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    The State, Respondent, v. Shoultz, Appellant.
    1. S., a cripple, deformed from infancy, was indicted for murder; held, that evidence was inadmissible in his behalf to show that by reason of his weak and crippled condition of body he was rendered nervous and peculiarly sensitive to fear from external violence.
    2. Where one wilfully shoots and kills another in malice, it is murder in the first degree, and not murder in the second .degree.

      Appeal from St. Louis Criminal Court.

      Cline & Jamison, for appellant.
    I. The evidence offered by defendant was clearly competent and should have been admitted. The condition of Shoultz’s mind was an important consideration for the jury in passing upon his guilt or innocence. The evidence shows him to be a weak and crippled boy ; deformed from his infancy; always sick and often unable to walk or help himself, and of so frail a fabric that an ordinary blow from the fist of the deceased would have been sufficient to take his life. This had a powerful effect upon his mind, and when he saw his hand raised against him, a sense of his own weakness, heightened by the pain of disease, which had preyed upon him from his birth, moved him to do that for his own protection which is now charged to be murder in the first degree. If the defendant really and honestly supposed deceased intended to do him some great personal injury, and that it was about to fall upon him, although he had no reason for thus supposing, yet if he were to show that his belief arose from his peculiar constitution and character, or from nervousness or cowardice caused by his crippled condition, the homicide in that case would not have amounted to murder, but would have been manslaughter in the fourth degree under our statute. (Whart. on Horn. 212-6; Whart. Crim. Law, 468, note; 3 Stew. & Porter, 315.)
    II. The fifth instruction given was erroneous. If the jury should believe that deceased and defendant were of equal strength, then the provocation referred to in this instruction would not extenuate the crime to manslaughter. The same principle should apply to cases where parties are equal in strength as where they are unequal. The instruction also cuts off every defence or palliation which might arise either from passion or self-defence, where the defendant was the first trespasser in a difficulty which resulted in death. No declining the combat, no retreating to the wall or ditch, would be sufficient to protect the accused from the penalty of death; if he commenced the difficulty, it matters not under this instruction how hot the contest may be waged, or how great the peril of the first trespasser might become, yet he is left by this instruction without any means of defence, and can alone seek protection by flight. If the instruction had pursued the language of the law by stating that the provocation must be sought by the deceased in order to destroy its legal effect in his defence, then the jury would have understood its import, and the appellant would have been left without any reasonable objection to its having been given. The sixth and seventh instructions are objectionable for the same reasons.
    III. The eleventh is erroneous. This instruction takes from the jury all consideration of murder in the second degree in every case where death ensues from an intentional act of violence, and unless there be a lawful provocation and a heat of passion, or unless it be done in self-defence, the perpetrator is pronounced guilty of murder in the first degree. The cases of the State v. Dunn, 18 Mo. 419; State v. Jennings, 18 Mo. 443, certainly carried the doctrine to its fullest extent. Here a wilful act is held to satisfy a statute which requires the killing to be done with deliberation and premeditation. (See Whart. Crim. La, 439; Copeland v. State, 7 Hump. 479; Whart. on Horn. 168.)
    IV. The instructions asked by defendant were improperly refused. (See Granger v. The State, 5 Yerg. 459 ; State v. Scott, 4 Ired. 409 ; Whart. C. L. 463 ; 19 Wend. 569; Shorter v. People, 2 Oomst. 197.)

      C. G. Mauro, (circuit attorney,) for respondent,
    cited Whart. on Horn. 215, 197; People v. Clark, 3 Seld. 393; Beauchamp v. The State, 6 Blackf. 310; Mitchum v. The State, 11 Geor. 628 ; The State v. Tilley, 3 Ired. 424 ; People v. Shorter, 4 Barb. S. C. 460 ; 2 Comst. 193.)
   Ryland, Judge,

delivered the opinion of the court.

Israel Shoultz was .indicted at the July term, A. D. 1856, of the St. Louis Criminal Court, for the murder of Henry In-kamp. At the January term, 1857, he was tried and convicted of murder in the first degree. He moved for a new trial; his motion was overruled, and he brings the case here by appeal.

The record shows the following statement of the facts of the case : Dr. William Taussig, produced and sworn on the part of the State, deposes and says: I am a physician by profession, and reside in Carondelet, St. Louis county. I know defendant Shoultz — ever since I resided there — and was also acquainted with Henry Inkamp, the deceased. I was called to see deceased after he was shot; saw a wound on his left side; it was caused by a ball, shot from a gun or pistol, which had passed through his body and came out on his right side, or was protruded through the skin. I took the ball out, and directed some treatment. He died upon Thursday morning from the effect of the shot. I officiated at the post mortem examination. Upon opening the deceased’s body, I found that the ball had struck the eighth rib, glanced downward, penetrated the peritoneal coat of the stomach, grazed the walls of the stomach, penetrated the diaphragm, grazed the pleura, pierced the surrounding ligaments of the lungs, and then passed out between the eighth and ninth ribs. This is all I know of the cause. [Cross-examined.] Deceased was a heavy set, strong man; the stoutest man I ever saw. Saw no other wounds upon him except a cut on his right hand ; do not know what kind of a cut it was ; it was slight however. Shoultz is a cripple; he has the curvature of the spine, and, from his smallness of stature, should suppose he has had it from his infancy.

Dr. Ashbel W. Webster, called and sworn on the part of the State, deposes and says as follows, to-wit: I was called upon to attend deceased. He was at the drinking-house of Stine, in Carondelet; it was some time in the month of-, 1856 ; saw a cut on his hand; saw the shot wound spoken of by Dr. Taussig. This caused his death. He died in this county, in Carondelet, next day. I knew nothing more of the matter than what has been spoken of by Dr. Taussig.

Michael Conrad, sworn on the part of the State, deposes and says: I knew defendant and deceased also. I saw deceased the day he was shot. It was sometime in the summer in 1856 ; do not recollect the month or the day of the month. He was at my house on the day he was shot. He was there about three hours. Defendant was passing in the middle of the street in his buggy. Deceased called him off as he was passing. This was one hour before sundown. Defendant got off of his buggy and came in the bar-room, and asked deceased what he stopped him for. Deceased asked him, “ Do you know of any one who upset my carts and wheelbarrows at the blacksmith’s shop on the night of Joseph Shoultz’s ball ?” Defendant said, “ You might as well accuse me of it, as it took place on the night of the ball.” Deceased said he merely wished to know if he knew of any one who did it. They got into a dispute and some high words passed. Defendant said he had something against him (the deceased) anyhow. They talked pretty loud in a quarreling way. The- young man wanted to fight the deceased; and when they got outside they still talked loud, but soon made it up, and came in and took a drink. Defendant did nothing to Inkamp, but he said half a dozen times he wanted to fight him. Deceased said he- did not wish to have any thing to do with him; to keep away from him. They were together about twenty-five minutes; made friends; came in; shook hands, and drank. I think Shoultz paid for the liquor. After this Shoultz started off in his wagon. Deceased was standing in the door or in front of it, on the pavement, when he called Shoultz in. It was done in a friendly way. He was in a laughing way when he spoke to him about upsetting the wagons, &c. Shoultz got mad and said, “ You might as well accuse me of doing it.” Deceased did not get mad then, nor did he get mad at all. Shoultz remained twenty-five or thirty minutes. I saw deceased on the second night after his being shot. I remained with him until four o’clock in the morning, and was at his funeral. I am not certain that I saw defendant on that evening again. I was not present at the difficulty which resulted in his shooting Inkamp. [Cross-examined by defendant’s counsel.] Inkamp did not get mad at all. Shoultz was in the-and treated. I told Inkamp that he would not shoe his mare because he did not send the money, but that it made no difference as he had sent her to St. Louis-Gamache to be shod. Deceased called Shoultz off his wagon. He was going past the house in the direction of his home. Deceased was a blacksmith by trade, and a very stout man — more so than any one in this house. Ho was not born in this country. He was not a Frenchman. He was a German.

Charles Ahlig, sworn on the part of the State, says : I was present at the time Inkamp was shot. It was on the evening of the 9th of Jnne, 1856, at Mr. Stine’s bar-room, in Caron-delet. I went down there at five o’clock P. M., or a little afterwards, with soda, and to make a settlement; saw defendant and deceased standing near the counter talking with each other. I heard some words, but as it did not concern me I paid bnt little attention to it. They then came pretty near a fight. I then stepped up to the bar ; was there five minutes, and Shoultz shot Inkamp. I heard many words, but have forgotten them. I heard deceased say it was not right for Shoultz to talk bad of him behind his back; he was very angry, and would strike his fist on the counter. I think it was his right hand; and also said that Shoultz was no American, and had no American-feeling heart. Shoultz said, I will show it to you,” and so drew a pistol and shot him. I do not know where he got the pistol from, it was drawn so quickly, unless it was in his cpat or pants’ pocket. It was pointed at the middle of deceased. They were not more than three paces apart. Deceased was standing near the counter; and when he was shot, he turned to it and said, “ take me out; I am shot.” I saw no blood on him. Shoultz had gone. I do not know where. When I first went in, deceased was standing in front of the counter and leaning against it. He had his arm on the counter, and would turn around and strike with one hand on the counter. Defendant stood in front, face to face. I saw Shoultz at one time jump towards deceased and call him out to fight; did not notice his hands; do not know how often he came up in this manner. Deceased said if he was a man who could fight, he would have fought him long ago. Deceased continually made motions with his hands. [Here the circuit attorney offers to read a portion of the examination of witness taken before the committing magistrate, so as to refresh his memory, which was objected to by defendant. The jury being sent out, the paper was shown to witness, who states that it was his signature which was appended; that it was his testimony, and that it was read to him at Esquire Poepjfing’s before he signed it. Here the circuit attorney reads the following to him: “ He raised up his fist and went up to deceased and used some threatening language.” “ Do you now recollect this ?” “ I do.” Here the jury were brought back, and the witness is asked to state to the jury what he now recollects after hearing that portion of the testimony read; which is objected to by. defendant, and objection overruled and excepted to.] Defendant held his fist up and approached deceased; do not know how near he held it to him. His fist was not in motion, but his body was; don’t know what he said. Deceased said, if defendant was able to fight, he would have fought him long ago ; that Shoultz was a cripple and could not fight with him; and if he did, he would be ashamed before every body; and, as a gentleman, could not do it. This was a few minutes before he was shot. There were six or seven men in the house at the time. The door was 'standing full of men. The bar-tender was behind the counter. I finished my business. They took deceased out to a grocery below. It was five o’clock, P. M. All this took place in St. Louis county. [Cross-examined by defendant.] I did not see deceased dash the blood at Shoultz or on him; can’t say if Inlcamp was drunk or sober. Inkamp did not take hold of Shoultz at the time Shoultz shot. I understand English for all purposes for my business. I am a Hessian; do not know where deceased is from. I spoke in English when I gave my testimony before Esquire Poepping. I did not see deceased break the tumbler. That was before I came in the room. I did not hear bar-keeper order him out of the house ; did not see deceased have hold of defendant with his hand' raised to strike him. The bar-keeper was busy and could not attend to my accounts. I was not talking to any one. My face was turned towards the bar. Shoultz was about three steps from where deceased was standing. I did not see blood thrown on defendant.

