author: FOX, P. J.

text:
    THE STATE v. JAMES P. EDWARDS, Appellant.
    Division Two,
    May 14, 1907.
    1. INSTRUCTION: Provoking Difficulty: No Evidence. The giving of an instruction on the subject of provoking the difficulty, where, as in this case, there is no evidence upon which to base it, is reversible error.
    2. -: On Lower Grade of Offense: Erroneous. Although a defendant cannot complain of a proper instruction covering a lower grade of offense than that of which the evidence shows him to be guilty, he has the right to challenge an instruction which erroneously declares the law as to such offense.
    3. -: Threats: Provocation: Reducing Grade of Crime. The admission of threats by deceased against defendant is confined -to that class of cases in which the evidence tends to show some act or conduct on the part of the deceased which threatens immediate injury to defendant, or which tends to prove that the homicide was committed in self-defense. And it was error to instruct the jury that such threats constituted an element of provocation which would reduce the homicide- from • murder to manslaughter.
    4. -•: On Self-Defense: Argumentative. Where the court has, by its instructions, fully declared the law of self-defense, it is not error to refuse an instruction, requested by defendant, which is argumentative and theoretical, rather than a plain declaration of law.

      5. THREATS: Uncommunicated: For What Purpose Admitted. Uncommunicated threats made by. deceased are admissible, not for the purpose of showing apprehension of danger, but as throwing light upon the acts and conduct of deceased at the, time of the fatal difficulty, and as tending to show who was the aggressor.
    €. EVIDENCE: Cross-Examination. It was not error to ask defendant’s son, on cross-examination, whether he did not say in the presence of another party, after having heard of the killing, “Well, it has happened.” Great latitude should be allowed in the cross-examination of such a witness.
    7. -: Purchasing Pistols: Immaterial: Impeachment. Evidence as to the purchase, by defendant’s son, of two pistols several days before the homicide, was irrelevant and immaterial and should not have been admitted, there being nothing to connect it with the homicide, and it being conceded that the killing was done with a shotgun. And the evidence being immaterial, the witness was not subject to impeachment.
    S. -: Expert. Testimony of an expert should be admitted only after a reasonably satisfactory showing that he is qualified to testify as an expert.
    Appeal from Audrain Circuit Court. — -Ro». Jas. D. Barnett, Judge.
    Reversed and remanded.
    P. R. Cullen, Orlando Hitt and E. W. Hinton for appellant.
    (1) The instruction of the court on the subject of provoking the difficulty is erroneous. There was no evidence on which to base it. State v. Walker, 196 Mo. 73; State v. Packwood, 26 Mo. 340 ; State v. Bailey, 57 Mo. 131; State v. Chambers, 87 Mo. 406; State v. Herrill, 97 Mo. Ill; State v. Johnson, 111 Mo. 584; State v. Little, 67 Mo. 624; State v. Tice, 90 Mo. 112; State v. Sturgis, 48 Mo. App.’263; State v. Wilson, 39 Mo. App. 186; State v. Brady, 87 Mo. 142. (2) The instruction as to manslaughter is erroneous and misleading and without evidence to support it. Previous threats do not constitute lawful provocation within the meaning of the law. The rule is well nigh universal that facts which might show passion are not admissible when a period of time has elapsed between defendant’s first knowledge of them and his action, sufficient for his passion to cool. State v. Gray or, 89 Mo. 600; State v. Herrell, 97 Mo. 105; State v. Baker, 30 La. Ann. 1134; Compton v. State, 117 Ala. 56; State v. Lawry, 4 Nev. 161. Threats, assaults, insulting epithets or charges made at the time of the difficulty are admissible on the issue of provocation but if made previous to the killing such matters are rigidly excluded on the issue of provocation. State v. Brown, 181 Mo. 192; State v. Jackson, 17 Mo. 544; State v. Wood, 124 Mo. 412; Sanchez v. People, 22 N. T. 147. (3) The court erred in declining to instruct that proof of a wounding in the back or side was not proof of such physical fact as destroyed self-defense. (4) The court’s endorsement of the State’s contention that uncommunicated threats by deceased are immaterial was error. (5) The ruling permitting defendant’s witnesses to be contradicted on collateral issues and opinions was erroneous.

      Herbert 8. Hadley, Attorney-General, N. T. Gentry, Assistant Attorney-General, and Jolvn D. Orear for the State.
    (1) The instruction, given by the court, on the. subject of manslaughter in the fourth degree, was a proper one. The evidence showed that a threat, made. by the deceased, was communicated to the defendant an hour or two before the killing. That just prior to the shooting, the deceased jumped violently from his chair, telling the defendant that he should not live to enjoy deceased’s money; and that the defendant, by this sudden action, was excited. If these facts were true, and they were given in evidence by defendant, they justified the manslaughter instruction. Even if they did not justify such an instruction, the error was one in favor of the defendant, and one for which he cannot complain. This instruction permitted the jury to convict the. defendant of a lesser crime than the one he was, according to the evidence, guilty of; hence the error, if error it was, was in his favor. State v. Billings, 140 Mo. 193; State v. Todd, 194 Mo. 377; State v. McMullin, 170 Mo. 609 ; State v. Nelson, 88 Mo. 126; State v. Bulling, 105 Mo. 204. (2) No error was committed in allowing the State to cross-examine defendant’s son on the statement that he made to the witnesses Lincoln Cleveland and Ira Mayes; nor in allowing the State to contradict that statement by proving that, immediately after hearing of the shooting, the son of defendant said, “It has happened.” (3) No error was committed in refusing defendant’s instruction on the subject of shooting the deceased in the hack. Defendant testified that the deceased got up, ran his hand in his pocket and made a motion like he was going to assault the defendant, and started towards him. In the cross-examination of the physicians, who testified for the State, and in the introduction of Dr. Wallace’s evidence, defendant was trying to convince the jury that deceased was shot in front, and shot at the time he was starting to attack the defendant. Defendant also introduced evidence tending to show that the deceased, after the shooting, fell on his hack on the floor. Hence, the defendant was not entitled to an instruction the opposite of what he himself testified to, and what all of his evidence tended to prove. A party’s position must he consistent; he cannot introduce evidence on one theory and then he entitled to have instructions on another. State v. Yalle, 196 Mo. 29; State v. Bailey, 190 Mo. 295; State v. Lewis, 118 Mo. 83; State v. Gartrell, 171 Mo. 522.
   FOX, P. J.

This cause is here by appeal on the part of the defendant from a judgment of the circuit court of Audrain county convicting him of manslaughter in the fourth degree. On the 27th day of March, 1906, the prosecuting attorney of Audrain county filed an information, duly verified, charging the defendant with murder in the first degree. The date of the homicide charged was March 22, 1906; the name of' the party charged to have been killed was John Oldham, and the weapon used was a shotgun. At the June term, 1906, of the Audrain Circuit Court the defendant was put upon his trial upon the charge contained in the information. We shall not undertake to give in detail all of the testimony introduced upon the trial; it will suffice to give the tendency of the testimony to establish certain facts involved in the prosecution.

The State’s,evidence tended to prove that the defendant and the deceased were engaged in the operation of a coal mine on defendant’s farm near Thompson, in Audrain county. A written contract had theretofore been entered into between them, by the terms of which the deceased agreed to pay certain sums at stated times as royalty, and the deceased was to have the exclusive ‘ operation of the mine. In addition to the operation of the mine the deceased and his family were given the right to and did occupy a dwelling house and •a small piece of ground belonging to the defendant near said mine. Some time prior to the 22nd of March, 1906, there were differences between them as to the amount due and as to the way the mine was being operated. Accordingly, defendant attempted to terminate the lease and instructed the deceased to'vacate the mine and also the dwelling house. Deceased and his family moved out of the house over to the Northcutt place and moved some of his tools from the mine a few days prior to the date of the homicide. • On the morning of the homicide the deceased went to the mine for the purpose of getting some tools and a telephone box, and also for the purpose of moving some of his boxes out of a little stable- in order that the defendant might put some hay in the stable. Mr. Oldham, the deceased, claimed that the defendant was still' owing him for certain work that he had done on the dwelling and barn and mine and also for an expensive piece of machinery that he purchased and placed in-the mine. A short time .before noon Mr. Oldham left the mine going in the direction of the defendant’s house, the defendant having gone to the house about one hour before. There was no witness present at the time of the shooting with the exception of the defendant himself. As to what happened at the time of the shooting the State introduced in evidence a short statement signed by the defendant, made- by him before the coroner, the substance . of which was that the deceased came into the defendant’s bedroom, commenced talking to the defendant in a threatening and angry manner, thrust his hand into his overcoat pocket as though in the act of drawing some weapon, and that the defendant shot twice, using a double-barreled shot gun. The coroner, Dr. P. E. Coil, who resided at Mexico-, Missouri, learned of the shooting and went at once in company with the prosecuting attorney and the sheriff to the home of the defendant, reaching there late in the afternoon of that day. The coroner testified that he- found the body of deceased in the bedroom of the defendant; that deceased was lying' on his back with his head close to’ a stove, his feet being about the center of the room. Near his head was the foot-rest on the stove, which was broken, the break appearing to be recent. In respect to the nature and character of the wounds inflicted upon the deceased, the testimony as introduced by the State also tended to show that there were two wounds, one on the right side of the back and the other on the left side of the back, the wounds ranging up, the loads scattering and some of the bullets going out in front. It was claimed that one of the bullets was deflected and some were still found in the body of the deceased. The deceased had on an overcoat, undercoat, shirt, undershirt, pants and overalls. The testimony tended to show that after the hilling he had no weapon whatever in any of his pockets, but a small pocket knife which was found in his pants pocket under his overalls. In his right hand overcoat pocket was found a telephone receiver.

