State v. Jeffries

109 S.W. 614, 210 Mo. 302, 1908 Mo. LEXIS 61

• Court: Supreme Court of Missouri
• Decided: March 17, 1908
• Status: Published

Opinion

GANTT, J. —

On the 13th of December, 1905, the prosecuting attorney of St. Charles county filed an information, duly verified, charging the defendant with the murder of "William Wussler, in the said county, on the 3d day of March, 1905. The information was in two counts; the first count charged that the homicide was committed by one Willis Hood, and that the defendant, Jeffries, was present, aiding and assisting in the commission thereof; the second count charged that the homicide was committed by the defendant, and that one Willis Hood was present, aiding and assisting in the commission thereof. Both counts charged the homicide to have been committed by shooting the deceased with a pistol. At the March term, 1906, the defendant was tried and convicted of murder in the first degree. After unsuccessful motions for new trial and in arrest of judgment, the defendant was duly sentenced in accordance with the verdict and from that sentence has appealed to this court. -

On the part of the State the evidence tended to prove that the deceased, William Wussler, lived in the county of St. Charles, about one mile from the city limits of St. Charles, and about two miles from the main street in said city; that he was living there on the 3d day of March, 1905, with his family, and their dwelling house was close to the county road; the county road was called the Salt River road, and the deceased’s residence was right across from the city cemetery. The family of the deceased consisted of his wife, four children, the oldest of whom was eight years of age, and his father, Mike Wussler. There was no fence separating the deceased’s house from the Salt River road, which was a rock road. The entrance to the house is from the side. On the side of the house facing-west, there was a small porch and three steps leading-up on to the porch, and a door opened off this porch into the house. About three feet from this door there was a window in the house, which opened onto this porch. At the south end of this porch, there was a pump on the platform over the cistern. In front of the window there was a round table with a lamp sitting-on it. The deceased was a milkman and a farmer.

