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    THE STATE v. TODD, Appellant.
    Division Two,
    March 6, 1906.
    1. STATEMENT: Other Crimes. Where the court, over the objection and exception of defendant, has permitted the prosecuting attorney in his opening statement to tell the jury that the testimony would show that two or three hours before the homicide the defendant assaulted a third person and struck him over the head with a pistol, and the statement was closed without in any wise connecting that difficulty with the shooting of deceased, the court could not rebuke the prosecuting attorney, but he could cure the error by orally directing the jury at the close of the statement to disregard it, and by stating that no testimony on the subject would be received and by doing whatever the court could do to eliminate it from the case.
    2. -: -: Waiver. Any objection defendant may have to a statement by the prosecuting attorney concerning a prior difficulty between defendant and a third party is waived by the persistence of defendant’s counsel in injecting that difficulty into his statement after the court has directed the jury to disregard that part of the prosecuting attorney’s statement and announced that no evidence in regard to it would be received.
    3. MURDER: Hearsay: Statement by Deceased: Non-Prejudicial, As deceased was crossing the street towards the sidewalk, a clerk in a store saw defendant coming down the sidewalk towards the store, cursing deceased and calling him vile names, and the clerk, supposing that deceased would go up the sidewalk and meet defendant, was permitted to testify that he said to deceased, “Uncle Bob, you had better come in the store,”, and that deceased replied, “My stars, I will have no trouble with him.” When the men met, a difficulty ensued, but they were separated by friends. This was two or three hours before the homicide. Held, that the clerk’s testimony was hearsay, and improperly admitted, but was non-prejudicial, and hence, not reversible error.
    4. --: Instruction on Second Degree. Defendant testified that as deceased rode past his office deceased straightened himself up in his saddle and gave defendant a very angry look, and that he did not shoot at him until he had proceeded about fifteen feet, checked up his horse and made a motion with his right hand towards his hip pocket; that he then stepped out into the street, drew his pistol and began shooting and continued to shoot until defendant fell from his horse. Held, that this testimony, if true, did not show that the shooting was done deliberately, but did show that it was done willfully, premeditatedly and of malice aforethought, and hence was sufficient to support an instruction on murder in the second degree.
    ■5. -: -: Evidence of "Murder in First Degree. Where the jury may from the evidence find defendant guilty of murder in either degree, it is not error to give an .instruction for murder in the second degree.
    >6. -: -: -: Defendant’s Right to Complain. And even if the testimony does not warrant an instruction for murder in the second degree, but only one for murder in the first degree, defendant cannot complain at the giving of an instruction for murder in the second degree, for the error is in defendant’s favor, in that it instructs for a lesser offense than that with which he is charged.
    7. -: -: Necessary Facts. The instruction told the jury that before they could find the defendant guilty of murder in the second degree they must believe from the evidence, beyond a reasonable doubt, that defendant, with a pistol, shot and killed deceased, and that such shooting and killing were done willfully, premeditatedly and of malice aforethought, but without deliberation (those terms being defined in another instruction). Held, that this instruction sufficiently indicated to the jury what facts were necessary for them to find in order to convict defendant of murder in the second degree.
    8. MANSLAUGHTER: Instruction: Prior Threats and Trouble. To authorize an instruction on manslaughter in the fourth degree there must be evidence tending to show that defendant, in the heat of passion induced by reasonable provocation, without malice and without premeditation, shot and killed the deceased; and the passion which will reduce homicide to the grade of manslaughter is an excited state of mind produced by some lawful provocation, such as a blow or an assault of any kind upon the person. And where there was no evidence that deceased made any remarks to or in the presence of deceased or that he made any assault upon him at the time of the homicide, there is nothing upon which to base such an instruction, although an intense hatred had long existed between him and defendant, and they had often threatened each other, and had had one or two personal encounters, one of which occurred only a few hours before the homicide.
    Appeal from Vernon Circuit Court. — So». E. C. Timmonds, Judge.

      Affirmed.

      A. J. King, G. G. Burton and W. M. Williams for appellant. i
    (1) The remarks of the attorney for the State in his opening statement concerning the Claypool difficulty must have influenced the minds of the jurors. The subsequent direction of the court could not remedy the wrong that had already been done. State v. Jackson, 95 Mo. 652; State v. Stubblefield, 157 Mo. 360; Evans v. Trenton, 112 Mo. 399; State v. Kennedy, 177 Mo. 116; State v. Kring, 67 Mo. 595; State v. Lee, 66 Mo. 167; State v. Shipley, 174 Mo. 512. (2) The conversation between witness Cox and deceased was not a part of the res gestae and was hearsay testimony. State v. Kennedy, 177 Mo. 180; State v. Curtis, 70 Mo. 594; McMillan v. State, 13 Mo. 30; State v. P'unshon, 124 Mo. 451; State v. Burrell, 145 Mo. 1; State v. Umfried, 76 Mo. 414; State v. Ware, 62 Mo. 597; State v. Evans, 65 Mo. 574; State v. Day, 100 Mo. 242. (3) To constitute murder in the second degree the killing of Wall must have been done while the defendant was in a heated state of the blood, as contra-distinguished from “deliberation” and technical “heat of passion,” caused by some conduct on the part of Wall amounting to a “just provocation” and not to a “reasonable,” “adequate,” “sufficient,” “lawful or legal” provocation. State v. Ellis, 74 Mo. 216; State v. Curtis, 70 Mo. 599; State v. Gee, 85 Mo. 649; State v. Niehaus, 188 Mo. 324; State v. Turlington, 102 Mo. 660; State v. Bulling, 105 Mo. 221; State v. McKinzie, 177 Mo. 711; State v. Berkley, 109 Mo. 673. (4) There was no testimony tending to prove murder in the second degree, and therefore instruction 5 was erroneous. State v. Mahley, 68 Mo. 315; State v. Phillips and Ross, .24 Mo. 490; State v. Niehaus, 188 Mo. 324; Statev.Ellis, 74 Mo. 217; State v. Kotovsky, 74 Mo. 249; State v. Lewis, 74 Mo. 223; State v. Pnnslion, 124 Mo, 458; State v. Allen, 116 Mo. 548; State v. Onrtis, 70 Mo. 599: (5) An assault on the part of deceased involving personal violence to the defendant or evincing an intent to do' defendant bodily harm, is such a provocation as reduces the homicide to manslaughter. 21 Am. and Eng. Ency. Law (2 Ed.), 178, 173, 182; State v. Garrison, 147 Mo. 556; Stevenson v. U. S., 162 U. S. 313; Johnson v. State, 2 S. W. 609'; 2 Bishop, New Crim. Law (8 Ed.), sec. 710; State v. Gee, 85 Mo. 647; State v. Elliott, 98 Mo. 157. (6) And it is a question for the jury to determine whether the hilling was because of the provocation or from malice. Stevenson v. U. S., 162 U. S. 320'; Wallace v. U. S., 162 U. S. 476; 21 Am. and Eng. Ency. Law (2 Ed.), 175; State v. Gee, 85 Mo, 647; State v. Elliott, ■98 Mo. 157. (7) Upon the testimony the court should have given an instruction on manslaughter in the fourth ■degree. 21 Am. and Eng. Ency. Law (2 Ed.), 178, 173, 182, 175; Stevenson v. U. S., 162 U. S. 313; Johnson v. State, 2 S. W. 609; 2 Bishop, New Crim: Law (8 Ed.), sec. 710; Wallace v. U. S., 162 U. S.' 476; State v. Garrison, 147 Mo. 556; State v. Weahley, 178 ,Mo. 423; State v. McKinzie, 177 Mo, 709; State v. Umfried, 76 Mo. 404; State v. McKinzie, 102 Mo. 632; State v. Edwards, 70 Mo. 600; State v. Berhley, 92 Mo. 54; State v. Curtis, 70 Mo. 600; State v. Gee, 85 Mo. 653; State v. Elliott, 98 Mo. 157.