The testimony of the sheriff was substantially that he examined the room in which the deceased’s body was found but that he could find no bullets and that while the deceased’s clothing was very bloody he found no blood on the carpet. There was another witness who testified substantially that the deceased, before leaving the mine,, got his wood rasp, which he placed in his outside overcoat pocket. This rasp was about an inch and a half wide and- about eighteen inches long, and it was found by witness Ridgeway about the premises of the defendant after the snow melted, some three or four days after the killing. It was found about five or six feet east of the porch, which was the porch opening into the bedroom where the body of the deceased was afterwards found.

On behalf of the defendant the evidence tended to show that he had settled with the deceased in full and that deceased was in debt to him and in debt to his miners and could not continue to run the mine; but in order to be liberal toward the deceased the defendant agreed to pay him $50 more, which the deceased refused to accept and insisted on having still more. Numerous and divers threats -by the deceased to do the defendant some great personal injury were also shown. These threats were made by the deceased and were to the effect that he was not satisfied with the settlement; that he had several hundred dollars in the coal mine; that he was going to- have it and that defendant could not live unless he paid the deceased. These threats were communicated to the defendant, the one made to the defendant’s son being communicated within an hour or two of the’final difficulty. The defendant’s evidence further tended to show that after the deceased vacated the mine the defendant’s son took possession and began running it, and that the deceased came down to the mine on the morning of the difficulty, and was looking after some of his property remaining at the mine and in the stable. The defendant and his father-in-law came down to the barn with a load of hay, which was unloaded in the barn, at which time they say the deceased refused to speak to the defendant. Before going to the barn the defendant’s son warned the defendant that the deceased had threatened him and that he had better not go down while the deceased was there. Immediately after unloading the hay the defendant went back to the house and went into his bedroom and lay down on the lounge. In the course of a half an hour or an hour the deceased came up to the defendant’s house, carrying a telephone box, met the defendants ’ wife and asked if he might leave the box there. She replied that he could and deceased set the box down and then asked for the defendant. Mrs. Edwards told him that the defendant had hurt his back and was lying down on the bed in his room, and invited the deceased to walk in. The deceased went in, got into a controversy with the defendant over the amount due him, and the defendant offered to pay him $100, but the deceased declined to accept it, saying that the defendant should not live, and running his hand into his overcoat pocket. As he thrust his hand into his pocket the deceased rose and either started toward the defendant or made a motion as if he was going, to start, and then the defendant, who was sitting at his desk, grabbed his double-barreled shotgun and fired twice at the deceased. The defendant further testified that he thought he shot the deceased in front, but he was not sure, but that the deceased fell on his back, breaking the footrest. on the stove. The wife of the defendant came in about that time, and also testified to the fact that the deceased was shot in this rooin. The father-in-law of the defendant was telephoned for and came down to defendant’s house, being the first to arrive; but he did not testify at the trial; and two physicians from Centralia were present and assisted in the post-mortem examination. One of the physicians, Dr. W. A. Mo Allister, of Boone county, testified on behalf of the State and corroborated Drs. Toalson and Coil, who also testified on behalf ‘of the State, that both wounds took effect in deceased’s body and were shot from behind. Dr. Wallace, the defendant’s family physician, gave it as his opinion that the wounds entered in the front of deceased’s body, though he could not account for some of the bullets found in the body nor some of the holes which were evidently points of exit.

There was other testimony offered by the State, over the objections and exceptions of the defendant, that the defendant’s son who, it seems, was to take possession of and did take possession of the mine as soon as deceased vacated same, visited Centralia the Saturday before the shooting and purchased two pistols and a round of cartridges for each one, one of which he gave to a man named Buford Wheeler, who was a partner with the son in the coal mine, and the other pistol defendant’s son carried himself, and had it in his pocket on the day of the fatal difficulty.

In rebuttal the State introduced witnesses Lincoln Cleveland and Ira Mayes; they substantially testified that immediately after hearing of the killing of the deceased the defendant’s son, who was a witness for the defendant, called to the men at the mine and said, “It has happened.” There was other testimony in rebuttal offered by the State to the effect that Buford "Wheeler, who testified that he was at deceased’s house before the killing and heard deceased make threats, was not at deceased’s house at that time. The son of the deceased also substantially testified that Buford "Wheeler stated to him on the day of the preliminary hearing that he never heard the' deceased make any threats against the defendant.

At the close of the evidence the court instructed the jury upon murder in the first and second degrees, manslaughter in the fourth degree, and upon the right of self-defense, reasonable doubt and the. credibility of witnesses, and the cause being submitted to the jury upon the evidence and instructions of the court, they returned a verdict finding the defendant guilty, as before stated, of manslaughter in the fourth degree, and assessing his punishment at two years’ imprisonment in the State penitentiary. Timely motions for new trial and in arrest of judgment were filed and by the court overruled. Judgment and sentence was pronounced and entered of record in accordance with the verdict, and from this judgment the defendant in due time and proper form prosecuted his appeal to this court.

OPINION.

The record in this cause discloses the assignment of numerous errors committed by the trial court as grounds for the reversal of this judgment. We will give to the complaints of appellant such attention as their importance requires.

I.

It is insisted by learned counsel for appellant that the instruction-of the court upon the subject of provoking the .difficulty was erroneous. This instruction was as follows:

“The court instructs the jury that the right of a citizen to defend himself against danger is a right which the law concedes and guarantees to all men. Therefore, the defendant may have killed John Old-ham and he innocent of any offense against the law. If at the time defendant shot John Oldham he had reasonable cause to apprehend on the part of said John Oldham a design to do defendant some great personal injury, and there was reasonable cause for defendant to apprehend immediate danger of such design being accomplished, and to avert such apprehended danger to himself, he shot said John Oldham, and at the time he did so he had reasonable cause to believe and did believe it necessary for him to shoot said John Oldham to protect himself from such apprehended danger, then and in that case the shooting was -not felonious, but was justifiable and you will acquit him. It is not necessary to this defense that the danger should have been actual or real or that the danger should have been impending and immediately about to- fall. All that is necessary is that defendant had reasonable cause to believe and did believe these facts. But before you acquit on the gTound of self-defense you must believe that defendant’s cause of apprehension was reasonable. Whether the facts constituting such reasonable cause of apprehension have been established by the evidence, you are to determine, and unless the facts constituting such reasonable cause have been established by the evidence in the cause, you cannot acquit him on the ground of self-defense, even though you may believe that defendant really thought that he was in danger. On the other hand, the law does- not permit a person to voluntarily seek or invite a combat or voluntarily put himself in the way of being assaulted in order that when hard pressed he may have a pretext to take the life of his assailant. The right of self-defense does not imply the right of attack. But if he does not intentionally bring on the difficulty nor provoke it, nor voluntarily engage in it, he is not bound to flee to avoid it, but may resist with adequate and necessary force until he is safe.”

In the discussion of the complaint lodged by the appellant against this instruction we must not overlook the fundamental rules as applicable to the giving of instructions either in civil or in criminal cases, that is, that it is essential in both criminal and civil cases that in order to authorize an instruction upon any particular subject involved in the cause, there should be at least some substantial evidence upon which to predicate the instruction, and it is error in either a civil or criminal cause to give an instruction without any evidence to support it. [State v. Allen, 116 Mo. l. c. 555; State v. St. John, 94 Mo. App. 229; State v. Bailey, 57 Mo. 131; State v. Chambers, 87 Mo. 406; State v. Herrell, 97 Mo. 105.]

Following the rule so clearly stated in the cases above cited, we are simply confronted with the proposition as to whether or not the facts as disclosed by the record in this cause furnish any support or basis for the giving of the instruction complained of by the appellant. We have substantially adopted the statement of what the evidence tended to prove as made by the Attorney-General and the prosecuting attorney of Audrain county representing the State in this cause, and after a careful analysis of the statement of the evidence by counsel for respondent, we are unable to And any testimony which authorized the trial court in giving that instruction. Counsel for respondent, in referring to what evidence the State introduced at the time of the shooting, say that .“the State introduced in evidence a short statement signed by the defendant, made by him before the coroner, the substance of which was that the deceased came into the defendant’s bedroom, talked in an angry manner, thrust his hand into his overcoat pocket, and that the defendant shot him twice, using a double-barreled shotgun.” In addition to this the only witness who testified as to what occurred at the time of the shooting was the defendant himself, and his testimony fails to disclose that' he said or did anything which was calculated to provoke a difficulty, and giving full force to all of the testimony introduced by the State or elicited from witnesses testifying for the defendant, there is an absolute failure to show any such state of facts as would authorize the court to give the instruction- as heretofore indicated. While it may be true that the jury were not bound to believe the testimony as detailed by the defendant, yet the court would not be authorized to embrace this subject in its instructions to the jury, in the absence of any testimony tending to prove the facts involved in such subject, and thereby have the jury simply guess or surmise that the defendant sought the difficulty or brought it on for any unlawful purpose whatever. While it may be true that the defendant unnecessarily took the life of the deceased, yet if we are to longer regard the rules of law applicable to the trial of causes by jury, it must be held that it was error for the court to submit a question to the jury on mere conjecture and in the absence of any substantial testimony upon which to predicate such instruction.

