keep shoQting until such danger, or apparent danger, had passed, or ceased.” Appellant insists that deceased was on his feet and advancing toward defendant when the last shot was fired, and that this instruction should have been given. A careful examination of the evidence, however, fails to disclose any evidence tending to show that deceased was advancing toward defendant, after the first shot and before the last shot was fired, and there was, therefore, no evidence upon which to base such an instruction.

Appellant’s refused instruction B declared the law with reference to the presumption of defendant’s innocence; but that matter was fully and fairly covered by instruction 3, given on behalf of the State.

Appellant next contends that instruction 6, given by the court,- was erroneous. Said instruction is as follows:

“The jury are instructed that in law it is the same offense to kill a bad man as it is to kill a good man, and although the jury may believe from the evidence that deceased, when intoxicated, was a bad or quarrelsome man, this fact alone will not justify, or excuse the defendant for the killing of the deceased.”

While it was not necessary that the above instruction should have been given, yet it contains a correct declaration of law and, under the evidence in the case, was not improper. The identical instruction was approved by this court in State v. Hardy, 95 Mo. 455, l. c. 457.

"We have carefully examined the entire record of the ease. The evidence was amply sufficient to support and justify the verdict of the jury; the instructions fully and fairly declared the law applicable to. the facts in the case, and it appears that the defendant has bad the privilege of a fair and impartial trial.

The judgment is affirmed.

Roy, C., concurs.

PER CURIAM. — Tbe above opinion of "Williams, C., is adopted as tbe opinion of tbe court.

All tbe judges- concur.


author: ROY, C.

text:
    THE STATE v. FREDERICK LEIBTIG, Appellant.
    Division Two,
    December 9, 1913.
    APPEAL: Felony Case: To be Perfected in Twelve Months. On the failure of the appellant in a felony ease to perfect his appeal within twelve months from the time it was granted, the appeal shall on motion of the Attorney-General be dismissed unless the appellant shall show to the satisfaction of the court, good cause for not so perfecting the appeal. [See. 5313, R. S. 1909.]
    Appeal from St. Louis County Circuit Court . — Hon.. G. A. Wurdeman, Judge.
    Appeal dismissed.

      B. L. Matthews and F. W. Brooks for appellant.

      John T. Barker, Attorney-General, and Thomas J., Higgs, Assistant Attorney-General, for tbe State.
   ROY, C.

The defendant was on March 16, 1912, convicted of a felonious assault and sen-tenced to two years in the penitentiary, and, ^ , ; „ . on the same day, appealed, lie was given leave to file a bill of exceptions on or before August 31,1912, on which day the bill of exceptions was filed. The transcript of the record was' filed in this court March 25, 1913, more than a year after the appeal was taken.

Section 5313, Revised Statutes 1909, provides that on the failure of the appellant in a felony case to perfect his appeal within twelve months' from the time the appeal was granted, the appeal shall on motion of the Attorney-General be dismissed unless the defendant shall show to the satisfaction of the court good causefor not perfecting his appeal.

The Attorney-General has filed a motion to dismiss the appeal on account of the delay, and the appellant has made no attempt to explain or excuse the deilay.

In accordance with our duty, we dismiss the appeal.

Williams, C., concurs.

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

All the judges concur.


author: WILLIAMS, C.

text:
    THE STATE v. MARION SONNER, Appellant.
    Division Two,
    December 9, 1913.
    1. FELONY OF ABORTION: Manslaughter: Sec. 4458, R. S. 1909. A defendant prosecuted under an information charging manslaughter in the second degree as defined by Sec. 4458, R. S. 1909, cannot be convicted of “the felony of abortion.”
    2. MANSLAUGHTER: Evidence: Death of Quick Child: Sec. 4458, R. S. 1909. In order to sustain a conviction under an information charging manslaughter in the second degree (as defined by Sec. 4458, R. S. 1909), by causing a woman to take certain drugs and medicines which resulted in the death of a quick child, the proof must show that the death of the quick child was so caused.
    3. -: -: -: Drugs: Negativing Exceptions. In a prosecution under an information charging manslaughter in the second degree (as defined by Sec. 4458, R. S. 1909), by causing a woman to take certain drugs and medicines which resulted in the death of a quick child, the burden is upon the State to show that the use of the drugs and medicines was not necessary to preserve the life of the woman or of the child.
    Appeal from Lincoln Circuit Court. — Eon. James D. Barnett, Judge.
    Reversed and remanded.

      William A. Dudley for appellant.