      Herbert S. Hadley, Attorney-General, and John Kennish, Assistant Attorney-General, for the State; Scott é> Bowher and M. T. January of counsel.
    (1) Evidence of the fight with Olaypool just before defendant attempted to assault the deceased was admissible, a,n,d the court erred in defendant’s favor in refusing to permit the State to show the same or mahé use of it in the opening statement to the jury. State v. -Pennington, 124 Mo. 388; State v. Dettmer, 124 Mo. 426; State v. Nelson, 166 Mo. 191; State v. Bailey, 88 S. W. 733; State v. Raper, 141 Mo. 327; State v. Kennade, 121 Mo. 405; State v. Gabriel, 88 Mo. 631; State v. Williamson, 106 Mo. 162. (2) If there was any error in the prosecuting attorney making reference to this matter in his opening statement, it was cured by the action of the court thereon. State v. Degonia, 69' Mo. 485; State v. Howard, 118 Mo. 127; State v. McMullen, 170 Mo. 608; State v. Pennington, 124 Mo. 388. (3) If the defendant was not satisfied with the action of the court in regard to this action upon the remarks of the prosecuting attorney concerning the Claypool difficulty, he should have asked the court for a inore pointed rebuke or instruction in regard to such matter and saved an •exception to the court’s action in refusing to give it. Otherwise, he can not complain of the court’s action in •said matter. State v. Howard, 118 Mo. 127; State v. McMullen, 170' Mo. 608. 1. The objection of counsel for appellant to the statement of the attorney for the State concerning the Claypool altercation was a general objection without assigning any specific reason therefor. The same rule should apply in such case as in the case of a general objection to the- admission of evidence. State v. Harlan, 130 Mo. 381; State v. Hilsaback, 132 Mo. 348; State v. Wright-, 134 Mo. 404; State v. McLaughlin,-149 Mo. 19'; State' v. Dent 170 Mo. 398. 2. Even if evidence of the Claypool altercation were incompetent, the statement of the attorney for the State concerning such difficulty would not be error of which ■appellant could complain, for the reason that counsel for appellant thereafter ré-stated to the jury the facts •concerning the same difficulty. (4) The attempt of defendant to assault Wall, the deceased, two hours before the actual killing, was a part of ,the res ■gestae of the killing, and the statement of Wall to Hubert Cox, while that difficulty was going on, was clearly admissible. 2 Bishop’s New Crim. Pro., sec. 625; Underhill on Crim. Ev., secs. 99. 100; Wharton’s Crim. Ev. (9 Ed.), sec. 262; State v. Nelson, 166 Mo. 191; State v. Gabriel, 88 Mo. 631; State v. Hudspeth, 159 Mo. 176; State v. Martin, 124 Mo. 514; Thomas y. State, 67 Ga. 460; Hunter v. State, 40 N. J. L. 495. (5) The evidence in this case warranted an instruction and conviction for murder in the second degree. State v. Ashcraft, 170 Mo, 409; State v. Elliott, 98 Mo. 350; State v. Atchley, 186 Mo. 174; State v. McMullen, 170 Mo. 609; State v. Hall, 168 Mo. 475; State v. Hudspeth, 150 Mo. 12; State v. Diller, 170 Mo. 1; State v. Sumpter, 153 Mo. 436; State v. Bell, 136 Mo. 120; State v. Frazier, 137 Mo. 317. (6) Even if the testimony only warranted a conviction of the defendant for murder in the first degree, or acquittal on the ground of self-defense, he could not complain of the court’s action in giving an instruction for murder in the second degree. The verdict of the jury finding him guilty of murder in the second degree would have to be sustained, although the evidence showed him to be guilty of a higher degree, Sec. 2369; R. S. 1899; sec. 2535, R. S. 1899; State v. McMullen, 170' Mo, 609; State v. Hall, 168 Mo. 475 ; State v. Bulling, 105 Mo. 204; State v. Nelson, 88 Mo, 126; State v. Wagner, 78 Mo. 644; State v. Billings, 140 Mo. 193; State v. Kindred,. 148 Mo. 270 ; State v. Bell, 136 Mo. 1201; State v. Frazier, 137 Mo. 317. (7) The court did not err in failing to give an instruction for manslaughter under .the evidence in this case. State v. Diller, 170 Mo. 1; State v. Ashcraft, 170 Mo. 409; State v. Kindred, 148 Mo. 270; State v. Sumpter, 153 Mo. 436; State v. Meadows, 156 Mo. 110; State v. Gartrell, 171 Mo. 489; State v. Martin, 124 Mo. 514; State v. Hall, 168 Mo. 475; State v.. Atchley, 186 Mo. 174; State v. Brown, 64 Mo. 367. (8) Mere words or gestures, independent of any assault and battery, are not sufficient to reduce a homicide to manslaughter. State v. Brown, 64 Mo. 367; State v. Elliott,. 90 Mo. 350; State v. Hudspeth, 150 Mo. 12; State v. Starr, 38 Mo. 270; 21 Am.- and Eng. Ency. Law (2 Ed.), 182; State v. Gartrell, 171 Mo. 489; State v. Martin, 124 Mo. 514. (9) The instruction of the court for miurder in the second degree was in proper form and has heen approved by this court many times. State v. Bauerle, 145 Mo. 1; State v. Elliott, 98 Mo. 150; State v. Atchley, 186 Mo. 174; State v. Ashcraft, 170' Mo. 409; State v. Moxley, 102 Mo. 374; State v. Kinder, 184 Mo. 295.
   BURGESS, P. J.

On an information filed in the circuit court of Vernon county by the prosecuting attorney of said county, in which the defendant, Joseph B. Todd, is charged with murder in the first degree, for shooting and killing one Robert T. Wall at said county, defendant was convicted of murder in the second degree, and his punishment assessed at imprisonment in the penitentiary for a term of twelve years. In due time, after said conviction, defendant filed motions for new trial and in arrest, which were overruled, to which rulings of the court defendant duly excepted, and firings the case to this court by appeal for review.

The homicide occurred at Richards, a village of some two or three hundred inhabitants, in said county, on the 20th day of May, 1904. There had been had feeling of long standing between the parties which seemed to increase as time passed, until an intense hatred grew up between them. They had one or two personal encounters as well as frequent quarrels, many threats were exchanged, and they frequently went armed, as if each was apprehensive of an assault upon him by the other. Defendant was especially vindictive, and at various times, in the presence of others, charged deceased with being dishonest, a scoundrel and a tax dodger. Charges of a similar character were also made by deceased against defendant. Several months before the killing, Wall acquired by purchase from one Claypool a tract of land about one mile north from Richards, through which defendant had been accustomed to travel in order to get to another tract owned by him and adjoining the Claypool tract. After Wall bought this land from Claypool he fenced it in; but regardless of this fact, and against the protests of deceased, defendant and son threw down the fence and passed through the land as usual. A few days thereafter, when defendant and his son appeared at the fence for the purpose of tearing it down and passing through Wall’s land, they were intercepted by Wall who, with a double-barrel shot gun in his hands, warned them not to do so, when they left. There was evidence tending to show a preconcerted plan upon the part of Wall to destroy defendant’s practice as a physician and compel him to leave the town, and to that end he induced another physician to locate there, agreeing to defray his expenses until he became established in his practice at that place.

The defendant and Wall were both residents of-Richards. The main business street of the town is eighty feet wide, running north and south. Defendant’s office was located on the west side of this street, and deceased conducted a store also on the west side of said street and about half a block south of defendant’s office. South of Wall’s store, in the same block and on the same side of the street, was located Dr. Adams’ drugstore, and just across the street, east of the drugstore, was a lumber yard.

