text:
    THE STATE v. ROBERT W. DAVIS, Appellant.
    Division Two,
    March 15, 1910.
    1. INSTRUCTION: Confession: Things Said Against and For Seif. It is not error to refuse to instruct the jury that “all verbal admissions and written confessions made by defendant, admitting the -crime charged against him, must be taken together as a whole, as well that part which makes for the accused as that part which makes against him; and if the part which is in favor of defendant is not disproved and is not apparently improbable or untrue when considered with all the other evidence in the case, then such part favoring the defendant is entitled to as much consideration from the jury as any other part.” Such instruction does not declare the law. The law is that what the proof may show, if anything, the defendant has said against himself, is presumed to be true, because against himself; but anything the jury may believe from the evidence he said in his own behalf they are not obliged to believe, hut may treat the same as true or false, just as they believe it true or false, when considered with a view to all the other facts and circumstances in the case.
    2. MURDER IN FIRST DEGREE: Deliberation: Facts of Case. Deceased and defendant, the one seventeen and the. other twenty-two years of age, and about the same size, had been friends and no unfriendliness had ever existed between them. At defendant’s request, apparently altogether friendly, they started down into the city about seven o’clock on the evening of November 14th. According to defendant’s confession and testimony they got into a quarrel over the place to which they would go, and deceased with his fist struck defendant, who in return slapped him in the face, knocking him down, and thereupon deceased got up and took out his knife and started towards defendant, who “clinched with him,” succeeded in getting the knife from him, and with it cut him in the side, and then inflicted a fatal blow in the neck, and threw the knife away. Then he placed the body in some weeds, and started away, but returned, went to a near-by bridge, got a rock and crushed his skull, inflicting another mortal wound. Then he took his money, amounting to five dollars, and his watch, and with the money redeemed a coat which he had pawned, and later in the night pawned the watch in deceased’s name. Later in the night he returned to the place of the homicide, and carried the body some distance and threw it in a manhole. He testified he did not intend to kill deceased, and cut him in self-defense. In one of his confessions he stated deceased drew his knife before he knocked him down; in the other, that he drew the knife when he got up after he had knocked him down. Held, that neither the jury nor the court are required to accept this statement in its entirety; and there being testimony that the only knife deceased owned was found ■ in his inside trousers pocket after his body was removed from the manhole, and that at that time on his hands, laced up, were leather gloves which he wore when he started down town, the jury were authorized to find defendant deliberately inflicted a mortal wound, and in finding him guilty of murder in the first degree, and the court was justified in submitting an instruction for that degree of murder.
    3. -: -: Definition. Deliberation does not mean brooded over or reflected upon for a week or a day or an hour; but it means a conscious purpose to kill, formed in a cool state of blood and not under violent passion suddenly aroused by some real or supposed grievance. Where defendant, after deceased had been rendered helpless by the stabs with a knife he had given him, and was prostrate on the ground, bleeding with a fatal cut in the neck, and his body had been removed from the highway, walked away, but returned, looked for and found a rock, and with it crushed the skull of deceased, he deliberately inflicted this last fatal blow.
    4'. --: Motive: Absence. The absence of an apparent motive is not conclusive' of defendant’s innocence. Motives for crime are so numerous, so hidden, and often so utterly unreasonable that it is impracticable to require the State to make them manifest. There can be murder without motive, nor does it follow that there was no motive because the State was unable to show one, or that the only one shown seems inadequate. The criminal act and the connection of defendant with it having been established beyond any reasonable doubt, the act itself will allow the inference of motive, whether it is made to appear or not.
    Appeal from Jackson Criminal Court. — Ho». Ralph 8. Latshaw, Judge.
    Affirmed.

      R. W. Goldsby and James Peck for appellant.

      Elliott W. Major, Attorney-General, and John M. Atkinson, Assistant Attorney-Genera], for the State.
    (1) Instruction 1, requested by appellant was correctly refused. It does not correctly declare the law as to the legal effect of written confessions. Instruction 6, given by the court, is an exact copy of an approved instruction as set out in State v. Tobie, 141 Mo. 561. It is free from any just criticism, and this, court has long since “declined to enter upon its defense. ’ ’ State v. Darrah, 152 Mo. 541; State v. Wilson, 223 Mo. 173; State v. Carlisle, 57 Mo. 102; State v. Brown, 104 Mo. 365; State v. Wisdom, 119 Mo. 552; State v. Young, 119 Mo. 525; State v. Peck, 85 Mo. 192; State v. Curtis, 70 Mo. 594; State v. Talbot, 73 Mo. 347; State v. Walker, 98 Mo. 108; State v. Cushenberry, 157 Mo. 188; State v. Howell, 117 Mo. 307; State v. McKenzie, 144 Mo. 44. (2) The only question for consideration is whether the evidence war-' ranted the court in instructing on murder in the first degree. From the proof in this cause, the.jury must have found that appellant, after the controversy with deceased as contended by him, and after the cutting of deceased, with deliberation, went to the creek and obtained the rock offered in evidence and came back and crushed the head of deceased, thereby carrying out a deliberate purpose to kill. All of these facts were before the jury, and the jury were left, under the instructions of the court, either to find appellant guilty of murder in the first degree or in the second degree, or guilty of manslaughter in either the third or fourth degrees. We think the facts, in view of the different confessions made by appellant, and in view of the physical facts that deceased had on his gloves, and his knife was found in his pocket, and the further fact that appellant robbed deceased of the five dollhrs in money and his watch, after the murder, were sufficient to warrant the jury in finding that the murder was done with deliberation. The further facts that appellant hid the body of deceased, and also destroyed all bloody clothing worn by appellant at the time of the tragedy, are facts strongly indicating that the jury was warranted in finding appellant guilty of murder in the first degree. It is very probable that the mere cutting of deceased would not have killed him, at least for some time, and perhaps not then, as the testimony given by appellant shows that deceased was trying to get up on his feet at the time appellant struck him on the head with the rock and crushed his skull.
   GANTT, P. J.

On December 8,1908, an information duly verified was filed in the criminal court of Jackson county, charging the defendant with murder in the first degree of Harry H. Evans on November 14, 1908. The information was in due and approved form and it is therefore unnecessary to set it forth at length.

Afterwards on the 12th of December, 1908, the defendant, being in custody, was duly arraigned and entered his plea of not guilty, the court at the same time having assigned him counsel. The cause was then continued from time to time until the 28th of December, 1908, when it came on for trial before a jury and resulted in a verdict of guilty of murder in the first degree and assessing the punishment at death. A motion for new trial was duly filed, heard and overruled, and the defendant sentenced in accordance with the verdict. Prom that judgment he has appealed to this court. The defendant is not represented in this court by counsel. The facts disclosed by the record are substantially these:

Harry H. Evans, the deceased, was a boy just past seventeen years of age, at the date of his death, and lived with his father at number 2923 Mersington street, Kansas City. The father of the deceased was engaged in the stone-quarry business in Kansas City, and Harry drove a team for his father and made collections for him. On Saturday evening, November 14, 1908, at about seven o ’clock, the deceased, and a brother by the name of John, left their home and went to a number of stores in the neighborhood. At one of the stores John paid a small bill that he owed for tobacco. When the deceased left home that evening he was wearing a pair of overalls over his' dress trousers, and a heavy coat of corduroy or ducking, and a pair of heavy shoes. He and his brother met the defendant, Davis, at Twenty-seventh and Cleveland streets at 9:30 o’clock that evening. The boys informed the defendant that they were going down town to have their shoes mended, whereupon the defendant, who had a bucket of beer, invited them to go with him to his home and he would go with them after leaving the heer. Deceased accepted the invitation, but John, his brother, declined it. This was the last time the deceased was seen alive by any member of his family. The evidence tends to show that the defendant and the Evans family were on' friendly terms and that he often visited the Evans brothers. Defendant is a young man, about twenty-' three years of age at the time of the trial. The body of the deceased was found in a manhole, on the following Sunday morning about nine o’clock, at Twenty-ninth and Monroe streets, with his skull crushed and one of the main arteries of his neck severed by a knife. He had on his gloves which were strapped around his wrists. His pocket knife was found in the pocket of his under trousers. Several pools of blood were found, some three blocks away, some two and some one from where the body was found. Appellant was arrested on the day the body of the deceased was found, and thereafter made three written statements. The first statement was as follows:

