Burgess, J.
The defendant was convicted in the circuit court of Boone county of the crime of assault with intent to kill one David W. Cook, by shooting at him with a pistol, and his punishment fixed at three years’ imprisonment in the State penitentiary. He has appealed.
At the time of the difficulty the defendant 'and Cook were neighbors living near each other, but upon opposite sides of a road, six or seven miles from Columbia in said county. Their residences were about two hundred yards apart. In the afternoon of July 18, 1896, Cook and a man by the name of Andrews were in a lot on Cook’s farm near the road, taking the canvass off a binder, about which work it became necessary to have a wrench, and Cook went to his house to get one. In the meantime defendant returned from town', where he had been to have some ploughs sharpened, which he then had in his wagon, and, under the influence of liquor, he had stopped and was talking to Andrews. [62]*62As soon as Cook came np defendant drove on up in front of his house, entered his pasture and drove down on the inside of his fence until he arrived at the point where • Cook and Andrews were at work. Cook and defendant then had some words in regard to a religous meeting which was going on in that neighborhood, in the course of which the defendant called Cook a d — n liar. • By this time Cook had gotten to the fence on the opposite side of the road from defendant. When the defendant called Cook a d — n liar, he jumped out of his wagon and ran his hand in his pocket as if he was going to draw his revolver. Cook then said to him, “You have got a revolver, and you are going to shoot, you stinking old coward.” To which defendant replied “yes damn you; lam.” Cook had gotten over the fence into the road by this time, and defendant began to shoot, and when he fired the first shot Cook ran towards him, but defendant fired three shots before Cook got to him and grabbed the barrel of the pistol. They then grappled with each other for the possession of the pistol, when it was again discharged by defendant, the ball entering' to the left of Cook’s navel, ranging downward and lodging in his groin. When Cook was shot he fell to the ground, and defendant jumped on him, but he threw him off and got on top of him. Cook then struck him a time or two in the face, with his fist. He had no weapons about him. He and Grant had never had any trouble before. After the shooting Cook went to St. Louis and was operated upon. The surgeons cut into his leg, but were unable to find the bullet. Up to the time of the trial he had not been able to use the leg on the side of the injury. It seemed to be paralyzed.
I. The evidence of Cook with respect to the extent of his injury, and the operation which he underwent in consequence thereof, was admitted over the [63]*63objection and exception of defendant. This ruling is assigned for error. The contention is that this evidence was irrelevant under the charge in the indictment; that the charge being shooting at Cook with intent to kill, the defendant’s guilt did not in the slightest degree depend on the effects or consequences of his shot, but solely on the specific intent entertained by defendant when he fired it. We are unable to concur in this view. No better evidence could be adduced, we think, as to the'intent of defendant to kill at the time he fired the shot than that it entered a vital part and its serious consequences, and it makes no difference that the indictment charged defendant with shooting at, with intent to kill, instead of shooting or wounding with such intent. The rule is the same. It can not be doubted that the serious wounding of Cook in a vital part was some stronger evidence of defendant’s intention to kill him, than if he had wounded him but slightly in some part not vital. Prom this wounding, in the absence of countervailing testimony or circumstances, the law will presume an intent to kill, and this evidence only tended to show what the law presumes.
II. In the cross-examination of the defendant, who testified as a witness in his own behalf, the prosecuting attorney was permitted over the objection of defendant, to interrogate him as to his custom and habit with respect to taking home whiskey when he came to town. Cook had testified that defendant was drunk or under the influence of liquor at the time of the difficulty, which was denied by defendant, who- also testified that he only, took one moderate drink that day, and that was-out of a half pint while on his way home, which he had purchased just before starting. As to what defendant’s custom was with respect to taking whiskey home with him when he came\ to town, it was in no way relative to the issues involved in this case, and [64]*64should not have been admitted. He denied being drunk at the time of the difficulty it is true, and stated that he only took one drink on that day, and that was-while he was enroute home. But these statements did not justify his cross-examination as to his custom in taking whiskey home with him when he came to town. Section 4218, Revised Statutes 1889. Nor was it admissible for the purpose of laying a foundation to impeach him by proving to the contrary, because the cross-examination was with respect to an immaterial matter. State v. Avery, 113 Mo. 475. The same may be said with regard to the cross-examination of defendant as to being intoxicated when he voluntarily surrendered to the sheriff the evening after the difficulty. It was immaterial.