Some time prior to the homicide defendant was sued by one Kauffman for damages alleged to have been sustained by him by fire which had been set out on defendant’s land and which, through defendant’s negligence, spread to Kauffman’s land, and defendant made statements to the effect that the suit would not have been pressed but for Wall. Between seven and eight o ’clock on the morning of the homicide, and about two hours before it occurred, the defendant, in a conversation had in his office with Mrs. Claypool, said that Wall was to blame for the suit brought against him by Kauffman. Immediately after this conversation the defendant had a quarrel with and assaulted Mrs. Olaypool’s husband. He then looked south and saw the deceased, some four hundred feet distant, crossing the street from the lumber yard to Adams ’ drugstore. Defendant started south towards Wall’s store. He was then without coat or hat, in an excited condition, and had a pistol in his hand, but which he put in his pocket. Wall crossed the street and went to the drugstore and from there to a position in front of his own building, where he and the defendant met. Defendant began immediately to abuse and curse the deceased, but friends interfered and kept the men apart. Cox, a witness for the State, over the objection of defendant, was permitted to testify that as Wall came to the drugstore he, Wall, said to witness, “My stars, I will have no trouble with him,” meaning defendant. Shortly after this difficulty between defendant and deceased, the latter rode out to his farm on horseback. Returning from his farm, he rode by defendant’s office. Defendant at the time was sitting in a chair in front of his office. Wall was riding very near the center of the street, with the bridle reins and his riding whip in his left hand, and his right hand hanging down by his side. As he rode by he straightened up in the saddle, and looked at defendant and continued to look until there was some little distance between them. As to what then occurred the evidence is conflicting. The State’s evidence tended to show that about this time Wall took his eyes off defendant and faced south, the direction in which he was riding, while the evidence upon the part of the defendant tends to show that when deceased had ridden about ten feet past the defendant he checked his horse almost to a standstill, the horse facing southwest or west, and Wall looking at the defendant; that defendant then arose from his chair and walked to the edge of the sidewalk and that Wall loosened his reins and the horse started south; that defendant stepped out in the street and fired four shots at Wall, two of which took effect and were mortal. One of the shots entered the head, near the temple, about two and a half inches above the right eye, the bullet ranging downward and slightly back, in the direction of the left ear. The other wound was in the back, about two and a half or three inches to the left of the spinal column, between the hip. and short ribs. Another of the bullets struck the horse in the left jaw, entering from the rear and coming out at the mouth. As a result of the shooting Wall fell from his horse about forty-four feet south of where defendant had been sitting on the chair, and when picked up, immediately afterwards, he was found unconscious. He died twelve minutes after twelve o ’clock on the day of the shooting. When Wall was picked up he was carried to the office of Dr. Adams and placed upon a surgeon’s chair. An examination was then made of his pockets by three persons, but no pistol was found upon his person. Subsequently, however, when the body was being prepared for burial, a loaded pistol was found in his right hand coat pocket. In the meantime, after Wall’s death and while he was lying upon the surgeon’s chair, Dr. Tommy Todd, a son of the defendant, came in and felt the wounded man’s pulse with one hand and ran his other hand down upon or into Wall’s coat pocket on the right side. Dr. Tommy Todd, however, testified that he did not put his hand in Wall’s pocket and that he had no pistol or anything else in his hands or pocket; that he did not put a pistol in Wall’s pocket; and did not know whose pistol was found there.

The defendant testified that when deceased appeared in front of his office; just before the shooting, he occupied a natural position in the saddle; but that deceased at once straightened himself up. and fixed his eyes upon defendant, and gave defendant a very angry, vicious and terrifying look which scared him greatly; that he, defendant, continued to sit upon his chair until deceased, who still kept his eyes upon defendant, had ridden south fifteen feet or more, when deceased checked and drew his horse a little to the right, the animal’s head being turned a little to the south; that he, defendant, then rose from his chair, and deceased went to his pocket, as defendant supposed, for a pistol, and that defendant then stepped out in the street a few feet, pulled out his pistol and fired; that he hesitated after firing the first shot to see whether he would be compelled to further defend himself, but that deceased turned his horse’s head toward defendant and continued his efforts, as defendant thought, to get a pistol out of his pocket; whereupon defendant, fearing that deceased was going to shoot him, raised his pistol again and fired three times as rapidly as he could.

Over the objections and exceptions of defendant, the court instructed the jury as follows:

“2. The defendant is presumed to be innocent. Before you can convict him the State must overcome that presumption by proving him guilty beyond a reasonable doubt. If you have a reasonable doubt as to his guilt, you should acquit him. But a doubt, to authorize an acquittal, should be a substantial doubt, founded on the evidence, and not a mere possibility of innocence.

“3. You are the sole judges of the credibility of the witnesses find of the weight and value to be given to their testimony. In determining- such credibility, weight and value, you should take into consideration the character of the respective witnesses, their manner on the stand, their interest (if any) in the result of this trial, their relations to and feelings for or against the deceased and the defendant, the probability or improbability of their statements, their opportunities for seeing, knowing and understanding the facts about which they have testified, as well as all other facts and circumstances appearing in evidence. And if you shall believe that any witness has knowingly and intentionally sworn falsely as to any material fact in this case, then you are at liberty to disregard tbe whole or any part of. the testimony of sneh witness.

“4. If you shall believe from the evidence, beyond a reasonable doubt, that the defendant, in the month of May, 1904, at Vernon county, Missouri, with a pistol, shot and killed Robert T. Wall, and that such shooting and killing was done willfully, deliberately, premeditatedly and of malice aforethought, you should find the defendant guilty of murder in the first degree. Unless you do so believe, you should not find him guilty of murder in the first degree.

“5. If you shall believe from the evidence, beyond a reasonable doubt, that the defendant, in the month of May, 1904, at Vernon county, Missouri, with a pistol, shot and killed Robert T. Wall, and that such shooting and killing were done willfully, premeditatedly, and of malice aforethought, but without deliberation, you should find the defendant guilty of murder in the second degree. Unless you do so believe, you should not find him guilty of murder in the second degree.

“6. As used in these instructions, the expressions ‘wilfully,’, ‘deliberately,’ ‘premeditatedly’ and ‘of malice aforethought’ have the following meanings:

“ ‘Willfully’ means intentionally, not accidentally.

“ ‘Deliberately’ means in a cool state of the blood. It does not mean brooded over or reflected upon for a week, or a day or an hour; but it means an intent to kill, executed in a cool state of the blood, in furtherance of a formed desire to gratify a feeling' of revenge, or to accomplish some other unlawful purpose, and not under the influence of a violent passion, suddenly aroused by some persons.

“ ‘Premeditatedly’ means thought of beforehand, for any length of time, however short.

“ ‘Malice’ does not mean mere spite, ill-will, or hatred, as it is ordinarily understood; but it means that condition of the mind which prompts one to take the life of another without just cause or justification; and it signifies a state of disposition which, shows a heart regardless of social duty and fatally hent on mischief.

“ ‘Malice aforethought’ means with malice and premeditation.

“7. If you shall believe from the evidence that prior to the time of the shooting the deceased had made threats against the defendant, or that defendant had made threats against the deceased, or that, each had made threats against the other, you should take such threats into consideration, together with all the other facts and circumstances appearing in evidence, in determining who was the aggressor in-this case.

“8. Although you may believe from the evidence that the defendant did shoot and kill Robert T. Wall, yet, if you shall further believe from the evidence that he did so in self-defense, as hereinafter explained, you should acquit him.

“On the question of self-defense the court further instructs you as follows: If you shall believe from the evidence that, at the time of the shooting, the defendant had reasonable cause to apprehend and did apprehend, a design on the part of Mr. Wall to take his life or to do him some great personal injury, and that there was reasonable cause for him to apprehend, and he did apprehend, immediate danger of such design being accomplished, and that he shot to avert such apprehended danger, and that, at the time of the shooting, he had reasonable cause to believe, and did believe, it was necessary for him to do so to protect himself from such apprehended danger, then he had a right to do such shooting; and you should acquit him on the ground of self-defense. It is not necessary that the defendant should have been in actual or real danger, nor that the danger (if any) should have been impending and about' to fall. If he had reasonable cause to believe, and did believe, he was in immediate danger of being killed or receiving some great personal injury, he had a right to act upon such belief. Whether or not he did have reasonable canse to so believe, and whether or not he did so believe, are for you to determine from all the facts and circumstances appearing in evidence.

‘ ‘ If you find the defendant guilty of murder in the first degree, you should simply so state, without assessing any punishment therefor. If you find him guilty of murder in the second degree, you should assess his punishment therefor at imprisonment in the penitentiary at a term of not less than ten years.

“If you find him not guilty, you will simply so state.”