First Statement.
“Metropolitan Police Department.
“Kansas City, Missouri, November 18, 1908.
“My name is Robert Davis. I live at 1919 Myrtle. I live with my mother, father and brother and sisters. I am twenty-two years old. The last work I done was for Mr. John Crow in his rock quarry at Twenty-eighth and Cleveland. Saturday night, November 14, him (Harry Evans) and his brother John was up on Twenty-seventh and Cleveland, and I came along and met them. John, he first said to me, he said; Your going to town? Yes, when I take this beer home, I said, well then, I said, rim down with me it won't take long, then John he complained of being tired and says I’ll wait here you go down with him, Harry. Harry he went on with me back to my house and waited there a few minutes till I changed clothes then we started talking about going down on Third and Broadway, we was going to meet John. Harry he did not want to go down on the Row but wanted to go to a chitilin supper upon Twenty-eighth and Jackson at Mrs. Colley’s and I wanted to go down there, he objected to going down there, and one word brought on another and so he j erked out his knife and I slapped him in the face I didn’t hit him with my fist for if I had I would have knocked him unconscious for I got strength you know. When I hit him I knocked him down he got up with the knife and tried to open it as he got up and I jumped back to let him open it and then I run in to him and clinched him and took the knife away from him then I cut at him from right to left then I jabbed back at him from left to right and cut him about the neck somewhere, I don’t know exactly where. I don’t remember of cutting him more than once, but I might have cut him the first time I swung at him. When I jahbed at him the second time and cut him he screamed and the people next door came out on the porch that is the white people in that little white house with green trimming on it, come out on their porch. When he screamed he fell down and I pulled him over there in. the weeds and then I walked down the road north a little ways and come back and got a rock and knocked him in the head. When I walked away after cutting him I throwed the knife in the creek, right after I hit him in the head with the rock I throwed' the rock over towards that box elder tree on the side of the branch. I then went north on Myrtle to Twenty-ninth and went angling across to Twenty-eighth and Cleveland and then north on Cleveland to Twenty-seventh, then I walked west on Twenty-seventh to Indiana avenue and took the Indiana avenue car north and came down to Eighteenth and Paseo I got off then and went to the Chicago Loan Office and got my overcoat which I had pawned there for two dollars. I paid him two dollars and fifty cents then I walked west on Eighteenth to Troost and got a Yine street or Minnesota car and rode to Fifth and Main and went to Costello’s saloon then I went to Third and Broadway then I went up and got on Indiana avenue car at Fifth and Deleware and rode to Twenty-seventh- and Indiana and transferred to Twenty-seventh car and rode to Jackson avenue the end of the line and then I went to Mrs. Colley’s, I stayed there until about 1:25 then I went home I went south on Jackson to Twenty-ninth west on Twenty-ninth to Myrtle and on down Myrtle home. I went home and pulled off my overcoat and came down and went to where Harry was and tried to hide him to keep any one from seeing him, that is, I carried him west across the pasture to' the manhole at Twenty-ninth and Monroe and threw him in there. I only stopped once on the wav and that was in the pasture qbout Mersington. After I dumped him in the manhole I went home and took off all of my clothes except my underclothes and laid down beside John and slept some. When I got home after dumping the body in the sewer I laid down and then got up and went to the toilet and then came back and laid down and went to sleep then when I woke up I looked out the window I thought it had snowed, then I laid down and pretty soon I looked ont again I thought I heard some one whistle, then I laid down again John asked me both times I looked out the window what I was looking for and I told! him what I told you. I didn’t sleep any more after that and pretty soon I got up and went down stairs and got some water and brought it up stairs and put it on the stove and then I started a fire in the stove. I put in some paper first then put in the drawers I wore Saturday night when I killed Harry Evans, then I put in a pair of ragged pants I had worn recently and then I put in four or five pieces of wood and the sox I wore when I killed Harry, then I dressed and came down stairs also when I built the fire I put in and burned an old undershirt that I used to wash the blood off my pants with and I put an old shirt in the fire. I didn’t wear none of them the night I killed Harry. I have got on the coat and pants I wore when I killed Harry and I have got on the same undershirt but the drawers' and sox I burned, when I built the fire I heated some water and washed and dressed and-came down stairs. I washed the blood off of my pants before I came down stairs. I did not get any blood on my coat, vest or shirt. When I went down stairs I did not remember much what I done for I didn’t stay there very long. When I come down stairs Bob .(Williams) was drawing a bucket of water. I went into the kitchen and he went on into my father’s room. My sister Anna said something about that blood out there. I don’t remember exactly what I said to her but I went out the side of the house and down Myrtle avenue to where there was some blood. I met the doctor there who was attending my father, he says ‘there’s a lot of blood here, I wonder how it got there,’ I said, ‘I don’t know, I guess somebody got into a fight,’ then I walked on. I walked north on Myrtle to Twenty-ninth and then walked west on Twenty-ninth to Cleveland, then I went south on Cleveland to Twenty-ninth, yon know Twenty-ninth jogs there. I went over to Indiana on Twenty-ninth caught the car and got off at Eighteenth and Grand, walked to Nineteenth and Grand, got my shoes shined there, then I walked hack up to Eighteenth, got on a car, then got off at Ninth and Minnesotal then I walked around and walked over to Tenth and Walker, and then walked over to 836 New Jersey, that’s where my cousin lives, it is my mother’s cousin, so I guess it my cousin too. I got to my cousin’s about 12 o’clock and stayed about fifteen minutes, then I walked to Ninth and Minnesota and then walked back to Fourth where the car started across the viaduct, then I taken an Indiana avenue car there and rode to Fifth and Delaware and got off and went to Costello’s and then went back to Fifth and Delaware and got a Vine street ear and. rode to Nineteenth and Vine and went into a drug store then went to 2312 Vine and then to 2444 Woodland, then I went down got on Vine street car and rode to Tremont and Haskell avenue K. C. K. and then from there I went back on Jackson avenue car and got off at Fifth and Minnesota and got on Indiana avenue car, went out to Nineteenth and Vine again and then I went to 1819 Vine, some people named Anderson then I went to church on Woodland between Eighteenth and Nineteenth, then I got on a car went out to Twenty-seventh and Cleveland and was arrested. When me and Harry Evans was talking about going down on the Row we was just leaving home and had just got down by that ash or pig nut tree when the fight started and it was right there where I cut him. The Harry I speak of in this statement is Harry Evans. This statement is the truth. I make it freely and voluntarily to John W. Hogan, Asst. Pros. Atty. because I am a Christian and want to tell the truth. No threats or promises of no sort were made to get me to make this statement.
Robert W. Davis.
“Walter Whitsett, Captain of Police.
“John Casey, Captain of Police.
“John W. Hogan, A. P'. A.
“George H. Mosley.”
The second statement was in these words:
Second Statement.
“Metropolitan Police Department.
“Kansas City, Mo., November 19,1908.
“My name is Robert W. Davis. I went out with you all this morning to the place where I killed Harry Evans last Saturday night and I went with you around from where I killed him to where I dumped him in the sewer. In my statement yesterday Mr. Hogan didn’t get it just exactly right for when I cut Harry Evans there by that pig nut tree where that first pool of blood was that place where that first picture was taken, he screamed and fell down and I drug him back a little ways off the path and then I went down to the bridge and got a rock, that wide flat rock what you found on the north side of the branch, it seems to me to be the rock I used, of course I can’t identify it positively, because it was dark and I could not see the rock, but it felt like the one you showed me, it was that kind of a rock; when I picked up that rock I went back to where Harry was lying and knocked him in the head with it and then left him and went down to the corner and when I got there I turned round and came back to where Harry was lying and drug him back to where that big pool of blood is. "When I drug him back and left him I noticed some string hanging out of his pocket and so I pulled them out and found they was on a sack made of leather what you buy in the store, and what you close by pulling on these strings, like a tobacco sack. I pulled this sack or money bag or what ever you call it out of his pocket and held it in my hand and then .1 started to go away and while I was walking over to the path I seen his watch lying on the ground where it fell out of his pocket I didn’t know where to hide it and so thought the safest thing for me to do was to hide it where it would 'do me the most good, and so I did by taking it to a pawn shop on the southwest corner of Sixth and Main streets. I pawned it there in Harry’s name and got one dollar on it. I pawned it there Saturday night after I got my overcoat out of pawn and come on down town. After I left Harry’s body after getting this money back and his watch I walked up Myrtle to Twenty-ninth and then went angling across Twenty-eight and Cleveland on the way over there I opened this money sack to see what was in it and found it had just the five dollar bill. I threw the money sack away and held the five dollar bill in my hand until I got to Twenty-seventh and Cleveland, there I found Russell Cantrell in Dad Allen’s lunch room and I knocked on the window and called Russell outside and handed him the bill to pay him fifteen cents I owed him. He got the money changed in Church’s grocery store and then I came on down town just as I told you in my statement yesterday except that I got off the car at Ninth and Main instead of Fifth and Main. I walked down from Fifth to Ninth on Main street and stopped at Sixth street in the pawnshop to pawn this watch and I pawned it in Harry’s name because I thought jthat was the safest thing to do. I knew Harry was. dead and could not .come back for his watch and that would throw suspicion away from me. This watch with the word ‘Obelisk’ on the dial and hole chipped out of the enamel there where the seven is, and has a good luck horse shoe with something said in it and the words ‘ compliments Ash Grove Lime and Portland Cement Company, Kansas City U. S. A. ’ On the back of it for a charm on the end of the leather fob is Harry’s watch and fob and is the one I pawned in his name Saturday night and is the one I .found near his body after I drug him over in the weeds, but it ain’t a gold watch like they say it is. It is only an old cheap brass watch, it is the watch that Mr. Hogan showed me. This statement is the truth. I made it freely and voluntarily to John W. Hogan, Asst. Pros. Atty. No threats or promises were made to get this statement from me.
“Robert W. Davis.
“Walter Whitsett, Captain of Police.
“Arthur Frederick Killick.
“John W. Hogan.”

