author: RAILEY, C. PER CURIAM: WILLIAMSON, J.

text:
    THE STATE v. EDDIE ADKINS, Appellant.
    Division Two,
    December 1, 1920.
    1. INPORMATION: Omission of Word. “The”. The mere omission of tbe word “the” before “State” in the clause “against the peace and dignity of the State,” with which the Constitution requires all indictments and informations to conclude, does not deprive a defendant of a substantial right, and does not constitute reversible error. [Overruling State v. Lopez, 19 Mo. 255; State v. Pemberton, 30 Mo. 376; State v. Stacy, 103 Mo. 11; State v. Campbell, 210 Mo. 202; State v. Skillman, 209 Mo. 408; State v. Warner, 220 Mo. 23, and all other decisions which follow their holdings on the point.]
    2. -: -: Constitution: Literal Interpretation: Its Own Interpreter. A literal compliance with the words of the Constitution, even in criminal cases, is not required. It is a fundamental rule of construction of all writings, whether they be laws, wills, deeds, contracts or constitutions, that they must be construed as a whole, and not in detached fragments; that ’they must be construed to effectuate, and not to destroy, their plain intent and purpose; and that in determining what is that intent and purpose all provisions relating either generally or specially to a particular topic are to be scrutinized and interpreted. The purpose and intent of the Missouri Constitution are to promote the general welfare of the people and to give security to life, liberty and property, to afford certain remedy for every injury to person, property or character, and to guarantee that right and justice shall be administered without sale, .denial or delay; and those great purposes declared in the Bill of Rights are to be held in view in determining whether the omission of the final “the” in the other subordinate constitutional clause declaring that all indictments and informations shall conclude with the words “against the peace and dignity of the State,” is a fatal omission, and when that is done the conclusion is compelled that such omission does not deprive accused of a substantial right, but that only a substantial compliance with said clause is all that is either required or necessary.
    3. INSTRUCTION: Comment on Evidence: Singling Out Detached Portions. When the automobile, in which defendant, deceased and others were riding, stopped at a bridge, defendant got out, and as the car was about to start deceased jumped out, ran back to defendant and began to fight him, and during the fight deceased got the fingers of defendant in his mouth and badly lacerated them. A half hour or so later, deceased hunted up defendant where he was concealed in a corn-field, began to throw bricks at him, and was shot and killed, if eld, that an instruction for the State, in which the jury were told that if they believed from the evidence that “the deceased bit the fingers of defendant” in the fight near the bridge “such biting did not give defendant a right subsequently to assault deceased with a loaded shot-gun or to shoot ,him,” not only singled out the altercation at the bridge and told the jury the legal effect of such isolated portion of the evidence, but was in contravention of the statute which forbids the court to “sum up' or comment on the evidence,” and was reversible error.
    Appeal from Carroll Circuit Court. — Hon. Ralph Hughes, Judge.
    Reversed and remanded.

      James V. Graham and Franjeen <£ Timmons for appellant.
    (1) The second amended information upon which defendant was tried and found guilty is fatally defective. It concludes with the words, “against'the peace and dignity of State.” The omission of the word “the” before the word “State” in said conclusion makes the information fatally defective. ' Mo. Constitution, art. 6, sec. 38; State v. Sldllman, 209 Mo. 408; State v. Campbell, 210 Mo. 202; State v. Wlamer, 220 Mo. 203. * (2) The court erred in giving, over the objections and exceptions of defendant, Instruction 10. This instruction is an unwarranted comment on the evidence and singles out certain facts to the exclusion of others. Such an instruction is erroneous. Sec. 5244, R. S. 1909; State v. Reed, 137 Mo. 139'; State v. Rutherford, 152 Mo. 124 153; State v. Wortz, 191 Mo. 569; State v. Mitchell, 229 Mo. 697; State v. Holmes, 239 Mo. 472; State v. Shaffer, 253 Mo. 337; State v. Rogers, 253 Mo. 412; State v. .Dixon, 190 S. W. 294; State v. Fish, 195 S. W. 998; State v. Smith, 53 Mo. 271; State v. Driscoll, 235 Mo. 385.

      FranJc W. McAllister, Attorney-General, and Ilenry B. Hunt, Assistant Attorney-General, for respondent.
    (1) An examination of the information discloses that, if the authorities are to be followed, it is defective because the article “the” is omitted before the word “State” in the concluding clause. Section 38, art. 6, Mo. Constitution; State v. Warner, 220 Mo. 23; State v. Skillman, 209 Mo. 412; State v. Campbell, 210 Mo. 215. (a.) At the common law great particularity was required in the concluding clause of an indictment. 2 Hale P. C. 188; 1 Chitty, Cr. L. 247; 2 Hawkins’ P. C. 345, 346; Damon’s Case, 6 Me. 152; 2 Bish. New Crim. Proc. sec. 649. (b) At the common law, no council was allowed the prisoner upon his trial, upon the general issue in any capital crime, unless some point of law arose proper to be debated; and no person accused of a capital crime was suffered to excuplate himself by the testimony of any witnesses. 4 Lewis’s Blackstone, 1740, 1744, secs. 355, 359. (2) A substantial compliance with Section 38, Article VI, of the Constitution, is sufficient. 22 Cyc. 243-b; 2 Bish. New Crim. Proc. secs. 651-(4), 65.2a; State v. Campbell, 210 Mo. 216; State v. "Waters, 1 Mo. App. 9; 22 Cyc. 291; Sec. 5115, R. S. 1909. (a) The sufficiency of an information must be. judged from the information as a whole, and not from solated parts thereof. State v. Griffin, 249 Mo. 628.
    (3) Instruction 10 is not erroneous by reason of the fact that it comments on the evidence. 21 Cyc. 1033; State v. Seal, 47 Mo. App. „608; Gharst v. Transit Co., 115 Mo. App. 412; Leeser v. Boeckhoff, 33 Mo. App. 238; State v. Birks, 199 Mo. 275'; State v. Hale, 238 Mo. 509; State v. Hudspeth, 150 Mo. 197, 208; Lowe v. State, 201 S. W. (Tex.) 987; State v. Inich, 173 Pac. (Mont.) 233; State v. Wilson, 250 Mo. 329.