The court, at the request of the defendant, gave instructions numbered 1, 9,10 and 11, which are as follows :

“1. The court instructs the jury that the information filed in this case is a mere formal accusation, and raises no presumption against the defendant, and the jury should not permit themselves to be influenced thereby against the defendant on account of said information.

“9. The court instructs the jury that if you shall believe from the evidence that at the time defendant shot and killed Robert T. Wall he, the defendant, had reasonable cause to believe and did believe from the acts and conduct of Wall, that Wall was attempting to draw a pistol and shoot defendant, and that defendant had reasonable cause to believe and did believe that there was imminent danger of Wall so doing, then you must acquit the defendant on the ground of self-defense even though the jury may further believe that Wall was unarmed and that there was no real danger.

‘110, The court instructs the jury that if they find from the evidence that the defendant had reasonable cause to believe and did believe that the deceased was about to draw a pistol at the time and place of the shooting, to shoot him, then he was not bound to flee, but had a right to defend himself from such threatened attack.

“11. The court further instructs the jury that, although you may believe from the evidence that defendant entertained ill-will towards the deceased and had abused and threatened him, still the defendant was not thereby deprived of the right to defend himself against any attack upon him by the deceased. And if you shall find from the evidence that defendant shot and killed the deceased in self-defense, as defined in other instructions, then you must acquit him, notwithstanding such ill-will, abuse and threats. ’ ’

The first assignment of error is upon the ground that the attorney representing the State was allowed, over the objection and exception of defendant, to state to the jury in his opening statement that the testimony would show that about eight o ’clock on the morning of the homicide the defendant assaulted a man named Olaypool and struck him over the head with a pistol. This difficulty between defendant and Olaypool had no connection or anything whatever to do with the shooting of Wall by defendant, and the statement made by the attorney representing the State to the effect that defendant assaulted Olaypool with a pistol some two hours before the killing of Wall shed no light on the homicide, and should not have been made or admitted. But this statement as to what the testimony would show was admitted by the court, over the objection of defendant, upon the theory evidently that the attorney making it would thereafter be able to show some connection between the alleged assault on Olaypool and the homicide; but the attorney having failed to do this, the court at the conclusion of his statement, excluded from the consideration of the jury that part of it which related to the assault upon Olaypool. The court said:

“Gentlemen, counsel for the defendant, and the jury, the court desires to make this statement and this ruling: Mr. Scott’s statement of what the State expected to prove, the court thinks that the defendant objecting to the details of the difficulty which is alleged) to have taken place between this defendant and a man by the name of Claypool, that that statement ought not to be taken into consideration; nothing to show that that had any connection with this difficulty. And, therefore, the defendant objected to Mr. Scott’s statement as to what took place between this defendant and Clay-pool. That will be excluded and struck out now, and if there should be any testimony of that kind offered it will be excluded. There is nothing in Mr. Scott’s statement connecting it with Mr. Wall at all. It is immaterial whether Mr. Todd or Claypool was to blame in that trouble, and does not seem to connect Mr. Wall with it in any way, and, therefore, it is not competent or admissible, and the jurors will not allow it to have any lodgment in your minds, if you can help it. ’ ’

What more could the court do than it did? The statement complained of had been made with its permission, and the court could not, therefore, rebuke the attorney. But the court’s direction to the jury to disregard the statements of the attorney relating to the assault upon Claypool, and that any testimony which might be offered in regard thereto would be excluded, served as an antidote to any prejudicial effect that such statement might have had upon the minds of the jury. No evidence regarding the Claypool affair was offered by the State, and as it was expressly announced by the court from the bench that should any such evidence be offered it would be excluded, no prejudice could possibly have resulted to the defendant by reason of such statement. While it was held in State v. Stubblefield, 157 Mo. 360, that the court erred in not rebuking the prosecuting attorney for statements made by him in his opening statement connecting the defendant upon trial with crimes other than that for which he was then being tried, that case differs from the one at bar in that the statements in that case were not made with the permission of the court. Nor is the case in hand to be included in that class of cases where the prosecuting attorney, in addressing the jury, speaks of matters cle hors the record prejudicial to the defendant, and where, upon objections made by the defendant, it becomes the duty of the court to reprimand the attorney for thus transgressing, and to direct the jury to disregard such remarks, as held in the case of State v. Kring, 64 Mo. 591, and State v. Lee, 66 Mo. 165, and in this way obviate any resulting prejudice to the defendant. The statement complained of was in no sense evidence, and could not have an effect such as evidence relating to the said assault might have upon the minds of the jury, and the court’s direction that it be excluded from their consideration entirely eliminated it from the case. Had evidence in support of the statement been permitted to go to the jury, it would have been prejudicial to the rights of defendant, and the wrong could not have been righted by the mere oral direction of the court from the bench to disregard it. But even after the objectionable statement had been made and after the court directed the jury to exclude it from their consideration, the attorney for defendant who made the statement of defendant’s case insisted upon laying the Claypool affair before the jury, and did state some of the details thereof; nor did he desist until the court, upon objections made by the State; had several times ruled that he could not be permitted to inject the Claypool matter into the case unless by consent of the adverse counsel, which consent counsel for the State refused to give unless allowed the same privilege. ■ We think, by this course, the defendant waived any objection he might have had in the first instance to the statement in question.

Over the objection and exception of defendant, Hugh Cox, a clerk in the drug store of Dr. Adams and a witness for the State, was permitted to testify that on the morning of the difficulty between defendant and deceased, which occurred some hours prior to the homicide, he saw deceased coming across the street from the lumber yard towards the drug store and also saw defendant coming south towards the drug store, and heard defendant cursing deceased and calling him vile names, when witness, addressing deceased, said, “Uncle Bob, you had better come in the store,” and that deceased replied, “My stars, I will have no trouble with him.” The contention is that this testimony was mere hearsay, and was improperly admitted. While we agree to this, it seems clear to us that the error was non-prejudicial and that the judgment should not be reversed on that ground.

Instruction numbered five is claimed to be erroneous upon the ground that there was no testimony upon which to base it. “Where there is a willful killing with malice aforethought, that is, with malice and premeditation, but not with deliberation, or in a cool state of the blood, the offense is murder in the second degree.” [State v. Curtis, 70 Mo. l. c. 600; State v. Robinson, 73 Mo. 306.] While there was evidence tending to show that the shooting and killing were done deliberately, premeditatedly and with malice, the defendant’s own testimony, if true, showed that it was not done with deliberation. He stated that as deceased rode past his office he, deceased, straightened himself up in the saddle and gave defendant a very angry look, and that he did not shoot at deceased until he had proceeded some fifteen feet, checked up his horse and made a motion with his hand toward his hip pocket; that he, defendant, then stepped out in the street, drew his pistol and began shooting, and continued to shoot until deceased fell from his horse, which tended to show that the shooting was not done deliberately, but willfully, premeditatedly and of malice aforethought, rendering the homicide murder in the second degree. But even if the testimony did not warrant this instruction, the defendant is in no position to complain, for if the court erred in instructing for a lesser degree of murder than that with which the defendant is charged, it was an error in defendant’s favor of which he has no' cause to complain. Section 2369, Revised Statutes 1899, provides: “Any person found guilty of murder in the second degree, or of any degree of manslaughter, shall be punished according to the verdict of the jury, although the evidence in the case shows him to be guilty of a higher degree of homicide. ’ ’ Section 2535, Revised Statutes 1899, provides that no judgment shall be affected “for any error committed at the instance or in favor of the defendant; nor because the evidence shows or tends to show him to be guilty of a higher degree of the offense than that of which he is convicted.” We think it clear from the evidence that the jury might have found the defendant guilty of murder in either degree, and under such circumstances said instruction was proper. [State v. McMullin, 170 Mo. 608; State v. Frazier, 137 Mo. 317.]