The third statement is said to have been made in explanation of the gloves found on the hands of the deceased, but it is not set out in the transcript. The money, bank or pocketbook carried by the deceased at the time of his death, was found some three blocks from where his body was found and near one of the pools of blood. The written statement shows that he took from the body of the deceased the pocketbook and five dollars in money and with the money he redeemed from pawn his overcoat. He also took from the body of the deceased, a watch, and on that same night pawned a watch in the name of the deceased. The defendant testified in his own behalf as follows:

“ Q. Now, commencing, Robert, with the time you and Harry came to the house, we won’t go back to your meeting the two brothers down there and asking them to go down there, and John wouldn’t go, and you went down to yóur house and came out of your house with Harry; commence with the coming out of the house that night. You had some talk about a chitling supper and going down to Third and Broadway. State what took place from the time you left the house to the time of the killing? A. On leaving the house we went north on Myrtle from the house and near the bridge there is — there stands an ash tree.
“Q. What were you talking about as you left your father’s house? A. We were talking about the different places’ to go and so on.
“Q. "Were you proposing to go some place? A. I was going down on Third and Broadway.
“Q. Where did he want to go? A. He wanted to go down there, too; he wanted to go over there first and monkey around.
“Q. Where? A. Mrs. Colley’s residence, Twenty-seventh and something, Jackson.
“Q. Was it a chitling supper? A. Yes, sir.
“Q. Go ahead and tell what you said and what he said? A. Then he didn’t want to go down there. He had been down there once before and getting into some trouble. One word brought on another, and then we had an argument and all like that, and finally he struck at me and I struck him.
“Q. What did he strike you with? A. With his fist; then I slapped him, then he went down. He went to his hands and almost to the ground.
“Q. When you slapped him he partly fell and staggered? A. Yes, sir; then when he got up he opened his knife and then —
“Q. Talk to the jury. You have seen this knife. What was the size of the knife compared with his knife here? A. About that much larger than this.
“ Q. How much larger? A. About twice as large or more.
‘ ‘ Q. Do you know whether it had more than one blade or not? A. I think it was just one-bladed knife.
“Q. You think it was twice as large as that? A. Yes, sir.
“Q. After you slapped him and he stumbled or partly fell, then did he come towards you with a knife? A. Yes, sir.
“Q. Then what did you do? A. I clinched and took it away from him.
“Q. In what way did you clinch him, were you to the side of him? A. Eight in front of him and me to the south of him; then I ran to him and wrenched it out of his han.d.
“ Q. At the time that he opened the knife how far apart were yon? A. About eight feet apart. Just so that I could see it; it was dark.
“Q. At the time that you slapped him did you step back a little ? A. Yes, sir.
“Q. Then he opened his knife as he came up? A. Yes, sir.
“Q. He came towards you? A. Yes, sir.
“Q. Then you.jumped at him and clinched him? A. Yes, sir.
‘‘ Q. Can you tell how you clinched him? In what way you clinched him? A. I clinched him with my right arm around his left arm, then I caught his right hand with my left hand, then I twisted the knife out of his hand, then I taken the knife away from him.
“Q. Did you know under the • excitement of the moment whether he had on gloves or not? A. I can’t say whether he had on gloves or not.
“Q. You don’t know? A. No, sir.
“Q. Then you wrenched the knife out of his hands? A. Yes, sir.
“Q. Then what did you do when you got the knife? A. "When I got the knife he was going back from me something like he was going to get something else.
“Q. "While you were struggling to get the knife from him, state to the jury whether he was still trying to light with you? A. Yes, sir.
“Q. When you got the knife what did you do? A. Then he was making back to his pocket again, then «ame back at me all the time, then I cut at him from right to left, then at the time he fell.. He was standing north from me then. As I cut at him he turned like this, then he fell. He fell with his face to the bridge, which was north, then right there from the bridge I got a rock and hit him on the head with it.
' “Q. He was as far from the bridge as from here to the table there? A. Yes, sir.
“Q. How much do you weigh? A. I weighed when I came here about one hundred and sixty pounds or something like that.
“Q. How much would Harry have weighed, if you know? A. He would weigh as much as ,1 did, and he was as tall as I am.
“Q. Had you ever had any fight with him? A. No, sir.
“Q. Were you friends? A. Yes, sir.
“Q. Did you want to kill him? A. No, sir.
“Q. Did you try to kill him? A. No, sir, that is, I didn’t intend to kill him.
“Q. Did you think about killing him at the time at all? A. No, sir.
“Q. What were you frying to do ? A. Trying to defend myself.
• “Q. Could you in the darkness — was the moon shining? A. No, sir.
“Q. Could you in the condition of darkness that was there at the time, coxild you see the cutting, did you know the effect when you were striking right and left that way; could you see the effect of striking that way? A. Could I feel it?
“Q. Could you tell where you struck him? A. No, sir, only the time the first time that I struck at him from right to left; I didn’t when I struck from left to right and stuck him.
“Q. Did you know to' what extent that you hurt him? A. No, sir.
“Q. When he fell did he stagger to rise again? A. Yes, sir.
■ “Q. Was it then that you got the rock to hit him? A. Yes, sir. I got the rock and struck him. .
“Q‘. Robert, look at the jury and you tell them truthfully whether or not you did intend to kill that Noy at the time that you cut him? A. No, sir, I didn’t intend to kill him; I never thought of such a thing; I wouldn’t have done the same thing over for my right arm.
“Q. Did you like the boy. A. Yes, sir. We were always good friends; I never had a fight with him or a quarrel before.
“Q. Did you know any thing about him having any money, one dime or ten dollars in his pocket when ■you cut him. A. No, sir.
“Q. You had no thought of that? A. No, sir, I never thought of that.
“Q. You have heard this confession of yours read? A. Yes, sir.
“Q. When you went back you hid the body?. A. Yes, sir.
“Q. You thought that you had done wrong? A. Yes, sir.
“Q. Was that written statement or confession telling the truth about that? A. I don’t think it is just exactly the truth; it is the truth in a way. Right there inside of the string hanging out, if I did say it, what I meant my hand caught on the string when I was handling the body. After he fell there I grabbed the body about middleways, then this string was hanging out I suppose from him pulling his knife out and it caught, and it jerked out, my thumb caught the string.
“Q. I believe it is best for to tell the truth. Had you thought of money up to the time that your thumb caught on that string? A. No, sir; I never thought of money before.
“Q. On pulling it out and the money being there, you thought it best to take it? A. Yes, sir.
“Q. Did you find watch as you stated it in your statement? A. Yes, sir.
“Q. You didn’t see the watch when it fell out, at the time that it fell out? A. Yes, sir.
“ Q. "When you went back to get the body you found the body there? A. After I had taken the body over there a little ways.
“Q. Were you looking for the watch? A. No, sir;
“Q. You just happened to see it? A. Yes, sir.
“Q. You were to take some beer to the house? A. Yes, sir.
“Q. In a jug? A. Yes, sir.
“Q. Did you ask both of the boys, Harry and John, to go down to the house with you? A. Yes, sir.
“Q. Then you were going out with them? A. Yes, sir.
“Q. You had no thought then of cutting this boy or getting him out alone to do him harm? A. Nó, sir.
“Q. John said he was tired, and Harry said he would go. A. Yes, sir.
“Q. At the time that you say you got into a quarrel or dispute one word brought on another? A. Yes, sir.
“Q. He struck at you and hit you? A. Yes, sir;
“Q. Do you know whether that was with his clinched fist or open hand? A. I think with his clinched fist, but he didn’t get to hit me as hard as he hit at me; I kind of ducked like that; he didn’t hit me hard. I rather think it was with his clinched fist.
“Q. If you hadn’t seen this boy open his knife, would you have fought him any more, you had slapped him with the open hand and staggered him? A. I intended to slap him and that was to be all of the fighting, as I thought that he would stop.
“Q. You had done all of this traveling as this written confession states, and you had burned up your clothes just as that states? You had been excited and. you afterwards realized the wrong that you had done? A. Yes, sir.
“Q. You were arrested finally? A. Yes, sir.
“Q. I want you to explain to the jury when you saw him open his knife and you jumped hack to give him time to see if he was going to open it, what did he do in the way of opening his knife? A. I can show you the way that he opened it. Give me a match.
“Q: Here? A. (Witness puts match in knife under blade.) He always carried his knife like that on the match. When he went to open it he would do it like this.
“Q. You had seen him carry a knife like this?. A. Yes, sir.
“ Q. When he made that motion, you knew he was opening his knife? A. Yes, sir.
“Q. Did you mean in that written statement you wanted him to open the knife and was just giving him a chance? A. I didn’t know whether he was going.to open it or not. I didn’t know whát he was going to do.
“Q. If when he opened that knife or done that there in the darkness if he hadn’t lunged towards you with the knife would you have fought him any more? A. No, sir. After I slapped him, I thought he would quit, then he opened his knife afterwards.”