Christian Beck, produced on tbe part of the State, deposes and says as follows : I am bar-keeper at Mr. Stine’s, at Ca-rondelet; was then acting in that capacity when Inkamp was sbot. This took place about sis or seven o’clock, P. M., in summer last. Shoultz came in the bar-room first; was playing cards, and had been there about thirty minutes before deceased came in and took a drink, and then Shoultz came up with his party and drank also. Some one came along with Inkamp; think it was a wagon-maker. After Shoultz’s party had gone out of doors, he went up to deceased to speak friendly with him; he asked him to treat. Deceased said he would not, but at last agreed to it. Defendant said, “ If you treat me, you must treat my friends also to which deceased agreed. They were called in and all drank. Shoultz asked him again to treat; to which he replied, “ I have treated you and your friends, and will not treat no moreso defendant treated himself and deceased; and what took place here — I did not pay particular attention to what they were saying, but they raised a fuss among themselves ; do not know who commenced it. They were standing with their sides to the counter. Deceased said it was not right for defendant to shake hands and then raise a fuss. Shoultz wanted Inkamp to fight him, and jumped at deceased once or twice. Inkamp had a tumbler in his hand, and was going to drink when Shoultz jumped at him. When this was doing, deceased put his glass back on the counter and broke it. I told them both to go out doors and not to raise a fuss in the house. Deceased broke his glass; do not know what he done this for. Defendant wanted to fight, but deceased pushed him away quite easy, and told him to keep free. Defendant said to deceased, “ You shall whip me.” Deceased said he did not like to fight him, because he was a cripple. Defendant jumped at him three or four times. I did not see lfim have his hand up. Inkamp was still at the counter and Shoultz was at him all the time. Deceased said he would not fight him, as he was a man who was not able to take care of himself. This he stated five or sis times, and both before and after he pushed defendant back. They were moving towards the door. Defendant put his hand in his pocket two or three times and pulled it out again. This was about five or ten minutes before the shooting; I heard the shot, and saw defendant pull back his pistol, but was at that moment engaged in putting up the glasses. I did not hear Shoultz say any thing when he shot; but put the pistol in his pocket and walked out the door. Deceased had his hand on the counter at the time he was shot. He put his hand on his side, walked one or two steps towards the door, and then came two men who took him home. I saw him that evening in his own house. He died in two days afterwards; did not see deceased do any thing to defendant all the time he was there. There were many persons there at the time, the most of whom were in the door. I was at deceased’s funeral. [Cross-examined by defendant.] • I testified in this case before the justice; he wrote my testimony; do not know that he read it over before I signed the paper. I did not say, as it is stated, that deceased took defendant by the body. Deceased was mad at the time he put the glass down on the counter and broke it. It was after this that he pushed Shoultz away. I was standing at the side of the counter, and did not see deceased throw blood in defendant’s, face. Defendant had one hand in his pocket and came up against deceased. Deceased was a large stout man. I did not see that deceased was drunk.

Joseph Phiper, on the part of the State, being sworn, deposes and says: I live in Carondelet; was at Stine’s grocery at the time deceased was shot last June. When I went in the bar, Shoultz went up two or three times to deceased, who said to him he did not want any thing to do with him. I was there about five minutes; was in the act of turning around to leave when I heard the report of the pistol. When defendant fired the pistol he said, “ I have shown you if I have an American heart,” and then went out of the front door, got into his buggy and went towards home. It was after Shoultz had shot that he said, I’ve shown you if I have got an American heart.” He went before I did. I knew deceased about two months ; was at the post mortem examination. [Cross-examined by defendant.] I have been in this country about twelve years, and have lived in Carondelet about eight or nine years. I testified in this cause before the magistrate ; spoke in the German language.

Christian Grimm, produced and sworn on the part of the State, deposes and says : I knew deceased 'and defendant; also recollect the day of the difficulty which resulted in the death of the former. I saw defendant as he drove away from Stine’s grocery, and saw the deceased about two minutes after he was shot. Defendant was going towards his house; deceased was on the pavement about thirty steps from Stine’s grocery; his partner was conducting him home; saw him the next morning lying on his bed; heard him make no statement. [Cross-examined by defendant.] I knew deceased about eight years, at his machine shop in St. Louis. I saw Shoultz and several persons on the street; saw deceased a few minutes before he was shot-; he was talking to his partner ; did not hear what he said. I was in the act of going to the brewery; heard no one in the grocery as I passed. I know nothing of the shooting. [Re-examined.] Deceased was standing up and talking with his partner, about four or five o’clock in the afternoon; seemed to be sober; his name was Henry Inkamp. Here the State closed.

Louis Robear, produced and sworn on the part of defendant, deposes and says: I am the partner of deceased, and remember the day on which he was shot. I was in company with the defendant. I went to Michael Conrad’s, and got in with the defendant and rode up to Stine’s. After we had been there a short time, deceased came in. A few words passed between him and Shoultz. Shoultz said deceased had not shod his mare right. I said it made no difference as he had won the race at any rate. Some words passed about the cart and grindstone. Deceased asked defendant who turned them over. He said that he did not know; that he was not in the habit of turning grindstones over. This was at the house of Conrad ; don’t think any hard words passed between them there. We then left with Shoultz and rode up to Stine’s grocery. We played a game of cards; had already finished, and were getting uj> to take a drink, when deceased came in. He was invited by some one to join us. We all drank. I then went out doors. We came back again soon. Defendant and deceased now commenced with high words again about the grindstone business and the horse-shoeing. They went on with the excitement, but I do not know what was said. I stood outside of the door, and could not see all, nor hear what was said. I saw a scuffle going on between them; they were pushing each other at the same time; did not see the shooting ; heard the report and saw the smoke of the pistol. I saw defendant come out of the house; saw blood on his face; saw deceased break his tumbler. They were drinking together. . Something arose and he smashed it on the counter. [Here the defendant offers to pro've the deceased to have been a man of violent temper and quarrelsome habits, and that such was his general reputation among his neighbors; all of which was rejected by the court on the ground that it was irrelevant, to which decision the defendant at the time excepted.] [Cross-examined by the circuit attorney.] I have spoken to several persons about this case; spoke to Primm, Gibau, and several witnesses in the cause. We spoke as to when it would come off — I mean the trial. I went up soon after the difficulty to see Mrs. Shoultz. She sent for me and Mr. Gibau ; we went- together. She wanted to hear how it was ; do not recollect what passed. My memory is pretty good. But few words were spoken; do not know what they were; defendant has a little brother and some sisters; first saw Shoultz at Mr. Conrad’s, between five and six o’clock; deceased and a wagon-maker were there; do not recollect whether deceased stopped defendant or not; they had a talk about a former difficulty of shoeing a horse. I was out of doors when they made up ; did not see them strike ; deceased and defendant drank with others ; but did not see them drink alone. I think H. Hook treated, but am not certain. Defendant invited me and others to get in and ride in his wagon. He went directly to Stine’s. I did not know of defendant’s having a pistol. It is near half a mile from Conrad’s to Stine’s. We were about two or three minutes in going up. Four played for the-. We then drank ; deceased came in about the time we finished drinking. Some one asked him to drink, which he did. In about five or six minutes defendant asked deceased to treat, which he did, and we all drank. After Shoultz said, “ If you treat me, you must treat all of. my friends,” deceased said, “ call them all up.” We all went up. I drank, and so did the others of the party. I do not know how long I remained at the bar; nor did I hear Shoultz ask deceased again to treat. But I saw them again at the far end of the counter; but do not know who treated. I had not been out of the house after we drank up to this time. I think deceased said it was wrong for defendant to pick a quarrel. I was still in when deceased smashed his tumbler on the counter; saw them quarreling close to the door; do not know any of the words that were spoken between them prior to the time the glass was broken; think I heard the bar-keeper say he did not want any noise in the house. I was not watching them all of the time, but they were jawing and making a noise. I may have looked out of the door at that time; did not see Shoultz make a motion or want to fight. They were excited, and I think I saw Shoultz go up to have a fight with deceased ; this did not take place more than once. I saw deceased shove him back; this was done in a pretty rough manner; and was ten or fifteen minutes before the shooting. He shoved him back after he had broken his tumber, and told him that he was a cripple. Before the tumbler was broken I came in twice, and during the difficulty saw defendant have one of his hands in his pocket, but saw nothing in it. This was eight or ten minutes before the shot. They moved towards the end of the counter, and at the time of the fussing, I heard deceased say to defendant, You have not got an American heart,” or something to that effect. If I understood him, be said, “ I will show you if I have got au American heart.” This was about the time he fired, and when he went out, he said, “You will see I have got an American heart,” or words to that effect. He got in his buggy and drove off; saw him after about 6J o’clock, Saturday, at the frame house at the corner; did not see the pistol after the shot was fired. I went home; saw Shoultz at our shop. He was acquainted with deceased. Saw defendant have a pistol before when he came to the-; think on one occasion he had a revolver.

