BBOWN, P. J.
Convicted of murder in the first degree, defendant appeals from a judgment of the circuit court of Boone county fixing his punishment in the penitentiary for the term of his natural life.
Defendant, a widower, age forty-four, with six children, was married to Salina Florence Jordan, a widow, on December 7,1910. They made their home in the city of Columbia, Missouri, until March 7, 1911, when they separated without any apparent cause. After the separation Mrs. Fenton resided with her sister, Mrs Pierring, in Columbia,- at which place defendant, over Mrs. Herring’s objections, called upon his wife frequently. In June, 1911, defendant’s wife made a visit to relatives in the State of Oklahoma and on the Pacific Coast, returning to the home of Mrs. Herring on September 17, 1911. On the following day defendant called upon her and “requested her to shake hands with him and kiss him as a wife ought to do.” Mrs. Fenton shook hands with defendant, but said that she would not be so deceitful as to kiss him. Evidently by this remark she cheated the impression that she did not intend to resume marital relations with defendant.
Defendant then visited a hardware store, where [488]*488he purchased’a revolver; returned home; put on his best clothes; again called on his wife and shot her three times, killing her instantly.
The defense is insanity, and the only errors complained of are alleged improper remarks of the’prosecuting attorney in his closing argument to the jury.
. „ Insanity. The evidence shows that defendant’s mother became insane* in the year 1866, following a severe attack of fever; that she was confined in the _ , 7 Fulton insane asylum for nearly a month and then discharged as cured. There is slight evidence that her mind was not right for some years after she was released from the asylum. Defendant was born about fourteen months after his mother was discharged from the asylum.
According to the evidence of defendant’s witnesses he seemed to have been greatly depressed in spirits after his wife left him — was continually referring to her and requesting his friends to intercede for him and persuade her to return to his home. Pie would not tell anyone why his wife left him and spoke of her in kindly terms, except on one occasion when she refused to sign a deed for some property he had sold. Pie finally placed his children with relatives and friends with the avowed intention of traveling. Yet he did not leave home.
Mrs. Sherman, who resided just across the street from defendant, testified that defendant often visited her and her husband; was frequently lamenting the fact that his wife had left him, and expressed the view that she would have been willing to remain with him if others had not interfered. Mrs. Sherman and her husband tried to cheer defendant, but he usually seemed to be discouraged. Sold his furniture, and wanted other parties to take his children, but regretted to separate them. Wanted to travel and get away from his troubles. Took up a wooden sidewalk in front of his property and put in a brick sidewalk. [489]*489Then a week or so later tore np the brick sidewalk and pnt in a granitoid sidewalk. Seemed nervous and would sit with his head resting upon his hands. Sometimes he would seem all right and sometimes he appeared to be crazy. He appeared very greatly attached to his children and provided for them quite well.
A nephew of defendant testified that defendant applied to him for work. That after securing a job defendant worked about an hour and then quit, saying: “God,',I can’t work.”
Defendant’s sixteen year old daughter testified that her father did not enjoy life after his wife left him. Could not sleep well. Wanted to brood over his troubles. Frequently cried and talked about suicide.
Witness Chambers saw defendant a few hours before the latter killed his wife. Spoke to defendant, but received no reply.
After killing his wife defendant went to the residence of a Mrs. Hill, a next-door neighbor, and told her to be good to his children, that he had killed his wife and had nothing to live for. At her request he gave her his pistol and cartridges.
Witness Edwards visited the jail on the day of the killing and said to defendant: “George, how did it happen?” to which defendant replied: “I cannot tell you now. I have been putting it off six months,” or “six weeks,” witness could, not remember which.
One of defendant’s brothers came to the jail, crying, and said: “My God, why did'yon do this?” To his remark, defendant replied: “Why, can’t yon stand it better than that? It is done and we will have to stand it the best we can.” Defendant seemed to be in a cool state of mind a few hours after the killing.
Sometimes defendant was sociable with his friends, and at other times would pass them without speaking and look wild out of his eyes. At another time he said his troubles were greater than he could [490]*490bear, and hinted suicide. There were moré than a dozen witnesses who gave testimony similar to the foregoing, detailing peculiar or slightly peculiar conduct on the part of defendant.