I. The court instructed the jury on murder in the first degree, also on murder in the second degree,' and manslaughter in, the third and fourth degrees. As already stated the jury found the defendant guilty'of, murder in the first degree. In due time he filed his motion for a new trial. Two grounds only are assigned for a new trial, to-wit: first, that, the court erred in refusing an instruction offered by the defendant relating to the confession of the defendant,, and in the instruction which was given by the court relating thereto; second, because the verdict of the jury under the instructions of the court and the evidence in the cause was not warranted, and the verdict at most should have been only for murder in the second degree. The refused instruction number one requested by the defendant was in these words:

“The jury are instructed on behalf of defendant that the written admission or confession of the defendant, offered in evidence, and all verbal admissions' alleged to have been made by defendant admitting the crime charged against him must be taken together as a whole, as well that part which makes for the accused as that part which makes against him; and if the part of the statement which is in favor of the' defendant is not disproved, and is not apparently improbable or untrue when considered with all the other evidence in the case, then such part of the statement favoring the defendant is entitled to as much consideration from the jury as any other part of such statement. ”

And the instruction given by the court number six’ on this same subject was as follows:

“If verbal or written statements of the defendant have been proven in this case, you may take them into consideration, with all the other facts and circumstances proven. What the proof may show .you, if' anything, that the defendant had said against himself, is presumed to be true, because against himself; but any thing you may believe from the evidence the defendant said in his own behalf, you are not obliged to' believe, but you may treat the same as true or false, just as you believe it true or false, when considered with a view to all the other facts and circumstances in the case.”

Instruction number six given by the court of its own motion has received the approval of this court ever since the decision in State v. Green, 13 Mo. l. c. 392. It was approved in the exact language of this instruction in State v. Darrah, 152 Mo. l. c. 541, by the whole-court In Banc. The instruction number one requested by the defendant is inconsistent with that given by the court in instruction number six and there was no error in refusing the same.

II. This brings us to the real contention in the case, that the evidence did not warrant a finding of murder in the first degree by the jury.

The testimony fails to show an unfriendly feeling existing between the defendant and the deceased prior to the day of the homicide. On the contrary the father of the deceased testified that the defendant often visited his house and so far as he knew the defendant and the deceased were friends. Indeed the circumstances attending the meeting of the young men that evening and the agreement to accompany each other, into the city, all corroborated this view. Why the defendant, a young man five years the senior of this youth of seventeen years and blind in one eye, should have murdered his friend and robbed his person of his pocket book and money and his watch and then secreted the body in the sewer, is of course a question that propounds itself. Looking for a motive we find that the defendant took the pocket book and its contents from the body of the deceased and with the money thus obtained redeemed his overcoat from a pawnshop and pawned the watch for a dollar in the name of the deceased. It would seem almost incredible that a young man who was not shown to be of vicious character, would, for the paltry amount of money to be obtained from the deceased, murder a neighbor boy. These facts are established. Harry Evans was killed by the defendant. The stab in the neck would of itself have produced his death, as he would have bled to death in his helpless condition, but all doubt as to the wound inflicted by defendant with the large rock was removed when the physician, Dr. Williams, testified that the wound inflicted by some blunt instrument, which the defendant says was a stone, was necessarily mortal. While all the circumstantial evidence pointed to defendant as the murderer, his own testimony removed all doubt as t© his complicity in the homicide. He accounts for the killing in a most unsatisfactory manner.

John Evans, an older brother of deceased, inquired of defendant if he was going to town, i. e., down into the city, and defendant replied yes, when he had taken some beer home, and requested John and Harry to go with him, but John declined and Harry requested his brother to wait for him. Harry, the deceased, and defendant then went to defendant’s home and defend-, ant changed his clothes and they started, talking about going down on Third and Broadway. Deceased objected to going down to the Row and wanted to go to a supper at Mrs. Colley’s, and they got into a dispute and one word brought on another until deceased jerked out a knife, whereupon defendant says he slapped deceased in the face. He didn’t hit him with his fist, for if he had he would have knocked him unconscious, for defendant had strength, but the stroke knocked de ■ ceased down and he got up with his knife and tried to open it and then defendant ran in and took the knife away from him and then began to cut at deceased from right to left and cut him about the neck. When he stabbed him the second time deceased screamed, and fell down and some people came out on. their porch, whereupon defendant pulled Harry over into some weeds, and then walked off a little ways and came back and got a rock and knocked him in the head and then threw the knife into the creek and the rock over towards a tree near the creek. He then left and went down into the city and redeemed his overcoat with the money taken from Harry’s pocket, came home and then went and tried to hide Harry’s body, and threw it into the manhole where it was afterwards found. Neither the jury nor this court are bound to accept this story in its entirety. When Harry’s body was found, the only knife he owned was in his pantaloons pocket, under the overall suit, and.he had a pair of gloves buckled over his hands.

The jury evidently refused to credit the statement that Harry pulled his knife on defendant and thus provoked him to knock him down. Defendant says he threw the knife into the creek after he stabbed the deceased, but the knife of the deceased was still in his pocket and inaccessible to him, if there was an altercation, because it was under his overalls, and besides he had on heavy gloves on both hands, when his body was taken from the sewer. But the story of an altercation is, to the highest degree, improbable. Why should two friends fall out and fight with knives over a, mere disagreement as to where they preferred to go that night?

Deceased had promised his brother to return to Twenty-seventh and Cleveland streets. Having started with his brother to have the latter’s shoes mended, it is at least a most unsatisfactory explanation that, without any reference to his agreement to return to his brother, he was willing to fight defendant because the latter did not wish to go to an entirely different place, to-wit, the supper at Mrs. Colley’s.

Moreover, defendant made two ■ statements. One was that Harry drew his knife before he knocked him down; the other was that he drew his knife when he got up after he had knocked him. down. That .defendant intentionally stabbed deceased with a knife his confession leaves no doubt. He says he did it to defend himself, but that he intentionally stabbed him there is no doubt according to his own evidence, and lest the stabbing would not kill him after he had left him helpless, he went back and got the rock and crushed his skull, inflicting what the physician says was a necessarily mortal wound. That the jury were warranted in finding that this wound was deliberately inflicted, we think, cannot be questioned.

If the jury believed, as they have by their verdict said they did, that defendant knowingly and wilfully struck the deceased with a deadly weapon, to-wit, the large rock, and crushed his skull and thus killed him, they were hound to find he intended the natural consequences of that blow, to-wit, the death of deceased.

This court has time and again approved the definition deliberately given by the criminal court in this case, to-wit, that “it does not mean brooded over or reflected upon for a week or a day or an hour; but it means a conscious purpose to kill, formed in a cool state of blood and not under violent passion suddenly aroused by some real or supposed grievance.” After his victim had been rendered helpless by the stabs he had given him and was unable and incapable of following him or doing him any harm, and after he had walked away, he turned about and looked for and found a rock and returned to the helpless boy and proceeded to finish his gruesome work by crushing his brain. Certainly the jury were authorized by this evidence to say he deliberately killed him.

"What then is the only contention left defendant? It is that no sufficient or no motive was shown for this deliberate act. The fact of motive or the absence of motive is always an important inquiry in a case of this character, but the absence of an apparent motive is not conclusive of the innocence of the defendant. Experience has demonstrated that the motives for crime are so numerous, so hidden and often so utterly unreasonable that it is impracticable to require the State to make them manifest. It does not follow that there was no motive because the State was unable to show any or that the only one shown would seem inadequate, neither is it true that there can be no murder because there is no motive for it. [State v. Coleman, 20 So. Car. 441; People v. Ah Fung, 17 Cal. 377; Clifton v. State, 73 Ala. 473; State v. Pieston, 8 Texas App. 30; State v. Green, 38 Ark. 304; McLain v. Com., 99 Pa. St. 86; State v. David, 131 Mo. l. c. 397-8.]