We deem it unnecessary to pursue this subject further. We have read with a great deal of care the details of all the testimony in this cause and in view of the testimony disclosed by the record we see no escape from the conclusion that there was absolutely no testimony upon which this instruction could have been based.

That the giving of this instruction without any testimony upon which to base it was reversible error, we only need to call attention to the uniform rulings of this court upon that subject. In State v. Chambers, supra, it was said by this court, touching a similar instruction to the one here complained of, that “the instruction w;as misleading; there being no evidence, upon which to base it, it was calculated to prejudice the defendant before the jury.” The Chambers case was approved in State v. Herrell, supra, and it was again held that it was error to' give such an instruction without ■ evidence.

In State v. Walker, 196 Mo. l. c. 85, it was said: “The law is that one may not deliberately seek and provoke a difficulty-with another with a design to kill him and then invoke the right of self-defense,” but it is also the law that when there is no evidence of. such seeking and provoking a difficulty in order to get an opportunity to wreak one’s vengeance on another, it is error for the trial court to frit away the right of self-defense by inviting the jury to enter the field of conjecture and excuse the aggressor on such ground when there is, as in this case, no basis for such a qualification of the law of self-defense. ’ ’

In the recent case of State v. Gordon, 191 Mo. 114, the subject embraced in the instruction now under discussion was fully considered and all of the authorities exhaustively reviewed, and this court, after reviewing all of the authorities, said: “Our conclusion is that in the light of the more recent decisions of this court since the Partlow case, notwithstanding there are cases which seemingly conflict with the view, it is error to instruct that a defendant in a personal altercation forfeits the right of self-defense merely because he voluntarily engages in a difficulty. The occasions on which this right is forfeited have been pointed out in the foregoing excerpts from the decision in State v. Partlow, 90 Mo. 608, and in cases cited. The tenth instruction as applied to the facts iñ this record was, in onr opinion, misleading and erroneous. It was not made applicable to the state of the testimony and should not have been given even when modified by omitting the clause as to ‘voluntarily entering into the difficulty,’ without fully advising the jury as to what constitutes provocation that will justify an assault and as to what is meant by ‘provoking a difficulty,’ or ‘being free from fault.’ Mere words of reproach or opprobrious epithets do not constitute such provocation as would put the defendant in any degree in the wrong if it became necessary to kill Doelling in his own defense.”

II.

It is insisted by appellant that the instruction by the court as to manslaughter in the fourth degree was misleading and did not properly declare the law as to that grade of crime. The instruction complained of was as follows:

‘ ‘ If the jury believe from the evidence in the cause that the deceased, John Oldham, had at intervals within a week or ten days prior to the homicide threatened to take the life of defendant or to do him great bodily harm, and continued making such threats up to and on the day of the homicide, and that such threats were communicated to the defendant (prior to the homicide) and that at the time the defendant shot and killed John Oldham, the defendant was acting under a violent passion of fear and excitement caused in part by the knowledge of such threats, and suddenly aroused by reason of said Oldham having used towards defendant threatening language, and by said Oldham jumping from his chair in a threatening manner, and by reason of an apprehension on the part of the defendant that said Oldham was in the act of drawing upon him a weapon for the purpose of killing him or of inflicting on him great personal injury; yet if you further find and believe from all the evidence that the shooting of Oldham was not necessary to the self-defense of defendant as explained in other instructions, and believe that the apprehension of defendant that said Oldham was about to draw a weapon was not a reasonable apprehension under the circumstances surrounding the homicide, and believe that the apprehension of defendant that Oldham was about to attempt to kill defendant or to do him great injury was not a reasonable apprehension under the circumstances surrounding the homicide, then you will find the defendant guilty of manslaughter in the fourth degree. ’ ’

It is well settled in this State that where the defendant, if guilty at all, is guilty of a higher grade of offense than the one upon which he is convicted and upon which the court gave an instruction, he is in no position to complain of an instruction given upon such lower grade of crime, even though there was no evidence upon which to predicate it; however, it is equally well settled that, if the -court undertakes to give an instruction upon a grade of offense not warranted by the testimony, the instruction must be a proper one embracing all of the essential elements of such offense, and while, if the .instruction was a proper one, it may be said that the defendant would have no right to complain, yet if the court erroneously declares that if the jury find a certain state of facts which under the law would not constitute such lower grade of crime, the defendant clearly has the right to challenge the sufficiency of such instruction.

In State v. Gordon, supra, the rule as applicable to manslaughter was thus clearly stated: “At common law words of reproach, how grievous soever, were not provocation sufficient to free the party killing .from the guilt of murder, nor were contemptuous or insulting actions or gestures without an assault upon the person, nor was any trespassing- against lands or goods to have the effect to reduce the guilt of killing to a grade of manslaughter; the provocation must consist of a personal violence. [1 East’s Pleas of the Crown, 233; 4 Blackstone, Com., 201; State v. Wieners, 66 Mo. 13.] And the common-law rule in this respect is firmly established in this State by a long line of decisions. [State v. Starr, 38 Mo. 271; State v. Branstetter, 65 Mo. 149; State v. Hill, 69 Mo. 451; State v. Elliott, 98 Mo. 150; State v. Gartrell, 171 Mo. 516-519.]”

This instruction, measured by the rule as announced in the Gordon case, is manifestly erroneous. It will be noted that the court in the instruction now under consideration authorized the jury to predicate the arousing in defendant of a violent passion upon a state of facts which under the uniform rulings of this court has been deemed insufficient to reduce the killing from murder to manslaughter, and it is directly in conflict with the rules and authorities cited in State v. Gordon, supra. It will be noted that this instruction makes threats by the deceased made a week or ten days prior to the homicide as a part of the basis for the excitement and passion aroused in the defendant. Such threats were inadmissible for any such purpose, and should never be admitted simply on the question of provocation. A review of the long line of decisions in this State will demonstrate that evidence of threats by the deceased against'the defendant is confined to that class of cases where the evidence tends to show some act or conduct upon the part of the deceased threatening immediate injury to the defendant or tending in some way to prove that the homicide was committed in self-defense. [State v. Brown, 63 Mo. 439; State v. Spencer, 160 Mo. 118; State v. Harrod, 102 Mo. 590.]

It is apparent that the threats introduced in evidence in the case at bar were applicable alone to the issue of self-defense and it was error for the court to instruct the jury that such threats constituted any part of the elements of provocation which would reduce the killing from murder in the first or second degree to manslaughter in the fourth degree.

III.

It is urged by the defendant that the court committed error in refusing the following instruction requested by the defendant:

“The court instructs the jury that even though you may believe that the balls fired from defendant’s gun struck the deceased on the back or sides and ranged forward, yet if from all the evidence you believe that at the time the defendant fired the shots he believed and had reasonable grounds to believe that deceased was about to kill him or inflict great bodily injury upon him and that he shot in good faith to protect himself and ward off the impending danger, then under the law his act is justifiable and you should acquit him.”

In our opinion there was no error in the refusal of this instruction. The court in other instructions had fully declared the law of self-defense and it was the province of the jury to consider all the evidence as applicable to such defense without having their attention called specially to a theory that the deceased may have been shot in the back or on the side, and yet such fact would not deprive defendant of the right of self-defense. This instruction is suggestive of an argument along certain lines rather than a clear and plain declaration of law upon the question of self-defense. The law upon that subject was fully declared for the defendant and there was no error in the court’s refusing the instruction now under consideration.

IV.

Complaint is made by appellant that the court during the progress of the trial indorsed a theory of the State that uncommunicated threats by the deceased were immaterial. The court admitted the testimony as to uneommunicated threats, and it is only necessary to say, as this case is to be retried, that the law upon that subject is well settled that uncommunicated threats are admissible in evidence not for the purpose of showing apprehension of danger, but as throwing light upon the acts and. conduct of the deceased at the time of the fatal difficulty and for the purpose of showing who was the aggressor in such difficulty.

V.

Complaint is made as to the cross-examination of the son of the defendant while down at the mine, in which he was asked the question, after having heard of the killing of Oldham, as to whether or not he did not say ip the presence of Lincoln Cleveland, “Well, it-has happened.” We are of the opinion that there was no reversible error in this cross-examination. He was the son of the defendant and great latitude should be allowed in the cross-examination of such a witness.

VI.

It is insisted by appellant that the court committed error in admitting the testimony of the witness Mr. Canatski. This witness’s testimony had reference to the. purchase by the son of the defendant, James A. Edwards, of two revolvers in the town of Centraba about the 17th of March, and the witness detailed a conversation between him and young Edwards about the purchase of the pistols and the purpose of purchasing them. We are unable to see upon what theory this testimony was admitted. Our attention has not been called to anything which connects it with the killing of Oldham by young Edwards’ father. It is not claimed or pretended that the killing was done with a pistol, for it is conceded that the killing was done with a shotgun. Therefore, we cannot escape the conclusion that this testimony was entirely irrelevant and immaterial, aiid even though young Edwards may have denied certain statements made in respect to the purchase of the pistols, or statements made at the time of their purchase, yet the testimony being immaterial the witness was not subject to impeachment upon that class of testimony.

YII.

As to the complaint lodged against the testimony of Dr. Paul E. Coil, it is sufficient to say, as this case is to be retried, that the trial court should only admit his testimony upon a reasonably satisfactory showing that he is qualified to testify as an expert. After this showing' is made as to the facts susceptible of proof by the opinion of an expert, the doctor is a competent witness and his testimony should be admitted.