Three physicians who had made a specialty of insanity and nervous diseases visited defendant after the homicide, and, from their interview with, and an examination of, the defendant, and from hypothetical questions propounded, gave it as their opinion that he was insane when he killed his wife. j
On the part of the State there were more than a dozen of defendant’s acquaintances who testified that they had met him, conversed with him, and observed his conduct at various dates during the last few months before the homicide, but saw nothing in his conversation or demeanor to indicate that he was insane. From their evidence it appears that defendant was a successful business man and had accumulated considerable property. He had been a farmer up to ¿bout three years before he killed his wife, and after selling his farm and moving to town had engaged in buying and selling real estate and loaning money.
There was some evidence that long before defendant’s wife left him he was at times despondent or uncommunicative. He was employed as a gate-keeper by the Boone County Fair Association for a period of several days during the summer of 1911, and superintended the construction of a dwelling house for another party up to within a week or ten days before the tragedy occurred. After defendant was placed in jail for killing his wife he notified some of his debtors to pall at the jail and pay what they owed him. He gave some personal checks to his attorneys for their services in defending him, and also sold and indorsed notes to a bank after he had killed his wife and been placed in jail. No effort was ever made to place him under guardianship as a person unfit to manage his pwn affairs.
[491]*491conflict in Testimony Insanity. There being substantial evidence tending to prove that defendant was insané at the time he hilled his wife, and also other substantial evidence tending to establish his sanity at the time of that unfortunate occurrence, the issue of insanity was properly submitted to the jury and with their verdict we cannot interfere, unless we find that defendant was prejudiced by the alleged improper remarks of the prosecutor.
Remarks of Prosecuting Attorney. During the closing argument the following oecurred. “Mr. Anderson, for the State, Said:
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BBOWN, P. J.
Convicted of murder in the first degree, defendant appeals from a judgment of the circuit court of Boone county fixing his punishment in the penitentiary for the term of his natural life.
Defendant, a widower, age forty-four, with six children, was married to Salina Florence Jordan, a widow, on December 7,1910. They made their home in the city of Columbia, Missouri, until March 7, 1911, when they separated without any apparent cause. After the separation Mrs. Fenton resided with her sister, Mrs Pierring, in Columbia,- at which place defendant, over Mrs. Herring’s objections, called upon his wife frequently. In June, 1911, defendant’s wife made a visit to relatives in the State of Oklahoma and on the Pacific Coast, returning to the home of Mrs. Herring on September 17, 1911. On the following day defendant called upon her and “requested her to shake hands with him and kiss him as a wife ought to do.” Mrs. Fenton shook hands with defendant, but said that she would not be so deceitful as to kiss him. Evidently by this remark she cheated the impression that she did not intend to resume marital relations with defendant.
Defendant then visited a hardware store, where [488]*488he purchased’a revolver; returned home; put on his best clothes; again called on his wife and shot her three times, killing her instantly.
The defense is insanity, and the only errors complained of are alleged improper remarks of the’prosecuting attorney in his closing argument to the jury.
. „ Insanity. The evidence shows that defendant’s mother became insane* in the year 1866, following a severe attack of fever; that she was confined in the _ , 7 Fulton insane asylum for nearly a month and then discharged as cured. There is slight evidence that her mind was not right for some years after she was released from the asylum. Defendant was born about fourteen months after his mother was discharged from the asylum.
According to the evidence of defendant’s witnesses he seemed to have been greatly depressed in spirits after his wife left him — was continually referring to her and requesting his friends to intercede for him and persuade her to return to his home. Pie would not tell anyone why his wife left him and spoke of her in kindly terms, except on one occasion when she refused to sign a deed for some property he had sold. Pie finally placed his children with relatives and friends with the avowed intention of traveling. Yet he did not leave home.