III. During the cross-examination of defendant he was also asked if he had not stated to one William Barnes on Sunday following the shooting, that at the time of the shooting Cook was on him beating him with a monkey wrench, and that he shot him off of him. Defendant answered that he did not make the statement. The State thereafter introduced said Barnes as a witness and asked him if defendant made the statement to him. The witness answered, “No sir, not just that way.” The State was then permitted to prove by Barnes over the objection of defendant that defendant told him that Cook was coming at him and struck him with something; that he was dazed for the moment and fell; and when he recovered his senses, Cook was on him; that he had the pistol in his hand between him and Cook, and fired it. It is insisted that no sufficient foundation was laid for proving by Barnes the statement made to defendant by him for the purpose of impeaching him. The discrepancy between defendant’s statement to Barnes as testified' to by Barnes, and the question propounded to defendant on [65]*65his cross-examination was so slight, that it is impossible to perceive how defendant could have been prejudiced thereby.
IY. Defendant introduced a number of witnesses to prove that he was of good character, and among the rest one W. S. "Wilson, who testified that he had known defendant about twenty-five or thirty years, and that he had never heard his honesty and truthfulness discussed, but that he had heard, and knew that he drank sometimes, and was a little boisterous. Then over defendant’s objections the State was permitted to ask the witness the following question.
“ Q. Did you ever hear of this defendant being arrested by the United States authorities for selling liquor? A. I don’t know that he was arrested, but he was about to be arrested.”
The evidence elicited from this witness upon cross-examination was clearly beyond the range of legitimate inquiry.
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Burgess, J.
The defendant was convicted in the circuit court of Boone county of the crime of assault with intent to kill one David W. Cook, by shooting at him with a pistol, and his punishment fixed at three years’ imprisonment in the State penitentiary. He has appealed.
At the time of the difficulty the defendant 'and Cook were neighbors living near each other, but upon opposite sides of a road, six or seven miles from Columbia in said county. Their residences were about two hundred yards apart. In the afternoon of July 18, 1896, Cook and a man by the name of Andrews were in a lot on Cook’s farm near the road, taking the canvass off a binder, about which work it became necessary to have a wrench, and Cook went to his house to get one. In the meantime defendant returned from town', where he had been to have some ploughs sharpened, which he then had in his wagon, and, under the influence of liquor, he had stopped and was talking to Andrews. [62]*62As soon as Cook came np defendant drove on up in front of his house, entered his pasture and drove down on the inside of his fence until he arrived at the point where • Cook and Andrews were at work. Cook and defendant then had some words in regard to a religous meeting which was going on in that neighborhood, in the course of which the defendant called Cook a d — n liar. • By this time Cook had gotten to the fence on the opposite side of the road from defendant. When the defendant called Cook a d — n liar, he jumped out of his wagon and ran his hand in his pocket as if he was going to draw his revolver. Cook then said to him, “You have got a revolver, and you are going to shoot, you stinking old coward.” To which defendant replied “yes damn you; lam.” Cook had gotten over the fence into the road by this time, and defendant began to shoot, and when he fired the first shot Cook ran towards him, but defendant fired three shots before Cook got to him and grabbed the barrel of the pistol. They then grappled with each other for the possession of the pistol, when it was again discharged by defendant, the ball entering' to the left of Cook’s navel, ranging downward and lodging in his groin. When Cook was shot he fell to the ground, and defendant jumped on him, but he threw him off and got on top of him. Cook then struck him a time or two in the face, with his fist. He had no weapons about him. He and Grant had never had any trouble before. After the shooting Cook went to St. Louis and was operated upon. The surgeons cut into his leg, but were unable to find the bullet. Up to the time of the trial he had not been able to use the leg on the side of the injury. It seemed to be paralyzed.