We have thus indicated our views upon the main propositions disclosed by the record, which results in the conclusion that the trial court committed error in the particulars as heretofore indicated. The judgment therefore should be reversed and the cause remanded for a new trial, and it is so ordered.

All concur.


source: Caselaw Access Project

author: GANTT, J.

license: Public Domain

text:
    THE STATE v. I. B. LAKIN, Appellant.
    Division Two,
    May 14, 1907.
    NO BILL OF EXCEPTIONS, Where no hill of exceptions is filed, and the record proper is free from error, the judgment will he affirmed.
    Appeal from Benton Circuit Court. — Hon. C. A. Benton, Judge.
    Affirmed.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    Where there is no hill of exceptions, and no error appearing in the record proper,, the judgment will he affirmed. State v. Nicholas, 193 Mo. 214; State v. Sparks, 191, Mo. 162.
   GANTT, J.

This is an appeal from the circuit court of Benton county. At the March term, 1905, the grand jury of Benton county returned an indictment' against the defendant for a violation of section 1838, Revised Statutes 1899.

At the June term, 1905, the defendant was arraigned, pleaded not guilty, was tried and convicted, and his punishment assessed at a fine of one hundred dollars. His motion for new trial was heard and overruled and he was granted an appeal to this court. He filed no hill of exceptions, and the record proper alone is here for our consideration. The indictment is sufficient under the decisions of this court in State v. Knock, 142 Mo. 515; State v. Hall, 164 Mo. 528. The arraignment, trial and conviction are all in regular form, as are also the verdict and sentence of the court. The judgment is affirmed.

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


author: BURGESS, J.

text:
    THE STATE v. CHESS CLAPPER, Appellant.
    Division Two,
    May 14, 1907.
    1. REMARKS OF COUNSEL: Abuse of Defendant and His Coun-. sel: Reversible Error. The prosecuting attorney, in his closing argument to the jury, said: “The attorney for the defendant has tampered with the witnesses; you know it, and I know it, and he ought to be convicted for it; and, too, the attorney for the defendant has attempted to buffalo and bulldoze this court and myself. . . . The defendant is a scoundrel and a perjurer, and ought to be convicted.” Defendant objected to the remarks at the time they were made, and requested the court to instruct the jury to disregard them in considering of their verdict, but this the court failed to do, but simply requested the prosecuting attorney to keep within the record. Held, reversible error.
    2. -: Not in Motion for New Trial. Improper remarks of counsel not called to the court’s attention in the motion for new trial can not be considered on appeal.
    Appeal from McDonald Circuit Court. — Ho». F. G. Johnston, Judge.
    Reversed and remanded.

      Pepper, Clay & Sheppard for appellant.
    The court erred in permitting the prosecuting attorney in his closing argument to the jury to make improper remarks, and in refusing to reprimand him therefor, and in refusing to instruct the jury not to consider the said improper remarks in reaching their verdict in the case. State v. Helm, 92 Iowa 540; State v. Woolard, 111 Mo. 255; Haynes v. Trenton, 108 Mo. 133; State y. Fischer, 124 Mo. 464; State v. Young, 99 Mo. 683; State v. Harvey, 131 Mo. 338; Long v. State, 55 Ind. 182.

      Herbert 8. Hadley, Attorney-General, and Rush G. Lake, Assistant Attorney-General, for the State.
    It appears from the bill of exceptions that the defendant objected to the remarks made by the prosecuting attorney and that “the court thereupon requested the attorney for the State to keep within the record, but wholly failed to instruct the jury, either orally or by written instructions, as requested by the attorney for the defendant.” , Prom the foregoing it is shown that the court reprimanded and rebuked the prosecuting attorney for making the remarks which defendant’s attorney construed as being unwarranted by evidence. That this was a sufficient reprimand or rebuke by the court is shown by the decisions of this court in the following cases: State v. Lee, 66 Mo. 168; State v. Degonia, 69 Mo. 490; State v. Howard, 118 Mo. 145; State v. Brandenburg, 118 Mo. 187; State v. Taylor, 134 Mo. 158; State v. Wright, 141 Mo. 337; State v. Allen, 174 Mo. 697.
   BURGESS, J.

At the January term, 1905, of the circuit court of McDonald county, the defendant was convicted of a felonious assault with intent to kill one James Turner, and his punishment fixed at two years in the penitentiary, under ah information filed by the prosecuting attorney of said county charging him with the commission of said offense.

After filing timely motions for new trial and in arrest, which were overruled, defendant appealed.

The testimony shows that the quarrel which led to the shooting grew out of a drunken spree of the day before, during which, as defendant claimed, he was robbed of $68. He accused James Turner of the theft of the money, the only apparent ground for such charge being that Turner held defendant’s note for about that sum. On the day following the drunken spree, the defendant and his two brothers met Turner and two other young men on the road, when defendant demanded of Turner the said note or the return of the money which he claimed to have lost. The evidence shows that the parties were within eight or ten feet of one another, and that Turner was sitting on a fence, holding the bridle reins of his pony in his hands, and that defendant, without warning, drew his pistol and began shooting at Turner, none of the shots taking effect.

James Turner testified that he met the defendant, and that the latter said, “What did you do with my money? You got my money.” I said, “No,” and he said, “I believe you got it,” and I told him I didn’t; and he went on talking and kept on accusing me of getting it, and then he called for the note or an order for it, or receipt or order, and I told him I would not give it to him; and I stepped over and set down on the fence, and they surrounded me. Bill got over on the east side of me and Chess on the other side, and Jerry came up in front of me; I was riding my pony, me and Jess Moyer, and come down together. I rode my pony over there, and set down on the fence, and Chess said that if I didn’t give up the note he would cause me trouble, and I told him I wouldn’t, and he kept on saying that over again, and wanted an order for the note, and I wouldn’t give it to him, and he said, “I will cause you trouble.” . . . Chess said, “We will cause you trouble if you don’t give up that note; we will have a warrant taken out for you,” and I said, “I won’t give it up,” and Jerry said, “If I was Chess, and knew he got the money,” he said you would be like Chess and want him to give it up, and I said, “I didn’t get it,” and Chess said, “Well, I will cause you trouble,” and he drawed his gun out of his overcoat and pulled off his gloves, and I was sitting on the fence. He brought it over that way at me, and I jumped off the fence, and he put his bullet through my jumper.

Being asked if defendant fired at him, he said, “Yes, sir, and I run across the'road, and he shot at me again and hit my pony one shot, and he shot through my jumper, right down there, and cut through my shirt,, down through my undershirt, and under there, and I run on down the road and jumped over the fence, and Chess followed me down the road.”

“Q. How far did he follow you? A. Something like one hundred yards.

“Q. Did he fire any more shots than those three? A. He fired four that I know of; I didn’t stop to count the shots.”

The testimony of James Turner was corroborated by Homer Means, who was an eyewitness to the occurrence.

The defendant, Chess Clapper, testified as to the occurrences leading up to the shooting substantially as shown by the State, except that he stated that before he began shooting, the prosecuting witness, James Turner, made a move as if to- draw a gun, and that he then opened fire, discharging four shots, none of which took effect.

The case was submitted to the jury under instructions given by the court which are not set out in the bill of exceptions, and cannot, of course, be considered on this appeal.

The defendant assigns as error the action of the court in permitting the prosecuting attorney, in his closing address to the jury, to make use of the following objectionable remarks:

“The attorney for the defendant has tampered with the witnesses; you know it, and I know it, and he ought to- be convicted for it; and, too, the attorney for the defendant has attempted to buffalo and bulldoze this court and myself, just because we were new at the business, and thought we would not know any better.
“The defendant is a scoundrel and a perjurer, and ought to be convicted.”
“Chess Clapper’s reputation is not good, or else he would have put some of the people here attending court from Elkhorn township on the stand to prove his good reputation. Gentlemen, he is low down and ought to be convicted.”

To these remarks defendant called the attention of the court in' his motion for new trial, one of his grounds for new trial being that, “The prosecuting attorney in his closing remarks said that the attorney for the defendant had tampéred with the witnesses and had buffaloed and bulldozed the court, and that the defendant was a scoundrel and a perjurer and ought to be convicted.”

Other objectionable remarks of the prosecuting attorney are complained of in defendant’s brief, but as the attention of the court was not called thereto in the motion for new trial, they cannot be noticed upon this appeal. [State v. Miles, 199 Mo. 530.]

While the record discloses that defendant objected to the quoted remarks of the prosecuting attorney at the time they were made, and requested the court to instruct the jury to disregard them in considering of their verdict, the court simply requested the attorney to keep within the record, and wholly failed, either orally or by written instruction, to instruct the jury as requested by defendant.

' The remarks were simply inexcusable, and ought not to have been tolerated in a court of justice. They cast unwarranted reflections upon the integrity of the attorney for the defendant, and heaped upon the defendant the worst kind of personal abuse. In part, the remarks were disrespectful to the court. They were not supported by the facts in evidence, in no way served to make plain the issues joined between the State and the defendant, were wholly ont of place, and were calculated to inflame the passions of the jury against the defendant, who was entitled to a fair and'impartial trial without having heaped upon his. head personal abuse in the presence of the court and jury. [Sherwood’s Commentaries on the Criminal Law of Missouri, 810; State v. Young, 99 Mo. 666; State v. Jackson, 95 Mo. 623; State v. Fischer, 124 Mo. 460.]