Mrs. Sherman, who resided just across the street from defendant, testified that defendant often visited her and her husband; was frequently lamenting the fact that his wife had left him, and expressed the view that she would have been willing to remain with him if others had not interfered. Mrs. Sherman and her husband tried to cheer defendant, but he usually seemed to be discouraged. Sold his furniture, and wanted other parties to take his children, but regretted to separate them. Wanted to travel and get away from his troubles. Took up a wooden sidewalk in front of his property and put in a brick sidewalk. [489]*489Then a week or so later tore np the brick sidewalk and pnt in a granitoid sidewalk. Seemed nervous and would sit with his head resting upon his hands. Sometimes he would seem all right and sometimes he appeared to be crazy. He appeared very greatly attached to his children and provided for them quite well.
A nephew of defendant testified that defendant applied to him for work. That after securing a job defendant worked about an hour and then quit, saying: “God,',I can’t work.”
Defendant’s sixteen year old daughter testified that her father did not enjoy life after his wife left him. Could not sleep well. Wanted to brood over his troubles. Frequently cried and talked about suicide.
Witness Chambers saw defendant a few hours before the latter killed his wife. Spoke to defendant, but received no reply.
After killing his wife defendant went to the residence of a Mrs. Hill, a next-door neighbor, and told her to be good to his children, that he had killed his wife and had nothing to live for. At her request he gave her his pistol and cartridges.
Witness Edwards visited the jail on the day of the killing and said to defendant: “George, how did it happen?” to which defendant replied: “I cannot tell you now. I have been putting it off six months,” or “six weeks,” witness could, not remember which.
One of defendant’s brothers came to the jail, crying, and said: “My God, why did'yon do this?” To his remark, defendant replied: “Why, can’t yon stand it better than that? It is done and we will have to stand it the best we can.” Defendant seemed to be in a cool state of mind a few hours after the killing.
Sometimes defendant was sociable with his friends, and at other times would pass them without speaking and look wild out of his eyes. At another time he said his troubles were greater than he could [490]*490bear, and hinted suicide. There were moré than a dozen witnesses who gave testimony similar to the foregoing, detailing peculiar or slightly peculiar conduct on the part of defendant.
Three physicians who had made a specialty of insanity and nervous diseases visited defendant after the homicide, and, from their interview with, and an examination of, the defendant, and from hypothetical questions propounded, gave it as their opinion that he was insane when he killed his wife. j
On the part of the State there were more than a dozen of defendant’s acquaintances who testified that they had met him, conversed with him, and observed his conduct at various dates during the last few months before the homicide, but saw nothing in his conversation or demeanor to indicate that he was insane. From their evidence it appears that defendant was a successful business man and had accumulated considerable property. He had been a farmer up to ¿bout three years before he killed his wife, and after selling his farm and moving to town had engaged in buying and selling real estate and loaning money.
There was some evidence that long before defendant’s wife left him he was at times despondent or uncommunicative. He was employed as a gate-keeper by the Boone County Fair Association for a period of several days during the summer of 1911, and superintended the construction of a dwelling house for another party up to within a week or ten days before the tragedy occurred. After defendant was placed in jail for killing his wife he notified some of his debtors to pall at the jail and pay what they owed him. He gave some personal checks to his attorneys for their services in defending him, and also sold and indorsed notes to a bank after he had killed his wife and been placed in jail. No effort was ever made to place him under guardianship as a person unfit to manage his pwn affairs.
[491]*491conflict in Testimony Insanity. There being substantial evidence tending to prove that defendant was insané at the time he hilled his wife, and also other substantial evidence tending to establish his sanity at the time of that unfortunate occurrence, the issue of insanity was properly submitted to the jury and with their verdict we cannot interfere, unless we find that defendant was prejudiced by the alleged improper remarks of the prosecutor.
Remarks of Prosecuting Attorney. During the closing argument the following oecurred. “Mr. Anderson, for the State, Said:
“Recall that celebrated case in New York City, a few. years ago, where the defense was insanity. Recall that case in St. Louis, too, where a man shot his wife and child under similar circumstances.
“By Mr. Cullen: We object to that as outside the evidence and improper — any reference to independent acts or crimes — and we ask that the court reprimand the counsel.
“By Mr. Anderson: I am not calling any names.
“By the Court: Yes, confine yourself to the record, Mr. Anderson.
“By Mr. Anderson: Yery well. I beg pardon of the court and the jury and the counsel, as well.