I. The evidence of Cook with respect to the extent of his injury, and the operation which he underwent in consequence thereof, was admitted over the [63]*63objection and exception of defendant. This ruling is assigned for error. The contention is that this evidence was irrelevant under the charge in the indictment; that the charge being shooting at Cook with intent to kill, the defendant’s guilt did not in the slightest degree depend on the effects or consequences of his shot, but solely on the specific intent entertained by defendant when he fired it. We are unable to concur in this view. No better evidence could be adduced, we think, as to the'intent of defendant to kill at the time he fired the shot than that it entered a vital part and its serious consequences, and it makes no difference that the indictment charged defendant with shooting at, with intent to kill, instead of shooting or wounding with such intent. The rule is the same. It can not be doubted that the serious wounding of Cook in a vital part was some stronger evidence of defendant’s intention to kill him, than if he had wounded him but slightly in some part not vital. Prom this wounding, in the absence of countervailing testimony or circumstances, the law will presume an intent to kill, and this evidence only tended to show what the law presumes.
II. In the cross-examination of the defendant, who testified as a witness in his own behalf, the prosecuting attorney was permitted over the objection of defendant, to interrogate him as to his custom and habit with respect to taking home whiskey when he came to town. Cook had testified that defendant was drunk or under the influence of liquor at the time of the difficulty, which was denied by defendant, who- also testified that he only, took one moderate drink that day, and that was-out of a half pint while on his way home, which he had purchased just before starting. As to what defendant’s custom was with respect to taking whiskey home with him when he came\ to town, it was in no way relative to the issues involved in this case, and [64]*64should not have been admitted. He denied being drunk at the time of the difficulty it is true, and stated that he only took one drink on that day, and that was-while he was enroute home. But these statements did not justify his cross-examination as to his custom in taking whiskey home with him when he came to town. Section 4218, Revised Statutes 1889. Nor was it admissible for the purpose of laying a foundation to impeach him by proving to the contrary, because the cross-examination was with respect to an immaterial matter. State v. Avery, 113 Mo. 475. The same may be said with regard to the cross-examination of defendant as to being intoxicated when he voluntarily surrendered to the sheriff the evening after the difficulty. It was immaterial.
III. During the cross-examination of defendant he was also asked if he had not stated to one William Barnes on Sunday following the shooting, that at the time of the shooting Cook was on him beating him with a monkey wrench, and that he shot him off of him. Defendant answered that he did not make the statement. The State thereafter introduced said Barnes as a witness and asked him if defendant made the statement to him. The witness answered, “No sir, not just that way.” The State was then permitted to prove by Barnes over the objection of defendant that defendant told him that Cook was coming at him and struck him with something; that he was dazed for the moment and fell; and when he recovered his senses, Cook was on him; that he had the pistol in his hand between him and Cook, and fired it. It is insisted that no sufficient foundation was laid for proving by Barnes the statement made to defendant by him for the purpose of impeaching him. The discrepancy between defendant’s statement to Barnes as testified' to by Barnes, and the question propounded to defendant on [65]*65his cross-examination was so slight, that it is impossible to perceive how defendant could have been prejudiced thereby.
IY. Defendant introduced a number of witnesses to prove that he was of good character, and among the rest one W. S. "Wilson, who testified that he had known defendant about twenty-five or thirty years, and that he had never heard his honesty and truthfulness discussed, but that he had heard, and knew that he drank sometimes, and was a little boisterous. Then over defendant’s objections the State was permitted to ask the witness the following question.