In view of the outrageous character of the remarks complained of, the court failed of its duty in not reprimanding the prosecuting attorney, and directing the jury by a written instruction, as requested by defendant, to disregard said remarks and statements in considering of their verdict.

For these considerations the judgment is reversed and the cause remanded.

All concur.


text:
    THE STATE v. ED ARMSTRONG, Appellant.
    Division Two,
    May 14, 1907.
    1. CONFESSION: Presumed To Be Voluntary: Evidence. A confession is presumed to be voluntary until the contrary is shown. And where defendant testifies that he made the confession under threats and promises, and witnesses for the State, who were present when the confession was made, testify that there were no threats or promises, the trial court is in a better position than is the appellate court to determine whether or not the confession was voluntarily made.
    2. -: Made to Officer. The fact that the confession is made to an officer or in the presence of an officer, after defendant has been arrested, is not of itself sufficient to warrant the court in excluding it.
    Appeal from Jackson Criminal Court. — Hora. B. J. Casteel, Special Judge.

      Affirmed.

      Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    “The presumption is that confessions have been freely made until the contrary appears.” People v. Barker, 60 Mich. 295; State v. Myers,-99 Mo. 119; Com. v. Culver, 126 Mass. 464; 1 Chitty’s Crim. Law, 571; Eoscoe’s Crim. Evidence, 43; 3 Eice on Crim. Evid., sec. 309. The fact that the confession was made to an officer, or in the presence of an officer, after the defendant had been arrested, did not tend to prove that any undue influence was used, or that any threats were made or promises were held out. State v. Jones, 171 Mo. 406; State v. Brennan, 164 Mo. 487; State v. Guy, 69 Mo. 432; State v. Simon, 50 Mo. 372; State v. Davis, 53 Pac. 682.
   FOX, P. J.

-This cause reaches this court by appeal on the part of the defendant from a judgment of the criminal court of Jackson county, convicting the defendant of fraudulently voting under the name and in the place of one Ben Trimble, who was a legally qualified and registered voter. The information was filed on the 27th of April, 1905, and the cause was continued until June, 1906, when Judge Wofford, the regular judge of that court, disqualified himself, and Judge Casteel was invited to try the case. The defendant was tried on the 7th of June, 1906. Upon the trial the evidence as introduced by the State tended to prove that on the 8th day of November, 1904, a general election was held in Kansas City, Missouri, for the election of county and State officials, and that one Ben Trimble was a duly qualified and registered voter of Kansas City, residing at 1406 East Fourteenth street, which was within the sixth precinct of the ninth ward of said city; that on said day the defendant appeared at said precinct, gave Ms name as Ben Trimble, asked for and procured a ballot, and returned tbe same to the judges, still saying that his name was Ben Trimble. Certain challengers present, having reason to believe that the defendant was not the person he claimed to be, followed him out into the alley and up behind a livery stable, where he stated to them and to the officers who went with them that his name was Ed Armstrong. When asked if he had not voted in the name of Ben Trimble, the defendant denied the same. The defendant was arrested and taken to police headquarters, where he admitted to various persons that he had voted under the name of Ben Trimble, and thereupon made the following confession:

“Kansas City, Mo., Nov. 9, 1904.
“My name is Ed. Armstrong. I was born in Independence, Mo. I live at 1609 E. Thirteenth street. I voted my right name in the fifth precinct of the ninth ward. I then drove'to a livery stable at 1426 Virginia, with Jno. Brown, Walter King, another colored man and two white men. One of the white men I took to be a Jew. In the livery stable he gave .out cards to five or six colored men, among whom were Walter King and Jno. Brown, and told them he would pay them if they would impersonate those names and vote those named for the straight Democratic ticket. I had previously gotten my card from a white man out on the street. My card had the name of Ben Trimble, 1406 E. Fourteenth street. I went to the sixth precinct of the ninth ward with Jno. Brown, Walter King, another colored fellow and this white man who gave out the slips. We drove to the livery stable in a surrey drawn by gray horses, and this man sat on the seat with the driver. At the polling place I voted the straight Democratic ticket in the name of Ben Trimble. The white man who gave ont these slips in the livery stable, and who rode on the seat with the driver, is the same man whom I asked while he was standing in front of the police box, at Fifteenth" and Virginia, for tobacco, with which to make a cigarette, and who informed me that he had no tobacco and gave me a nickel to bny it. The gentleman whom I now see, and who claims to be Bob Owens, was s'tanding near’us at the time of this last occurrence, and afterwards talked to the man who gave me the nickel.
“Ed. Armstrong.
“Witnesses:
“J. E. Goodrich,
“A. O. Harrison,
“Buchholz,
“Officer Julian.”

The State’s evidence further tended to show that this confession was voluntary and made without any promises or threats.

The defendant’s evidence tended to show that this confession was extorted from him, and that the same was not voluntary; that while he signed the written statement, he did not read it over, and" no one read it to him in full. The defendant further testified that he did not vote at said precinct under the name of Ben Trimble, and did not vote at all.

At the close of the evidence the court fully instructed the jury upon every phase of the case to which the testimony was applicable. We have carefully read the instructions as given by the court and deem it unnecessary to reproduce them here. The cause being submitted to the jury upon the testimony as offered and the instructions of the court, they returned a verdict finding the defendant guilty as charged in the information and assessed his punishment at two years in the State penitentiary. Timely motions for new trial and in arrest of* judgment were filed and .by the court overruled. Judgment was entered in conformity to the verdict and from this judgment the defendant prosecuted this appeal, and the record is now before us for consideration.

OPINION.

Appellant is not represented in this court; therefore, in obedience to the provisions of the statute we have carefully analyzed the entire record with the view of ascertaining if there was any error committed by the trial court in the disposition of this case. The information upon which this judgment rests was duly verified by the prosecuting attorney and is in good form, charges every essential element of the offense as defined by the statute, and is in harmony with precedents which have met the approval of this court. We have carefully considered the instructions given by the court and find that they are a clear and eminently fair and just presentation of the law applicable to the case and extremely favorable to the defendant upon the facts developed at the trial. We have taken the pains of going through the record to ascertain if there was any error committed in the admission or exclusion of evidence, and it is sufficient to say that we find no reversible error. In view of the testimony which so unerringly points to the guilt of the defendant, the errors complained of by the appellant in the exclusion of testimony on his part were harmless and fall far short of affording reasons for the reversal of this judgment. .,

Appellant complains of the admission of his confession, as indicated in the statement of this cause, for the reason, it is asserted, that this confession was not a voluntary one and therefore inadmissible. The trial court made the preliminary inquiry as to the conditions .surrounding the mailing of this confession and held that the State made a sufficient showing to admit it in evidence. Witnesses Harrison and Goodrich testified for the State that no inducements were held out to the defendant and no threats made to bring about this confession. This testimony, together with the presumption that the confession was freely made until the contrary appears, was a satisfactory basis for the ruling of the court that it was admissible. While it may be said that the defendant testified that threats and promises were made and that he never read the confession and that it was not read over to him and" that he did not fully understand it, yet we feel that the trial court was in a far better position, having the witnesses before it, to determine that question than this court, which has nothing but the cold recitals in the record detailing what the witnesses said. There was nothing in the nature of this confession or the way in which it was made that rendered it inadmissible. A confession is presumed to be voluntary unless the contrary is shown, or something appears in the confession or its attendant circumstances to combat such presumption. [State v. Meyers, 99 Mo. l. c. 119; State v. Patterson, 73 Mo. 695; State v. Hopkirk, 84 Mo. 278.] The fact that the confession was made to an' officer or in the presence of an officer after the defendant had been arrested, is not sufficient to warrant the court in excluding the confession. The proof of such facts did not establish the ultimate fact that undue influence was used or threats made or promises held out in order to secure the confession. [State v. Jones, 171 Mo. l. c. 406; State v. Brennan, 164 Mo. 487; State v. Guy, 69 Mo. l. c. 432; State v. Simon, 50 Mo. l. c. 372.]

We deem it unnecessary to discuss the testimony developed at the trial. We have indicated substantially the nature and character of it in the statement of this cause and it is apparent that, if the jury believed the witnesses testifying for the State, no other conclusion could have been reached by them than the one indicated by tbeir verdict. We have carefully considered the testimony as disclosed by the record and it fully supports the conclusion reached by the jury, and we see no escape from the result in this cause that the judgment of the trial court should be affirmed, and it is so ordered.