On Thursday before the shooting, two men and two women started from Pacific, a station on the Missouri Pacific Railroad in Franklin county. The defendant lived in Franklin county,' and he and a man by the name of Willis Hood and two women started from Pacific to Black Walnut, in St. Charles county, where defendant had been working and was acquainted. Black Walnut is a little village in the northern part of St. Charles county, about fifteen miles due north of St. Charles. Hood was a red-faced man with sandy hair, a little heavier set and taller tljan the defendant. At that time, the defendant wore a little black mustache, a black hat, very narrow brim. Of the women who accompanied the defendant and Hood from Pacific, one was his wife and the other his sister. This party of four .came to St. Charles on Friday, March 3, 1905, on an electric car. between 9 and 10 o’clock in the morning. The defendant and Hood stated before leaving Pacific, they were going to Black Walnut, where defendant had some furniture stored. They had a grip with them, a telescope grip in two parts, with three leather straps- around it, and one of the women had a basket. After arriving at St. Charles the men left the grip at Mr. Parmer’s, who kept a small restaurant at the foot of and a little north of the bridge in St. Charles. They were all together when'they left the grip at Parmer’s at about 11 o ’clock a. m. A little after dinner defendant and Hood came and got the grip and took it to the M. K. & T. saloon and it remained there until they finally got it. During the day they stayed about the town, the women sitting on the railr'oad track and around the depot. The defendant had on a pair of blue overalls; he had on a pair of shoes number six or number seven with large brass eyelets for the shoe strings; the left shoe had a patch, a homemade patch, fastened over the left part of the sole. This patch extended some distance over the surface of the toe. and large nails extended out from the surface of the soles. The defendant on that day wore a cartridge belt around his waist. He had a pair of mitts made partly of leather and partly of yarn knitting, the yarn of a green color. He had also a Colt’s revolver, number él, with side action. The revolver bore the defendant’s private marks upon the handle and it belonged to him. The defendant that day bought a box of matches in a store in St. Charles, and the box had a peculiar design on it, the figure of a rose. About noon of that day, defendant and Hood pawned a watch in a pawn shop in St. Charles. The defendant had on the overalls, a little black hat, and Hood was wearing a white felt hat. Hood had a pistol, which was a 32-calibre, Smith & Wesson, old fashion, and the hammer was broken.’ Hood and the defendant loitered around the station house with the two women until some time during the day, when Ilood and the defendant had a conversation; that conversation was to- the effect that they knew a man in Black Walnut who was easy picking, who had two sons, and Hood said to- the defendant, “We will go down to that man’s and one of ns will go in and talk to the hoys and get them out, while the other one goes in and robs the house. I will get somebody’s life or fifty dollars before night.” He made this statement two or three times to the defendant. It appears that the defendant and Hood had engaged in a crap game with some.other parties and had lost their money and the women had asked them for money, and Hood said to defendant and the women that they would get money before night, they would get fifty dollars or somebody’s life. This remark was made about one hour and a half before the shooting. About 6 or 6:30* that afternoon, they brought the women to the M. &. & T. station, and Hood slapped the defendant on the shoulder and said, “Bill, you go with me, some farmer has stole my grip-, let’s go and hunt for it.” The defendant and Hood then started away together from the station, leaving the women there, and went over to Burkholt’s saloon and got the grip. They then started out and were met about a quarter of a mile from the deceased’s house, about fifteen minutes before the shooting. At that time, the defendant had on a small felt hat with a very small brim around it, but had on no coat. Hood was wearing a gray hat and a coat. They were going in the direction of the deceased’s house. The deceased, his wife and little daughter, Edna, were sitting by a table, which was up against the window, already noted, and a lighted lamp was on the table. They heard some parties talking on the outside and saw one man peeping in the window. The deceased went out of the door and came out on the porch and spoke to a man standing there and asked what they wanted, and the smaller- man, the man -with the short, black, stubby mustache, asked for a night’s lodging. In the meantime, Edna, the little daughter of the deceased, came on the porch and stood by the side of her father. The deceased told the men he could not accommodate them. One of them asked to sleep in the stable, but deceased said he had no room in the stable. In the meantime, the wife of the deceased had also come out on the porch and stood by the side of her husband. The man with stubby mustache and small hat and in his shirt sleeves, stood within a foot or so of Mr<u Wussler. The little girl in the meantime had stepped off the steps and saw the other man with the.grip; this man, she says, had on a gray hat and stood off a little way towards the north and nearer the county road. The short man then stepped on the porch and in a loud voice said, “If you cannot keep us. here, where is Peruque station?” and the deceased answered, “That is fifteen miles up* the road. ’ ’ The small man then asked for a drink of water, and the deceased went to the pump and got a drink of water and handed it to him, whereupon the small man pulled his pistol and pointed it at the deceased’s face and said, “Money or your life.” The deceased immediately, in his fright, sprung to the door, when the small man, whom the wife of the deceased identified as the defendant, shot him. The daughter of the deceased also identified the defendant, as the man who did the shooting. The deceased immediately fell to the floor. Mike Wussler, the father of the deceased, heard the shot and ran out on the porch; when he got there a shot was fired at him. . Then the defendant and his companion left, going in a westerly direction.

That same evening, a few minutes after the shot was fired, Mr. Schoene, who lived a short distance west from the deceased’s house, heard his dogs bark. The next morning, Schoene went out to his field and found two tracks and he reported this to the officers and they also went out and saw the tracks. One of these tracks was a number six or seven shoe, which could be plainly seen, as it had rained the day before and it was muddy. They found tracks of two men running or walking together, one was of a small shoe, a six or seven, the track showing that the left shoe had a patch on the left side. The officers traced this track to a place where they had evidently stopped and they found some clothes at that place. Among other things a pair of overalls,, which were the same ones the defendant had worn that afternoon. A little further down they found a red shirt, identified as the one on the man that shot the deceased. They also found a cartridge belt, which belonged to the defendant, and which he had worn that afternoon. They also found a pair of leather mitts exactly like those the defendant had on in the town that day. A short distance further they found a box of matches corresponding in every way with the box they had purchased in the town that day. They found a pair of overshoes that the defendant said were Hood’s. They found a grip with three straps around it, which was identified as the grip the defendant and Hood took to Farmer’s and to Burkholt’s saloon. They found a pistoi, which was a 32-calibre and belonged to Willis Hood. They followed the track, which had the imprint of the patch and the nails of a shoe that corresponded with the one the defendant wore on the night of the homicide. Those tracks after they left the house of the deceased, extended up the rock road and went through a hedge fence into an orchard, and turned and went back to the city of St. Charles on the other rock road where they were lost.