Another objection urged against said instruction number 5 is that it does not indicate to the jury what facts were necessary for it to find in order to authorize a conviction of murder in the second degree. The instruction told the jury that before they could find the defendant guilty of murder in the second degree, they must believe from the evidence, beyond a reasonable doubt, that defendant, with a pistol, shot and killed Robert T. Wall, and that such shooting and killing were done wilfully, premeditatedly and of malice aforethought, but without deliberation (these terms being defined in another instruction), and thus presented to the jury all the questions necessary for them to pass upon in order to a determination of the guilt or innocence of defendant of murder in the second degree. In speaking of a similar instruction in State v. Bauerle, 145 Mo. l. c. 18, Gantt, J., said:

“The court gave the following instruction: ‘The court instructs the jury that if you believe and find from the evidence in this cause, beyond a reasonable doubt, that the defendant, at the county of Lafayette and State of Missouri, on or about the 26th day of April, 1896, willfully, premeditatedly and of his malice aforethought shot and killed one Amelia Bauerle, hut without deliberation, you will find defendant guilty of murder in the second degree and will assess his punishment at imprisonment in the penitentiary for a term of not less than ten years. ’ It had already defined the meaning of deliberation, premeditation and malice aforethought. Defendant insists that this instruction is misleading and should not have been given. It is sufficient to say that this instruction has been approved a score of times by this court, and is the settled law of this State. [State v. Moxley, 115 Mo. 644; s. c., 102 Mo. 347.]”

The defendant contends that the court should have given an instruction on manslaughter in the fourth degree. To authorize such an instruction there must have been evidence tending to show that the defendant, in the heat of passion induced by reasonable provocation, without mjalice and without premeditation, shot and killed the deceased, which the evidence in this case does not show; “and the passion which will reduce homicide to the grade of manslaughter is an excited state of mind produced by some lawful provocation, such as a blow or an assault, of any kind upon the person.” [State v. Ellis, 74 Mo. 207.] In State v. McKenzie, 177 Mo. l. c. 712, it is said: “Manslaughter in the fourth degree, under the statutes of this State, is the intentional killing of a human being in a heat of passion on a reasonable provocation, without malice and without premeditation, and under circumstances which will not render the killing justifiable or excusable homicide; and as a general rule it takes an assault, with personal violence, to constitute such provocation.” The same rule is announced in State v. Sumpter, 153 Mo. 436; State v. Meadows, 156 Mo. 110; State v. Brown, 64 Mo. 367; State v. Diller, 170 Mo. 1; State v. Ashcraft, 170 Mo. 409; State v. Kindred, 148 Mo. 270; State v. Gartrell, 171 Mo. 489. None of the authorities cited by defendant are to the contrary. There was no evidence that deceased made any remarks whatever to or in the presence of defendant, or that he made any assault upon him at the time of the homicide, and there was, therefore, nothing upon which to base an instruction for manslaughter.

The instructions were such as have been frequently approved by this court, they covered every phase of the case and were very fair to the defendant, especially upon the question of self-defense. There was ample evidence to authorize and sustain the verdict. Our conclusion is that the judgment should be affirmed. It is so ordered.

All concur.


source: Caselaw Access Project

author: FOX, J.

license: Public Domain

text:
    THE STATE v. DOERRING, Appellant.
    Division Two,
    March 6, 1906.
    1. TITLE OF STATUTE: More than One Subject. The purpose of the Constitution in requiring bills to contain only one subject, and that to be clearly expressed in the title, is to prevent incongruous and disconnected matters which have no connection with each other from being joined in one bill, but that does not mean that all matters germane to the principal subject and having a natural connection with it may not be incorporated in the same bill.
    2. -: -: Dentistry: One Subject: Clearly Expressed Words of Caption. In 1883 the General Assembly enacted a law whose title was: “An act to regulate the practice of dentistry in the State of Missouri.” This act was carried into the Revised Statutes of 1889 and was made article 3 of chapter ii.0 thereof, the entire chapter being headed, “Medicine, Surgery and Dentistry,” and article 3 was headed, “Dentistry.” In 1897 the General Assembly enacted a Statute which had as a caption, “Medicine and Surgery: Dentistry — State Board of Examiners,” and gave it this title: “An Act to repeal article 3 of chapter 110 of the Revised Statutes of Missouri of 1889, and to enact a new article in lieu thereof, to be known as article 3rd of chapter 110.” EelcL, first, that the act of 1897 has but one subject, namely the regulation of the practice of dentistry, and is valid; second, that the subject of the act of 1897 was clearly enough expressed in the title to meet the constitutional requirement; and, third, the words of the caption given to the a,et by the Legislature, namely, “Medicine and Surgery; Dentistry: State Board of Examiners,” should be construed as a part of the title to the'law.
    3. DENTISTRY: Power to Regulate. The General Assembly has power by appropriate statute to regulate the practice or those trades and professions that require particular skill and learning, the practice of which necessarily affects the public, such as dentistry.
    4. -: Judicial Functions. The dentistry statute does not invest the dental board with judicial functions.
    5. -: Information. It is not necessary that the information charging a defendant with practicing dentistry without a license state the name of the persons upon whom he practiced.

      6. -: Exception: Burden. The burden is not on the State to prove that the defendant does not belong to one of the classes of dentists exempted from the operation of the statute, for those classes are excepted in a distinct section of the statute, and in such case the burden is on the defendant to show that he belongs to one of the excepted classes.
    7. -: Wrongfully Withholding License. The fact that the dental board wrongfully withheld from defendant a license to practice dentistry is no defense to the charge that he practiced without a license. If he is lawfully entitled to a license he must resort to some appropriate remedy to compel the issuance of the license; but if he practiced without a lice use, his offense is complete under the statute.
    Appeal from Jackson Criminal Court. — lion. Jno W. Wofford, Judge.-
    Afkibmed.