      John T. Barher', Attorney-General, and Ernest A. Oreen, Assistant Attorney-General, for the State.
   WILLIAMS, C.

The information in this case originally consisted of four counts hut before proceeding to trial the prosecuting attorney dismissed the first, third and fourth counts and defendant was tried upon the second count in the information. That count charges defendant with manslaughter in the second degree under section 4458, Revised Statutes 1909. The information charges, in substance, that the defendant, intending to produce a miscarriage or abortion, caused to be taken by one Emma Russell, a married woman, pregnant with a quick child, certain drugs and medicines; it being alleged that the same was not necessary to preserve the life of said Emma Russell, or said quick child, and that same had not been advised bv a duly licensed physician to he necessary for such purpose and that same produced the miscarriage and abortion of said’Emma Russell, resulting in the death of said quick child. Trial was had in the circuit court of Lincoln county, Missouri, in the March term, 1910, resulting in a verdict by the jury, as* follows:

“We, the jury, find the. defendant guilty of the felony of abortion and we assess his punishment at one year in the county jail and to pay a fine of one thousand dollars. Josiah Whiteside, Foreman.”

Motions for new trial and in arrest of judgment were duly filed and overruled and sentence duly entered upon the verdict. The appeal was erroneously allowed to the St. Louis Court of Appeals and said Court of Appeals properly certified the case here. The evidence tends to substantiate the following facts: The alleged crime occurred in July, 1909, at the town of Hawk Point, in Lincoln county, Missouri. Defendant was engaged in operating a meat market and also a livery stable at said place. Mrs. Emma Russell, a married woman, also resided in said town, and up to February 1, 1909', she and her husband, William Russell, conducted a boarding house.. On February 1,1909, Mrs. Russell and her husband separated and never lived together again as husband and wife, but Mrs. Russell continued to live in the town of Hawk Point. Viola Gordon, the sixteen year old daughter of Mrs. Russell by her first husband, testified that from February 1, 1909, until after the occurrence of the alleged abortion, the defendant wa,s a frequent caller at Mrs. Russell’s home, calling there almost every evening about eight o’clock and remaining, generally, until eleven o’clock and sometimes until two or three o'clock in the morning and on a few occasions all night. That upon 'these calls defendant would kiss Mrs. Russell and she would sit upon his lap and they would act as lovers. That she had seen them in bed together two or three different times and on one occasion when they were undressed. About the -middle of June Mrs. Russell Regan complaining of being unwell and after July 1st grew worse until slie miscarried on July 23, 1909. Between four and eight days prior to the miscarriage, defendant gave- Mrs. Russell twenty-five cents worth of calomel tablets and told her to take three tablets every hour for two days and two nights. Mrs. Russell took two tablets each hour during the first day, and then missed taking the same for two days and on the fourth day continued taking the calomel tablets until bed-time. That defendant made visits to the house, during the time that Mrs. Russell was taking the calomel, and was there every evening just preceding the miscarriage. On the fourth day, Mrs. Russell became sick at her stomach and vomited, and became so sick that she went to bed. On the following Saturday (the evidence does not show how much time- elapsed between the time when she last took calomel and when she sent for the doctor), Mrs. Russell sent the witness to call Dr. Diggs to attend her. Dr. Digg's came and remained two hours attending Mrs. Russell through the miscarriage. The next morning, before daylight, witness buried the fetus in the woodshed and says that the fetus was a male child. The next night defendant brought Mrs. Russell a breast pump. Witness also testified that defendant gave Mrs. Russell six dollars with which to pay the doctor’s bill. On the advice of Mrs. Russell’s father and mother, the witness left home in November, 1909, and had not seen her mother since. Dr. Diggs 'testified that when he arrived at Mrs. Russell’s home he found her in the act of aborting and he proceeded to deliver her of a child; that in his opinion the fetus was about five months old 'and that it was what is known as a quick child; that during the operation Mrs. Russell told the doctor that it was 'a “legitimate” child; that when he arrived the child was dead and upon delivering the same found that its head had been previously severed from its body and that the child had not been dead very long; that, in his opinion, it would have taken a scientific manipulation to have severed the head from the body of the fetus, in the position which the fetus occupied in the .womb (tire feet projecting foremost), and that the head could not have been severed by pulling upon the feet of the unborn child. The doctor stated that he did not know what was the cause of the abortion and named several things that might have caused it, and stated that while calomel would not, necessarily, cause an abortion, yet. it might produce such a result, if taken in excessive amounts. The doctor further testified that on July 19, 1900, Mrs. Russell called at his office and stated that, she was troubled with discharge of the womb and the doctor refused to prescribe for her unless she would allow him to make an examination as to her ailment. Five other physicians testified, in effect, that while the taking of calomel would not necessarily produce an abortion, yet it would be dangerous for a pregnant woman to take an excessive amount of the same and that an excessive amount might in some instances produce an abortion. A number of' other witnesses testified to seeing defendant at the home of Mrs. Russell, on different occasions, both in the daytime and at night, and that defendant boarded at Mrs. Russell’s a-short time. Dr. Shepard testified, on behalf of defendant, that on April 23,1900, he treated Mrs. Russell and prescribed a drug to stop the hemorrhage of the womb, with which she was then suffering. Allie Monroe testified that he was at the preliminary hearing when Viola Gordon testified and that he did not hear her testify to many things that she testified to at this trial. John Ernest testified that a short time after the preliminary examination, Mrs. Russell’s father, the prosecuting witness in this case, said that “he had worked mighty hard to get to catch him (Sonner) and that he thought he had caught him where he could get him that they had the evidence all fixed.” William Weeks testified that lie was in the employ of defendant during tlie month of July, 1909, and that from the twentieth to the twenty-fifth of July defendant remained at his home, taking care of his wife, who was then sick: Defendant’s wife testified that defendant spent most of his evenings at home and was" at home the entire evenings of July 22, 23, and 24, 1909. Defendant did not take the stand.