Bartholomew Gihon, of lawful age, sworn on the part of the defendant, states: I am a resident and native of Carondelet, and recollect the time deceased was shot at Mr. Stine’s. I was present; it was in the month of June’; and was constructing a house in the lower part of the town; and as I was passing went into the bar-room. Saw Shoultz and several others playing a game of cards. After finishing the game, deceased came in. They all went up to the bar and drank. Several of us went out, and defendant called us in to drink a treat of deceased, which we did, but do not know who paid for it. Defendant asked deceased to treat again, which he declined, and defendant then said he would treat; they went up to the bar and loud words ensued. Defendant asked deceased if he still had harsh feelings towards him about the cart and grindstone. Then deceased turned around to the counter, caught his tumbler, and smashed it to pieces on the • counter, leaving the indentation there to this, day. Then they had many .hard and angry words. Deceased had his hand full of blood, and flung it in defendant’s face, and took his hands and pulled his hat by the rim down on his face. Shoultz was pale with fear. Deceased was in a great passion, and made at defendant, who told him to keep off of him, and when he came, defendant shoved him away. The liar passed between them. Deceased held his fists up near each ear of defendant, and shook the blood from his hand in his face; then they got to shoving each other, and got up to the front door, which was wide open.. I slipped out on the side-walk and turned and looked in the house ; then Shoultz was to my right and deceased to my left, and facing- each other, and both much excited. Then deceased shoved Shoultz with his left hand, and had his right hand raised as if to strike him. Defendant fell back and fired. I could not see him for the door frame. Deceased wheeled round and said, “ I am shotand defendant got in his buggy and drove off. Mr. Robear took deceased and started off home. I reside in Carondelet; am a house carpenter; am no relation of defendant’s. Shoultz is a weak person, and a cripple. Deceased was a stout, robust man, and, in my opinion, could have killed defendant with a single blow of his fist. [Cross-examined by circuit attorney.] He might have struck him before that time if he wished; deceased pulled his hat by the rim down over his forehead. I have known defendant and his family for ten or twelve years ; am intimately acquainted with them, but had not, to my knowledge, seen Shoultz that day before; but casually saw him three or four times per week; saw him once in jail; had no talk; several persons were with us at the time ; was there about thirty minutes. I have talked with many persons about it; have spoken to Ro-bear, but do not recollect what was said. Deceased drank at the bar. I was there about a half an horn- or more. I went to the door after we drank; was engaged in conversation when we were called back by defendant to be treated ; we all went back ; deceased treated, but did not see any one pay for it. We staid a long time after this. About fifteen minutes after this, deceased was again asked to treat by defendant and refused, but defendant said he would treat; then defendant and deceased drank alone. They soon got to shoving each-other; deceased dashed down his tumbler on the counter and broke it, and cut his hand ; deceased spoke so loud and fast that it was difficult to understand what he said. He spoke of Shoultz upsetting his cart and grindstone. Deceased shoved defendant first, and then defendant shoved him ; they pushed each other four or five times. Robear was there at the time. When deceased hit the counter with the glass, the bar-tender said he had been tliere two or three times already that day trying to raise a fuss ; I did not see defendant make a motion at deceased at the time he broke his glass. I heard deceased say once, “ You are a cripple boy and I want nothing from you.” I paid but little attention as I supposed deceased would do nothing to so small a crippled boy. Did not hear defendant want deceased to fight but once. He said, “Do you want to fight me?” to which question deceased said he did not want to fight: “ You are a cripple.” This was after the tumbler was broken, and after the shoving; when defendant asked deceased about fighting, I had no idea that he wanted to fight; did not see him have his hands in his pocket. I think deceased said something about defendant’s having an American heart; did not hear him say, “ I have shown him that I have an American heart.” I had some talk with the mother of the defendant on the night of this difficulty. She sent for me and wanted to hear how the trouble occurred.

Thomas W. Levant. I am fifty-five years old ; have known defendant from his infancy up to this time. He is about eighteen or nineteen years old; he has always been a cripple, caused by a curvature of the spinal column. He has always and is at this time weak both in health and in strength, f Question. <£ Do you know what effect the crippled condition of defendant’s body has upon his mind as to rendering him more sensitive to external danger and fear ?” Objected to as irrelevant; objection sustained by the court, and excepted to by the defendant.] He has always sustained the best of reputation for peace and quietness; is of kind, gentle and amiable disposition; and has always been a pet in the village. I knew deceased. He was a stout man, and had a most violent temper; was generally regarded as a quarrelsome man ; do not know that he would inflict great bodily harm or not; have heard many persons say he was a bad man, unruly in his family, and dangerous when in liquor or was drinking.

Peter D. Barada, sworn for the defendant, deposes and says : I have lived in Carondelet for thirty-sis years; know defendant. He is twenty-one years old, and has been a cripple from bis infancy. He lias always borne a good character for peace and quietness. [Question. Does his crippled condition of body render him more sensitive to fear and danger than he otherwise would be ? Objected to for incompetency and irrelevancy ; objection sustained by the court, to which decision of the court the defendant at the time excepted. As the testimony of Gihon seemed to have a tendency to establish self-defence, the court was of opinion and decided that defendant might inquire into the character of deceased as a dangerous man, as tending to show reasonable grounds of apprehension, and submitted proof to that end.] I have known deceased for eighteen months ; he has always borne a bad character for peace and quietness ; and has always been regarded as a bullying and overbearing man; could not say that he was generally reputed to be a man who would commit great bodily harm. [Cross-examined by attorney for State.] I have heard persons say that he was generally regarded a dangerous man. Some persons who have spoken of his character for these things ; one, his associates, or were at the times I heard them speak of him, among whom was Barada, my son. Never saw deceased more than ten or twelve times, and never saw him guilty of any brutality.

John P. Barada, of lawful age, sworn on the part of the defendant, states: I know defendant, and know that he has always sustained a good reputation for peace and quietness. Deceased was a quick tempered man ; was passionate, and always sustained a poor character for peace; he would do harm to any one for slight and trivial provocation. There is no doubt but that he would cut or stab a man upon slight or trivial provocation. Such was his general character. [Cross-examined by attorney for State. I had a difficulty with him in February or January last. I went to work for him, and before I found him out thought him to be a very fine man; have heard some speak well of him, while many have spoken ill of him.

Constance. Shoultz, sworn on the part of defendant, states that she is the mother of defendant; saw him on the morning of the difficulty ; he went out in the morning- to collect money for Mr. G-amache, and came back in the evening with his face full of blood. He is a cripple, and has been ever since he was two months old ; is very weak, and is scarcely able to walk; is very sickly, and quite helpless often from his disease of the spine. When he returned that evening he had blood on his hat, face, clothes and shirt; saw no wounds upon him. Do not know where the blood came from. Saw no wounds on him.

■ Antoine Motear, sworn on the part of the defendant, states that he has known defendant twenty years; he has always sustained a good reputation for peace; deceased was my neighbor, and was regarded as an overbearing man, of violent passions, and was considered dangerous when drunk. [Cross-examined by circuit attorney.] I never heard deceased would stab, cut or kill any one.

David DeLisle, sworn for defendant, deposes and says as follows, to-wit: I know defendant; he has always borne a good name in the town of Oarondelet; deceased was of bad reputation for peace; he was often spoken of as a man of revengeful disposition. [Cross-examined by State.] I have heard Motear’s people speak of him and others. Here defendant closed.

Edmond Carroll, called and sworn for the State, in rebuttal, deposes and says: I have heard it stated by men who associated with him, that he was quarrelsome. I was present at the time Inkamp was killed. I stood on the step of the door about ten minutes. I was coming from my mother’s ; heard quarreling going on in the house, and stopped; was not there when deceased broke his tumbler. Deceased was between the end of the counter and the door; do not know what caused him to leave the counter; saw no efforts on his part to strike or hurt Shoultz in any way. Deceased was greatly excited, and was telling defendant to keep away. Deceased-may have raised his hand to strike defendant, and I not have seen it; lie might have bit him. There was nothing to prevent him. Defendant was near enough to him. There was nothing to have prevented defendant in getting away. I should say if deceased shoved Shoultz I would have seen it; heard no threats made use of by any one. I was attracted off of the street by the loud talk and quarreling. I heard it some three blocks; only heard deceased’s voice. I went immediately to the house, and looked in upon the difficulty; did not look at them at the time of shooting.

Jacob Brough, sworn for the State, deposes and says: I knew deceased before he was shot; we worked together in Messrs. Palm & Robinson’s machine shop; he had a good character.

George Fox, sworn for the State, deposes and says: I worked in the same shop with deceased; his character was good.

Mr. Conrad, sworn on the part of the State, deposes and says : I know deceased ; have heard some persons say he was a rough and overbearing man ; but never knew of any thing wrong of him. [Cross-examined by the defendant.] I know Bartholomew Gihon ; his reputation for truth and veracity is good, and I would believe him on his oath.

Frederick Guilford, on the part of the State, sworn, deposes and says : I knew deceased nine or ten years before he went to Carondelet to live ; he always bore a good character for. peace and quiet.

John Wabe, sworn for State, deposes and says: I knew deceased, and believe that he would not hurt any one.