      Franje E. Atwood and Lozier & Morris for respondent.
    Having assisted the State in the trial of this cause, we desire to present one proposition to the court. That proposition is whether the omission of the word “the” before the word “State” in the concluding part of the second, information renders said information a nullity. We are aware that this court has expressly decided that such an omission is fatal, in the. three cases cited by defendant’s counsel. However, we respectfully insist that the reasoning employed in those cases is not sound, and that those decisions are out of harmony with- the spirit of our State Constitution and is a departure from the previous decisions of this court in construing Section 38 of Article VI and similar questions arising out of similar constitutional and statutory provisions. Believing that the doctrine as announced in those cases is contrary to the spirit and purpose of all of x our laws and is based solely on an extreme technicality, we deem it our duty respectfully to ask the court to reexamine those cases and to make a new pronouncement in keeping with what we consider the spirit and purpose of our constitutional and statutory laws relating to trials by indictment or information.
   RAILEY, C.

Defendant was charged by information with murder in the first degree for shooting, with a shotgun, and killing, Cíete Bachtel, in Carroll County, Missouri, on June 29, 1918. The information was filed September 14, 19Í9. It is in the usual form, charging defendant with murder in the first degree, except as to the conclusion, which reads as follows: “did kill and murder, against the peace and dignity of State.” On October 6, 1919, defendant waived a formal arraignment- and entered his plea of not guilty. On October 9, 1919, the jury returned into court the foliowing verdict:

“We, the jury, find the defendant guilty of murder in the second degree and assess his punishment at imprisonment in the penitentiary for ten years.’’

The facts, as disclosed by the record, are substantially as follows:

Defendant, with his father and brother, and deceased, Cíete Bachtel, hired a public auto livery at Carrollton, Missouri, driven by one Otte Steele, to take them to Alma, Missouri, which is across the river from Carrollton, in Saline County, Missouri. They left Carrollton between ten and eleven o’clock on the morning of June 29, .1918, crossed the river at Waverly, and arrived at Alma about noon. There they drank a few rounds of beer. The defendant and his father each purchased a pint of whiskey. The party remained in Alma about twenty minutes and started back to Carrollton. Shortly after getting back on the Carroll County side, deceased began trying to start a fight with defendant Adkins. He had the driver stop the car and invited defendant out to fight him. Appellant refused to do so at the time, telling deceased that he wanted no trouble with him. Deceased then got back in the car and began to abuse defendant. As the party neared Carrollton, defendant instructed Steele to let him out of the automobile at the north end of what is known as the wire bridge, the same being a long bridge across the Wakenda Drainage District ditch, just' southwest of Carrollton. Steele stopped the par at the north end of the bridge, as instructed ; defendant got out of the car and started home across the bridge, taking with him his pint of whiskey. Deceased had been drinking after leaving Alma, was considerably under the influence of liquor, and, as the car started, after its' stop at the bridge, jumped out of the car, ran back to defendant, and began to fight him. During the fight, deceased got the fingers of defendant in his mouth and badly lacerated them. In order to compel deceased to release his fingers, defendant cut him twice on the arm. The brother of defendant separated them, and persuaded deceased to go with him toward Carrollton. Deceased and defendant’s brother started north. Deceased said to defendant when leaving the latter, that he would get defendant before night, or that he would get even with him for cutting him. After Pete Adkins and deceased started toward Carrollton, deceased picked up three or four bricks, and s.aid he was going back down there to get even with defendant. Finally Pete persuaded him to throw the bricks down and go with him towards the home of defendant’s father. Afterwards, deceased saw Winfrey and Underback near the Santa Fe depot, south of said bridge. He wanted them to take him to the wire bridge. He said he wanted to settle the fight that he and Adkins had had.

In the meantime, defendant stopped near the wire bridge, talking with Reed and Plaster, who had hitched their horse, with a spring wagon attached, to the south end of the bridge. They had tallied there, perhaps a half hour, when Reed looked to the south and saw Bachtel coming down the road toward them. Reed told defendant, he had better make it, as Bachtel was coming for trouble. Reed and Plaster were going squirrel-hunting, and had two shotguns in the wagon. As they were starting south in the wagon, defendant stepped to the rear of the wagon and got a single-barreled shotgun. He went east through a large gap, into a corn-field, in which com was growing about knee-high, and went behind a clump of bushes about 150 feet east of the bridge. Reed and Plaster continued south on the road, and passed Bachtel. The latter had in his shirt bosom a protruding object, and did not speak to Reed or Plaster as he passed them, but continued north toward defendant. Bachtel passed the gap, through which the defendant passed into the corn-field, walked upon the bridge, looked around, came quickly back and walked through the gap directly toward defendant. The latter stepped from behind the bushes, leveled the gun on deceased and told him to stop. Deceased kept coming, and threw two pieces of rock or brick at defendant, then thrust his hands toward the protruding object in his shirt, at which time, defendant fired and killed deceased with said gun.

The evidence disclosed that deceased, when under the influence of liquor, had the reputation of being' a dangerous and turbulent man.

An examination of the deceased’s body indicated that death was caused from shotgun wounds in the face and forehead, some of the shot penetrating the brain.

Elaborate instructions were given by the court, which will be considered, with other matters, as far as necessary, in the opinion. ‘'

After defendant was sentenced, he was permitted by the court to prosecute his appeal to this court as a poor person.

I. Appellant is asking, that this cause be reversed and remanded upon two grounds, which are fully argued in the respective briefs of counsel. First. It is contended that the information is invalid, because it con-eludes as follows: ‘ against the peace "and ^.^y 0£ ¡gtate,” the definite article “the,” immediately preceding “State,” being omitted. Appellant insists that said information fails to comply with Section 38 of Article VI of our Constitution, in respect to above matter, and, hence, it necessitates the reversal and remanding of the cause. Second. It is contended, that instruction numbered 10, given by the ■ court, is fatally defective, in this, that it is an unwarranted comment on part of the evidence relied on by defendant as a defense, and should not have been given, We will dispose of above questions in the reverse order, for the obvious reason that, if the cause has to be reversed and remanded on account of the giving of said instruction, it will not be necessary to pass upon the first proposition, supra, as the prosecuting attorney can eliminate said question ■ from the case by filing an amended information,

II.- Instruction numbered ten complained of by appellant, reads as follows:

“Although you may believe from the evidence that the deceased bit the (fingers of defendant in the altercation or combat testified to between the defendant and the deceased at or near the north end of the bridge, yet such biting' of the fingers of the defendant did not give the defendant a right subsequently to assault deceased with a loaded shot-gun or to shoot him.”