      Herbert 8. Hadley, Attorney-General, and Rush C. Lake, Assistant Attorney-General, for the State; W. E. Oiven of counsel.
    (1) The law regulating tire practice of dentistry in this State, and creating a State Boárd of Dental Examiners (Laws 1897, p. 166), is not unconstitutional and void because violative of that provision of the Constitution (sec. 28, art. 4) which requires that no bill shall have more than one subject. The courts of this, and all other States having a similar provision in their Constitution, uniformly hold that all that is required to satisfy this provision of the Constitution is that the provisions of a statute shall be congruous, germane, connected and fairly relate to the same subject; have a natural connection with it, and are the incidents or the means of accomplishing it, then the subject is single, and if sufficiently expressed in the title, is valid. St. Louis v. Tiefel, 42 Mo. 578; State ex rel. v. Mead, 71 Mo. 268; State v. Bennett, 102 Mo. 356; State ex rel. v. Hughes, 104 Mo. 640; State ex rel. v. Miller, 100 Mo. 440; State ex rel. v. Bronson, 115 Mo. 271; Lynch v. Murphy, 119 Mo. 163. (2) Nor is said law obnoxious to said constitutional provision which requires that the subject shall be clearly expressed in the title. Bish. on Stat. Crimes, sec. 45. “Marginal notes, where they are parts of the authentic records of the statutes, and especially where they are in any way attached to the bill during its passage through the legislative body, may be regarded similarly to the title. And what is in form a marginal note may be a part of the statute itself.” Bish. on Stat. Crimes, sec. 61; In re Venour’s Settled Cases, 2 Ch. D. 525 ; Rex v. Mulverton, 5 A. & E. 854; Cooley’s Const. Lim. (1 Ed.), pp. 143, 144; State v. Blackstone, 115 Mo. 424; State v. Murlin, 137 Mo. 305; State ex rel. v. Slover, 134 Mo. 16; State ex rel. v. Ran-son, 73 Mo. 88; People v.' Molineux, 53 Barb. 9; Leard v. Leard; 30 Ind. 171; Chambers v. State, 25 Tex. 307; State v. Clare, 5 Iowa 509; Yan Riper v. Parsons, 40 N. J. L. 126; Bird v. Wasco Co., 3 Ore. 282. An act may be amended or revised or repealed and substituted by reference to the chapter, article or section of the original act, if the matter in the new act might have been incorporated in the original law under its title. Arnault v. New Orleans, 11 La. Ann. 56; State v. Garret, 29 La. Ann. 637; State v. Brown, 41 La. Ann. 771; People v. Hills, 35 N. Y. 449; Doggett v. State, 17 Neb. 143; State v. Babcock, 23 Neb. 128; People v. Judge, 39 Mich. 195; Callahan v. Chipman, 59 Mich. 616; Fenton v. Yule, 27 Neb. 758; State ex rel. v. Heege, 135 Mo. 112; State ex rel. v. County Court, 128 Mo. 440’. (3) In this State no one has a vested right to practice the learned professions, or to continue the practice thereof, free from the control of the Legislature. The creation of a Board of Examiners with authority to determine as to who shall practice dentistry is a proper exercise of authority. Cooley on Torts, pp. 289, 290; Tied, on Police Powers, secs. 87, 88; State v. Hathaway, 115 Mo. 36; Austin v. State, 10 Mo. 591; Simmons v. State, 12 Mo. 268; St. Louis v. Steinberg, 69 Mo. 299; State ex rel. v. Gregory, 83 Mo. 123; State ex rel. v. Board of Health, 103 Mo. 22. (4) Said act does not invest said dental board with judicial functions. “A judicial duty within the meaning of the Constitution is such a duty as legitimately pertains to an officer in the department designed by the Constitution as judicial.” State v. Hathaway, 115 Mo. 36; State ex rel. v. Seibert, 130 Mo. 202; State ex rel. v. Fladd, 108 Mo. 614. (5) The indictment in this case is good and need not set out the names of persons practiced on by defendant. State v. Little, 76 Mo. 52; State v. Smith, 60 Mo. App. 283; State v. Bennett, 102 Mo. 364. (6) There is no merit in the contention that the burden is on the State to prove that defendant does not belong to one of the classes (practicing dentistry) excepted from the operation of this law. Such exemption if existing must be insisted on by way of defense by the party accused. State v. O ’Brien, 74 Mo. 549; State v. Crenshaw, 41 Mo. App. 24; State v. Smith, 60 Mo. App. 287; State v. Cox, 32 Mo. 568. (7) No evidence is admissible in this prosecution tending to show that defendant has complied with all the requirements of the law to entitle him to registration by the dental board, and that said board has wrongfully or arbitrarily denied him same. The requirement of this law is that no person shall practice or continue the practice of dentistry in this State without being registered by the board of dental examiners. Defendant is without this authority and cannot plead as an excuse that hevioated the law, because the dental board first violated the law in refusing him registration, and that therefore the inhibition of the State upon him is waived. Kansas City v. Flanders, 71 Mo. 281; State v. Jamison, 23 Mo. 330; State v. Huntley, 29 Mo. App. 278. If defendant has been wronged by any action of the dental board, he has a complete and adequate remedy by mandamus to compel said board to register him). State ex rel. v. Lutz, 136 Mo. 633. The burden is on defendant to show he had license. Schmidt v. State, 14 Mo. 137; State v. Durkin, 23 Mo. App. 387; St. Louis v. Weitzel, 130 Mo. 613; State v. Hathaway, 115 Mo. 36; St. Louis v. Lamp Co., 139 Mo. 571.
   FOX, J.

This cause is here on appeal by the defendant from a judgment of conviction in the criminal court of Jackson county, Missouri, at Kansas City, for practicing dentistry without being a duly and legally registered dentist and without a license therefor and without any other legal authority so to do. The information in this cause was filed by the prosecuting attorney of Jackson county on the 28th day of December, 1903. Omitting formal parts the offense was thus charged:

“Now comes Roland Hughes, prosecuting attorney for the State of Missouri, in and for the body of the county of Jackson, and upon the affidavit of S. C. A. Rubey hereto annexed and herewith filed, informs the court, that D. L. Doerring, whose Christian name in full is unknown to said prosecuting attorney, late of the county aforesaid, on the 10th day of March, 1902, at the county of Jackson, State of Missouri, did unlawfully and willfully practice dentistry and dental surgery, by performing dental operations, treating diseases and lesions of the human teeth and jaws, and by attempting* to correct malpositions and by filling teeth, for a fee, salary and reward to him, the said D. L. Doerring, to be paid, without being then and there a duly and legally registered dentist, and without having a license therefor, and without any other legal authority so to do, said unlawful practice of dentistry and dental surgery by him the said D. L. Doerring not being then and there performed while a bona-fide student of dentistry, in the pursuit of clinical advantages while in attendance upon a regular course of study in a reputable dental college, and not under the direct supervision of a preceptor, who was at the time a licensed dentist in said State, and he, the said D. L. Doerring, not being then and' there a legally qualified physician in the regular discharge of his duties, against the peace and dignity of the State.”

Defendant filed his motion to quash this information for the reasons assigned in said motion, that the information failed to state facts sufficient to constitute an offense under the laws of this State and that the act of the Legislature, commonly called “The Dentistry Act,” upon which this charge was predicated, was unconstitutional and void. This motion was taken up by the court and overruled. At the commencement of the trial the defendant objected to the introduction of any evidence in this case under the information filed for the following reasons:

“1st. That article 3 of chapter 128 of the Revised Statutes of Missouri of 1899, said article being the law that the defendant is charged with having violated, and being an act passed in 1897, by the G-eneral Assembly of the State of Missouri, entitled ‘An act to repeal article 3 of chapter 110 of the Revised Statutes of Missouri of 1889, and to enact a new article in lieu thereof, to be known as article 3 of chapter 110” is unconstitutional and void and of no force or effect in that said act is in contravention of the provisions of section 28 of article 4 of the Constitution of the State of Missouri.

“2nd. That said act of the Legislature of 1897 is in contravention of article 2, section 30, of the Constitution of the State of Missouri, in that it deprives certain classes of persons, citizens or individuals of property or rights without due process of law.

“3rd. Because said act of the Legislature of 1897 is in contravention of article 2, section 15, of the Constitution of the State of Missouri, in that said act is an ex posto facto law, or law impairing the obligation of contract, and retrospective in its operation.

“4th. Because said act of the Legislature of 1897 is unconstitutional in that it confers judicial power upon the State Board of Dental Examiners not authorized by article 6, section 1, of said Constitution. ’ ’

Which said objections were by the court overruled. The cause was then submitted to the court without the aid of a jury, upon the following agreed statement of facts:

“First. That the law relative to the practice of dentistry and dental surgery in the State of Missouri was, first, ‘An act entitled an act to regulate the practice of dentistry in the State of Missouri,’ passed and approved February 20, 1883; that said act remained in force until the same was repealed or attempted to be repealed by an act of the Legislature of 1897, known as committee substitute for Senate-bills 22 and 29, and said act was entitled, ‘An Act to repeal article 3 of chapter 110 of the Revised Statutes of Missouri of 1889, and to enact a new article in lieu thereof, to be known as article 3 of chapter 110,’ which said act was approved March 19, 1897.

“Second. That the defendant, D. L. Doerring, prior to the passage of the act of 1897, was a duly registered dentist, and was practicing dentistry and dental surgery in Kansas City; that on the 21st day of May, 1897, said defendant, having complied with the laws of the State of Missouri, in force at that time, received from the clerk of the county court of Jackson county, Missouri, a dentist’s certificate in compliance with the laws of the State of Missouri of said date; that said certificate is in words and figures following, to-wit :

“ ‘dentist’s certificate.

“ ‘No. 279.

‘ ‘ ‘Know all men by these presents, that D. L. Doer-ring, a resident of Kansas City, in the county of Jackson and State of Missouri, has this day complied with the requirements of the law of the. State of Missouri, entitled ‘An act to regulate the practice of dentistry in the State of Missouri, approved February 20, 1883, ’ by filing a copy of a diploma sworn to by him, duly issued to him on the 2nd. day of March, 1896, by the Kansas City College of Dental Surgery, which said college is located in the city of Kansas City, State of Missouri, and is duly established under and by virtue of the laws of the' State of Missouri.

“ ‘In testimony whereof I have hereunto set my hand and affixed the seal of the county court of said county, at office, in the city of Kansas City, this 21st day of May, 1897.

“ ‘(Seal.) T. T. Crittenden, Jr., Clerk,

“‘ByS. K. Farr, D. C.’