Henry Gilpin, sworn on the part of the State, deposes and says: I .knew deceased about nine years ; so far as I know his character is good.

Here the defendant offered evidence in rebuttal. Peter D. Barada, of lawful age, sworn on his oath, deposes and says : I would believe Bartholomew Gihon under oath ; no one has a better character than he.

Antoine Motear, sworn, states that he knew Bartholomew Gilion from bis birth ; never heard his reputation impeached for truth and veracity ; no one stands higher in the estimate of the community than he does.

Several other witnesses testified to the same effect as to the reputation of witness Gihon.

This was all the evidence offered on either side. The counsel for the prisoner relies upon the following grounds for a reversal of the judgment: 1st. The refusal of the court below to permit the prisoner to introduce evidence to show that by reason of his weak and crippled condition of body he was rendered nervous and peculiarly sensitive to fear from external violence. 2d. Improper instructions given by the court to the jury on the part of the State. 3d. Proper instructions refused on the part of the prisoner. We will notice these points and give our views concerning them.

It was at one time doubted whether the defendant, in a criminal prosecution, has the right to give in evidence, his character. B.ut it may be now considered as settled that the defendant is entitled, in all cases whatever, to introduce evidence of his good character, so far as relates to the subject matter of the prosecution. But his character can only be drawn into issue by himself, and in this he is restricted to the particular trait or quality involved in the prosecution. (Whart. on Horn. 244, 245.) In a trial for murder, “ the defendant’s peaceableness or regularity of conduct and good feeling towards the deceased would be proper points of de-fence ; and it would be absurd to divert the issue to other qualities, the bona fide possession of which would be perfectly reconcilable with guilt.” (Whart. on Horn. 244.) In the case of the State v. Carroll, 3 Humph. 315, the State was permitted to prove the mild and pacific temper and habits of the deceased, for whose murder Carroll was indicted; and, when this point was insisted on as error in the Supreme Court, that court held that there was nothing in the objection. The court said: “ The case depended upon circumstantial evidence, and it was proper to suffer this fact to be proved as a circumstance tending to aid the jury in ascertaining the probable grade of the offence. It would have been competent for the prisoner to have made proof, if he could, of a contrary character, independently of the fact that the State made the proof in question.” I would not be understood, by quoting this case, to give sanction to its doctrine, but as showing how far some of the courts have gone on this subject. In 1851, at the Stafford summer assizes, Oxford circuit, in the case of the Queen v. Burt et al., 5 Cox Crim. Cas. 284, indictment for stealing from a dwelling-house, it was held that after a witness had given evidence of the prisoner’s good character, it was not open to the counsel for the prosecution to give evidence of the prisoner’s general bad character. In the trial of the Commonwealth v. Webster, 5 Cush. 324, Shaw, Chief Justice, said: “ There are cases of circumstantial evidence where the testimony adduced for and against a prisoner is nearly balanced, in which a good character may be very important to a man’s defence. A stranger, for instance,’ may be placed under circumstances tending to render him suspected of larceny or other lesser crime. He may show that, notwithstanding these suspicious circumstances, he is esteemed to be of a perfectly good character for honesty in the community where he is known, and that may be sufficient to exonerate him. But where it is a question of great and atrocious criminality, the commission of the act is so unusual, so out of the ordinary course of things, and beyond common experience — it is so manifest that the offence, if perpetrated, must have been influenced by motives not frequently operating upon the human mind — that evidence of character, and of a man’s habitual conduct under common circumstances, must be considered far inferior to what it is in the instance of accusations of a lower grade. Against facts strongly proved good character can not avail. It is therefore in smaller offences, in such as relate to the actions of daily and common life, as where one is charged with pilfering and stealing, that evidence of a high character for honesty will satisfy, a jury that the accused is not likely to yield to so slight a temptation. But still, even with regard to the higher crimes, testimony of good character, though of less avail, is competent evidence to the jury, and a species of evidence which the accused has the right to offer. But it behooves one charged with an atrocious crime, like this of murder, to prove a high character, and by strong evidence to make it counterbalance a strong amount of proof on the part of the prosecution. It is the privilege of the accused to put his character in issue or not. If he does, and offers evidence of good character, then the prosecution may give evidence to rebut and counteract it. But it is not competent for the government to give in proof the bad character of the defendant unless he first opens that line of inquiry by evidence of good character.” I have cited these three cases showing how differently the courts of different states have decided on the question of character. I agree with the doctrine laid down by Chief Justice Shaw. The character of the defendant can only be brought before the jury when he opens the line of inquiry himself.

There are cases in which the character of the deceased may be given in evidence. Whenever, from all circumstances in the case, the defendant may have had reason to be in fear of his life, then the character of the deceased for peace and quietness, or for rashness and turbulent violence and disregard of human life, may be offered in evidence by the defendant as one of the circumstances under which his act was committed, in order to show his grounds of apprehension of great personal injury, or of great bodily harm. The defendant has the right of making this proof, not so much on the ground of its being his right to give the general character of the deceased in evidence, as it is that that character is a fact, a circumstance at the time of the commission of the deed which had its weight in the mind of the defendant in producing the defendant’s act. But, as a general proposition, the rule continues unbroken that evidence that the deceased was riotous, quarrelsome and savage is inadmissible, even though such knowledge be brought home to < the defendant himself. Any other rule would allow a private citizen to take upon himself the province of government in the punishment of crime. (Whart. on Horn. p. 249.)

So much then for the right to give in evidence the general character of the defendant and of the accused. I have thus mentioned the general doctrine on this subject, but there is no cause for it here ; for, as soon as the court saw that the defence might properly turn on the doctrine of self-defence, the defendant was permitted to give the general character of the deceased in evidence. But, the defendant proposed to give in evidence his own peculiar sensitiveness to fear from external force, owing to his condition of body. This the court refused, and we think very properly. Wharton, in his treatise on homicide, lays it down as a general rule that there can not be an acquittal unless there is reasonable evidence of the intent of the part on the deceased to commit some felonious act. This evidence must be gauged by the defendant’s opportunities at the time ; and if he have reasonable grounds to believe a felony intended, it makes no matter that such was not really the case. Thus if a man assaults another with a pistol in such a manner as to produce the belief that he is about to take life, it makes no matter whether the pistol be loaded or not. (Whart. on Horn. 215.) When, from the nature of the attack, there is reasonable ground to believe that there is a design to destroy his life or to commit any felony upon his person, the killing the assailant will be excusable homicide, although it should afterwards appear that no felony was intended. Wharton says, “ it is manifest that very embarrassing questions will here arise as to whether the test to be applied is the defendant’s capacity or the capacity of the jury trying the case. If the latter be the case, the question will be of comparatively easy solution. It will be only necessary for the jury to examine the res gestee, and to determine whether, from them, a reasonable belief of an intended felony can be deduced. But if the defendant’s capacity is to be taken as the stand point, the inquiry is widely extended. In the first place, it involves the temperament, nervous and intellectual, of the defendant, as well as his means of physical resistance. In the second place, it involves the same qualities in the deceased, so far as they could have been supposed to have been known to the defendant at the collision. For, adopting this point of view, it would be absurd to say that a child or imbecile person would not have much greater reason to apprehend a felonious assault from an incensed lunatic, who was starting towards him with the appearance of an assailant, than would the lunatic from the attack of the imbecile or child. And if we admit a distinction in this case, it would be difficult to refuse to receive evidence of the nervous and physical texture of the defendant and the deceased in all other cases. It is clear, however, that to do so would be to yield to a very dangerous latitude in the trial of a case, which would not only require a departure from the established common law principle that the deceased’s character can not be brought into controversy, but would open a number of complicated side issues.” (Whart. on Horn. 215.) “ But no danger can be supposed to flow from this principle, when it is considered that the jury who try the case, and not the party killing, are to judge of the reasonable grounds of his apprehension.” Such was the language of Justice Parker, in his charge to the jury, in Thomas O’Selfredge’s case. From a careful consideration of this point, after a patient examination of numerous authorities, both in England and in this country, we come to the conclusion that the court below very properly refused to admit the evidence of the defendant, that by reason of his weak and crippled condition of body he was rendered nervous and peculiarly sensitive to fear from external violence. In the case of the State v. Merrill, 2 Dev. 279, Judge. Ruffin said: “ If the best disposed and most pacific man on earth, without provocation (and words are no provocation), assaults another with an instrument likely to produce death, and death ensues, he is guilty of murder. The law infers the malice from the fact. It must'be so, else there is no rule, and all is left to the discretion of a jury. The law infers it, because every man of well regulated mind is obliged to say that in every such case the slayer is a man of dark, malignant heart, of -ungovernable passions, regardless of social duty, and bent on spilling human blood. In a case of express malice or provocation, the question is for the jury. They are to determine whether the accused acted on the provocation on the sudden, or had the particular ill-will. But where there has been no provocation, or none shown, the only question for the jury is the credit of the witnesses — the perpetration of the fact.” In looking into this case we can not avoid the conclusion that this young man most unnecessarily took the life of Inkamp; that there was no danger of any injury being inflicted on him by Inkamp; and that his efforts' to provoke the deceased to attack him or to strike him exhibited a heart regardless of social duty, and of a resolution or determination to use his pistol whenever he thought it might be done without too much danger of the consequences to himself. But his ungovernable passions would not permit him to wait until the deceased should exhibit a disposition to attack him. His efforts to excite Inkamp to some threatening attitude were in vain, and after again and again putting his hand into his pocket and taking it out, as if hesitating, he at length draws his pistol and shoots Inkamp and takes 1ns life. I can not see how the jury could have believed the witnesses and have found any other verdict.