Section 5244, Revised Statutes 1909, provides, that:

“The court shall not, on the trial of the issue in any criminal case, sum up or comment upon the evidence. ’ ’

Defendant claimed before the jury, that he shot deceased in self-defense. In passing upon his conduct at that time, it was the province of the jury alone to determine from the evidence whether appellant had reasonable cause, from what had formerly occurred and what took place at the time of the shooting, for believing that deceased would do him bodily harm, unless he defended himself by shooting, as he did. The fight at the north end of the bridge, was one of deceased’s own chosing, in which he was the aggressor, and during which he had bitten defendant’s “fingers. It was a question for the jury, and not the court, as to whether defendant shot deceased thereafter through revenge, on account of t¿e latter’s act in biting his fingers, or whether, in good faith, defendant had good reason for believing, when he shot deceased, that the latter would inflict injury on him, if not checked, as he had done in the former affray, when he bit defendant’s fingers. The instruction, as given, practically eliminated this feature of defendant’s defense. The jury, in considering the merits of the controversy, should have been left free to consider all that had occurred between deceased and defendant as shown by the evidence. Under the statute above quoted, the court had no legal right tp single out that part of the affray at the north side of the bridge, relating to the biting of defendant’s fingers, and to tell the jury the legal effect of such an isolated portion of the evidence, instead of leaving the jury to consider this question with all the other matters relied upon as a defense in the cause. We are of the opinion that the above instruction was not only prejudicial to defendant’s rights, but that the giving of same was in contravention of the statute, supra, and the decisions of this court in construing same. [State v. Fish, 195 S. W. l. c. 998; State v. Dixon, 190 S. W. l. c. 294; State v. Malloch, 269 Mo. l. c. 239; State v. Rogers, 253 Mo. l. c. 412; State v. Shaffer, 253 Mo. l. c. 337; State v. Raftery, 252 Mo. l. c. 80; State v. Mitchell, 229 Mo. l. c. 697; State v. Rutherford, 152 Mo. 124, 133; State v. Reed, 137 Mo. l. c. 139 ; State v. McCanon, 51 Mo. 160.]

In our opinion, the foregoing authorities leave no room for cavil or doubt, as to the illegality of said instruction ten. According to our conception of the law, if this instruction is sustained, the court, with' the same propriety, could have instructed the jury that deceased’s quarrelsome character did not afford any ground for defendant shooting him. It could likewise have instructed that the threats of deceased, when leaving the scene of combat at the north end of the bridge where" he had bitten defendant’s fingers, to the effect that he would get defendant before night, did not, within itself, authorize defendant to shoot deceased.

In other words, we hold that the trial court was not justified in selecting detached portions of what occurred between defendant and deceased at the north end of the bridge, but should have left the jury to weigh all the evidence in the case, including the biting of defendant’s fingers, in determining whether appellant shot deceased through revenge, or to avoid additional injuries at his hands.

On account of the giving of said instruction ten (10), the cause is reversed and remanded for a new trial.

White and Mosley CC., concur.

PER CURIAM:

The foregoing opinion of Railev,' 0., is hereby adopted as the opinion of the court.

All concur, except as modified in separate opinion of Williamson, in which all concur.

WILLIAMSON, J.

(concurring). — I concur in the opinion of the learned commissioner so far as it holds that the judgment must be reversed and the cause remanded because of an error in the instructions. I am not content, however, to leave untouched in the opinion another matter of which complaint is made.

The information is assailed as fatally defective because it concludes with the words “against the peace and dignity of State,” and therefore fails literally to follow the formula prescribed by the Constitution which runs thus: “against the peace and dignity of the State.” The omission of the definitive “the” before the word “State” is said to constitute fatal error.

Section 38 of Article VI of the Constitution of Missouri is as follows:

“All writs and process shall run and all prosecutions shall be conducted in the name of the State of Missouri ; all writs shall be attested by the clerk of the court from which they shall be issued; and all indictments shall conclude, ‘against the peace and dignity of the State.’ ”

A similar provision is found in the Constitutions of various other states. It has been said by this court on more than one occasion, and by the courts of last resort of. other states having similar constitutional provisions, that the error here complained of is fatal. A decent respect for those authorities forbids that a different view should be announced dogmatically and without discussion.

The Missouri Constitution of 1845 contained a similar provision. In State v. Lopez, 19 Mo. 255, l. c. 256, an indictment concluding in the same words as were used in the information in the case at bar, was held to be fatally defective for that Reason. There was no discussion of the question. This ruling was followed again without discussion in State v. Pemberton, 30 Mo. 376, l. c. 378, an opinion rendered in 1860.

This doctrine was again announced, again without discussion, in State v. Stacy, 103 Mo. 11, l. c. 15, a case decided in 1890; but what was there said on this point was obiter.

In 1907 the same point was before this court in State v. Campbell, 210 Mo. 202, l. c. 216, when the question was discussed at length. The cases above mentioned were cited; many decisions from foreign jurisdictions were reviewed , and the error was held fatal. The Campbell case was followed in State v. Skillman, 209 Mo. 408, l. c. 412, and in State v. Warner, 220 Mo. 23, l. c. 25. (The case of State v. Campbell, because of the peculiar atrocity of the crime there involved (rape) and because perhaps of the elaborate discussion by which the court’s conclusion was forfeited, attracted wide attention at the time and has become known as the “The” ease.