“ Q. Did you ever hear of this defendant being arrested by the United States authorities for selling liquor? A. I don’t know that he was arrested, but he was about to be arrested.”
The evidence elicited from this witness upon cross-examination was clearly beyond the range of legitimate inquiry. Even the conviction of the defendant of the unlawful sale of liquor, had such been the case, would not have been permissible for the purpose of discrediting his testimony, much less the statement that he was at some indefinite time about to be arrested for such an offense. State v. Smith, 125 Mo. 2; State v. Taylor, 98 Mo. 240; State v. Warren, 57 Mo. App. 502; State v. Donnelly, 180 Mo. 642.
Y. There was no error in the mere fact that the State offered testimony to prove the good character and reputation for peace and good order of the prosecuting witness when it had not been attacked by the defense. The- objection to such testimony was promptly sustained when it was offered. The trial court can not be convicted of error under such circumstances. But in this connection it is insisted that notwithstanding the ruling of the court in excluding the [66]*66proffered evidence as to Cook’s good character for peace and good order, one of the attorneys for the State was permitted, over the objection of the defendant, and without rebuke from the court, to argue and comment on the excluded evidence, and to state that the State was prepared to, and could have established it by forty of the best citizens in the community, but for the technical objection of the defendant. This contention, however, is not borne out by the record as the objectionable remarks were not preserved by the bill of exceptions. It is true that this question was raised in the motion for a new trial, but facts stated in such a motion do not prove themselves. They must be preserved by bill of exceptions or otherwise proved, otherwise they will not be noticed on appeal, even if erroneous. State v. Smith, 114 Mo. 406; State v. Foster, 115 Mo. 448; State v. Welsor, 117 Mo. 570.
VI. The third instruction given on behalf of the State is criticised upon the ground that it does not say that the shot must have been intentionally fired at a vital part. The instruction reads as follows: “3. The court instructs the jury that the law presumes that a person intends the natural and probable consequences of his acts, and if you believe from the evidence in the case that the defendant assaulted with a deadly weapon, a loaded pistol, David Cook, in a vital part of the body, the law presumes that defendant intended to kill him.”
This instruction is in accord with the well-settled law as repeatedly announced by this court. If a person assaults another with a deadly weapon in a vital part of the body, then the law presumes that he intended to do so, that is, that he intended to assault him in a vital part, for such is the natural and logical presumption flowing from the use of the deadly weapon under such circumstances. In this case the [67]*67evidence showed that the shot that penetrated the body of Cook was intentionally fired by defendant and that it struck him in a vital part of the body, hence, the presumption follows that he intended to kill him. State v. Landgraf, 95 Mo. 97; State v. Tabor, 95 Mo. 585; State v. Wisdom, 84 Mo. 177; State v. Thomas, 78 Mo. 327; State v. Musick, 101 Mo. 260; State v. Patterson, 116 Mo. 505. The criticism is, we think, without merit.
VII. It is insisted that the State’s fourth instruction was fatally defective in that it told the jury that if defendant intentionally shot at David Cook with a pistol, which was a deadly weapon, with intent to kill him, they would find him guilty without requiring them to find, as condition precedent, that the shooting was malicious and with a felonious intent. The indictment in this case was for assault with intent to kill on purpose and of malice aforethought and was drawn under section 3489, Revised Statutes 1889, but the instruction under consideration was drawn under, and the defendant convicted under the following section 3490, as he might be, for assault with intent to kill without malice. It was not necessary, therefore, that the jury should have been instructed in -order to a conviction that they must believe that the shooting was done maliciously and with a felonious intent to kill, or either one.
VIII. The State’s seventh, eighth, and ninth instructions are also criticised, but a careful reading of them has satisfied us that the criticism is without merit. Similar instructions have been often approved by this, court.
From what has been said it follows that the judgment must be reversed and the cause remanded for further trial in accordance with this opinion. It is so ordered.
Gantt, P. J., and Sherwood, J., concur.