All concur.


text:
    THE STATE v. JOHN KING, Appellant.
    Division Two,
    May 14, 1907.
    1. THREATS: Evidence. It was not error to admit In evidence threats made by defendant against deceased a week or two prior to the homicide.
    2. INSTRUCTION: Self-Defense: Requested by Defendant. Where, as in this case, the court has already fully instructed on the law of self-defense, there is no error in refusing an instruction, requested by defendant, embodying the same proposition.
    3. -: -: Evidence. Under the facts as detailed by defendant himself, and by the State’s witness, there was no call for an instruction on self-defense.
    4. -: Conspiracy: Assault: No Request. There was no error in the court’s failure to instruct as to the effect of a con* spiracy followed by an assault upon defendant, for the reasons, first, there was no proof of such a conspiracy followed by an assault, and if there had been, the court’s instruction on self-defense fully covered the law in that regard; and, second, the court’s attention was not called to its failure to instruct on that point.
    5. FIRST DEGREE MURDER: Sufficiency of Evidence. Evidence held sufficient to justify the verdict finding defendant guilty of murder in the first degree.
    Appeal from St. Louis City Circuit Court. — -How. William M, Kinsey, Judge.
    Affirmed,

      John E. Bowcock for appellant..
    The error complained by by appellant arises from the failure and refusal on the part of the court to instruct the jury as to the effect of a prior conspiracy followed by an assault made upon the appellant at the instigation of the deceased, as characterizing the feeling and the intentions of deceased towards appellant, as well as explanatory of the justifiableness on the part of appellant to act upon a slighter appearance of danger than he would where threats only had been made against him unaccompanied by any attempt to put the same into execution, the court simply leaving the jury under the impression that threats and an assault, no matter how dangerous the assault was intended to have been, were synonymous in law, whereas it was the duty of the court to have fully instructed the jury upon all the law applicable to all the material facts in the case as required by Laws of 1901, page 140'. State v. Patrick, 107 Mo. 147; State v. Nelson, 118 Mo. 124; State v. Weakly, 178 Mo. 413.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) Defendant’s counsel made objections to certain threats which State’s witness Douglass testified that defendant made against deceased. This witness testified that said threat'was made-a week or two before Thanksgiving, and this homicide was committed on the 28th day of November. It is clear, therefore, that the threat was sufficiently recent to be of evidentiary value in this case. State' v. Callaway, 154 Mo. 91; Underhill on Crim. Evid., secs. 328 and 333; 1 Wigmore on Evidence, sec. 108. (2) No instruction on the subject of self-defense was necessary, as the evidence fails to show that, in any aspect of the case, defendant acted in self-defense. The two eyewitnesses, who were called in behalf of the State, testified that defendant shot deceased in the back; that she fell on her face to the sidewalk, and that defendant continued to shoot. Dr. Abeken testified to finding four wounds in the body of deceased, all of which entered from the rear. While the defendant, testified to the effort deceased made to draw a pistol, that she was turning as if to come towards him; yet his evidence is contradicted by the physical facts in the case. If deceased had turned to come towards defendant, or if she was turning around, the bullets could not possibly have entered her back in the way they did. Upon the reasonableness of the testimony, this court, in State v. Dettmer, 124 Mo. 435, said: “When witnesses attempt to establish a certain theory by their testimony, théy must first look to it well that their testimony must not' go counter to the physical facts in the case; for if it does, neither courts nor juries are required to stultify themselves by disbelieving the immutable physical facts in the case, and so we have said on a number of occasions. ’ ’ State v. Turlington, 102 Mo. 642; State v. Bryant, 102 Mo. 24; State v. Anderson, 89 Mo. 332; State v. Nelson, 118 Mo. 124; State v. Nocton, 121 Mo. 537; State v. Fraga, 97 S. W. 900. But even if this court shall conclude that an instruction on self-defense was proper, it will be seen that the State’s instruction on that subject was full and fair, and all that the defendant was entitled to. State v. Gee, 85' Mo. 647; State v. Pennington, 146 Mo. 35. It was not error to refuse an instruction asked by defendant, when another instruction had been given by the court on the same subject and embodying the same proposition of law. (3) The evidence is more than sufficient to justify a conviction of the defendant of murder in the first degree. State v. Reed, 117 Mo. 604; State v. Garth, 164 Mo. 553; State v. Callaway, 154 Mo. 91; State v. Eaton, 191 Mo. 51; State v. Worton, 139 Mo. 526.
   GANTT, J.

From a conviction of murder in the first degree in the circuit court of the city of St. Louis, the defendant has appealed to this court. The prosecution was begun, by an information filed by the circuit attorney on January 5, 1906, in which the defendant was charged with the murder of Hallie Douglas, a young woman about twenty years of age, on the 28th of November, 1905. - The defendant, the deceased, and nearly all of the witnesses were negroes.

On the part of the State the testimony tended to show that the defendant and the deceased had been on friendly and intimate terms for some time, and until within a few days of the homicide. On the afternoon of the homicide, the deceased was at the residence of Max Anderson, another negro, on Gratiot street. At that time Max Anderson, Bud Anderson, Chas. Franklin, Hallie Douglas and Mabel Douglas, all negroes, were at the house of Max Anderson and his mother on Gratiot street. The defendant passed this house and looked in at the window, and in a few minutes returned and knocked on the door. It seems that Max Anderson suspected that defendant’s mission was anything but friendly and before opening the door, got his pistol and then admitted the defendant. The defendant at once addressed himself to the deceased, Hallie Douglas, and requested her to come out of' the house, as he wanted to see her, and she replied, “Go ahead, I am coming out,” but did not start at once to go. At this point the defendant had his hand in his pocket and started to draw a pistol; when he made this motion, Max Anderson drew his pistol on the defendant and ordered Franklin to take the gun out of defendant’s pocket and said to the defendant, “What do you mean by coming in here and pulling out a gun?” and struck defendant on the side of the head with the pistol, knocking defendant' to the floor and discharging Anderson’s pistol. Defendant was not shot but it seems he thought he was. Anderson then commanded him to get up, that he was not hurt, and after some parley either Anderson or Franklin withdrew the cartridges from the pistol of defendant and gave it back to him. Defendant then left Anderson’s house. The deceased and her sister Mabel also left the house and went to the Four Courts to swear out a warrant for the defendant, but reached the office of the warrant clerk too late in the afternoon and they then started to return to their home. The defendant followed them down to the Four Courts and quarrelled with them and said he would give them something to swear out a warrant for. The deceased and her sister started up Clark avenue to Thirteenth street and defendant walked along the street with them. The deceased and her sister then continued their way towards their home and when they reached Twenty-first and Papin streets they discovered defendant coming from Twenty-second and Papin towards the bridge on Papin street; when they discovered him he was hurrying towards them, and they ran over on Twenty-first street to Chouteau avenue and on Chouteau to the grocery store of Class on the comer of Chouteau and Twenty-second; there the deceased and her sister separated, the deceased going into the grocery store and her sister going on to her home. The deceased remained in this store until her mother came. While the deceased was waiting in the grocery store, the defendant came in and approached her where she was sitting by the counter, and was heard by Mr. Elmore, a clerk in the store, to say that he intended to have a warrant issued for the arrest of the deceased. Beyond this nothing unusual occurred in the store. When the deceased’s mother came up to the front door of the store she either called or motioned to the deceased to come to her and the deceased got up off of the stool, walked to the front door and got out on the sidewalk and turned with her mother to go west in the direction of their home. The defendant also went ont of the front door of the grocery store and started in the opposite direction; after taking a few steps, the defendant wheeled aronnd, drew his pistol and. followed the deceased and her mother, and when within about five feet of the deceased, shot her in the back, and when she fell to the sidewalk, stood over her and fired four more shots into her person. Death was almost instantaneous.

The evidence on the part of the State was conclusive that the deceased had no pistol, said nothing about a pistol, made no threats or motion indicating that she was trying to draw one. After killing the deceased the defendant walked to the corner of Twenty-second street and Chouteau, turned on Twenty-second street and went about a block distant, broke down his pistol and threw out the empty shells. He then went to a near-by police station and surrendered himself. Autopsy was held on the body of the deceased by doctor Abeken, the surgeon in charge at the coroner’s office, from which it appeared that the deceased, was shot in the back, twice in the forearm and- once through the upper part of the body through the chest. The shot that entered the back from the back and came out through the left side of the neck was the mortal wound from which the deceased died. The physician testified that an examination of the body showed that it was wholly normal in all other respects. There was also' evidence that the defendant had made divers threats towards the deceased to- the effect that, if she turned him down, he would kill her.

The defendant testified in his own behalf and de-' tailed the difficulty at Max Anderson’s house on the afternoon of the homicide and claimed that Anderson was the aggressor, and that defendant had gone to the Four Courts for the purpose of having Anderson and his household arrested, but found the clerk’s office closed, and that on his return home he saw the deceased sitting on a stool in Class’s grocery store, and she beckoned him to come in; that he went in and told her he intended to have her arrested for carrying a pistol, and that he then and there saw the shape of a pistol in the bosom of her dress; that her mother then appeared at front door of the grocery store and beckoned the deceased to come out; that he and the deceased left the store about the same time and walked in opposite directions; that he heard the deceased’s mother say, “Why don’t you kill the black s— of a b— ; what have you got your gun for?” that he looked back and saw deceased turning around and trying to draw a revolver from her bosom; that it was then, and not until then, he drew his pistol and shot the deceased; that he was frightened and excited and did not know how many shots he fired, but denied that he fired any after she had fallen.

Defendant introduced one witness, Jesse Hulbert, another negro, who testified that on-the Sunday night before the homicide on Tuesday, the deceased and the defendant came to his house, number 2120 Chestnut street, about half past eleven o’clock and stayed until twelve; that when they came it appeared as if they had had a squabble before they got there. While there the defendant upbraided the deceased for going down to Gratiot street after he had been so good to her and she replied, “Nobody can make me have anybody if I don’t want to.” That she thereupon said, “To-morrow I am going to get me a 38,” and witness asked her, “WThat are you going to get a 38 for?” and she said, “I have got $3.50 at home, and I am going to get me a 38 with it and I will fix King.” After she said this, the defendant said he would go, and he and the deceased left together. There was also evidence tending to show that the deceased was the mistress of the defendant. He testified that he had regularly supplied her with money from his wages for sometime previous to the homicide. At the close of the evidence the court instructed the jury upon murder in the first degree, murder in the second degree and self-defense and upon threats by the deceased against the defendant, and also gave the usual instructions on the presumption of innocence, credibilty of witnesses and reasonable doubt.