The jury had before them the evidence that defendant robbed the deceased of his pocket book containing five dollars. While it would seem utterly improbable that a young man, a neighbor and on good terms, would murder a friend for five dollars, the stubborn fact remains he did steal and carry away the pocket book and used the money to redeem his own overcoat from the pawnshop and took and pawned the watch of the deceased. If he had killed his companion in self-defense or had struck him a deadly blow in a heat of passion, upon a lawful provocation, only, why commit the crime of robbery? If done in self-defense or passion upon provocation, why be at such extraordinary pains to secrete the body of his victim in the manhole of the sewer? Can these facts be reasonably reconciled with the defendant’s claim that he killed the deceased in self-defense, or that at most his offense was manslaughter? The criminal court fully instructed the jury on manslaughter in the third and fourth degree and self-defense, but the jury rejected these and found that the killing was deliberately done.

The case in the concrete is this: A youth only seventeen years old,, blind in one. eye, starts out at night with a neighbor, a young man twenty-two years old; his body is found next morning in a manhole in a sewer, with a stab in his throat, which, without proper medical attention, would have produced death, and in addition his skull was crushed evidently by some blunt instrument, on both hands were new gloves, buckled on, and a small pocket knife in the pocket of his pantaloons, under a pair of overalls; pools of blood are found in different places in the neighborhood. His pocket book which contained five dollars, had been taken, and his watch was missing’; when last seen he was in company of defendant, who had agreed to accompany him down into the business part of the city; when the defendant was arrested and called upon to explain what he knew of the homicide, if anything, he makes a statement that he had killed the deceased as the result of a quarrel as to where they should go that night; he confesses that he knocked the deceased down with his hand, and when the deceased got np he began to draw his knife; he permitted him to do this, and then rnshed in and took the knife from him and began to stab at him and struck him with the knife and deceased squealed; this apparently had attracted some people living near by; defendant then dragged deceased into some weeds to hide the body and then left him; after he had gone a short distance, he returned, procured a rock, and with it crushed the head of deceased; he then robbed him of his pocket hook and watch; he then left, went into the city, and with a five-dollar bill he found in the pocket hook, redeemed his (defendant’s) overcoat from the pawnshop and pawned the watch in the name of deceased. Having done this, he returned to the dead body and carried it to a manhole in a sewer and dropped it in; he' then went to his home, destroyed the clothing he wore at the time of the homicide; he stated that he could have knocked deceased senseless with his fist alone, as he was strong, yet he stabbed him and crushed his skull with a rock. The evidence abundantly establishes that both deceased and defendant were sober; that deceased had no knife except the one found in his pocket when his body was recovered from the manhole, and he could not have been killed with the knife in his pocket. It further appears that deceased often collected bills for his father, for whom he worked; that defendant was a frequent visitor at the home of deceased; whether defendant knew that deceased collected for his father and would likely have money on his person, was not shown. There is no suggestion of insanity on the part of defendant in the record. That deceased came to his death by violence at the hands of the defendant was fully established; that he intentionally killed deceased, the jury were fully authorized to find from th© evidence that defendant used a deadly weapon upon the deceased after he had time to fully form the design to kill him and at a time when deceased was incapable of offering him any lawful provocation for so doing.

The criminal act and the connection of defendant with it having been established beyond any reasonable doubt, the act itself will allow the inference of a motive, whether that motive is made to appear or not. Says Burrill on Circumstantial Evidence, page 297: “Where a man, in his senses, deliberately plunges a knife into the breast of another, or strikes with a weapon which he knows must kill, the law does not stop to inquire into the intent, but justly infers it from the act itself, which shows, upon its face, a will or design to take life. Much less does it attempt to go farther back in the inquiry by seeking for the motive which may have originally prompted the act, ’ ’ etc.

Gruesome as are the facts developed on this record, unnatural and unnecessary as this homicide was, we think the evidence fully justified the verdict of the jury. We find nothing in the testimony indicating that the jury were swayed by passion or prejudice. The instructions are' such as have often met the approval of this court and the judgment and sentence of the court must be and is affirmed, and accordingly the sentence which the court pronounced must be carried into effect.

Burgess and Fox, JJ., concur.


source: Caselaw Access Project

author: BURGESS, J.

license: Public Domain

text:
    THE STATE v. DAVID LEAHY, Appellant.
    Division Two,
    March 15, 1910.
    1. BILL OF EXCEPTIONS: Untimely Extension. Where the court gave appellant thirty days in which to file a hill of exceptions, and the last day of that time was Sunday, the court had no authority on the next day to make an order extending the time.
    2. -: -: Nunc Pro Tunc Order.' And the time allowed hy the order having expired, and there being no other legal extension on or before the last day given by that order, the court could not by a nunc pro tunc order further extend the time granted hy the second order which had also expired.
    Appeal from St. Louis City Circuit Court. — Ho». Daniel D. Fisher, Judge.
    Affirmed.

      Thos. J. J. Stanton for appellant.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    (1) On Friday, April 2,1909, defendant was granted an appeal to this court, and leave was given defendant of thirty days in which to prepare and file his bill of exceptions.' By computation of time, he would have the remaining twenty-eight days in April and two days in May in which to file his bill of exceptions. The second day of May falling on Sunday, which would, under the rule of computation, he excluded (R. S. 1899, sec. 4160), on Monday, the third day of May, hy order of court, the time for filing the hill was extended fifteen days. By computation, the time under this order would expire for filing the hill of exceptions on May 18, 1909. No further orders were made in the cause until the 4th of June, 1909, when the court made the nunc pro tunc order. Defendant was given until May 18, 1909, to file his hill of exceptions, and unless the time had been extended on or before May 18, 1909, neither the court, nor the judge, nor the parties, could, after that date, make any further extension-, and hence the bill of exceptions filed on the fourth day of June, seventeen days after the time allowed by the court had expired, was filed without authority of law, and cannot be considered by this court. State v. Seaton, 106 Mo. 198; State v. Britt, 117 Mo. 584; State v. Mosley, 116 Mo. 545; State v. Eaton, 191 Mo. 155; State v. Apperson, 115 Mo. 470; State v. Thompson, 149 Mo. 439. (2) The fact that the court made the order of June 4th as a nunc pro tunc order, is immaterial and can in no way affect the legal requirement that the bill of exceptions be filed within the time allowed by the court unless the order extending the time for filing the bill of exceptions was actually made on or before May 18. This order of June 4, reciting that it is a nuncpro tunc order, will not suffice, as there is no pretense that it is an entry made of something which was actually previously done, to have the effect of the former date. It simply attempts to supply omitted action by the court, judge or parties, in extending the time for filing the bill. A nunc pro tunc entry in practice is an entry made now of something which was actually previously done, to have effect as of the former date. Its office is not to supply omitted action by the court, but to supply an omission in the record of action really had, but omitted.through inadvertence or mistake. 12 Am. & Eng. Encv. Law, p. 80; Perkins v. Hayward, 132 Ind. 101. (3) There is no memorandum found among the records of the case required by law to be kept showing any action or orders made by the court, the judge, or the parties, which the clerk failed to record on or before the 18th day of May, hence there is nothing upon which the court could make an entry nunc pro tune, and the same is null and void and of no force or effect. 12 Am. and Eng. Ency. Law, 81. (4) The object of a judgment nunc pro tunc is not the render-, .ing of a new judgment and the ascertainment and determination of new rights, but is the placing in proper form on the record of the judgment previously rendered, to make it speak the-truth and show what the judicial action really was, not to correct judicial errors, such as to render a-judgment which the court ought to have rendered in the place of the one it did erroneously render, nor to supply non-action by the court. Dumas v. Hunter, 30 Ala. 188; Browder v. Faulkner, 82 Ala. 257. (5) The power to amend nunc pro tunc is not revisory in its nature, and is not intended to correct judicial errors. Such amendments ought never to be the means of modifying or enlarging the judgment or' the judgment record so that it shall express something which the court did not pronounce, even although the proposed amendment embraced matter which clearly ought to have been pronounced — however erroneous, the express judgment cannot be corrected at a subsequent term. 1 Freeman on Judgments, secs. 71, 72; Brown v. Barnes, 93 Ala. 58; Wilmerding v. Banking Co., 28 So. 640 ; Secou v. Leroux, 1 N. M. 391. (6) The entry of a judgment nunc pro tunc presupposes the actual rendition of a 'judgment at the prior date stated in such entry. Burnes v. Skeleton, 29 Tex. Civ. App. 454; Young v. Young, 165 Mo. App. 624; Dawson v. Waleheim, 89 Mo. App. 245; Witten v. Robinson, 31 Mo. App. 525; Ross v. Ross, 83 Mo. 100; Allen v. Sales, 56 Mo. 28. (7) Before a nunc pro tunc entry can be made, something in the record, the judge’s docket, the clerk’s minutes- or papers on file must show that the record in fact is correct. Atkinson v. Railroad, 81 Mo. 50; Belkin v. Rhodes, 76 Mo. 643; 1 Black on Judgments (2 Ed.),' sec. 135. (8) A nunc pro tunc entry is to make the record speak the truth. In this cause there is no pretense that the judge, the court, or the parties by agreement in writing, made an order extending the time, or did anything by memoranda or otherwise regarding the extension, or that the parties or their attorneys agreed to the extension or made any memoranda regarding same: Therefore, there was nothing before the court upon which to base and enter a nunc pro tunc order of record extending the time for filing the bill, and the same is wholly, and absolutely void, and there is nothing before the court but the record proper. Our statute provides when a bill of exceptions shall be filed. R. S. 1899, secs. 728 and 2640.
   BURGESS, J.