The two women in the meantime were left at the M. K. & T. station. The train at that time was a little late, and defendant and Hood came running into the station together a little before ten o’clock. They were excited and muddy. When asked where they had been, defendant said, “I have been with Hood taking care of him and he has gotten drnnk on my hands. ’ ’ Hood pretended to be drnnk and defendant was leading him. Defendant said to the station agent, “Give me four tickets to the next station.” The train to Black Walnut had already gone about five o’clock that afternoon. The train that was then due was going in the opposite direction. When he asked for a ticket for the next station, the agent told him that, the next station was Jefferson City and would cost him $3.12 single fare. Defendant said he did not have enough money to buy that and they left the station and proceeded up> the M. K. & T. track south. After they had gone some distance, two officers saw them and searched them; having found no guns on them, the officers put them on the 11 o ’clock electric car and started them towards St. Louis. All four of them got off at the next station, Pattonville; they stayed there all night, and Hood said to the defendant, “We better get rid of these women, for if we do not, both of our necks will be broken.” Defendant said, “No, I am going to take my sister home,” and they proceeded towards Valley Park, and were seen together there. They were apprehended by the officers and were allowed to go on their way, and they went to Pacific, where Hood left the party, and the other three went on to the home of the father of the defendant near Gray’s Summit, on the Missouri Pacific, reaching there March 4th. That night and the next day the defendant Jeff res spent at his father’s home. On Monday following, as his family were moving to a place near Eureka in St. Louis county, he was arrested by the officers of St. Oho-ios and St. Louis counties, and taken first to Clayton jail and thence to St. Charles.

• The defendant’s pistol, a 41-calibre Colt’s, had two marks on it, which the defendant himself identified and said the pistol belonged to him. He also admitted that the helt that was found and the overalls were his and that the grip found belonged to Hood. In the grip a raincoat was found that was in it when it was left at Farmer’s and Burkholt’s. Along about five .days after the homicide, August Ademeyer was hunting for some wild lettuce close to the waterworks and he found a pistol, a 41 Colt’s, lying behind a telegraph pole on the M. K. & T. road, and at the side of it were several cartridges.' This pistol was loaded and belonged to the defendant and was the one he had when he came to the city of St. Charles. The ball that entered the body of William Wussler, the deceased, and which caused his death, was a 41 Colt’s cartridge.

Doctors Tainter, Mudd and Wencker were called in between seven and eight o’clock the night of the homicide to see the deceased and they treated him until his death, which was on the 5th of March, 1905. Am operation was performed in hopes that the bullet could be extracted but the operation was not a success. These physicians and the coroner, who was present at the time of the operation, testified that the bullet entered to the left of the spinal column and took a course to the right and a little upwards, striking the ninth rib in the right side and severing the spinal cord. In the opinion of all the physicians the wound was necessarily fatal and was the cause of the death of the deceased. The wound was made by a 41 Colt’s, bullet.

The defendant’s testimony tended to prove that he first became acquainted with Willis Hood on the first day of March, 1905; that previous to that time and within less than a year the defendant had worked in St. Charles county, and had gone from there to his father’s home in Franklin county, remaining there the remainder of the winter. That the defendant and his wife and sister, after meeting Hood, came over to St. Charles county, and arrived in the city of St. Charles on the electric car at 11 a. m. on the 3d of March and spent most of the day in the city of St. Charles; that Hood was not with the defendant all the time and no arrangement was made between them as to anything they were going to do that day; that the defendant intended -to go to Black Walnut to get a position as a farm hand or as a section hand and to work as he had previously done; that he had no baggage with him and did not have a red shirt, nor a pair of trousers, nor a pair of mittens like those offered in evidence by the State. He admitted that he did have a revolver, which he sold to Hood in Pacific on the first day of' March before coming to St. Charles, and which he turned over to Hood. The defendant claimed that the shoes that were introduced in evidence were the only shoes that he had and which he was wearing on the day and night of the homicide and which he wore back at his father’s home. The Sunday morning following, so the defendant testified, the repairing was done on his shoes, and the patch was placed there which was spoken of by the witnesses for the State. He testified he did not know how many pairs of pants he had on the night of the homicide; that he did not know how many shirts he had on, but admitted that he had on the overalls a part of the day, but said he took them off and gave them to Hood. He admitted buying the box of matches. The defendant’s father and mother corroborated him as to the patch on his shoe, and as to the fact that he did not have or wear any red shirt or trousers like those introduced in evidence by the State. The defendant denied all connection with and knowledge of the homicide, but claimed that Hood returned to the M. K. & T.depot about nine o’clock in company with another man and that Plood was drinking. The testimony of the defendant taken at the coroner’s inquest was read in evidence by the State, in which he testified that he had on four shirts that night. The State offered in evidence also the record of the conviction of the defendant in the Franklin Circuit Court of the crime of burglary and his sentence to three years in the penitentiary at the April term, 1899. Emil P'uchta testified that he was sheriff of Franklin county and' that defendant was the William Jeffries who was convicted of burglary in said county at the April term, 1899, and that he took the defendant to the penitentiary. The State also offered evidence tending to show that defendant’s general reputation in the community in which he lived, for truth and veracity, was bad.