The doctrine there announced was, as we have shown, neither new in this State nor peculiar to this State. A correct understanding of the Campbell case may be had only by a study of the opinion itself, but the very pith and marrow of the reasoning there employed, is thus stated by Fox, P. J., who wrote the opinion:

“Our conclusion upon this proposition is that the indictment in this cause fails to substantially comply in its conclusion with the terms prescribed by the Constitution, and therefore should be held invalid.” [State v. Campbell, 210 Mo. l. c. 228.] (Italics mine).

That literal compliance with the words of the Constitution, even in criminal cases, is not required, is no new doctrine. Thus in State v. Hays, 78 Mo. 600, the indictment concluded “against the peace and dignity of the State of Missouri,” and an objection based on the addition of the italicized words was curtly dismissed in these words: “The objection is without merit. The added words aré but what the constitutional language implies, and the addition in no wise enlarged, varied or changed the phrase or the sense.” [State v. Hays, supra, l. c. 603,]

So, in State v. Duvenick, 237 Mo. 185, l. c. 190, where the indictment concluding “agains the peace and dignity of the State,” it was held that an objection on that score was “unworthy of serious consideration or discussion,” although the attention of the court was solemnly called to the constitutional provision here • involved, to the Campbell case and its predecessors, and to the undisputed fact that our language contains no such word as “agains.”

We have repeatedly heretofore held certain provisions of our Constitution to be merely directory and not mandatory. For example, Section 24 of Article IY of the Constitution provides that “the style of the laws of this State shall be; ‘Be it enacted by the General Assembly, of the State of Missouri, as follows'.’ ” Yet, in the case of Cape Girardeau v. Riley, 52 Mo. 424, l. c. 426, this clause was held to be merely directory and not mandatory, citing the rule declared by Lord Mansfield in Rex v. Loxdale, 1 Burr. 447.

Again in the case of Pacific Railroad v. the Governor, 23 Mo. 353, this court held that although the forms prescribed by the Constitution in passing a bill over the Governor’s veto had not been observed, still the law was not therefore void.

A part of the very section here under consideration, namely, Section 38 of Article VI, which provides that “all writs and process shall run and all prosecutions shall he conducted in the name of the State of Missouri,” was held in judgment by this court in a criminal case, State v. Foster, 61 Mo. 549, l. c. 550, and the quoted clause was held to be directory only and failure to observe it Avas held to b-e a mere irregularity.

So, in Riesterer v. Land and Lumber Company, 160 Mo. 141, Section 8 of Article XII of the Constitution was before this court and that section relating to certain acts of corporations was held to be directory only.

In the very recent case of Creason v. Yardley, 272 Mo. 279, l. c. 284, Section 38 of Article VI and Section 24 of Article IV of the Constitution were involved, though not upon the precise point here in question, and upon the authority of a long line of cases there cited the provisions of those sections were held to be directory and not mandatory.

This opinion written by Railey, C., was adopted as the opinion of Court in Banc, Graves, C. J., ’Walker, Blair and Williamson, JJ., concurring, Faris and Woodson, JJ., concurring in the result, and Bond, J., dissenting.

Numerous decisions of this court upon analogous questions involving points of constitutional construction might be cited, but to do so would be but to attempt to demonstrate the obvious. As was said, in effect, in the Campbell case, substantial compliance with this constitutional provision is all that is necessary. The flaw in the Campbell case is, that after announcing the rule of substantial compliance, tbe opinion applies the rule of literal compliance. It is a fundamental rule of construction of all writings, whether they be laws, wills, deeds, contracts or constitutions, that they must be construed as a whole, and not in detached fragments; that they must be construed to effectuate and not to destroy their plain intent and purpose, and that in determining what., is that intent and purpose all provisions relating either generally or specially to a particular topic are to be scrutinized and so interpreted, if possible, as to effectuate the intention of the makers. This rule does not need (though it does not lack) authority to give it vitality. It is inherent in the very nature of things, and springs from reason as Minerva sprang from the brain of Jove, full-grown and ready for battle.

Concerning the construction of constitutions it has been well said that:

“Constitutions are'not designed for metaphysical or logical subtleties, for niceties of expression, or for the exercise of philosophical acuteness or- judicial research. They are instruments of a practical nature founded on the common business of life, adapted to common wants, designed for common use, and fitted for common understandings. The people make them, the people adopt them, the people must be supposed to read them, with the help of common-sense, and cannot be presumed to admit in them any recondite meaning or any extraordinary gloss.” [1 Story, Constitution, sec. 451.]

If we turn to a study of our Constitution, we find that it plainly declares its intents and purposes. They are to promote the general welfare of the people and to give security to life, liberty and property; to afford certain remedy for every injury to person, property or character, and to guarantee that right and justice shall be administered without sale, denial or delay. These with other objects,, are plainly declared in the Bill of Rights. True, Section 38 of Article VI provides that indictments shall conclude “against the peace and dignity of the.State,” hut to say that to omit the final “the” in that dignified phrase — an omission which impairs its rythm, perhaps, but does not vary its meaning- — is fatal error, is to permit a rule of rhetoric to emerge victorious from a conflict with the Bill of Rights. It is to sacrifice substance to form and to allow a trivial omission of a minor word in a subordinate paragraph relating to a mere matter of procedure to outweigh the very fundamentals of the Constitution. No one will contend that the makers of the Constitution ever intended such a consequence.

It has been well said by a high authority that: .

“The true rule of construction is not to consider one provision of the Constitution alone, but to contemplate all, and therefore to limit one conceded attribute by those qualifications which naturally result from other powers granted by that instrument, so that the whole may be interpreted by the spirit which vivifies, and not by the letter which ldlleth.” [White, J., in Downes v. Bidwell, 182 U. S. 312.]

That great and painstaking care must be used in con-construing the Constitution; that it must be solemnly regarded as the final expression of the will of the people, Avho are the earthly source of all law; that constitutional provisions are not to be frittered away by nice construction or doubtful interpretation, may all be conceded, and indeed, I expressly recognize and assert them. It is in precisely those respects that the reasoning of the “The” case fails. That reasoning sees one clause of one minor section of the Constitution and sees naught else. In literal obedience to one phrase, tlie dominating scheme and purpose of the whole document are forgotten.