“Third. That on the 3rd day of August, 1897, the Missouri State Board of Dental Examiners received said certificate from the defendant herein, and also application for certificate under the law of 1897, together with fee of one dollar, which it had kept, and that thereafter, on September 24,1899, the defendant was refused registration by said Board of Dental Examiners, in a letter, of which the following is a copy:

W. M. Bartlett, President, St. Louis.

S. C. A. Rtjby, Secretary, Clinton. H. S. Lowery, Kansas City.

L. E. Jenkins, Fredericktown. W. W. Birkhead, Louisiana.

‘ ‘ ‘Missouri State Board of Dental Examiners.

OFFICE OF SECRETARY.

“ ‘Clinton, Mo., Sept. 24, 1897.

“ ‘Dear Doctor: — I herein return you your certificate of registration. Board declines to acknowledge diplomas from the school from which you are graduated, and it will be necessary for you to make application for examination before this Board at its next meeting, on the enclosed blank, at once, sending the endorsement or recommendation of some dentist, known to this Board, as to your competency. Pending such examination you will be permitted to practice dentistry. Pee for examination of $10, and you are credited with $1. Should you apply for examination this dollar will he applied on examination fee; if you do not, I will return it.

“ ‘Next meeting of the Board will he held in about two months, due notice of which will be sent you if you apply for examination. If you neglect to apply for1 examination, it will become my duty to take steps toward prosecuting you for practicing dentistry in violation of the law. Yours truly,

S. C. A. Ruby.’

“And that ever since said date said Board has refused to register said defendant; that defendant has been ready and willing and able to pay and has tendered to said board the annual fee of $1, but that said State Board of Dental Examiners has refused and still refuses to receive said payment, and has at all times refused to issue a certificate of registration to defendant, though often requested to do so, and defendant has never received any certificate of registration from said Board of Dental Examiners.

“Fourth. That on the dates alleged in the information in Kansas City, Jackson county, Missouri, the defendant was engaged in the practice of dentistry and dental surgery for fee or reward to be paid.

“Fifth. It is further stipulated by plaintiff and defendant that upon the trial hereof further evidence may be introduced tending to prove or disprove the allegations of the information, subject to objections as to the relevancy, materiality and competency thereof.”

The defendant then offered in evidence a certified copy of an act of the G-eneral Assembly, entitled “An act to repeal article 3 of chapter 110 of the Revised Statutes of Missouri, of 1889, and to enact a new article in lieu thereof, to be known as article 3 of chapter 110.” It is unnecessary to reproduce this law as offered in evidence. It will receive such attention as is necessary during the course of the opinion.

Upon the submission of the cause the court found the defendant guilty and assessed his punishment at a fine of fifty dollars. Motions for new trial and in arrest of judgment were duly filed and by the court taken up and overruled. Judgment in pursuance of the verdict was duly rendered and from this judgment defendant prosecuted his appeal to this court and the record is now before us for consideration.

OPINION.

The record presents but one question for consideration, that is, the validity of the law upon which this prosecution is predicated.

Preceding the commencement of the trial, as well as during the progress of it, and in the motion for new trial, learned counsel for appellant challenged the constitutionality of the law upon which this judgment rests, and this is the only question confronting us for consideration.

The Attorney-General has filed a brief in this cause in which the questions presented are fully and exhaustively treated; however, for the appellant we are not favored with any suggestions as to his complaints or the correct solution of the propositions involved in the record; hence for the assignment of errors we must look to the objections interposed at the commencement of the trial.

I. The law upon which this prosecution is based is one to regulate the practice of dentistry in this State. [Laws 1897, p. 166.] The subject of regulating the practice of dentistry in this State was first treated of by the General Assembly in 1883. [Laws 1883, p. 114.] The act of 1883 upon this subject went into the revision of 1889. The act of 1897, heretofore indicated, repealed the law upon this subject as contained in the revision of 1889.

Treating of the objections urged in the trial court, it was insisted that this law regulating the practice of dentistry was invalid, for the reason that it was in contravention of the provisions of .section 28 of article 4 of the Constitution of ‘this State, which provides that bills of this nature shall contain only one sub ject, which shall be clearly expressed in the title of the bill. The original act of 1883, of which the law of 1897 is a substitute, had the following head notes or caption to it: “Medicine and Surgery; Dentistry,” followed with this title to the bill: “An act to regulate the practice of dentistry in the State of Missouri.” The act of 1897 contained the following head note or caption to it: “Medicine and Surgery: Dentistry — State Board of Examiners.” This was followed with this title to the bill: “An act to repeal article 3rd of chapter 110 of the Revised Statutes of Missouri of 1889, and to enact a new article in lieu thereof, to be known as article 3rd of chapter 110.”

Upon the proposition that the act of 1897, known as the “Dentistry Act,” treated of more than one subject, we will say that we have carefully analyzed the provisions of that law and have reached the conclusion that it simply contains but one subject, that is, to regulate the practice of dentistry in this State. The object and purpose of the constitutional provision was to prevent incongruous, disconnected matters, which had no relation to each other, from being joined in one bill, but it by no means contemplates that all matters that are germane to the principal subject and have a natural connection with it, may not be incorporated in the same bill.

In Ewing v. Hoblitzelle, 85 Mo. 64, the following rule taken from Sedgwick was approved: “Where all the provisions of a statute fairly relate to the same subject, have a natural connection with it, are the incidents or means of accomplishing it, then the subject is single, and if it is sufficiently expressed in the title the statute is valid.” This rule was approved by Judge Black in State ex rel. Attorney-General v. Miller, 100 Mo. 439, citing, in support of such approval, St. Louis v. Tiefel, 42 Mo. 578; State v. Mathews, 44 Mo. 523; State v. Miller, 45 Mo. 495; City of Hannibal v. County of Marion, 69 Mo. 571; State ex rel. v. Mead, 71 Mo. 268, as substantially announcing the same rule as approved in Ewing v. Hoblitzelle, supra. To the same effect is State ex rel. v. Bronson, 115 Mo. 271, where it was ruled that this section of the Constitution should be reasonably and liberally construed and applied, due regard being had to its object and purpose, it was again announced in that case that if all the provisions of the bill have a natural relation and connection then the subject was single, and this, too, though the bill contains many provisions. In Lynch v. Murphy, 119 Mo. 163, the rule announced in the foregoing cases .was approved and followed.

While this act, the validity of which is challenged by appellant, contains many provisions, yet it is made manifest by an examination of the various sections contained in the bill, that it treats of but one subject and has but one object in view, and that is to regulate the practice of dentistry in this State.

The aditional objection is made to this-law that the subject of which it treats, the regulation of the practice of dentistry in this State, is not clearly expressed in the title of the bill as required by the constitutional provision. The evident purpose of this constitutional provision requiring the subject of the bill to be clearly expressed in the title, is well stated in State ex rel. v. Ranson, 73 Mo. 78. In discussing this constitutional provision in that case this court said, that “the adjudicated cases, as well as the elementary writers, all concur that it was to prevent the vicious practice of conjoining, in the same bill, incongruous matters, and subjects having no legitimate connection or relation to each other, and in no way germane to the subject expressed in its title; that its subject was to prevent surprise or fraud upon members of the Legislature, rather than embarrass legislation by making laws unnecessarily restrictive. [Cooley on Const. Lim., 174; St. Louis v. Tiefel, 42 Mo. 590.] Some of the adjudicated cases have construed this provision with some strictness, but in the majority of them the rule is otherwise. In the case of State v. Miller, 45 Mo. 497, this court uses this language: ‘ The courts, in all the States where a like or similar provision exists, have given it a very liberal interpretation, and have endeavored to construe it so as not to limit or cripple legislative enactments any further than what was necessary by the absolute requirements of law. ’ Justice Cooley, in his work on Constitutional Limitations (p. 178), says: ‘There has been a general disposition to construe the constitutional provision liberally, rather than embarrass legislation by a construction whose strictness is unnecessary to the accomplishment of the beneficial purpose for which it was adopted.’ The Supreme Court of Louisiana in commenting on argument of counsel, which demanded a strict construction of a constitutional clause like this, uses this langmage: ‘We think the argument invokes an interpretation of the constitutional clause too rigorous and technical. If in applying it we should follow the rules of a nice and fastidious verbal criticism, we should often frustrate the action of the Legislature without fulfilling the intention of the framers of the Constitution. ’ [Succesion of Lanzetti, 9 La. Ann. 333.] ”

We therefore must approach the treatment of this proposition as to the necessity of expressing clearly the subject in the title of the bill required by the Constitution, with the full recognition of the rule that such constitutional provision must be reasonably and liberally construed and applied, due regard being had to its object and purpose.