Upon an information filed by the assistant circuit attorney of the city of St. Louis on the 2nd day of December, 1908, the defendant, in the circuit court of said city, was convicted of assault with intent to kill, without.malice, and his punishment assessed at two years in the penitentiary. Timely motions for new trial and in arrest of judgment filed by the defendant were overruled by the court, whereupon defendant appealed.

It appears from the record that on April 2, 1909, the defendant was granted an appeal to this court, and thirty days allowed him within which to prepare and file his bill of exceptions. The time allowed for this purpose expired on the 2nd day of May, 1909', which it appears was Sunday, and notwithstanding that the time allowed expired on said day, the court, on the following day, Monday, May 3, 1909', made an order further extending the time for filing the bill of exceptions fifteen days, which fifteen days, as will be found by computation, expired on the 18th day of May, 1909. The record does not show that any further order was made until the 4th day of June, 1909, when the court made the following order:

“It is this day ordered by the court, for good cause shown by the attorney for the defendant, that the following order be entered nunc pro tunc as of and for the 18th day of May, 1909, the said date to conform with the facts and proceedings in this cause, to-wit:
“It is this day ordered by the court that the time heretofore granted defendant to file his bill of exceptions herein on or before the 18th day of May, 1909, be again extended up to and including the 5th day of June, 1909, and that when so filed the same to have the same force and effect as if filed on the 18th day of May, 1909.”

By virtue of this order, the defendant filed his bill of exceptions on the 4th day of June, 1909. These orders of the court, of May 3d and June 4, 1909, were without legal sanction. The time allowed by the prior order of the court for the filing of defendant’s bill of exceptions had expired on May 2, 1909, and there being no further legal extension granted by the court on or before that day, it could not be done afterwards; hence, the bill of exceptions, filed on the fourth day of June, after the time previously allowed by the court had expired, was permitted to be filed without authority of law, and cannot now be considered by this court. [State v. Simmons, 124 Mo. 443; State v. Eaton, 191 Mo. 151; State v. Apperson, 115 Mo. 470; State v. Clark, 119 Mo. 426; State v. Stanley, 221 Mo. 547.]

We have nevertheless examined the testimony, and find that there is no merit in defendant’s contention that the court erred in admitting certain testimony and in excluding certain other testimony. The defendant had a fair trial, and the verdict of the jury was amply supported by the evidence. We have also, as in duty bound, examined the record proper, and have discovered no error therein. The judgment is affirmed.

All concur.


author: GANTT, P. J.

text:
    THE STATE v. W. T. ROLLINS, Appellant.
    Division Two,
    March 15, 1910.
    X. INFORMATION: Murder: All Lower Degrees. An information for murder in the first degree embraces every grade and every degree of criminal homicide, from the highest to the lowest; and where it charges murder of the first degree, the prose- . cuting attorney may elect to proceed for murder in the second degree only; and the court, in such case, after hearing the evidence, may instruct for manslaughter in the fourth degree due to the defendant’s culpable negligence as an officer.
    2. OFFICER: Right to Arrest. Any discussion of the right of an officer to make an arrest without a warrant, for a misdemeanor committed in his presence, and in regard to his right to employ force and to resort, when necessary, to extreme measures. to overcome resistance, is dehors the facts, where the offense was not committed in the officer’s presence, and he made no reasonable attempt to make an arrest, did not notify the deceased that he wished to arrest him-, and there was no resistance, and he testified he shot through the door to intimidate deceased.
    3. - — : -: Criminal Carelessness. In such case the fact that defendant was an officer and that he had been notified that deceased was making a disturbance at the boarding house, and that he went there for the purpose of arresting him, and all the facts preceding the subsequent shooting of deceased through the door of his room, may be developed as a basis for an instruction in his behalf on the question of his culpable negligence in killing deceased, but they do not require the court to instruct on behalf of the State that he had a right to arrest deceased and to use force, etc.
    4. PUNISHMENT: Assessed By Court. Where the jury found defendant guilty of manslaughter in the fourth degree, but failed to assess his punishment, it was competent for the court' to assess it at two years’ imprisonment, and sentence him accordingly.
    Appeal from D-unMiu Circuit Court. — Hon. J. L. Fort, J udge.
    Affirmed.

      W. S. C. Walker for appellant.
    For the State the court gave four instructions, none of which was based upon the relation or rights of an officer in arresting one charged with crime. The instruction which defines the offense under the theory of the State simply attempts to define culpable negligence, and instructed the jury to convict the deféndant if he killed the deceased under such circumstances as constituted culpable negligence. There was no instruction which gave the case to the jury upon the theory and fact that the defendant was an officer engaged in trying to make an arrest.

      Elliott W. Major, Attorney-General, and John M. Daivson, Assistant Attorney-General, for the State.
    The evidence of the State and the evidence for the defense coincide and present the sole question of the “culpable negligence” of the appellant to the jury. The evidence as a whole reveals the fact that the appellant did not intend to kill the deceased, and did not suspect that he had killed him, and the case went to the jury alone upon the “culpable negligence” of appellant.
   GANTT, P. J.

This prosecution was commenced by information in the circuit court of Dunklin county, April 21, 1908. The information charges murder in the first degree of J. A. Leftwich at said county on the 19th of October, 1907. Afterwards at the May term, 1908, the prosecuting attorney elected to proceed for murder in the second degree only, and thereupon the defendant was duly arraigned and pleaded not guilty. At the same term he was put upon his trial and convicted of manslaughter in the fourth degree, and sentenced to the penitentiary for two years. From that sentence he has appealed in due form.