“And to the action of the'court in failing to sufficiently rebuke the counsel for the State, the defendant, by his counsel, then and there at the time duly excepted and saved his exceptions.”
Near the close of his argument Mr. Anderson, for the State, said:
“Now gentlemen, I am not appealing to your passions. You have lifted your right hand toward Heaven to bring in a verdict according to the law and the evidence and I trust you are going to do it. They have been paving the way all along to get you to send that defendant to the asylum. What does that mean? That means you had just as well say that the man was in[492]*492sane when he committed the offense, bnt he is sane now. To send him to the hospital is to acquit him. They paved the way by that eminent alienist to get him out, since his incarceration. He has rested. His condition is so much better than when he went to the jail. Can a man rest in jail with the charge of murder staring him in the face? He is sane now and he was sane at the time. It is true that he sat there apparently not comprehending a thing that has gone on here. Gentlemen, do you think that those eminent specialists, do you think that those eminent attorneys, could not sufficiently drill that man, until he could pose like that? Can you do it?
“By Mr. Cullen: We object to that seriously. It is not true and we ask the court to reprimand the counsel.
“By the Court: Keep yourself within tine record, Mr. Anderson.
“By Mr. Cullen: I ask the Court to reprimand the counsel. I say now, on my honor, it is not true.
“By Mr. Anderson: I beg pardon.
“And to the action of the court in failing to sufficiently reprimand counsel for the State, the defendant, by his counsel, then and there at the time duly excepted and saved his exceptions. ’ ’
Independent cases. We are convinced that the prosecutor’s reference to the New York and St. Louis cases was not harmful to defendant. Prosecutor was immediatelL admonished by the court to drop that line of argument, and he did so and apologized to the court for his error. If the jury understood what cases the prosecuting attorney referred to, we must presume that they, being sensible men, also understood from the court’s admonition and the apology of the prosecutor that they should not consider the result or facts in any other ease in arriving at a verdict in this case.
The second transgression of the prosecutor like[493]*493wise does not furnish sufficient foundation for overturning the verdict.
illogical Testimony. One of defendant’s experts had testified that defendant’s mental condition had improved since he was placed in jail; that rest most always made a patient better, and that “a man gets as ^ . ,, much rest m ;jail as m an asylum.” The prosecuting attorney had a perfect right to comment upon this testimony, and because he ridiculed it as illogical or failed to place- the same construction upon it which defendant’s attorneys did was not error.
Coaching Defendant The statement by the prosecutor that defendant had acted during the trial as though he did not comprehend what was going on, was an admiss^-ori favorable to defendant, and prosecutor’s insinuation that defendant might have been drilled or coached to act as though he was insane by defendant’s lawyers or witnesses was simply a weak argument based on a mere conjecture, and we do not think it could have misled the jury or inflamed their minds against defendant.
We have carefully examined all the authorities cited by defendant’s learned counsel and find no case where the alleged improper remarks are of the same character complained of in this case.
The remarks of the prosecuting attorney in the case of State v. McMullin, 170 Mo. l. c. 632, are more nearly like those made in the suit at bar than in any case to which our attention has been called. In the McMullin case the prosecutor said: “The defense is trumped up by the defendant; Mrs. Henry (who was a witness for defendant) has been brought into court without a subpoena, like a cold deck, and was not subpoenaed until after the trial began, and that is the reason we are not prepared to impeach her. We did not know that she was going to be a witness.” The above quoted remarks were held improper, but an admoni[494]*494tion from the court to the prosecutor, to confine himself to the record, was held to have cured the error, and we think the same rule should apply in this case.
"We do not wish to he understood as approving the class of argument complained of in this case. It is certainly not permissible to charge either a defendant or his witnesses with a crime where there is no evidence in the record indicating their guilt. Such is the doctrine announced in the case of State v. King, 174 Mo. l. c. 659, cited by defendant, but we are not aware of any law which defendant’s attorneys would have violated even if they had advised defendant to deport himself during the trial as an insane person.
The' trial court accorded the defendant a careful and an impartial trial, ■ during which his rights were zealously guarded by eminent counsel. The record contains no reversible error and the judgment is therefore affirmed.
Varis and Walicer, JJ., concur.