Much musty learning might be dug from forgotten books, did time and space permit, to show the various endings of indictments at common law, and why it may have been thought adAdsable forty-five years ago, when our Constitution Avas written, to provide that there should be but one ending, and, but for the same limitations, manjr authorities might be cited in support of the views herein announced. It seems sufficient to say that in the case at bar there was a substantial compliance with the requirements of the Constitution, and that is all that is necessary; that to so* hold does not deprive the appellant of any right, nor impair any valid defense which he may have; nor arm the State with any new weapon; nor alter the meaning of the charge, nor in any wise interfere with the orderly administration of justice.

I therefore think that appellant’s contention that the omission of the word “the” before the word “State” in the final phrase of the information is reversible error, should be overruled. I also think that the cases of State v. Lopez, 19 Mo. 255; State v. Pemberton, 30 Mo. 376; State v. Stacy, 103 Mo. 11; State v. Campbell, 210 Mo. 202; State v. Skillman, 209 Mo. 408, and State v. Warner, 220 Mo. 23, l. c. 25, and all other decisions of this court which follow the holdings of these cases upon the point here involved, should, upon that point, be and hereby are overruled.

To clarify the situation, I also think it should plainly be understood that the law in this State ilpon this proposition is neither more nor less than this: The omission of the word “the” immediately preceding the word “State” in the phrase “against the peace and dignity of the State,” with which all indictments and informations properly should conclude, is not reversible error.

Williams, P. J., and Walker, G. J. concur.


source: Caselaw Access Project

author: WHITE, C. PER CURIAM:

license: Public Domain

text:
    THE STATE v. SHERWOOD DAVIS, Appellant.
    Division Two,
    December 1, 1920.
    1. TESTIMONY: Conclusion of Non-expert. On certain conditions, a non-expert witness may give a conclusion or inference, instead of stating tbe facts from which the jury may draw the conclusion. Where the conclusion of the witness is based upon facts which are incapable of being accurately described, but the conclusion conveys more clearly the fact which the witness attempts to describe, the witness may state his conclusion. But if he can clearly and correctly give the facts upon which his conclusion is based, he must' state them, and leave it to the jury to draw the conclusion. And in any case in which the deduction of the witness is given, he must state the facts from which he draws the conclusion as far as he properly can. An inquiry if defendant “attempted to get to deceased before deceased pulled his gun” was asking for a conclusion which the jury could as well draw as the judge, but harmless where the witness answered that “all the attempt he was making was rushing up to him with his knife up that way.” Likewise an inquiry if “he appeared to be drinking” was harmless where the witness answered that she “couldn’t tell if he was drinking in the least.”
    2. CROSS-EXAMINATION: Impeachment: Child Before Marriage. On cross-examination a witness may be asked any question which will test (his or her accuracy or veracity, however irrelevant the question may be to the facts in issue, or however disgraceful to the witness, except where the answer would expose the witness to a criminal charge. It is perfectly proper to ask a witness for the State upon cross-examination if she had a child born before she was married.
    3. INSTRUCTION: Threats: Nature of Transaction: Aggressor. An instruction telling the jury that they “should consider all the threats which you may believe from the evidence were made by the deceased against defendant” and ‘‘may give them such weight in determining the nature of the transaction giving rise to the charge for which defendant is now on trial as you deem proper,!’ is not as clear as it might be by reason of the involved expression, “the nature of the transaction giving rise to the charge for which defendant is now on trial,” but that expression would include a consideration of the question as to who brought on the fight out of which the murder grew.
    4. REMARKS OF COUNSEL: Justice of Peace: Right to Carry Pistol. A justice of the peace, as conservator of the peace, has a right to carry a weapon under the statutes; and a statement by counsel for the State, in his argument to the jury, that deceased, being a justice of the peace, had a right to carry a pistol, although such law was not embodied in the instruction, probably did not harm defendant. But a justice of the peace had! no right to carry a pistol because-his life had been threatened a short time before he was killed, and counsel for the State is clearly outside his duty in stating to the jury that he had such right.
    5. TRIAL: Misconduct of Court: Fining Attorney for Saving Exception. A remark of the court indicating that the court deemed a certain witness creditable, although there was much testimony to contradict his testimony and show his prejudice; numerous instances showing the impatience of the court with counsel for the defense; a refusal of the court to permit defendant’s counsel, whose demeanor was proper, to state his objection to the court’s remarks to a witness, and a remark by the court, “I have overruled your objection; anything further you want to say, sir?” and fining the attorney fifty dollars for contempt of court when he made a proper exception to said sharp remarks, were extremely prejudicial, and constitute reversible error.
    Appeal from Pemiscot Circuit Court, — Hon. Sterling H. McCarty, Judge.
    Reversed and remanded.