The facts are not intricate, indeed there is little substantial conflict in the testimony for the State and that for the defendant. The evidence shows that on the 19th of October, 1907, the defendant was the marshal of the town or city of Cardwell, in Dunklin county, and that Mr. J. A. Leftwich, who was designated by all the witnesses as the old man, arrived at said city on an afternoon train. He was somewhat intoxicated, enough so as to talk loud and boisterous. He obtained lodging at the hotel of Mrs. Brewer. After supper that evening, he sat and talked with her and her daughter, Mrs. Williams, until about nine o’clock, and then retired to his room up stairs. Sometime after he had gone up stairs, Mrs. Brewer and her daughter heard a disturbance up there, and went up and found Mr. Leftwich holding Williams, the husband of Mrs. Williams, and swearing and cursing him. Mrs. Brewer was afraid he would hurt Williams and got between them and sent Williams down stairs and out of the way. After that Mrs. Brewer succeeded in quieting Leftwich and got him to lie down on the bed. He had taken off his coat and shoes and Mrs. Brewer stayed by the bed to keep' him quiet, but it appears that Mrs. Williams, the daughter, had become very much excited and she telephoned for the marshal, and being unable to reach him in that way she sent a Mr. Nichols, a boarder in the hotel, after the marshal. The testimony shows that Nichols found the defendant, the marshal, at the restaurant of John Warren; he called the defendant out and said to him: ‘ ‘ There was a man down at Mrs. Brewer’s, who had run Mr. Williams away from there and threatened to shoot him, and Mrs. Brewer wanted him (the defendant) to come down there and take charge of the man.” Defendant said he would be there in a minute; to which Nichols responded : ‘ Minute nothing, she wants you right now. ’ ’ In a few minutes, the defendant came out of the restaurant and started to the hotel with the witnesses by the names of Barger and Nichols. Before starting, however, defendant gave Barger his revolver and borrowed another revolver from a Mr. Pool. Before going directly to the Brewer hotel, the defendant left the other two men on the street and went to the home of Henry Osborn, a son-in-law of Mrs. Brewer’s, and waked him and said to him: “I have come over to get you to help take a man out of your mother-in-law’s house. He is raising thunder and has got a big gun on him. I do not know much about the house. I do not know how to get around in there.” Defendant then Waited until Osborn dressed and he and Osborn, Barger and Nichols all proceeded to the Brewer hotel. Upon arriving at the hotel, there was no unusual noise, but he went right on up the stairs, and according to his evidence there was no light in the hall, except that which came from an open door in the left hand room at the head of the stairs. The evidence varies somewhat as to the point at which he met Mrs. Brewer and Mrs. Williams. Mrs. Brewer says she passed him about the second step going down from the top, Mrs. Williams having gone in advance. The defendant says that when he started up the steps, he saw Mrs. Williams standing out in front of the door in the light which came from the lamp in the room in which the deceased, Leftwich, was, and she called to her mother and said, “Mama, come on, here is the marshal now,” and he went right on up. He said nothing to Mrs. Williams, because just about that time Mrs. Brewer was coming out of the room and he considered her the one to consult, and he thought he met her something like half way down the steps. The stairway consists of about eight or nine steps and he said to Mrs. Brewer, “Where is that man, and what do you want me to do with him!” and she said, “He is up there in that room; I want you to take him out of my house.” “I do not remember that I said all right, but that is what I meant, if I did not say it, and passed on,” Mrs. Brewer says that when the marshal came she was up stairs sitting by the side of the bed with Mr. Leftwich, the deceased. When the marshal came her daughter said to her, “Mama, the marshal has come,” and she turned to the deceased and said the marshal is coming, and she got up and started to the door which was open. If the deceased said anything she did not remember it. He was lying on the bed when she told him the marshal was coming. When she came out of the door, she did not remember closing it. When the door to the room is pushed back far it will catch to the ceiling. She remembered when she first went in she pushed the door back and it caught against the ceiling. She does not remember exactly where she met the defendant and the other two men, Barger and Osborn, but if it was not right at the landing it was on about the second step, or at least she halted on. the second step from the top. As she passed the defendant he had a pistol in his hand and Barger also had one in his hand. She had no recollection of saying anything to the defendant about what to do with Mr. Leftwich. The first words that she remembers saying was after the second shot was fired, when she asked, “Have you killed him?” Then she started down stairs. It all happened so quickly she could not tell what time passed between the first and second shots, but after the second shot she went down stairs rapidly and was in the hall below when the third shot was fired.' According to her recollection the defendant was nearly opposite the door to the room in which Leftwich was, nearly in front of it, when he fired the first shot. She did not see anything more. She says she heard the defendant say “Halt” before he shot and kicked the door after the first shot.

According to the defendant’s testimony, when he got to the top of the stairs he went in front of the door and stood in front .of it with the pistol in his hand. He says the door was not entirely open but about half open, but he saw Leftwich standing up and the old man started towards the door. He details what happened in this way: “I thought I would stop him and I throwed the gun up with both hands, and he got so near to the door that I told him to halt or stop and I seen he was not going to stop at any rate and I pulled the gun off immediately and fired and he never made any halt, he just come ahead and by that time he got to the door, well, that surprised me because he was very close to me when I shot. I had no intention of killing him then, of course I could have done it, but I did not want to any way. I thought he would stop, but as he slammed the door to he did not get it fastened it caught my pistol and I kicked the door with my foot until I got it open, when I kicked on it, he did not have sufficient hold on it to hold it to but -the door went open and come back.” By the opening of the door he got his pistol free and tried to push the door open, then he says: “I just stepped back behind the door, facing like, and fired a couple of shots through the lower part of the door and I thought they would intimidate him some more---a fellow does not know just exactly what he will do in a case like that.” Asked for what purpose he shot the two shots through the door, he answered: “I did not want to hit him; did not want to kill him; his mere action in coming towards me did not make me want to kill him. He did not want to do any thing more than shut the door.” Pie stated further that after .he fired those two shots he heard no further movement in the room and thereupon he went down stairs. There is no pretence anywhere in the evidence that Mr. Leftwich had any pistol in his hand when he approached the door at the time the defendant fired the first shot over his head, as he states, and the burden of the evidence tended to show conclusively that he had no pistol anywhere at that time in his room. Asked why he went down stairs after the shooting without attempting further to arrest Mr. Leftwich, or to see the effect of his shots, defendant said, “Because I thought he had got the door fastened on him, and I did not know hut what he had a pistol, and then I thought that may he he did not have his pistol when he came towards the door, and I thought he was getting it and the lamp had gone out in the meantime, and it was dark, and I knew if he tried to get it or did get it, I would have fifteen feet going right down those steps getting out of his way. ’ ’ When he reached the foot of the steps he called to Barger, who was still standing up in the hall and said,. ‘ ‘ Come down from there, you are liable to get filled full of bullets through that door,” and he came down. “I told him that fellow might shoot through the door and he would get hurt.” After the shooting was over and everything was quiet in the room, Mrs. Brewer tried! to get the defendant to go back and see what had happened, she thought Leftwich was killed, but defendant answered: “You need not be a bit of afraid of that. I did not shoot to hit him. I shot too low down in the door to hit anybody. I know I did not hit him the first shot because the door was standing open, and you need not be alarmed about the others, because I fired them in the lower part of the door.” He told her that Leftwich was quiet then and he did not think it was necessary to go back; that he was not likely to raise any more disturbance and have to be locked up, and that he did not want to arouse him any more. But Mrs. Brewer insisted so much that he told her he would go and get a search light, so he could see him and not make himself a mark for him. He attempted to get a search light, hut could not find one. After he came back from the search for a search light, he told her that he thought possibly the old man had gone to sleep now; that he understood he was a very good man when he was not drinking. He then left the hotel; he told her if she needed him to send for him or telephone for him.

Mrs. Brewer and her daughter, Mr. Williams and Mr. Elliott and Nichols sat up the remainder of the .night and did not go to bed. Mrs. Brewer testified that she tried to get the defendant, Osborn and Barger to go back, but they were all afraid and none of them would go up. The next morning Mrs. Williams went up and discovered the man was killed. Mrs. Brewer testified that she never made any complaint against Leftwich for the violation of any State ordinance. She had known him since the early spring. She testified Leftwich was not drinking to amount to anything when he went up to his room, they said he had whisky with him, but she never saw it. And Mrs. Williams corroborated her in that respect. Mrs. Williams testified that she left immediately after the first shot was fired and ran out into the yard; she heard the last two shots close together. None of the witnesses heard the defendant say anything to the deceased before he shot except, “Halt,” and the defendant does not claim to have said anything else.

Mrs. Williams testified that she went up to the sroom next morning, went around on the porch and looked in at the window and saw the deceased lying there in a pool of blood. His head was next the door and his feet out towards the window. His head looked like it might have been just opposite the bottom bullet hole in the door. She testified that the last bullet hole in the door was about a foot and a half from the floor and the other was about two and a half feet.

Elliott testified that he was in the room just across the hall from where the shooting took place. His regular room was the room Leftwich was occupying. When the defendant came up the stairs Leftwich was lying on the bed. When Mrs. Brewer told Leftwich the marshal was coming, he got up and came towards the dóor. He did nothing but come towards the door. He was just like any one walking towards the door. Rollins stopped when he got in front of the door. Rollins could have seen Leftwich from where he stood while Leftwich was coming towards the door. The only thing Rollins said was, “Halt.” Leftwich said nothing. Elliott did not see the door close because when the first shot was fired he turned. He did not hear the defendant say anything after he fired the first shot. This witness also looked through the window next morning and saw Leftwich lying on his back with his head towards the door, pretty nearly against it. This witness did not hear any conversation between Rollins and Mrs. Brewer. The reason he did not go into the room after Mrs. Brewer requested him to was because he was “kinda scared” of him. This witness and Mrs. Brewer and perhaps another witness testified that the. defendant appeared to have been drinking, somewhat intoxicated.

Dr. Mason testified that he went to the hotel on Sunday morning after the shooting and found Leftwich lying in the room with his feet towards the window in the north and his head very close to the door. The door was slightly ajar, not fastened; he pushed the door sufficiently to get in, and after getting in • drew the body away from the door sufficiently to al- ' low any one to get in. He found a wound in the head of the deceased; it was on the left side just back of a line drawn from the center of the head down to the ear, just back of what is called the posterior median ■ line. He did not use a probe, but his judgment was that the ball took a backward direction towards the báse of the brain. A man could not live very long with such a wound. His opinion was that the man had been : dead practically all night, six or eight hours. If the bullet that made the lower hole in the door struck the deceased he must have been in a crouching position with his head very close to the door. His opinion was that there would be some movement on the part of the deceased after receiving such a wound, that he shifted 'his position after he was shot. His head was not in a position to be bit by tbe lower bullet at tbe time be first saw tbe body.