OPINION.

1. The information charges defendant with manslaughter in the second degree under section 4458, Revised Statutes 1909. The court instructed orL manslaughter in the second degree and also, by its instruction number two, instructed as to the ‘ ‘ felony of abortion, ’ ’ and the jury found the defendant guilty of the “felony of abortion.” The giving of instruction number two constituted reversible error. In the recent case of State v. Dargatz, 244 Mo. 218, this court fully considered the identical point here involved and speaking through Brown, P. J., announced the following conclusion:

“After a careful consideration of section 4458', Revised Statutes 1909, we are of the opinion that the crime of the felony of abortion is not included within the charge of manslaughter in the second degree, as defined by that section. The statute expressly recites that where the death of the female (or quick child) does not result from the unlawful acts of defendant he may be convicted of the felony of abortion. In this case the charge is that Mrs. Hawkins died as the result defendant’s criminal operation, and he should therefore have been convicted of the crime of manslaughter in the second degree or acquitted. . . . The two offenses denounced by said section 4458 are so inconsistent with each other that they.cannot both be charged in the same indictment.”

II. Appellant contends that the evidence is insufficient to sustain a conviction. -While it is impossible to foresee what the evidence might be Up0n anoth.er trial of this case, yet, since the case must be remanded, it is perhaps advisable that we make some observations concerning’ the sufficiency, or rather the insufficiency, of the present evidence to sustain a conviction of manslaughter in the second degree as defined by said section 4458.

It will be noted that under the present information it becomes necessary to prove that the death of the quick child was -occasioned by the use of some drug. The present evidence fails to show that the death of the quick child was so caused. On the other hand the evidence tends to show that the severing of the head of the fetus, prior to its delivery, by the use of some instrument, by some unknown person, was perhaps the probable cause of its death.

The burden wa,s also upon the State to- prove that the use of the drug was not necessary to preserve the life of Mrs. Russell or that of the unborn child. [State v. Meek, 70 Mo. 355; State v. Schuerman, 70 Mo. App. 518; State v. Aiken, 109 Iowa, 643; State v. Clements, 15 Oregon, 237; Moody v. State, 17 Ohio State, 110.] It is true that in the cases of State v. Castro, 231 Mo. 398, and State v. Dargatz, 244 Mo. 218, it was held that a showing upon the part of the State to the effect that the pregnant woman was in a healthy condition just prior to- the alleged criminal act, would be sufficient prima-facie proof that the taking of the drug was not necessary to preserve the life, of the woman or that of the quick child. However, in the present case, there was no such showing, but, on the other hand, the evidence tends to show that Mrs. Russell had been unwell for the period of- a month next preceding the alleged occurrence. The evidence therefore fails- to show such facts or circumstances from which the jury could infer or find that the taking >of the drug was not necessary for the purpose above mentioned.

If, therefore, the evidence produced upon another trial upon the same information should fail to supply the above required additional proof, the trial court should direct an acquittal.

The judgment is reversed and the cause remanded.

Boy, C., concurs.

PER CURIAM. — The foregoing opinion of Wil- ' liams, 0., is adopted as the. opinion of the court.

All the judges concur.