It will be observed that the original act upon the subject of regulating the practice of dentistry, in 1883, was revised in chapter 110 of the revision of 1889. This chapter was headed: “Medicine, Surgery and Dentistry;” then followed the designation of the articles of which this chapter treated: first, article 1, Medicine and Surgery; article 2, Disposition of Human Bodies ; article 3, Dentistry. When we turn to article 3 of the revision of 1889, it is headed, “Dentistry.” Section 6610, Revised Statutes 1889, expressly provides that in the revision of the statutes the enacting clauses of the several acts, as also the words, “An act concerning,” or other equivalent words in the title to the several acts, shall be omitted, substituting in lieu thereof other words expressive of the subject of the act or law.

It was held in State ex rel. v. Ranson, supra, that the acts as revised by the general statute may be taken as the original act and the title prefixed to the same by the general statute may be accepted as the title to such chapters, since this arrangement and heading of the general statutes is authorized by law and indeed has become a part of the law itself. [Gen. St. 1865, pp. 882, 883, secs. 1, 8, 9; R. S. 1879, p. 530, sec. 3164; People v. Molineaux, 53 Barb. 9.]

We have in the act of 1897 the general head notes as contained in the revision of 1889, that is, ‘ Medicine and Surgery; Dentistry,” with the additional head note of “State Board of Examiners;” then follows the statement, “An act to repeal article 3 of chapter 110 of the Revised Statutes of Missouri of 1889; and to enact a new article in lieu thereof, to be known as article 3 of chapter 110. ’ ’

After a careful consideration of this proposition we have reached the conclusion that the title to the act of 1897 is a sufficiently definite expression of the subject to which the legislation in the act relates as renders it in harmony with the provision of the Constitution. It will be observed that by this act no change is sought in the chapter, other than in one of the articles of it. The chapter with its headings, which are accepted as its title, remains the same; hence it is manifest that when the act of 1897 repeals article 3 of chapter 110 and enacts a new article in lien of it, to he known as article 3rd of chapter 110, snch new article must necessarily embrace the subject in the title of chapter 110 of that article, which was “Dentistry.” In other words, it is clear by the act of 1897 that article No. 3, treating of the subject of dentistry, was to be retained in chapter 110, and while there were changes to be made in the body of the article, treating of the subject, the subject itself was to remain the same. Article 3 of chapter 110, as denoted in the heading of such chapter, is known only as the article upon the subject of dentistry; hence when the act of 1897 expressly says in its title that the new article shall be known as article 3. of chapter 1101, it necessarily means the article 3 as designated in the title of that chapter, as “Dentistry.” Chapter 110, at the very opening of the chapter, labels article 3 as being a law upon the subject of dentistry, hence the statement in the title of the act of 1897, that the new article shall be known as article 3 of chapter 110, to all intents and purposes labels that law as being upon the same subject designated by chapter 110, that of dentistry. The main purpose of the constitutional provision in requiring the subject of the legislation to be clearly stated in the title in the bill, was to prevent surprise or fraud upon members of the law-making body. The title to this act clearly informed the members of the Legislature as to the nature of the legislation sought by the bill. By the title of this' bill they were referred to chapter 110, and informed that this act proposed to repeal article 3 of that chapter, and enact in lieu of or in place of it a new article to be known as article 3 of the same chapter. Turning to chapter 110!, and the reference to it by the act of 1897 made it a part of the title to the act, the legislator would find the subjects treated of in that chapter, and would discover in addition that part of the title to the chapter designated article 3 treated of the subject of dentistry; if tbe new article enacted was to be known as article 3 of that chapter, the conclusion is inevitable that the legislator seeking information-would readily realize that the subject of the new article to be enacted must necessarily be that of dentistry. The title to the act of 1897 makes it manifest that no one was surprised or deceived thereby, and it is sufficiently definite to inform the members of the Legislature of the nature and subject of the legislation sought to be enacted. While the title to the act indicates the enactment of a new article, yet this did not mean a new article upon a new subject, for it is made clear by the language employed in the title, that while the article was denominated a new one, it was to be confined to the same subject, and the body of the act itself emphasizes the truth of this fact for it was confined to the same subject as the former legislation which was repealed by it.

The case of Brandon v. State, 16 Ind. 197, was approved by this court, in State ex rel. v. Ranson, supra. It was said by the Indiana court that “if the title of an original act is sufficient to embrace the provision contained in an amendatory act, it will be good, and it need not be inquired whether the title of the amendatory act would, of itself, be sufficient.” In State ex rel. v. County Court, 128 Mo. 427, it was ruled that the mere generality in the title will not vitiate an act of the General Assembly unless the title is of such-a nature as to compel a conviction that it was designed to mislead as to the subject dealt with.

It is clearly the province of the law-making power to decide upon the title of an act, and at least some deference must be paid to their decision, and an act should not be declared unconstitutional for the reason that it fails to clearly express the subject by its title, unless it clearly violates that command of the Constitution. [Dogge v. State, 17 Neb. 140.] In' addition to this, in State v. Murlin, 137 Mo. 297, this court, in indicating the title of an act under discussion, included the general caption or head-note of the act, similar to the caption or head-note of the act now under discussion, as being a part of the title of the law, 'and we see no valid objection, when head-notes, as in this instance, “Medicine and Surgery; Dentistry: State Board of Examiners,” are placed there by the Legislature during the consideration of the bill, to construing such general head-notes or caption of the bill as a part of the title of the law.

II. The act of the Legislature of 1897/ which is challenged in this proceeding, is not violative or in contravention of section 30 of article 2, of the Constitution of the State of Missouri, in that it deprives certain classes of persons, citizens or individuals of property or rights without due process of law.

It is sufficient to state upon this proposition that the question of the power of the Legislature to regulate the practice of those trades and professions that require particular skill and learning, the practice of which necessarily affects the public, was fully discussed in State v. Davis, infra, page 485. It was held in that case that the Legislature had full power to enact such laws and that they in no way deprived persons of any vested rights or property.

III. This act does not invest the dental board with judicial functions in violation of the provisions of the Constitution. This was expressly ruled where a similar principle was involved, in State v. Hathaway, 115 Mo. 36.

IY. The indictment in this cause properly charges the offense, and there was no necessity to allege in the pleading the names of the persons upon whom the defendant practiced his profession of dentistry. [State v. Little, 76 Mo. 52.]

V. The burden in the trial of this cause was not upon the State to prove that defendant did not belong to one of the classes practicing dentistry which were excepted from the operation of the statute, as urged in the contention of the appellant. It will he noted that the classes excepted from the operation of this law are enumerated in a different section; therefore, if defendant was within the class so excepted that was a matter of defense, and the burden of proof was upon him. It was ruled in State v. O’Brien, 74 Mo. 549, that “when an exception is contained in a statute defining an offense and constitutes a part of the offense, an indictment for such offense must negative the exception; but when the statute contains a proviso exempting a class therein referred to from the operation of the statute, an indictment need not negative the proviso'. The accused must make the exemption a ground of defense. ’ ’

VI. The offense with which defendant is charged is practicing dentistry without having a license so to do as provided by the statute, and it is admitted in the agreed statement of facts that he practiced his profession and had no such license, hence the contention of appellant that he had fully complied with the provisions of the law and that the board improperly refused to issue the license, cannot avail him anything in this proceeding. If he had substantially complied with all the provisions of the statute, and the board wrongfully withheld from him a license, then he must resort to some appropriate remedy to compel the issuance of such license. If he practiced his profession without having the authority so to do as provided by the statute, the offense was complete, and it can make no difference, so far as this proceeding is concerned, whether the board acted justly or unjustly with him in the matter of refusing to issue the license.

We have thus given expression to our views upon the propositions presented in the record, and finding no reversible error, the judgment should be affirmed, and it is so ordered.

All concur.