Tbe coroner testified and described tbe wound as Dr. Mason bad, and stated that be made an examination with a probe. Tbe wound was in tbe left side of tbe bead near tbe median line over tbe ear, and tbe bullet bad penetrated tbe skull and gone through tbe brain and lodged somewhere near tbe base of tbe skull inside; it ranged a little backward. Death was practically instantaneous. From a wound of that kind deceased might have struggled some in dying as there is some reflex action in tbe muscles of all animals. This was practically all tbe evidence in tbe case.

The court submitted tbe case to tbe jury for manslaughter in tbe fourth degree by reason of culpable negligence and gave tbe usual instructions as to tbe competency of tbe defendant to testify in his own behalf; as to tbe right of tbe jury to judge of tbe credibility of tbe witnesses; tbe presumption of innocence and. reasonable doubt, and an instruction as to tbe right of tbe jury to weigh tbe -several statements of tbe defendant in tbe case.

On tbe -part of the defendant tbe court gave tbe following two instructions:

“2. Tbe court instructs tbe jury that tbe defendant, W. T. Rollins, on the 19th day of October, 1908, was tbe city marshal of tbe city of Cardwell, in Dunklin county, Missouri, and as such officer bad tbe right, and it was bis duty, to arrest any person violating tbe ordinances of such city, or tbe laws of tbe State. And if you find from tbe evidence, that tbe deceased, J. A. Leftwich, was boisterous and disturbing the peace of tbe household of Mrs. P. R. Brewer, and that defendant was called in to arrest him and remove him from said bouse, then defendant bad tbe right to make such arrest.
“3. Tbe court instructs tbe jury that if you believe from tbe evidence, that tbe wound that occasioned the death of J. A. Leftwich was the result of misadventure, and if you further find that the defendant discharged his said pistol at and towards the bottom of the door of the room in which J. A. Leftwich then was, and that defendant fired off his said pistol with the intention upon his part of intimidating the said J. A. Leftwich so that he would submit to lawful arrest at the hands of the defendant, and at' the time of such discharge of said pistol, the defendant had no reason to believe, and did not believe, that the shot so fired would strike or wound the said J. A. Leftwich, you cannot find the defendant guilty of manslaughter in the fourth degree unless you shall find and believe from the evidence that defendant was culpably negligent, that is, unless you find and believe from the evidence that defendant was guilty of 'a recklessness and carelessness incompatible with the proper regard for human life.”

The defendant also asked another instruction which the court refused, and which will be noted further on in the course of the opinion.

I. The information was in all respects sufficient. An indictment or information for murder in the first degree, under our statutes, embraces every grade and every degree of criminal homicide from the highest to the lowest. [State v. Moxley, 115 Mo. l. c. 651; State v. Scheiller, 130 Mo. 510; R. S. 1899, sec. 2369.] The prosecuting attorney in this case, elected to proceed for murder in the second degree only. This he had the right to do, and the court after hearing the evidence, instructed for manslaughter in the fourth degree caused by culpable negligence. It was entirely competent for the court to instruct the jury as to this lower degree, notwithstanding the information was for the highest degree. [State v. Frazier, 137 Mo. l. c. 340, 341; State v. Feeley, 194 Mo. l. c. 323, 324.]

This instruction, however, is assailed by the defendant for another and a different reason, namely, because it did not contain the law governing the rights of an officer making arrests. It will be noted, however, that in the statement of the ease, the court gave two instructions on behalf of the defendant in regard to his right as á marshal to arrest a person violating the ordinances of the city. And in the instruction numbered three given for the defendant, the jury were told that if the defendant fired his pistol with the intention, upon his part, to intimidate the said J. A. Leftwich, so that he would submit to lawful arrest at the hands of the defendant, and at the time of such discharge of said pistol defendant had no reason to believe and did not believe that the shots so fired would strike or wound the said Leftwich, the jury could not find him guilty of manslaughter in the fourth degree, unless they should find and believe from the evidence that the defendant was culpably negligent. That is, unless they should find and believe from the evidence that he was gnilty of a recklessness and carelessness incompatible with the proper regard for human life. This last clause of this instruction in substance simply reasserts all that the court submitted to the jury in its first instruction given of its own motion. While a great deal has been said in regard to the right of a peace officer, such as the marshal in this case was, to arrest without warrant for a misdemeanor committed in his presence and in regard to his right to employ force and to resort, when necessary, to extreme measures in overcoming resistance, it seems to us, after a careful reading of every word of this record, that that discussion is dehors the facts in this ease. The offense, if any, committed by Mr. Leftwich, certainly was not in the presence or view of the defendant, nor was there the slightest evidence of any resistance of the officer by the deceased. The defendant himself says in his own testimony that when the deceased approached the door of the room, which he was occupying, when the officer fired the first shot therein, ‘ ‘ He did not want to do anything more than shut the door.” There was then not the slightest ground for anticipating any resistance and the old 'man was entirely unarmed.

Moreover, the court did not predicate the guilt of the defendant in the most remote degree upon his want of right or power to make an arrest. On the contrary, the court instructed the jury that if the deceased was boisterous and disturbing the peace of the household of Mrs. Brewer, and the defendant was called in to arrest him and remove him from the house, he had a right to make such arrest. The only part which the right to make an arrest played in this case was that of tending to show the rightfulness of the defendant at the scene of the homicide and the absence of all malice towards the deceased. But when defendant invokes the doctrine of the right of arrest, he overlooks the fact of his failure to make an arrest or any reasonable effort to make an arrest. Section 2540, Revised Statutes 1899, provides: “An arrest is made by the actual restraint of the person of the defendant, or by his submission to the custody of the officer, under authority of a warrant or otherwise. The officer must inform the defendant by what authority he acts, and must also show the warrant if required.” Section 2541 provides: “If, after notice of the intention to arrest the defendant, he either flee or forcibly resist, the officer may use all necessary means to effect the arrest.” [State v. Green, 66 Mo. l. c. 649 et seq.]

All the testimony in this case tends to show that the officer, at no time indicated to the deceased that he had come to arrest him. On the contrary he says himself that the only thing that he said to the deceased was, “Halt,” and then fired over his head. He says the deceased was merely coming to shut the door.- He was making no effort to evade arrest or escape from, the officer. According to the defendant’s own evidence, he was not called upon to use Ms revolver to compel a submission to arrest, nor did he use it for any such purpose. He simply fired the revolver three times into the room where the unarmed man was without once notifying him that he wanted to arrest him, or required his submission to arrest. The court took the most favorable view of the case and submitted it to-the jury solely upon whether such conduct amounted to culpable negligence, and the jury, as abundantly justified by the testimony, found that it was. We think there is no error whatever in the instruction given by the court, and the defendant had the full benefit of the law authorizing him to make an arrest. Taking the most favorable view of the defendant’s own testimony, it is too plain for doubt that he did not shoot and kill the deceased in an effort to arrest him. He says himself that he did not fire the pistol shots for any ■such purpose, but merely to intimidate and frighten him, and had no intention whatever of killing him, so that, as already said, the right to kill, if necessary in making an arrest, has nothing to do with the case as presented on this record. The sole and only question is whether the court correctly submitted to the jury the question whether the defendant was guilty of negligence and carelessness in firing into the room of the deceased as he did, and showed a lack of regard for human life,' or as he put it in his own instruction, was guilty of a recklessness and carelessness incompatible with the proper regard for human life, and this certainly was the most favorable view that could have been taken of the conduct of the defendant on this occasion.

II. There is no merit in the criticism of the third instruction given by the court of its own motion on the credibility of the witnesses. And the same may be said to the complaint of the fifth instruction given by the court in regard to verbal statements made by the defendant. They were entirely proper.

III. Complaint is made of the refusal of the fourth instruction requested by the defendant. Without reproducing this instruction at length, as it would occupy a whole page of printed matter, it is sufficient to say that it was properly refused, because it submitted to the jury various hypotheses which were entirely unsupported by the testimony in the case, and was at best a comment upon the testimony which would have been improper for the court to have made. Moreover, the instructions given by the court of its own motion and on behalf of the defendant fully covered every proposition in the case which was necessary for the jury to consider in arriving at their verdict.

IY. The jury having failed to assess the punishment after having found the defendant guilty, it was entirely competent for the court to assess the same, as it did. [Sec. 2649, R. S. 1899; State v. Foster, 115 Mo. 448.]

After a careful review of the record we have been unable to find any reversible error therein, and the judgment of the circuit court must be and is affirmed.

Burgess and Fox, JJ., concur.