I. The information is in the form often approved by this court and is sufficient. Indeed, it is not challenged by the defendant’s counsel. No- error was therefore committed by the court in overruling defendant’s motion to quash the same in so- far as the allegations of the information itself are concerned. The motion to quash, however, assails the information on grounds dehors the charges in the information itself. First, it is insisted that the information should be quashed because Willis Hood, who is jointly charged with the defendant Jeffries, had never been granted a preliminary examination prior to the filing of the information against him. This .contention is based upon section 2476a, Laws 1905, page 133, which provides: “No prosecuting--or circuit attorney in this State shall file any information charging any person or persons with any capital offense until such person or persons shall first have been accorded the right to a preliminary examination before some justice of the peace in the county where the offense is alleged to have been committed, in accordance with article 3 of chapter 16, Revised Statutes 189-9.” The record in this case shows that the said Willis Hood was at the time of the filing of the information* and still is, a fugitive from justice. The Governor has offered a reward for his apprehension, and it has been renewed several times, but the said Hood has never been found. It is too plain for discussion that the defendant has no right to complain of the failure to accord said Hood the benefit of said statute. Such failure could in no manner have presented any obstacle to .the prosecution of the defendant for said offense.

Secondly, it is insisted that the defendant Jeffries was not accorded such a preliminary examination before the filing of the information herein as is contemplated by section 2476a, approved April 12, 1905. It is alleged in the motion to quash that the defendant was arrested and taken before the justice of the peace on the charge mentioned' in the information, and the justice found there was probable cause for charging the defendant with the offense of murder and committed him to jail to answer to said charge. The contention is that on the preliminary trial only three witnesses were examined in behalf of the State in said proceedings and other witnesses who were summoned were not examined, and that for this reason the preliminary trial was not such as was intended by the Legislature. In a word, defendant insists that on the preliminary examination he is entitled to have the State produce every witness it intends to call in the prosecution and examine every one of them and unless it does so the subsequent information must be quashed. This is a misapprehension of the Act of 1905'. In the absence of a statute no preliminary examination is necessary. The grand jury may indict or under our present Constitution the prosecuting attorney may file his information, and even where a preliminary examination is required, it has been held that it was unnecessary for the information to allege that the accused had had a preliminary examination or had waived it. This is not a matter which goes to the merits of the trial, but the regularity of the previous proceedings. [Washburn v. People, 10 Mich. 383; State v. Barnett, 3 Kan. 250.] When the statute uses the term preliminary examination, it obviously refers to the -well-established law of this State found in sections 2457, 2460, and 2461, Revised Statutes 1800, which provide that if the justice shall be satisfied that a felony has been committed and there is probable cause to believe the prisoner guilty thereof, the magistrate shall commit him to jail or admit him to bail for trial upon the charge. The magistrate is not charged with, or empowered to determine the guilt or innocence of the accused. All that he is required to find is that a felony has been committed and probable cause to believe the prisoner guilty thereof. The preliminary examination after all is but an expedient to prevent a suspected person from escaping and to preserve the evidence and keep the witnesses within the control of the State. It is to be remembered that these preliminary proceedings are generally required to be held before justices of the peace, officers not learned in the law, and the same fullness and precision, the same precaution against all of the contingencies of the testimony required in the trial of the cause in the circuit or criminal courts upon informations, or indictments, were never intended. The Act of 1905 was in all probability intended as a safeguard against groundless or vindictive prosecutions, which it was supposed might otherwise occur where the interposition of the grand jury was dispensed with. But it must, in our opinion, be read in connection with .section 2457, Revised Statutes 1899, which provided not for a trial in which the guilt or innocence of the accused should be finally determined, but as already said, was intended to prevent suspected persons from escaping and to secure their presence for a trial after indicted by the grand jury or upon an information filed by the prosecuting attorney. The statute simply requires that the justice shall be satisfied that the offense has been committed and probable cause that the accused is guilty of the offense. It was, in our oipnion, never intended that the judgment of the circuit or criminal. court or a jury on a plea in abatement should be substituted for that of the examining magistrate as to whether there was or was not probable cause for believing the accused’ was guilty of the offense before he could be held to answer to the indictment or information. The record in this case discloses that the defendant had a preliminary examination and the justice found that a murder had been committed and there was probable cause to believe that the defendant was guilty of the offense. The fact that other witnesses had been summoned before the justice and were not examined, in our opinion, did not affect the finding of the justice that there was probable cause upon the evidence adduced' before him. He was the sole judge at that time of the sufficiency of the evidence to satisfy him that there was probable cause to hold the defendant to answer to an indictment or information. Accordingly, we hold that there was no error in refusing to quash the information, either on the motion to quash or on the plea' in abatement, which tendered the same issue to the court.