The following is the charge given by the court to the jury: “ 1. The defendant is charged with murder in the first degree by having wilfully, deliberately and premeditatedly killed Henry Inkamp by shooting him with a pistol. ‘ Wilfully,’ as used, here, means intentional, not accidental. ‘ Deliberately’ means a cool state of the blood; that is, not in a heat of passion caused by lawful provocation; and ‘ premeditation’ means thought of beforehand, any length of time however short. ‘ Malice’ signifies such a state of disposition as shows a heart regardless of social duty, and fatally bent on mischief; and ‘passion,’ sufficient to extenuate homicide, is a heated state of the blood, caused by lawful provocation. 2. Provocation, to be sufficient to mitigate or extenuate homicide, as applicable to this case, should amount to personal violence or injury to defendant; mere words of reproach, how abusive or grievous soever they may be, are no provocation sufficient to free the party killing from the guilt of murder. 3. If you find that the defendant did wilfully draw a pistol and shoot and kill Inkamp simply because In-kamp used words of reproach towards him, and that he thought of the killing any length of time, however short, before he shot Inkamp, the offence is murder in the first degree, and so you should find. 4. If you find that defendant wilfully drew a pistol and killed deceased on account of any old grudge, as a matter of revenge or retaliation therefor, then the offence is murder in the first degree, and so you should find. 5. If you find that deceased was greatly superior to defendant in physical strength, and struck or rendered him any other personal violence, such violence in the law is a provocation which extenuates the homicide ; but if you find that such violence was brought upon defendant by any unlawful act on his part, then said violence constitutes no lawful provocation, and does not extenuate the homicide. 6. If you find that defendant received such violence at the hands of the deceased, without having brought it upon himself by any unlawful act of his, and thereupon, while in a heat of passion caused thereby, he shot and killed deceased without a design to effect death, but in a cruel and unusual manner, the offence is manslaughter in the second degree. 7. If the killing was committed under the circumstances last above stated, but not done in a cruel or unusal manner, then the offence is manslaughter in the third degree. 8. The law of self-defence is emphatically the law of necessity, to which a party may have recourse under certain circumstances to prevent any reasonably apprehended great personal injury which he may have reasonable grounds to believe is about to fall upon him. If you believe that defendant had reasonable cause to apprehend a design on the part of deceased to commit a felony upon defendant, or to do him some great personal injury, and that there was reasonable cause to apprehend immediate danger of such design being carried out, and he shot and killed deceased to prevent tlie accomplishment of such apprehended design, then the killing is justified upon the ground of self-defence, and you should acquit. 9. It is not necessary to this defence that the danger should have been real or actual, or that danger should have been impending and immediately about to fall. If you believe that defendant had reasonable cause to believe these facts, and he shot under such circumstances, as he believed, to prevent such expected harm, then you should acquit. But before you acquit on the ground of self-defence, you ought to believe that defendant’s cause of apprehension was reasonable. Whether the facts constituting such reasonable cause have been established before you by the evidence, you are to determine; and unless the facts constituting such reasonable cause have been established before you by the evidence in the case, you can not acquit in such case on the ground of self-defence, even though you may believe defendant really thought his cause of apprehension reasonable. 10. And if you find from the evidence that defendant and deceased had a difficulty which resulted in the death of deceased, and that defendant commenced the difficulty or brought it on by any wilful and unlawful act of his, or that he voluntarily and of his own free will and inclination entered into the difficulty, then there is no self-defence in the cause, and you should not acquit on that ground; and in such case it makes no difference how eminent the peril may have been in which defendant was placed during the difficulty. 11. If you find that defendant wilfully killed deceased by shooting him with a pistol, there is no murder in the second degree in the case, but the homicide is murder in the first degree, or manslaughter, or justifiable homicide according to circumstances; that is, if he wilfully shot and killed deceased in malice, it is murder in the first degree; if he shot and killed deceased in a cruel and unusual manner, in a heat of passion, as above described, but without a design to kill, it is manslaughter in the second degree; and if he shot and killed deceased in a heat of passion, without a design to effect death, not in a cruel and unusual manner, the offence is manslaughter in the third degree. 12. Good character of defendant, when established, may tend to lessen any probability of guilt which may have been raised against him by the-evidence in the cause; but if you are satisfied of the defendant’s guilt, you should not acquit, even though you may be satisfied that previously to the alleged homicide he sustained a good character. If you find the defendant guilty of any offence below murder in the first degree, the good character of defendant may properly influence you to assess a lighter punishment against defendant than you otherwise would. 13. If you find defendant guilty of murder in the first degree, you will simply return a verdict stating the fact. 14. If you find him guilty of manslaughter in the second degree, you will assess his punishment by imprisonment in the penitentiary not less than three nor more than five years ; and if of manslaughter in the third degree, by like punishment not less than two nor more than three years ; or in jail not less than six months, or by fine not less than five hundred dollars, or by both a fine of not less than one hundred dollars and imprisonment in jail not less than three months. 15. If you have any reasonable doubt of defendant’s guilt, you should give him the benefit of such doubt, and acquit; but such doubt does not mean a mere possibility of defendant’s innocence, but a rational and substantial doubt touching his, guilt.” To the giving of which defendant excepted.

The instructions given to the jury in every case must be considered by the court in reference to the facts of the case in proof. In this case we have carefully examined the evidence and the instructions, and we consider the instructions given as covering the law of the case; as proper, and tending to assist the jury in forming a right verdict. These instructions laid down the law as favorably as could be required by the defendant. He has no cause to complain that he was prejudiced thereby. In regard to the instructions asked for by the defendant, we consider that the court did not commit error in refusing to give them. The law of the case had been properly laid down, and although some of the defendant’s instructions may be considered as containing correct principles, yet this court will not reverse for refusing to give instructions when the in ferior court has already given sufficient instructions to the jury covering the whole case. What was said by the court in regard to murder in the second degree, we look upon as proper in this case. Here was a deadly weapon; it was used for the' purpose of taking life; it was calculated for such purpose; it was used unnecessarily ; it was used deliberately and without a lawful provocation. Malice stares a man in the face who examines this whole transaction. As to the instruction in regard to the constitution of Missouri, that the people’s right to bear arms in defence of themselves can not be questioned, and that no presumption ought to arise in the minds of the jury from the defendant’s going armed with a pistol, it could not possibly aid the jury in their deliberations. This right is known to every juryman in our state, but nevertheless the right to bear does not sanction an unlawful use of arms. The right is to bear arms in defence of ourselves. There was no injury to defendant by refusing this instruction. We do not consider it necessary to notice the objections made to the refusal to instruct, and to the instructions given by the court below any more particularly. We are satisfied that the law governing the case was properly declared to the jury; and that the refusal to give the instructions asked for by defendant did not injure him on the trial, or deprive him of any lawful rights in his defence. The number of cases of murder before our court has been unusually great this term. There is a manifest indifference to human life which causes deep and profound solicitude. The duty of the ministers of justice prompts them to a firm and vigorous administration of the law, and mercy to the public requires that where guilt is manifest, punishment should be certain. “ He who wilfully and deliberately does an act which apparently endangers another’s life, and thereby occasions his death, shall, unless he clearly prove the contrary, be adjudged to kill him of malice prepense.” (East’s Pleas of the Crown, ch. 5, § 18.) The doctrine of this court— as laid down in the cases of tbe State v. Dunn, 18 Mo. 419, State v. Jennings, 18 Mo. 443, and State v. Hays, 23 Mo. 287, that when it appears from the whole evidence that the crime was at the moment deliberately or intentionally executed, the killing is murder in the first degree — is founded on the proper construction of our statute, and is not repugnant to the doctrine of the common law. This case at bar is not like the case of the State v. Grainger, 5 Yerger, 459. There Grain-ger used all the means in his power to escape from an overbearing bully. He was shuddering with fear, and his last hope of protection was defeated when Rainey’s door continued closed against him, and Rainey did not come to his relief. He shot only to protect his person from threatened violence, and that great. (Judge Catron’s opinion, 5 Yerg. 459.) But in this case, I am satisfied Grainger shot without a sufficient provocation, and was not justifiable in so doing; he ought to have been punished at least for manslaughter.

In looking over the case before us, and calmly weighing each circumstance, and giving to each point made the full force which in our opinion it is justly entitled to, we conclude that the judgment helow must be affirmed. Our commiseration is alive to the unfortunate prisoner; his youth — his deformity of body — his weakness and sickly habit from his birth up, have all been before us; but the law must be upheld and vindicated. Our duty is a stern and unbending-one. We only declare what the law is ; we can not alter or modify it. Let the judgment be affirmed ;

Judge Scott concurring ; Judge Leonard absent.


source: Caselaw Access Project

author: Ryland, Judge,

license: Public Domain

text:
    Paul et al., Appellants, v. Fulton et al., Respondents.
    1. To constitute a person a bona fide purchaser for value without notice within the rule that protects such a purchaser the purchase money should he paid before notice is received.
    2. A., holding lands in trust, devised them to his executor with direction to sell and convert into personal property; the executor sold and conveyed the same; held, in a suit against the purchaser and the executor to establish the trust, that the heirs of A. -were not necessary parties.
    3. "Where the St. Louis Land Court rightfully obtains jurisdiction in a case, although the facts afterwards disclosed would have authorized a proceeding in another court, the Land Court should furnish relief.

      Appeal from St. Louis Land Court.