1. The information in this case was in all respects, save as to the name of the defendant and the deceased, in the form approved by this court in State v. Gray, 172 Mo. 434, 435, and State v. Wilson, 172 Mo. 420. The indictments in both of said cases received the approval of this Court in Banc, and have often since been approved by this Division.

2. There was no error in the admission in evidence of the threats made by the defendant against the deceased a week or two before Thanksgiving, 1905. The homicide occurred on November 28, 1905. [State v. Callaway, 154 Mo. 91.] The trial court was exceedingly careful in guarding the rights of the defendant as to other threats which the State sought to get before the jury. And also in excluding evidence tending to show that the defendant had been convicted of an assault with intent to kill prior to the homicide. Indeed, a careful examination of the whole record discloses no error in the admission or rejection of testimony; where there was a doubt, the court resolved it in favor of the defendant. The only errors assigned by the defendant in this court relate to the failure and refusal of the court to instruct and not as to any alleged errors in the admission or rejection of testimony.

3. As already said, the court instructed on both degrees of murder, and as those instructions are full and complete and such as have uniformly received the approbation of this court, it is deemed unnecessary to burden the reports with their reproduction. In its instruction numbered 4, tbe court directed the jury as follows:

“The defendant admits the shooting, but claims he acted in self-defense. Upon this question the court instructs you that if you find from the evidence that when defendant shot the said Hallie Douglas, he had reasonable cause to believe and did believe that said Hallie Douglas was about to take his life or do him some great personal injury, and further, that he had reasonable cause to believe and did believe that it was necessary for him to so shoot said Hallie Douglas in order to protect himself from such danger, then he ought to be acquitted on the ground of self-defense. "Whether defendant had reasonable grounds to believe that such danger existed, and whether he shot said Hallie Douglas in the honest belief that it was necessary for .the protection of his life or person, are questions which you must determine from all the evidence in the case. Although defendant may have really believed himself to be in danger, yet he cannot be acquitted on the ground of self-defense unless it further appears from the evidence that he had reasonable cause for such belief. On the other hand, even if no real danger existed, yet if the defendant had reasonable ground to believe and did believe that it existed, he would be justified in acting upon such belief. If you believe from the evidence that the defendant- shot the deceased, Hallie Douglas, unnecessarily, and when he did not have rear sonable cause to believe that the deceased was then about to kill him or do him some great bodily harm or personal injury, then there is no self-defense in the case, and you cannot acquit the defendant on that ground.” And in the same connection gave instruction numbered 5, as follows:
“In determining whether the defendant was justified in acting upon appearances and shooting the deceased, the jury may take into consideration any threats that may have been made by deceased against the life of the defendant and communicated to defendant prior to the killing, if the jury find from the evidence that any such threats were made and communicated. You shall consider all the threats which you may believe from the evidence were made by the deceased against the defendant, and 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, unless at the time of the shooting the party making such threat or threats does some act indicating a purpose to execute the same or that the party against whom they are made then has reasonable ground to believe and does believe such threat or threats are about to be executed. ’ ’

The defendant complains of the refusal to give the following instruction asked in his behalf:

“The defendant admits the shooting of the deceased, Hallie Douglas, but claims that he acted in self-defense. Upon this question the court instructs you that if you find from the evidence that when the defendant shot and killed Hallie Douglas he had reasonable cause to believe that the said Hallie Douglas was about to take his life or do him some great personal injury, in this connection the jury may take into consideration any threat or threats that the deceased may have made towards the defendant (if you believe that she made such threat or threats), and that when the defendant shot and killed the deceased he honestly believed that the said Hallie Douglas had upon her person a revolver, and further believed that the deceased at the time and place intended and was about to put said threat into execution, and that it was necessary for him to shoot the said Hallie Douglas, in order to protect him from such danger, then he ought to he acquitted on the ground of self-defense. Whether defendant had reasonable ground to believe that such danger existed, and whether he shot the said Hallie Douglas in the honest belief that it was necessary for the protection of his life or person, are questions which you must determine from all the evidence in the case. Although defendant may have believed himself to have been in danger, yet he cannot be acquitted on the ground of self-defense, unless it further appears that he had reasonable cause for such belief. On the other hand, even if no real danger existed, yet if the defendant had reasonable ground to believe and did believe that it existed, he would be justified in acting upon" such belief. If you believe from the evidence that the defendant shot the deceased unnecessarily, and when he did not have reasonable cause to believe that the deceased was then about to kill him or do him some great bodily harm or personal injury, then in that event there is no self-defense in the case, and you cannot acquit the defendant on that ground.”

A comparison of instruction numbered 4 given on behalf of the State, with the refused instruction asked by defendant, will demonstrate that the court in its instruction numbered 4 had already fully instructed the jury upon the law of self-defense, and there was no error in refusing to repeat the instruction embodying the same proposition of law. [State v. Easton, 138 Mo. 103.] In our opinion, the facts of the case as detailed by the defendant himself, to say nothing of the overwhelming proof to the contrary by the disinterested witness, Mr. Elmore, for the State," did not call for an instruction on the law of self-defense. The evidence of the surgeon who made the post-mortem examination, establishes the fact that all four of the wounds inflicted by tbe defendant upon the deceased entered her person from the rear, and the evidence shows that the deceased and her mother were peacefully wending their way towards their home, and the defendant had started in the opposite direction and of his own accord faced about and followed the deceased and shot her in the back without any provocation whatever. His testimony as to her attempting to draw a pistol is completely rebutted by the physical facts in the case. Besides, the whole evidence shows that the deceased had no weapon on her person at the time she was shot. It has often been said by this court that neither courts nor juries are required to stultify themselves by rejecting the immutable facts in a case. [State v. Turlington, 102 Mo. 642; State v. Nelson, 118 Mo. 124; State v. Fraga, 199 Mo. l. c. 136.]

In the brief of the learned counsel for the defendant, however, it is said that the failure of the court to instruct the jury as to the effect of a prior conspiracy followed by an assault upon the defendant as tending to characterize the feeling and intention of the deceased towards the appellant and thus justifying him in acting upon slighter pretense of danger, was error. Two reasons appear to us why no error occurred in this respect.. The first is, there was no proof of such a conspiracy followed by an assault, and if there had been, the instruction of the court on self-defense fully covered the law in that regard; and, secondly, the court’s attention was not called to any failure to instruct on that point of law. [State v. Bond, 191 Mo. l. c. 563; State v. McCarver, 194 Mo. l. c. 742.] In our opinion, the court fully and fairly instructed upon every proposition of law arising upon the evidence in the case, and in giving the instruction on self-defense was more fa-' vorable to the defendant than the facts justified,.but of this, of course, the defendant cannot complain, as it was an error, if any, in his favor.

4. A careful and critical examination of the testimony in this case discloses that the jury was fully justified in returning a verdict of'murder in the first degree. It demonstrates that the defendant, actuated by jealousy, deliberately followed the deceased, after threatening to kill her, into the grocery store on Chouteau avenue whither she had fled for safety from him; that after her mother had come to the store to protect her and take her home, the defendant without the slightest provocation, without a word being spoken, turned from his course to the east and rapidly approached her and shot at her five times, inflicting four wounds from the_rear. The deceased was entirely unarmed and was making no demonstration, and', the evidence would show, was wholly unaware of the approach of the defendant until he shot her. After his victim had fallen to the sidewalk, he wantonly fired three more shots into her prostrate body. Indeed, all the evidence evinces such a willful, deliberate, premeditated and malicious homicide on the part of the defendant, that the jury could not have reasonably reached any other verdict in the case. The verdict and the sentence of the trial court must be affirmed and the sentence which the law pronounces is directed to be carried into execution.

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


author: BUBGESS, J.

text:
    THE STATE v. CAL GRIFFITH, Appellant.
    Division Two,
    May 14, 1907.
    NO BILL OF EXCEPTIONS. Where no hill of exceptions is filed, and the record proper is free from error, the judgment will he affirmed.
    Appeal from Pike Circuit Court. — Row. David R. Eby, Judge.
    Affirmed.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    Where there is no bill of exceptions, and no error appearing in the record proper, the judgment will be affirmed. State v. Nicholas, 193 Mo. 214; State v. Sparks, 191 Mo. 162.
   BUBGESS, J.

On the 5th day of October, 1905, the prosecuting attorney of Pike county filed an information, charging the defendant with burglary and larceny. The date of the alleged offense was the 28th day of June, 1905, the building entered was the warehouse of the Diamond Flour Manufacturing Co., and the property stolen was two faucets of the value of two dollars. At the February term, 1906, of said court, the defendant was tried and convicted, and his punishment assessed at three years imprisonment in the penitentiary for the burglary and two years for the larceny. He was granted an appeal.

The defendant is not represented in this court. As there was no bill of exceptions filed, there is nothing before this court for review except the record proper, and that appears to be free from error.

The judgment is, therefore, affirmed.