Having reached this conclusion, we are not inclined to enter upon a consideration of the proposition advanced by the Attorney-General that the Act of 1905 is unconstitutional on the ground that it is an unwarranted interference with the prerogative of the prosecuting attorney under the Constitution to file an information in the absence of a preliminary examination. Much can be said upon each side of that proposition, and in a number of states the right of the Legislature to insist upon a preliminary examination as a condition precedent to the filing of an information by the prosecuting attorney has been sustained, notably in Michigan and Kansas.

Thirdly, it is insisted that the motion to quash should have been sustained because the names of Fred Walkenhorst, Nellie Jeffries and Mike Wussler were not endorsed upon the information. It appears that the names of these witnesses had not been endorsed npon the information at the time the motion was filed and passed npon by the court. But it also appears that these witnesses had been summoned before the justice of the peace on the preliminary examination and before the coroner, and had been subpoenaed for the State for the trial of this cause in the circuit court, and the defendant was fully advised that they had been so summoned, and the prosecuting attorney testified that the names of those endorsed upon the information were the main witnesses that he knew anything about at the time he drew the information. We have so recently reviewed the statute on this subject, section 2517, Revised Statutes 1899, that it is unnecessary to repeat what has been said in State v. Barrington, 198 Mo. 23; State v. Myers, 198 Mo. 225, and State v. Hottman, 196 Mo. 110. In our opinion, there was no error in refusing to quash the information on this ground. But we are not to be understood as approving the failure of the prosecuting attorneys in not endorsing the witnesses on either indictments or informations.

The statute provides that the names of the witnesses shall be endorsed, and no fair-minded prosecuting attorney ought to deprive the defendant of the benefit which this statute gives him. It was enacted for a wise and beneficent purpose, and prosecuting attorneys ought to observe it so that this question would not so often be urged in this court. And the circuit courts should require it to be done whenever a motion to quash or complaint is made on that ground. It was ruled as early as State v. Patterson, 73 Mo. 695, that it was competent for the court to permit the names of the witnesses to be endorsed pending a motion to qnasb. And we may add, in onr opinion, it is perfectly competent to require it to be done.

II. It is next insisted that tbe court erred in refusing to'quash tbe venire upon tbe ground that tbe sheriff, wbo summoned tbe panel, was biased and prejudiced against tbe defendant, and being a witness for tbe prosecution, was not tbe proper party to summon tbe jury. The court beard tbe evidence on tbis question, and held that tbe sheriff was not disqualified. Tbe mere fact that tbe sheriff exercised all due diligence in pursuing and arresting tbe defendant after suspicion was directed to him, was no ground for alleging that tbe sheriff was prejudiced. In State v. Hultz, 106 Mo. l. c. 49, it was observed that “a duly chosen officer ought not to be deprived of bis office save and for tbe gravest reason. Tbis is true because tbe people have reserved to themselves tbe right , to name their officers, and have not, save in exceptional cases, left to any one man tbe power to select them. . . . And when a citizen is to be deprived of bis life or liberty, one of bis safeguards is that it can be done only by an officer duly elected, and wbo is under tbe obligation of bis oath of office and a sense of responsibility to the public which elected him. . . . Tbe statute does not prescribe bow tbe court shall ascertain tbe prejudice of tbe sheriff, but it is left to tbe discretion of tbe court in what form tbe evidence shall be presented, and of course it is for tbe court to say when it is satisfied. Tbis investigation tbe law has confided to tbe circuit judge. Of course, bis action is subject to review, if it shall appear arbitrary and unjust.” In tbis instance we see nothing that smacks of a want of a wise discretion in refusing to set aside tbe panel on account of tbe prejudice of tbe sheriff. Moreover, if tbe defendant desired to object to tbe sheriff summoning the jurors, a timely motion should have been made before the venire had been summoned and he should not have waited until the jurors were in court.