    This was a suit brought by the heirs of Gabriel Paul against William Fulton and Marshall Brotherton, the latter the executor of the will of René Paul, deceased. Plaintiffs state in their petition that on the 20th of August, 1888, they, together with their father, Gabriel Paul, deceased, were the owners of one-half of a certain tract of land, the other half being owned by René Paul and his children; that by virtue of a certain decree of partition said tract was sold by commissioners appointed for that purpose on the 20th of August, 1838, and by agreement between the said Gabriel Paul and René Paul, the said René became the purchaser at said commissioner’s sale for the joint benefit of himself and the said Gabriel Paul, and the deed for said land was made to René Paul by said commissioners for the benefit of himself and the said Gabriel Paul; that at the said sale the said’René Paul paid no money for said land, but that the same was purchased by him in his own name for the joint benefit of himself and the said Gabriel; that no part of said consideration was ever paid to these plaintiffs; that plaintiffs are. the only heirs of Gabriel Paul; that René Paul, by his last will, devised all: his estate, real and personal, to his executors, Marshall Bro-therton and Archibald Gamble, of whom only the first named qualified; that said Brotherton, by virtue of the power conferred upon him by said will, conveyed one-half of said tract of land to William Fulton, and the other half to the trustee of Louise Gosnell, wife of George W. Gosnell; that said Louise and her trustee conveyed their half to the„ said Fulton ; that, said Fulton and said Louise Gosnell, who was daughter and heir of René Paul, had full notice of the equitable title of plaintiffs at the date of their purchases. “ Plaintiffs therefore pray that said defendant Fulton be declared a trustee for the plaintiffs for one-half of said tract of land, and that he be required to convey to the said Estelle, Adolphe and Therese, the said one-half of said land. If, upon trial, it shall appear that said Pulton has been a purchaser of any part of said land without being chargeable with notice, then the plaintiffs pray that for such portion the said Brotherton be required to account for and pay to the plaintiffs the same proportion of money for which he sold the said land, to-wit: $5150.80.”
    Pulton, in his answer, denies all knowledge of the alleged purchase by René Paul for the joint benefit of himself and Gabriel Paul; admits the purchases alleged from Brotherton and Mrs. Gosnell and her trustee ; but “ denies that at the time he made said purchase he had any notice whatever of any title of plaintiffs to said land, either legal or equitable.”
    Brotherton, in his answer, denied all knowledge of the trust.
    The cause was tried by the court sitting as a jury; its finding of the facts is set forth below in the opinion of the court. A motion for a review filed in behalf of plaintiffs was overruled. Service of process was had in this suit upon defendant Pulton, August 2,1855, and upon Brotherton August 9, 1855.

      Whittelsey, Glover Sf Richardson, for appellant.
    I. Gabriel Paul, in his lifetime, was the equitable owner of one-half the land, and was entitled to a conveyance therefor. This equity descended on the plaintiffs, and they can enforce it against any one holding the legal title who is chargeable with the trust.'
    II. The legal title is in Pulton, and ho ought to be compelled to convey one-half the land to the plaintiffs unless he can shield himself under the guard the law furnishes to the bona fide purchaser for a valuable consideration without notice. Fulton does not by his answer or the proof secure the protection of a purchaser without notice of the outstanding-equity. Notice before the payment of the purchase money is equivalent to notice before the contract. (7 Mon. 597; 2 White & Tnd. L. Cas. 77; Halsa v. Halsa, 8 Mo. 303; 8 Wheat. 421; 7 John. Ch. 65 ; 1 Johns. Ch. 288 ; 3 Atk. 304; Boone v. Chiles, 10 Pet. 211; 4 Dess. 287.) Mrs. Gosnell was a volunteer. She paid nothing, and receiving a portion of the land as a part of her distributive share of her father’s estate, she took it with all the equities charged upon it. Taking property in payment of a precedent debt does not make the buyer an innocent purchaser as against the holder of a prior equity. (Rowan v. Adams, Sm. & Marsh. Ch. 49 ; 4 Scam. 390 ; 4 Paige, 215.)
    III. Proper parties were before the court, and if they were not the court ought not for that reason to have dismissed the cause. (19 Mo. 403 ; Pract. Act, 1849, art. 3, § 10.) The plaintiffs being heirs of Gabriel Paul were proper parties plaintiff. Pulton was a proper and necessary party defendant. Under the code of 1849 a suit should not be dismissed for want of proper parties, provided there is one proper plaintiff and one proper defendant. René Paul, by his will, directed that his real estase should be converted into money by his executor, and as to his heirs it should be treated as chattels, and represented by his executors. Brotherton was a proper party, and for another reason, that complete justice might be done to all the parties, which might require Bro-therton to surrender to Fulton the notes which represented one-half the purchase money.

      T. T. Gantt, for respondent.
    I. The petition is in the alternative and asks for one of two forms of relief, which is inadmissible. (Robinson v. Rice, 20 Mo. 229.)
    II. In the hypothesis that plaintiffs are entitled to recover land, they are entitled to recover against the legal tenant, Fulton ; and the Land Court has jurisdiction, but Brotherton is not a proper party to the action, and the heirs of René Paul are.
    III. In the hypothesis that is suggested secondly in the petition, the personal representatives of Gabriel Paul will be perhaps entitled to a sum of money, but they are not parties to the record, and the Land Court has no jurisdiction of a money demand ; so that in no case can the Land Court give the required relief.
    IY. The court found that Fulton was a purchaser for value without notice. The land then is out of the reach of the heirs of Gabriel Paul; for in this case the petition waives all claim to the land, and asks for money only. Fulton paid to Brotherton one-half the purchase money for the moiety which he bought in 1852, and has paid Gosnell, making three-fourths of the money paid by Fulton.
   Ryland, Judge,

delivered the opinion of the court.

In this case, the court below should have sustained the plaintiff’s motion to review the finding of the facts made by the court in respect to the question of the trust in favor of the plaintiffs, and also in regard to notice by Fulton. The court omits to find any thing in respect of the interest, title or estate of the plaintiffs, the heirs of Gabriel Paul, in and to the lands or the money arising on its sale. The finding shows “ that in June, 1837, René Paul and his children, Gabriel R. Paul, Edmund W. Paul, Emilie Paul, Louise Paul, Tullia Paul, and Julia S. Paul, were tenants in common with Gabriel Paul and his'children, Adolphe Paul, Estelle Paul, and Therese, in the lands and premises in dispute ; that certain proceedings were had in a suit in partition between these tenants in common, and that the land was sold by commissioners appointed for that purpose, and that René Paul became the purchaser in August, 1838; that René Paul received a deed from the commissioners for the land; that Paul paid no money to the commissioners for the land except the costs of the proceedings in partition ; that at the time of the execution of the deed by the commissioners to said Paul, it was understood that he was to furnish to them the receipt of himself and his brother Gabriel for the amount of the purchase money of said land ; that one-half of the amount paid by said René Paul for the costs of said partition suit was af-terwards paid to Mm by Gabriel Paul; that neither René or Gabriel ever paid any money on said sale, except the costs of said suit; that on the same day of the date of the deed from the commissioners, August 21,1838, René Paul declared in writing that the purchase of said land at said commissioners’ sale was made on the joint account, of himself and Gabriel ; and René Paul again, in April, 1841, stated, in a memorandum addressed to Gabriel, that said Gabriel had one-half interest in the land in question; that during all this time, and up to August, 1843, there were transactions between the brothers Gabriel and René, in regard to the purchase and sale of lands, both in the city and county of St. Louis, on their joint account; that on the 14th day of August, 1843, René Paul claimed a balance as due to him on account of their general transactions. Gabriel Paul died in 1846, leaving heirs, Adolphe, Estelle and Therese; and René Paul died in May, 1851, leaving heirs, Gabriel R., Edmund W., Emilie, Louise and Tullia; that René, by his will, (after specifically devising one lot of land,) directed his executors to sell and convey absolutely all his remaining real and personal estate, and directed the disposition of the proceeds thereof; that in June, 1852, in pursuance of the directions contained in said will, the defendant, Marshall Brotherton, sold and conveyed the land in question to ¥m. Pulton and the trustee of Louise A. Gosnell, wife of George Gosnell, and daughter of René. Paul, for the sum of $5,150.80; that in payment for the same, the receipt of Mrs. Gosnell and her husband was taken on, account of money coming to her under her father’s will for a portion of the purchase money, and for the balance notes were taken, and that there is still due and unpaid of said purchase money the sum of $2,575.40 and interest thereon;. that on the 6th day of May, 1853, Louise Gosnell conveyed, her interest to said Pulton; that neither said Pulton nor Louise Gosnell had any actual notice of the claims .of the plaintiffs to said land until the commencement of this suit; and that Gabriel and René Paul were at variance for many years, and were reconciled to each other about one year before the death of Gabriel. Thereupon the court declares that the plaintiffs are not entitled to the relief asked for in this petition against the defendants.”

It will be seen from the finding that the court does not touch the subject of the trust — does not, except by inference, state any thing about the rights of claims of the plaintifFs. The land was sold under partition proceedings, bought by René Paul for himself and his brother Gabriel, on their joint account. A deed was made to René Paul alone. No money was paid by either of them for the land — nothing except for costs of suit in partition. The deaths of Gabriel and René Paul follow after some years, without showing any change in their rights to the lands. Now there can not be much doubt but that Gabriel Paul must in equity be considered an equal owner with his brother René of the lands bought at the commissioners’ sale. The heirs of each must succeed to all the rights of the ancestors. The finding of the court in regard to the plaintiffs’ right to the lands should hare been made, and it is erroneous to leave that important matter alone to inference.