      S. J. Corbett and Ward S Beeves for appellant.
    (1) The court erred in the admissibility of testimony. (a) The court erred in permitting the prosecuting attorney to ask and have answered questions calling for conclusions of the witnesses. State v. Wertz, 191 Mo. 569; State v. Kozlictkie, 241 Mo. 301; State v. Bostwick, 245 Mo. 483; State v. Schlichter, 263 Mo. 561; State v. Evans, 267 Mo. 163; State v. Pate, 268 Mo. 431. (b) The court should have permitted State’s wittnesses to be cross-examined as to the birth of the illegitimate child of Little’s daughter. Muller v. Hospital, 73 Mo. 242; Muller v. Hospital, 5 Mo. App. 401; State v. Hack, 118 Mo. 92; Carp v. Ins. Co., 104 Mo. App. 520; Cántrill v. Davidson, 180 Mo. App. 420; State v. Long, 201 Mo. 675; State v. Potts, 239 Mo. 413. (2) The court erred in giving instruction 6, which did not properly declare the law, either for communicated or uncommunicated threats. In law and in this case we have to deal with two kinds of threats, communicated and uncommunicated threats — both appearing in this case. In communicated threats the jury should be instructed to take the same in consideration in determining whether or not the defendant, was justified in acting on appearances in killing deceased, and in explanation of the conduct of the parties at the time of .the fatal difficulty. State v. Greaves, 243 Mo. 540 ; State v. Birks, 199 Mo. 276. Uncommunicated threats may he taken into consideration by the jury in determining who was the aggressor, and ' throwing light upon the actions and conduct of the deceased. State v. Edwards, 203 Mo. 546; State v. Birks, 199 Mo. 276; State v. Heath,'237 Mo. 264; State v. Nelson, 166 Mo. 202. This identical instruction has been held in judgment by this court to be erroneous. State v. Evans, 158 Mo. 607. (3) The court erred in refusing to rebuke attorney assisting the State. State v. Spivey, 191 Mo. 87; State v.'Woodward,-191 Mo. 619. (a) It is error to permit the counsel to argue to the jury law not given by the court in written instructions. Dean v. Chandelor, 44 Mo. App. 338. (b) It is error for the state prosecutor to argue to the jury, and the court to sanction such argument, that a justice of the peace had a right to carry concealed weapons. There were no such written instructions, and besides, this is not the law. Sec. 4496, R. S. 19091; 40 Cyc. 865; State v. Julian, 25 Mo. App. 133; State v. Wisdom, 84 Mo-. 177. (c) Deceased Little would not be entitled to carry concealed weapons in self-defense, because his life was threatened, since the amendment in 1909 of the statute, regulating carrying of concealed weapon. State v. Keet, 269 Mo. 206. (4) The court erred in many remarks and conduct. And in fining defendant’s attorney $50 without the least sort of excuse in the presence of the jury, thereby showing partiality to the State, and ill-feeling against defendant. Drayfust v. Ry. Co., 124 Mo. App. 585; State v. Jones, 197 S. W. 158; Schmidt v. Railway, 149 Mo. 283'; Rose v. Kansas City, 125 Mo. App. 236; Wright v. Richmond, 21 Mo. App. 76; State v. Hyde, 234 Mo. 255. While one remark or one statement of the court might not of itself be a reversible error, yet, when taken together, and when they indicate an attitude of mind on the part of the judge, calculated to influence the decision against the defendant, they may constitute a reversible error. State v. Drew, 213 S, W, 107; 38 Cyc. 1321; State v. Davis, 217 S. W. 91. The court committed a grievous error when, in the presence of the jury, without any justification or excuse, it fined defendant’s counsel $50 for excepting to the 'remarks of the court, and which acts and conduct of the 'court were calculated to disparage counsel in the eyes of the jury, and' to assume a manifestly hostile attitude towards the counsel of defendant, and creating in the mind of the jury that the defendant’s counsel was seeking to take advantage of the witnesses and was transgressing the law, thereby prejudicing the minds of the jury against defendant’s counsel and defendant. 38 Cye. 1322; 21 Encyc. of PL & Pr., 1000; Walker v. Coleman, 55 Kan. 381; House v. State, 57 S. W. 825; Hiñe v. Ry. Co., 115 Mich. 204; Wheeler v. Wallace, 53 Mich. 355.

      Frank W. McAllister, Attorney-General, George V. Berry, Assistant Attorney-General, for respondent.
    (1) The questions of counsel for State did not call for an opinion or conclusion of the witness. If they had, an opinion would have been competent. State v. Evans, 267 Mo. 184; State v. Meyers, 198 Mo. 229; State v. David, 131 Mo. 395; State v. Buckler, 103 Mo. 206; State v. Parker, 96 Mo. 293; Heimbach v. Heimbach, 274 Mo. 316; Black’s Law Die. page 855; Crowell v. State, 56 Tex. Crim. 481; Henderson v. State, 49 Tex. Crim. 271; 16 C. J. 751. (2) Quincy Little Bilby having denied being the mother of an illegitimate child, defendant was bound by her'answer. Such cross-examination is in the discretion of the trial court. State v. Potts, 239 Mo. 413; State v. Long, 201 Mo: 675; State v. Parker, 96 Mo. 390; Wendling v. Bowden, 252 Mo. 696; Miller v. Journal Company, 246 Mo. 724; Goins v. Moberly, 127 Mo. 118; 1 Greenleaf on Evidence, sec. 461b. (3) Instruction 6 was a correct declaration of the law on communicated and uncommunicated threats. Defendant lodged no specific objection against it. State v. Greaves, 243 Mo. 551; State v. Birks, 199 Mo. 276; State v. Hale, 238 Mo. 511; State v. Heath, 237 Mo. 264; State v. Smith, 114 Mo. 419; State v. Hicks, 92 Mo. 436; State v. Fletcher, 190 S. W. 323; State v. Davis, 217 S. W. 87; State v. Katz, 266 Mo. 503; State v. Lewkowitz, 265 Mo. 636. (4) The court did not err in refusing to rebuke counsel for the State. He was not making an improper argument. State v. Baker, 246 Mo. 376; State v. Rasco, 239 Mo. 580; State v. Harvey, 214 Mo. 411; State v. Church, 199 Mo. 638; State v. Allen, 174 Mo. 698; State v. Gartrell, 171 Mo. 512; State v. Spivey, 191 Mo. 113; State v. Hibler, 149 Mo. 484; State v. Brooks, 92 Mo. 589. (a) A justice of the peace being a conservator of the peace, may carry a concealed weapon. Secs. 4496, 7382, 4972, 4686,-5285, R. S. 1909; Kelley’s Crim. Law & Prac. secs. 59, 60, 1184; State v. Mosby, 81 Mo. App. 207; State v. Pollock, 49 Mo. App. 447; State v. Mc-Brien, 265 Mo. 604; State v. Levy, 262 Mo. 190. (5) There was no misconduct on the part of the court. The fining of counsel did not prejudice defendant’s case. State v. Fletcher, 190 S. W. 323; State v. Teeter, 239 Mo. 483; State v. Hyde, 234 Mo. 255; State v. Walton, 255 Mo. 244; State v. Miles, 199 Mo. 547; State v. Sublett, 191 Mo. 174; State v. May, 172 Mo. 646; State v. Dewitt, 152 Mo. 86; State v. Nickens, 122 Mo. 611; State v. Pagels, 92 Mo. 310; Copeland v. Ins: Co., 191 Mo. App. 445; Steptowski v. Transit Co., 108 Mo. App. 309.
   WHITE, C.