All concur.


text:
    THE STATE v. JOSEPH A. HELDERLE, Appellant.
    Division Two,
    May 14, 1907.
    1. ILLEGAL VOTING: Information: Invalid. Information, set out In the statement, for illegal voting in election precincts in the city of St. Louis, held, invalid.
    2. -: -: Uncertainty. Where the information charges that defendant voted at the Fifth precinct and that he thereafter on the same day appeared at the Second precinct and did then and there before the judges of the Fifth precinct fraudulently apply for a ballot and feloniously cast said ballot and vote at said election, the information is too indefinite to base a conviction upon.
    Appeal from St. Louis City Circuit Court. — Hon. Matt. G. Reynolds, Judge.
    Reversed and remanded.

      8. 8. Bass, Anthony Hochdoerfer, T. J. Rowe, Thos. J. Rowe, Jr., and Henry Rowe fo‡ appellant.
    The information is insufficient. It was error not to sustain defendant’s motion to quash or his motion in arrest of judgment. State v. Keating, 202 Mo. 197; State v. Sekrit, 130 Mo. 401; State v. Kreuger, 134 Mo. 262; State v. Hardelein, 169 Mo. 579; State v. Burke, 151 Mo. 142; State v. Miller, 132 Mo. 297; United States v. Hess, 124 U. S. 483; McCrary on Elections, sec. 594; Laws 1903, sec. 32, p. 186; sec. 2120k, p. 159.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    It is conceded that the information is insufficient.
   FOX, P. J.

This cause is now before this court upon appeal from a judgment of the circuit court of the city of St. Louis convicting the defendant of voting more than once at different election precincts in the city of St. Louis in violation of section 2114, Eevised Statutes of Missouri, 1899. As the main contention upon this appeal consists of a challenge to the sufficiency of the information, we here, omitting formal parts, reproduce it. It is as follows:

“Comes now Arthur N. Sager, circuit attorney, within and for the city of St. Louis (said city comprising the Eighth Judicial Circuit of the State of Missouri), and now here in court, on his official oath, and on behalf of the State of Missouri, information makes, that on the fourth day of April, one thousand nine hundred and five, at the city of St. Louis aforesaid, and in each ward and election precinct of the said city of St. Louis, a municipal election was had and held pursuant to the Constitution and the laws of the State of Missouri, and the Scheme and Charter of the said city of St. Louis thereunder enacted, for the choice and election of certain municipal officers of the said city, to-wit: Mayor, Comptroller, Auditor, Treasurer, Eegister, Collector, Inspector of Weights and Measures, Marshal, President of the Board of Assessors, President of the Board of Public' Improvements, President of the Council, Members of the City Council, Members’of the Board of Education, and Members of the House of Delegates from the several and respective wards of the said city; and that then and there, at the said city of St. Louis, and at the polling places of the Fifth Election Precinct of the Eighth Ward of the said city, at the southwest corner of Broadway and Ann avenue, on the. said fourth day of April, in the year one thousand nine hundred and five (the same being the first Tuesday in. April of said year), at the municipal election aforesaid, and before the duly appointed and qualified judges and clerks of election within and for the said election precinct, one Joseph A. Helderle did appear and did then and there, before the judges and clerks of election aforesaid, apply for and receive a ballot, and did then and there cast said ballot and vote at said election; and that the said Joseph A. Helderle afterwards, to-wit, on the same day and at the same election, did appear at the polling place of the second precinct of the Eighth Ward of said city at No. 417 Lami street, and that he, the said Joseph A. Helderle, did then and there, before the duly appointed and qualified judges and clerks of election of the said Fifth Precinct of the said Eighth Ward, knowingly, wilfully, fraudulently and feloniously apply for and receive a ballot, and did then and there knowingly, wilfully, fraudulently and feloniously cast said ballot and vote at said election; and, so the said Arthur N. Sager, circuit attorney as aforesaid, upon his oath aforesaid, does say, that the said Joseph A. Helderle, on the said fourth day of April, in the year one thousand nine hundred and five, in the city of St. Louis aforesaid, knowingly, wilfully, fraudulently and feloniously, did vote in inore than one election precinct, at the election aforesaid, so held as aforesaid, for the election of municipal officers aforesaid, contrary to the form of the statute in such case made and provided and against the peace and dignity of the State.”

The sufficiency of this information was questioned both by motion to quash and a motion in arrest of judgment. On the 5th day of March, 1906, at the February term, 1906, of the circuit court, the defendant was put upon his trial. We deem it unnecessary to set out the testimony upon which this judgment is based. It is sufficient to say that the evidence developed, at the trial is in conflict, and owing to the uncertainty of the charge as contained in the information it is difficult to analyze the testimony and apply it to the allegations contained in it. We are unable to clearly understand from the allegations contained in the pleadings whether it is intended to charge the defendant with voting more than once in one precinct or voting more than once at different election precincts; therefore, we see no necessity for setting ont in detail the testimony upon this trial, for the reason, as before stated, that we find difficulty in ascertaining the nature and character of the offense to which it is sought to make it applicable. In view of the fatal defects in the information, it can serve no good purpose to burden this opinion with a detailed statement of the testimony applicable to it.

At the close of the evidence the court instructed the jury upon the theory that the defendant was charged in the information with voting more than once at two different election precincts, and the cause was submitted to the jury upon the evidence and instructions, and they returned a verdict finding the defendant guilty as charged in the information and assessed his punishment at imprisonment in the city jail for the period of one year and a fine of $50. Timely motions for new trial and in arrest of judgment were filed and by the court overruled. The court rendered judgment in conformity with the verdict and from this judgment the defendant prosecuted this appeal, and the record is now before us for review.

OPINION.

With the views of this court as to the disclosures, of the record before us, it is only necessary to treat of one proposition, which involves the sufficiency of the information upon which the judgment in this cause is predicated. The information is manifestly insufficient and it requires no citation of authorities to support that conclusion. The mere reading of it makes apparent the error. It will be observed that this information charges that the defendant appeared before the judges and clerks of the Fifth Election Precinct of the Eighth Ward of the said city of St. Louis at the southwest comer of Broadway and Ann ayenue and applied for and received a ballot and did then and there cast said ballot and vote at said election. This is followed by the allegation that on the same day and at the same election the defendant did appear at the polling place -of the Second Precinct of the Eighth Ward of said city at No. 417 Lami street. 'And this is followed by a repetition of the allegation that he received from the judges and clerks of election of the Fifth Precinct of the Eighth Ward and applied for and received a ballot and wilfully, fraudulently and feloniously cast said ballot and voted at said election. There is an entire absence of any allegation in'this information that he applied for or received a ballot or voted at the polling place of the Second Precinct of the Eighth Ward. It may be said that this is a clerical mistake, yet that it is fatal to the sufficiency of this information, is too plain for further argument.

We have deemed it unnecessary to analyze and discuss the testimony as applicable to the charge contained in this information, for the reason that we are unable to intelligently analyze this testimony and apply it to the charge in the information in its present form.

If this defendant voted at more than one election precinct on the same day and at the same election, he should be convicted, but a judgment of conviction can only be permitted to stand when it is predicated upon, an information that substantially charges the offense.

For the purpose of giving the State, if it so desires, an opportunity of filing an amended information in which every essential element of the offense sought to be charged under the provisions of the statute may be embraced, the judgment of the trial court will be reversed and the cause remanded, and it is so ordered.

All concur.


text:
    THE STATE v. WILLIAM CUTBERTH, Appellant.
    Division Two,
    May 14, 1907.
    BILL OF EXCEPTIONS: Expiration of Time: Extension Thereafter. An order extending the time for filing bill of exceptions, made after the expiration of the time originally granted, is void; and in such case there is nothing for'the appellate court to review except the record proper.
    Appeal from Stone Circuit Court. — How. Jno. T. Moore, Judge.
    Affirmed.

      T. L. Viles and G. W. Thornberry for appellant.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    There is nothing before this court except the record proper; and, no error appearing therein, the judgment should be affirmed. State v. Eaton, 191 Mo. 151; State v. Thompson, 149 Mo. 439; State v. Britt, 117 Mo. 584.
   GANTT, J.

On the 10th of March, 1906, the prosecuting attorney of Stone county filed an information, duly verified, wherein he charged the defendant with murder in the first degree of Sam Marlatt in Stone county on the 13th of January, 1906.

At the March term of the said court, the defendant was tried and convicted of murder in the second-degree and his punishment assessed at fifteen years in the penitentiary.

Motions for a new trial and in arrest of judgment were duly filed, heard and overruled, and the defendant sentenced to the penitentiary, in accordance with the verdict. On the 19th of March, 1906, the court granted defendant ninety days in which to file his bill of exceptions. He failed to file Ms bill witMn the ninety days, bnt on the 18th of June, 1906, obtained leave of the judge of the court to file the same within sixty days from the 19th of June, 1906. Excluding March 19, 1906, from the count the ninety days expired on June 17, 1906. As the time for filing the bill of exceptions had expired before the leave was granted by the court or judge thereof, the order attempting to extend the time was void and of no effect, as we have often decided. [State v. Paul, infra 681; Powell v. Sherwood, 162 Mo. l. c. 611, and cases there cited.] It results that there is nothing before us for consideration except the record proper. In this case the information is in all respects sufficient. It is in the form of the indictment which met the approval of this court in the cases of State v. Wilson, 172 Mo. 420, and State v. Gray, 172 Mo. l. c. 434.

An examination of the record shows a regular arraignment of the defendant, and the empaneling of the jury, the return of the verdict, and the sentence of the court.

As there are no errors of which we can take cognizance, the judgment and sentence of the circuit court must be and is affirmed.

Foco, P. J., and Burgess, J., concur.