In regard to the notice to Pulton, the court ought also to have sustained the motion to review. Prom the evidence presented in the record in regard to this fact, there can be no doubt of his receiving notice of the claim of the plaintiffs before he paid any part of the money; indeed, half the purchase money is still due and unpaid. Pulton can not, under such circumstances, be considered a purchaser without notice. Upon the point of notice to Pulton the authorities place the matter beyond question. Here the plaintiffs claim only one-half of the land purchased by Pulton ; or if he be viewed in the light of an innocent purchaser for valuable consideration, then only half the amount of the consideration money for which the land was sold by Brotherton. The suit in this case was actual notice, and when it was commenced, Pulton had not paid more than half the purchase money for the land. The English equity doctrine is, that for the purchaser to be considered entitled to the favorable position of one buying without notice, there must be an entire payment in full of the consideration money, and the reception of a deed or conveyance from the grantor ; that the sale must be consummated and completed on both sides before notice given or communicated. In the United States the doctrine has not been quite so rigid. ■ Payment in full, with? out a deed, has been considered enoTm^S^gs^^is^^he purchaser before notice, and even it ha^^t^0^^4l#^mment in part has been considered in.somelgaslsisufficient t5 ¡frotec,^ him for so much or such portion. \

We are at a loss to ascertain t* grounds on which the court below decided the case. Tl^SS^^^^^jíy the Court, strip the defendant Pulton o^alL ria-ht^^rWe held as an innocent purchaser without notice.'^The claim of the plaintiffs does not seek for more than half the land, or half the purchase money. Pulton has not yet paid more than half of the purchase money; so, giving to him the most favorable position that has yet been allowed by any of the courts of our sister states, and he can not be considered an innocent purchaser without notice in this case. “ It is well settled, moreover, that to entitle a purchaser to protection the consideration of the purchase must not only be valuable but must have been wholly or partially paid or executed. Vattier v. Hude, 7 Pet. 252 ; Doswell v. Buchanan’s Exec’r, 3 Leigh, 365; Dellard v. Crocker, 1 Speer Eq. 20 ; Bash v. Bash, 3 Stobhart’s Eq. 131; Kyle v. Tait’s Adm’r, 6 Grattan, 44; Cole v. Scott, 2 Wash. 141.” (2 White’s Lead. Cas. in Equity.) It is held both in this country and in England that actual payment is in general necessary to the character of a purchaser for valuable consideration ; and that giving-security or executing an obligation for payment will not be sufficient. (High v. Batte, 10 Yerg. 555 ; Christie v. Bishop, 1 Barb. Ch. 105 ; Murray v. Ballou, 1 Johns. Ch. 566 ; Hunter v. Sumrall, 3 Littell, 62.) Payment in bills or notes of third persons will however ■ be equivalent in most. cases to actual payment, (Jewett v. Palmer, 7 Cow. 651) ; and the same effect would seem tó be due to payment in the notes of the purchaser, if negotiable in their character and actually negotiated so as to render him liable to pay them at all events. (Frost v. Beekman, 1 Johns. Ch. 288; Freeman v. Deeming, 8 Sandford, 327; 2 White Lead. Cas. Eq. 113.) In Wormley v. Wormley, 8 Wheat. 449, Mr. Justice Story ‘said: It is a settled rule in equity that a purchaser without notice, to he entitled to protection, must not only be so at the time of the contract or conveyance, but must be so at' the time of the payment of the purchase money.”

We do not consider it necessary here to make the heirs of René Paul defendants. The land sold and sued for in this action was sold under the will of René Paul by his executor— the will directing the" sale of all his remaining property, after a special legacy of a lot, and directing a distribution of the proceeds. Fulton was a proper party; so was Brotherton, the executor; but we can not see any objection to the relief sought for by the plaintiff by reason of their failure to make the heirs of René Paul parties defendant.'

The petition sets out facts showing a case fully within the jurisdiction of the Land Court. That court then had jurisdiction at the commencement. Now if, in the progress of the case, the facts should so turn out that some other court might also lawfully entertain jurisdiction and give the relief, yet, in the opinion of this court, this circumstance does not and should not deprive the Land Court of its jurisdiction and authority to go on with the case, and give the relief which the nature of the facts and circumstances require. Having once obtained jurisdiction in the case, if the facts afterwards disclosed would, if known, have authorized a proceeding, differently instituted, in another court, still the Land Court should go on and settle the controversy, and not stop short and turn the plaintiffs out to seek a new jurisdiction at the expense of two suits, when one might answer. The judgment below is reversed, and the cause remanded;

Judge Scott concurring; Judge Leonard absent.


author: Scott, Judge,

text:
    Hamilton, Respondent, v. Scull’s Administrator, Appellant.
    1. It is a good defence to an action on a promissory note that it was given to Hie plaintiff in furtherance of an attempt on his part to defraud his creditors.
    2. The fact that depositions offered in evidence may contain incompetent and illegal evidence will not justify the rejection of them altogether. The court should point out and exclude the inadmissible portions.

      Appeal from St. Louis Circuit Court.

    This was a suit to establish against the estate of Joseph P. Scull, deceased, a demand of 11124.06, being the balance alleged to bo due upon a promissory note for $7097.25, executed by said Scull. At the trial in the Circuit Court the plaintiff proved the execution of the note. The defendant then offered in evidence the depositions of Sterling IT. Tucker and James Scull, tending to \prove that the consideration of the note was fraudulent in this, that Hamilton, the payee, had made a fraudulent sale of a stock of goods to Joseph P. Scull, to hinder, delay and defraud his (Hamilton’s) creditors, and that Scull had executed and delivered said note to Hamilton for the purchase money. The court, on motion of plaintiff, excluded the depositions.

      Garesché (defendant) and Buckner, for appellant.
    I. The maxim “ in pari delicto potior est conditio defen-dentis” applies to this case. It may be well held that the defendant would not be permitted to show, as a substantial ground of defence, that the note was made to delay and defraud creditors, on the well known maxim “ nemo allegcms suam turpitudinem audiendus sitbut want of consideration is shown, and it is the plaintiff who seeks to rebut this de-fence by insisting that the depositions tend to show that the notes were executed by’him to defraud his creditors. The nature of this transaction is necessarily brought out in the attempt to prove want of consideration, a legitimate defence, and if incidentally the character of the transaction is also shown, the plaintiff should not be allowed to benefit by it upon the rule “ in pari delicto potior est conditio defendeytr-tis.” (See Wearse v. Pierce, 24 Pick. 141, and cases cited.)

      L. K. Kinsey, for respondent,
    cited Brown’s Adm’r t. Finley, 18 Mo. 375.
   Scott, Judge,

delivered the opinion of the court.

This was a suit begun in the Probate Court of St. Louis county for the purpose of establishing a demand against de-cedant’s estate — being a balance on a note executed by the intestate to the plaintiff. Garesehé, the defendant, offered evidence'tending to show that the note had its origin in a fraudulent combination between the parties for the purpose of defrauding the creditors of plaintiff. This evidence was rejected and the defendant excepted.

There is no doubt of the correctness of the principle asserted in the case of Brown’s Adm’r v. Finley, 18 Mo. 375, that one who has made a fraudulent conveyance of his property can not, by alleging his own turpitude, be permitted to set aside his conveyance, and regain the possession of property which he has fraudulently aliened. To do this would be encouraging fraud, for thereby a party would be induced to make fraudulent alienations without any concern for the consequences, confiding in the privilege the law would confer of setting them aside afterwards, if they did not answer the ends proposed by them. In such cases the maxim applies, “ nemo allegans suam twpitudinem est audiendus.'” Having fraudulently passed away his property, the act is consummated — the deed is done; and the law will not relieve him from a situation in which he has been placed by his own fraud. But the-case under consideration is different from that stated above. Here the act is not consummated. This is but a promise, and the law allows the turpitude of the transaction to be shown with the same view as in the preceding case, to take away inducements to fraudulent conduct. What would give greater encouragement to fraud than for courts of justice to lend their aid in carrying them into execution ? But though the law suffers the transaction to be inquired into in the one case, and will not permit a party to expose his fraud in the other, yet this apparently inconsistent course arises from the different stages of the illegal acts at the time the inquiry is proposed, and is necessary to fulfill the purpose of the law with regard to fraudulent contracts, which is to refuse all aid to the parties thereto in carrying them into execution ; for it will be observed that in this case, while the law permits a party to raise the question of fraud, it is only done that it may, when the fact is established, refuse its aid to the party who has been concerned in it, and leave him just where he placed himself by his ill conduct. So in the the end, through this seemingly inconsistent course,-the law produces the same result in each case, which is a denial of all assistance to those who will soil themselves with a foul transaction. (Chitty on Contracts, 680.)

If the depositions contained any illegal evidence, that was no reason for rejecting them altogether. If any portion of them was proper evidence they should have been received, the court at the time pointing out the portions excluded.

Judge Ryland concurring,

the judgment is reversed and the cause remanded;

Judge Leonard absent.


author: Byland, Judge,

text:
    The State, Respondent, v. Buckner, Appellant.
    1. In the case of an indictment for murder the defendant is entitled to a panel of thirty-six jurors ; also to have a list ot such jurors delivered to him forty-eight hours before the trial. The “ Act to regulate and pay grand and petit jurors in Stoddard county,” approved February 13, 1855, (Sess. Acts, 1855, p. 531,) does not in any way affect these rights.
    2. The revised code of 1855 governs such proceedings had after May 1st, 1856, although the indictment was pending previous to that date. (See State v. Phillips & Boss, 24 Mo. 475.)
    3. If a regular panel of jurors be exhausted before a jury is obtained, the defendant is not entitled to have any particular number of by-standers or tales-men summoned from which to complete the jury.

      4. Where ail affidavit for a continuance is filed, the court should not permit it to be strengthened by other affidavits of the same person.
    5. In the case of an indictment for murder it is error to receive a verdict of the jury in the absence of the defendant. He must be personally present, not only during the trial, but at the time of the rendition of the verdict.

      Appeal from Stoddard Circuit Cowrt.

    The facts sufficiently appear in the opinion of the court.

      C. G. Mauro, (circuit attorney,) for the State.
   Byland, Judge,

delivered the opinion of the court.