On a trial in the Circuit Court of Pemiscot County the defendant, Sherwood Davis, known as “Bill” Davis, was convicted of murder in the second degree and his punishment assessed at imprisonment in the penitentiary for a term of fifteen years. From that judgment he appealed.

This is the second appearance of this case. The defendant was convicted on a former trial and appealed to this court where the judgment was reversed; the case is reported in 217 S. W. 87. The facts are fully stated in the opinion rendered at that time. The evidence on the latter trial varied very little, substantially, from the evidence produced at the first trial; therefore it is unnecessary to state it except briefly.

The homicide occurred in April, 1918. The defendant was within the draft age, and H. P. Little, the man he killed, was justice of the peace. It appears from some of the testimony that the defendant had a wife and two children, and Little had been instrumental in getting his' classification changed from fourth class to first class; there was ill-feeling between the defendant and Little on that account, and possibly on other accounts,

i On the day of the homicide the defendant was arrested and brought by the constable before Little, where he had an altercation with the justice of the pea’ce in regard to giving a'bond. That was in the forenoon. Early in the afternoon of that day, while Little was standing on the street talking to a man named Lumley, the defendant approached with a knife in his hand demanding to know why Little and a man named Duffy, defendant’s father-in-law, had tried to get defendant taken from his family and transferred from class four to class one, by the draft board. He advanced, upon Little with his knife; Little drew a revolver from his pocket, and snapped it at the defendant who continued to advance; Little backed off, stumbled over a pole and fell. As he lay upon the ground, apparently stunned, the defendant came up to him, drew back his coat, and stabbed him in the breast with a knife, and made a stroke at his throat. He then took the pistol which had fallen from Little’s hand and struck Little on the head with that. Lumley then tried to help Little to his feet; Davis assisted him and said: “Old man, I guess I have killed you; that is what I aimed to do.” Several witnesses were in sight of the encounter, and with slight variations testified for the State to the same facts. The State also showed threats made on different occasions by the defendant against Little.

The defendant offered testimony tending to show that he approached Little in a good humor without any intention to assault him, that the first hostile demonstration was made by Little himself in drawing his revolver and attempting, to shoot; that after that demonstration defendant approached, seized Little and in the struggle the two fell to the ground, the defendant with his knife ■in his hand with which he struck Little. He also attempted to show that Little was. drunk, and that he had acted unfairly and in a prejudiced manner when the defendant had been brought before him in the forenoon of that day. Evidence also was offered by defendant to show that the deceased had made threats against his life at various times.

I. The first error assigned by the appellant and pressed upon the attention of'the court was the admission by the court of opinion evidence. • It is urged that witnesses were allowed to state their eonelusions rather than state the facts of the ... occurrence, in the cross-examination of Lumley, the principal witness for the State, this occurred: “Q. Ask you whether or not Mr. Davis made any stroke with the knife or attempted to get to Mr. Little before Little pulled his gun?”

The defendant objected to this, defendant overruled, and exception noted.

The witness answered: “All the attempt he was making — rushing up to him with his knife up that way. That was all I seen.”

Further, in the examination of another Avitness who testified as to the appearance of Lumley at the time, this occurred:

“Q. Did he appear to be drinking, or anything, Mrs. Boston?
“Mr. Ward: I object; that’s her conclusion.
“By the Court: Court will let her answer.
“Mr. Ward: Exception.”

On certain conditions, a non-expert witness may give a conclusion or an inference, instead of stating the facts from, which the jury may draw the conclusion. Where the conclusion of the witness is based upon facts which are incapable of being accurately described, but the conclusion conveys more clearly the fact which the witness attempts to describe, the conclusion may be given. But if the witness can clearly and correctly give the facts upon which a conclusion may be based, then it is for the jury to draw the conclusion. In any case where the deduction of the witness is gjven he must also state the facts from which he draws the conclusion so far as he properly can. [State v. Evans, 237 Mo. l. c. 184-5; Rearden v. Railroad, 215 Mo. l. c. 137; Partello v. Railroad, 217 Mo. l. c. 656; Kirchof v. United Rys. Co., 155 Mo. App. l. c. 83; State v. Kozlickie, 241 Mo. 301; State v. Wertz, 191 Mo. 569; State v. Buchler, 103 Mo. l. c. 207.] In the Buchler case it was held that the witness might give his conclusion as to the expression of emotion on the face of a person. The countenance of defendant might be stated by the witness to show anger, ferocity or hatred. A witness may state that a person “looked scared.” [State v. Ramsey, 82 Mo. 137.] But it was not admissible for the witness to state in regard to the defendant and the prosecuting witness, his sweetheart, “that he seemed to think a good deal of her.”

It is clear from the authorities cited that the statements by the witness that the question asked Lumley, if Davis “attempted to get to Mr. Little before Little pulled his gun,” was asking for a conclusion which the jury could as well draw as the witness, and witness could state the facts indicating such an attempt if there was one. ' However, the defendant was not harmed by the question because the answer of the witness gives a specific fact. The answer was: “All the attempt he was making, rushing up to him with his knife up that way. ’’

The question asked by the prosecutor of Mrs. Boston, “Did he appear to be drinking or anything?” if it was a conclusion Avas harmless because the witness answered that she couldn’t tell that he, was drinking in the least.

II. When Quincy Little, a daughter of the deceased, was introduced as a witness for the State and testified strongly against the appellant, the defendant’s counsel asked her if she were married. She answered that she had been married a month or two. After some colloquy, which need not be, reproduced, the defendant offered to prove by the witness that she had a child born before she was married. This offer was by the court refused and the defendant excepted.

On cross-examination a witness may be asked any question which would test his or her accuracy or veracity, however irrelevant the question may be to the facts in issue or however disgraceful the answer to the witness, except where the answer would .expose a witness to a criminal charge. [State v. Long, 201 Mo. l. c. 675, and cases cited; State v. Potts, 239 Mo. 413.] The offer was a perfectly proper one, and it was error to exclude any proper question which would tend to impeach the veracity of the witness. It is not necessary to say that the error in that regard was alone sufficient to warrant a reversal of the case, but inasmuch as the case must be retried the court should, on another trial, permit the question to be asked.