Sarah Buckner was indicted at the March term of the Bol-linger Circuit Court, in the year 1855, as principal in the second degree of the murder in the first degree of Whiston Buckner. On the application of the prisoner the venue was changed to the Circuit Court of Stoddard county. The trial of the cause was postponed from term to term until the May term, 1856. At this term the prisoner moved for a continuance, and the record shows that she filed three different affidavits in support of the motion. This motion was overruled, and the defendant excepted, and saved the point by a bill of exceptions. This point will be noticed hereafter. -When the trial was ordered the record shows that the prisoner by her-counsel “ moved the court to order the sheriff to summons a jury of thirty-six to try this cause,” which motion was overruled, and excepted to, and this point was saved by the defendant by bill of exceptions. The bill of exceptions shows that the'prisoner moved the court to order the sheriff to summon thirty-six venire men, out of whom a jury might be selected ; and that she might be furnished with a copy of the names of those summoned forty-eight hours previous to the trial; but the court refused to order the sheriff so to do, and decided that, under the laws regulating jurors in Stoddard county, she was not entitled to have the said number of jurors expressly summoned, and was not entitled to a copy of the panel forty-eight hours; but defendant’s attorney could obtain a copy any time from the clerk.” The record also sliows “ that during the progress of impanneling the jury, the regular panel of twenty-seven being exhausted, and the accused having challenged peremptorily but six, and one juror being still wanting, the defendant moved the court to direct the sheriff to summons fourteen jurors, which motion was overruled, and excepted to.” This point also saved by bill of exceptions.

There were divers matters in regard to questions proposed to some of the witnesses, which the court overruled, and which were excepted to ; but we consider them of no importance. The jury found the defendant guilty of murder in the first degree. This verdict was rendered in the absence of the prisoner. The sheriff, when called on to produce her in court in order to hear the verdict, replied to the court that the prisoner had escaped from his custody, and that he could not then produce her in court. The court received the verdict and discharged the jury. During the term the sheriff again brought the prisoner into court. She moved for a new trial; which being overruled, she excepted, and prayed an appeal to this court. The court below passed sentence upon the prisoner, but ordered the same to be suspended until the judgment of this court be had upon the premises. The appeal was taken at the May term, 1856, and the record filed in this court on the 9th day of June, 1856.

The record in this case is presented without any brief or without the appearance of any counsel. In examining this record we come to the conclusion that the court below erred in refusing to direct the sheriff to summons thirty-six venire men out of whom a jury might be impanneled ; also erred in refusing to direct that a copy of this venire be delivered to the defendant or to her counsel forty-eight hours before commencing the trial. The “ Act to regulate and pay grand and petit jurors in Stoddard county,” approved February 13th, 1855, does not take away the right of the defendant to challenge peremptorily twenty persons summoned as jurors in trials for murder; nor does it pretend to take away the right of the accused to have a copy of the venire, from which the jury is to be sworn, ■ forty-eight hours before commencing to impannel tbe jury. The statute concerning practice in criminal cases (art. 6, § 6,) gives to the State the right, in all criminal trials, to challenge peremptorily four jurors. Section 7 declares that “ there shall be summoned and returned, in every criminal cause, a number of qualified jurors equal to the number of peremptory challenges, and twelve in addition; and no party shall be required to make peremptory challenges before a panel of such number of competent jurors shall be obtained.” Section 8. “A list of the jurors summoned shall be delivered to the defendant in the cases specified in the two first subdivision of the fourth section of this article, at least forty-eight hours before the trial, and in other cases before the jury is sworn, if such list be requested.” Section 4, first subdivison : “ If the offence charged is punishable with death, or by imprisonment in the penitentiary not less than for life, the peremptory challenges shall be twenty, and no more, allowed to the defendant.” The crime of murder charged in the indictment in this case is punishable with death. Then the accused is allowed to challenge twenty peremptorily — the State four — making twenty-four challenges, and twelve in addition — making thirty-six. This number is required to be summoned in all such cases ; and in order to make this right of challenge beneficial to the prisoner, she has the right to a copy of the list of the thirty-six forty-eight hours before the trial. The statute concerning ■practice in criminal cases was approved December 8,1855, is subsequent to the “jury law” of Stoddard county, and where these two laws are irreconcilable, the last must prevail. It is our duty to reconcile these laws as far as we can consistently do so; but when this can not be done, the former must succumb to the latter. I suppose it never entered into the head of a legislator that by passing the jury law of Stoddard county, he intended thereby to deprive the citizen of the most important privileges guarantied to him by the general law — of the right to challenge in trials for murder, and of the right to exercise this challenge judiciously by having a copy of the list of tbe jurors for forty-eight hours at least before be should be called upon to challenge. This is the law governing the selecting and impanneling a jury in a case of murder, whether we consider the proceedings under the revised code of 1855 or revised code of 1846. In the revised code of 1855, the' fourth section is obviously meant instead of the third section of article sis. I have referred to the fourth instead of the third. The revised code of 1845 refers to the third section very properly; but in 1855, it is the fourth section and not the third. I have been thus particular in order to let the court below see we noted the mistake. The proceedings in this case are governed by the laws revised in 1855. (See E. C. 1855, p. 1025, § 16.) The refusal to order the sheriff to summons thirty-sis jurors and to give defendant a list of the persons thus summoned forty-eight hours before the trial commenced is error; and there is no knowing how seriously this error may have injured the defendant. This court said, in the case of the State v. Samuels, 3 Mo. 68, that it was not necessary for the court to have a writ of venire facias issued to the sheriff, or to have an order entered on the records of the court requiring him to summons such a venire of jurors; but for the court to order or direct the sheriff ore tenus would be sufficient.

. There is nothing in the point complained of by the defendant in regard to the sheriff’s not being ordered to summon fourteen by-standers or talesmen and giving a list of them to defendant. Whenever there has been a proper panel summoned and the defendant has been properly furnished with a list of the panel, and such panel becomes exhausted before a jury be made up, then in summoning from the by-standers there is no law requiring any particular number to be thus summoned, and nonp requiring a list of them, when summoned, to be furnished to the' defendant.

The record shows that the prisoner filed three different affidavits for a continuance. This shows a very loose practice, and the affidavits are drawn very carelessly — without precision or skill. Had the matters set forth in these various affidavits been properly presented, we think that the court should have granted a continuance. Surely the mistake in the clerk who issued the subpoena commanding the witness to attend on the 18th of May, 1856, which is alleged to be a Sunday or Sabbath day, instead of on the 19th of May, the day the court commenced its session, could have afforded no reason sufficient to disregard that subpoena, and the mere mistake in'the given name of the'witness could not have justified the court in disregarding such subpoena. This court does not countenance the practice of filing affidavit on affidavit for a continuance. Let the party state the facts on which she relies for a continuance distinctly and fully at first, and not resort to the practice of mending affidavit after affidavit as soon as the views of the court become known in regard to the sufficiency of the same. I mention this matter in order that it may be avoided in future. The best practico is not to permit an affidavit for a continuance to be strengthened by one or more affidavits of the same person. Let parties make full statements at first.

In regard to the receiving of the verdict of the jury by the court in the absence of the prisoner, we think this is a fatal error. Our statute expressly declai’es “ That no person indicted for a felony can be tried unless he be personally present during the trial.” (B. C. 1855, p. 1191; Practice in Criminal Cases, art. 6, § 16.) “ The verdict, in all cases of felony and treason, must be delivered in open court in the presence of the defendant.” (1 Archb. C. P. 17S, note 2.) £! The verdict, whatever may be its effect, must in all cases of felony and treason, be delivered in the presence of the defendant in open court, and can not be either privily given or promulgated while he is absent; and in all cases where the jury are commanded £ to look on him,’ as in larceny, and all accusations subjecting him to any species of mutilation or loss of limb, the same rule applies, without exception.” (1 Chitty’s C. L. 686.) In the case of the State v. France, 1 Overton, (Tenn.) 434, the court said: “ The prisoner must ■be at the bar; otherwise the jury could not be asked for their verdict; and if he does not appear, the jury must be discharged without rendering any verdict. In every case affecting life or limb, the accused must not only be present when the evidence is given in, but during the trial, and on return of verdict.” In the case of the People v. Perkins, 1 Wend. 91, the court said: “We are of opinion that the verdict was irregular. The prisoner was indicted and tried for an offence formerly called capital; and though many of the ancient forms on trials are now dispensed with, the prisoner should have been present on receiving the verdict, so that he might have availed himself, of the right of polling the jury.” In Nomaque v. The People, 1 Ill. 109, similar doctrine is held. We therefore think that the court had no right to receive the verdict of the jury in the absence of the prisoner in this case.

The record shows no instructions — no evidence saved. We have examined the record carefully, and it is our opinion that the court below committed errors in the various particulars pointed out in this opinion. The judgment must therefore be reversed, and the cause remanded, to be proceeded with according to the principles laid down in this opinion ;

Judge Scott concurring; Judge Leonard absent.


text:
    The State, Respondent, v. Timmerberg, Appellant.
    1. Judgment affirmed; no bill of exceptions filed.

      Appeal from St. Louis Criminal Court.
   Ryland, Judge,

delivered the opinion of the court.

The defendant was indicted in the Criminal Court of St. Louis county for feloniously, unlawfully and maliciously wounding cattle — the property of Robert McClish. He appeared to the indictment and pleaded “ not guilty;” was tried and convicted of the offence, and sentenced to three months’5 imprisonment in tlie county jail, and to pay a fine of one hundred dollars. He moved for a new trial; Ms motion was overruled, and lie brings the case here. In examining the record we find no bill of exceptions saving any point in the ruling of the Criminal Court; no evidence preserved on which tlie motion for new trial was made; nor any other ruling of the court saved by exceptions. No counsel appears here for appellant, nor is there any brief filed on his behalf; nevertheless we have examined the record of the proceedings and we find no error committed by the court, and we consider the indictment sufficient to sustain the judgment of conviction. The judgment must therefore be affirmed; the other judges concurring.