III. Error is assigned to the giving of instruction numbered.6, which appears as follows in the record:

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

The point made against this instruction is that while the jury in determining whether the defendant was justified in acting upon appearances was allowed to take into consideration communicated threats prior to the killing, the instruction does not permit the jury to weigh all threats, communicated and uncommunicated, in determining who is the aggressor, because the expression, “the nature of the transaction” is uncertain in meaning. Counsel correctly states the rule that communicated threats may be considered by the jury only in determining whether a defendant had a right to act upon appearances, but uncommunicated as well as communicated threats may be considered in determining who was the aggressor, and as tending to throw light upon the conduct of the deceased at the time of the encounter. The instruction is almost an exact copy of instruction given in the case of State v. Greaves, 243 Mo. l. c. 548, and approved by this court, l. c. 551. The instruction, it is true, is not as clear as it might be by reason of the' involved expression, “the nature of the transaction giving rise to the charge for which the defendant is now on trial, ’ ’ but undoubtedly that expression would include the consideration of the question as to who brought on the fight.

IV. In making the closing argument to the jury Judge Gossom, employed to assist in the prosecution, made remarks which were objected to, and this occurred:

“Mr. Corbett: I object to that statement of the assistant prosecuting attorney that a justice of thé peace has the right to carry a pistol under the laws of this State — that he was a conserver of the peace,—
“By the Court: And he also made the statement just preceding that—
“Judge G-ossom: ‘And he had another right to carry a pistol because the defendant had told him not over thirty minutes before that that he would see him before the sun went down.’
“Mr. Corbett: I am objecting to that because that is not his duty, he wasn’t a person whose duty it was to serve’process under the laws of this State and that’s what the statute says:
“By the Court: Or a person to conserve peace? Overrule your objection.
“Mr. Corbett: Note exception.”

It is not proper for counsel to state any law appIU cable to the case not embodied in the written instruction to the jury. It is probable that defendant wasn’t harmed by the statement that a'justice of the peace, as a con-server of the peace, had a right to carry a weapon under the laws of the State. Section 4596 excepts from the penalty for carrying concealed weapons certain officers, including persons whose bona-fide duty it is to aid in conserving the public peace. A justice of the peace is made a conserver of the peace by several sections of the statute. [Secs. 4972, 4686, R. S. 1909.] The justice of the peace, however, had no right to carry a pistol because his life had been threatened a short time before, and the counsel for the State was clearly outside his duty when he made the statement to that effect. [Sec. 4496, R. S. 1909.] The objection, however, made by the defendant, was not on the ground that the justice didn’t have a right to carry a weapon- for his own protection, but on the ground that the justice of the peace was not a person whose duty it was to serve a process. On a retrial of the case the error probably will not be repeated.

IV. A final error most urgently .presented by the appellant was the conduct of the trial court in the management of the case in such a way as to show prejudice a'gainst the defendant. Lumley went on the - , -, „ , , stand tor tne State, and on cross-examination testified: “I have been living around Tyler ten, but have been right in Tyler straight running over three, years.” Then this occurred:

“By the Court: If a man has been living there this length of time I don’t see — let’s get alpng here.
“Mr. Ward: We object to the remarks of the court.
“By the Court: Mr. Ward, the court wants you to get everything that is material, plenty of time to go over all that is necessary, but I don’t want to be going over the same thing so much and arguing with the witness.
“Mr. Ward: Just asked him the question one time, Judge.”

The remark of the court indicated that the court deemed Lumley a creditable witness, although there was much testimony to contradict his statement and show prejudice on his part. This occurrence alone would not warrant a reversal, but several instances are shown by the record indicating impatience of the court with counsel for defense. Finally, in the examination of Mrs. Boston, who had testified on a former trial to a threat which the defendant had made against the deceased, and' who on this trial stated that the threat was made by the deceased against defendant, there was some confusion as to what she meant by her use of pronouns “he” and “him” instead of the names of the parties. The witness was asked to explain what she meant, and this occurred:

“Q. That is exactly what the court asked you, ‘who said that?’
“By the Court: Mrs. Boston, explain now just like you meant it who said it — just take your time.
“Mr. Ward: I object to that—
“By the Court: I am overruling your objection — go _ ahead and explain.
“Mr. Ward: Exception — I am objecting to the court not letting me make my objection.
“By the Court: I have let you make yout objection and overruled it — anything further you want to say, sir? Proceed now and explain. 1
“Mr. Ward:. We except to the remarks of the court and the conduct of the court.
“By the Court: Mr. Clerk, let your record show Mr. Ward is fine'd fifty dollars for contempt of court.
“Mr. Ward: I except, to the court fining me fifty dollars when I am only trying to protect the rights of my client in this court.
“By the Court: Proceed with this case — go ahead and answer the question.”

There is nothing in this examination to indicate that the defendant’s counsel was going beyond his rights in making an objection, which the court did not permit him to make, or that there was any disrespect for the court in his demeanor. The judge of the court reproved the attorney with a sharp remark, saying, “Anything further you want to say, sir?” Then ordered the witness to proceed. On a proper exception to the remarks of the court, so far as the record shows, the court ordered the clerk to enter a fine of fifty dollars against the attorney. There can be no doubt about the prejudicial effect of that action of the court. The sharp remarks of the court in attempting to hurry the trial and chiding the appellant’s counsel for delay, as it occurs in the record, followed by this fine, thereby bringing counsel for the appellant into a humiliating and shameful position before the jury, was extremely prejudicial. It is such error as to require a reversal of the case. [State v. Davis, 217 S. W. l. c. 91; Schmidt v. Railroad Co., 149 Mo. l. c. 283; State v. Jones, 197 S. W. l. c. 158; State v. Hyde, 234 Mo. l. c. 255; State v. Drew, 213 S. W. l. c. 107.]

The judgment is reversed and the cause remanded.

Bailey and Mosley, GO., concur.

PER CURIAM:

The foregoing opinion by White, C., is adopted as the opinion of the court.

All of the judges eoñcur.