III. Counsel urges that it was error in the circuit court to permit witnesses to testify whose names had not been indorsed on the back of the information. As we have already reached the conclusion that the failure to indorse these names of the witnesses on the information did not constitute reversible error, it follows that this objection is not tenable, as the statute itself expressly provides that other witnesses may be called and examined. [State v. Barrington, 198 Mo. 23; State v. Myers, 198 Mo. 225; State v. Hottman, 196 Mo. 110.]

IV. Error is assigned in regard to the admission of testimony as to tracks or foot-prints found in the soft mud in the orchard near the deceased’s home, and that one of said foot-prints corresponded with one of the shoes worn by the defendant on the night of the homicide. The ground of this objection seems to be that the foot-prints were found one-half mile from the scene of the crime, and that there was no evidence as to when they were made. This is a clear misapprehension of the evidence. The tracks were traced from the deceased’s house up the rock road and through a hedge fence into an orchard, and it was by following these tracks that the articles of apparel belonging to the defendant were found and the size of the track corresponded with the size of the defendant’s shoe, especially that portion of his shoe which had the heavy home-made patch upon it. Moreover, the evidence was that it had rained the night before and there was no trouble to discover that they were fresh foot-prints. We think there can be no doubt whatever of the competency and admissibility of this evidence when taken in connection -with, the testimony of the witness Schoene as to the barking of his dogs that night after .the shooting or after the shot was fired that killed the deceased. This evidence was not only competent, but very damaging indeed when taken in connection with the other circumstances as to the finding of the overalls and the red shirt and the cartridge belt which had been worn by the defendant the day of the homicide in St. Charles. It is also objected that the court erred in permitting the witnesses to testify to the finding of the Colt’s revolver, calibre 41, near the same place. This evidence was also exceedingly pertinent. The defendant himself stated that this pistol had formerly belonged to him and he identified it by the two notches on it, and said that he had disposed of it to his companion Iiood, who was jointly charged with blm in the information.

It is also assigned as error that the court permitted the shoes that the defendant wore at the time he was arrested to be offered in evidence, .on the ground that it violated the defendant’s constitutional right not to be compelled to testify against himself. This subject was examined and considered in State v. Pomeroy, 130 Mo. 489, and it was held in that case that the introduction of lottery tickets, papers, etc., taken from the person of the defendant and from his desk and introduced in evidence over his objection, was not a violation of section 23 of article 2 of the Constitution of this State, providing: “That no person shall be compelled to testify against himself in a criminal case.” [Following Com. v. Dana, 2 Metc. (Mass.) 329; 1 Greenleaf’s Evidence (14 Ed.), sec. 254a; State v. Flynn, 36 N. H. 64; Siebert v. People, 143, Ill. 571; Gindrat v. People, 138 Ill. 103.] Moreover, in this case, we have been unable to find any evidence that these shoes were taken from the defendant, but, in our opinion, it is immaterial how they were obtained, because the authorities all hold that it was competent to introduce them.

Another objection to testimony is that the witness Edna Wussler was an incompetent witness, owing to her age and lack of understanding. Before permitting this little girl to testify, the court heard evidence as to her competency. It appeared that she was eight years old .and that she had been going to school and was in the second reader. She had been taught to say her prayers, and she answered to the court that if she did not tell the truth she would go to the bad place. After a full examination, the court decided to admit her testimony. In State v. Scanlan, 58 Mo. 204, this subject was examined by this court, and Judge Lewis, speaking for the court, said: “The capacity or incapacity of a child as a witness in certain essential particulars was a question of fact which the judge determined upon personal inspection and oral examination. If any principle of law had been' declared by him — as that, although found incapable of discriminating between truth and falsehood, the law made her, nevertheless, a competent witness — that might well bo brought here for review. But I can find no case in which it is held proper for an appellate court to review the finding of fact. The contrary, rule is declared by all respectable authorities. No hardship* necessarily results; for, if the judge should chance to err in his conclusion, the jury hold a powerful corrective in their right to pass upon the credibility of the witness, as tested on the stand by the usual appliances.” Our statute, section 4659, Revised Statutes 1899, excludes, simply, “a child under ten years of age, who appears incapable of receiving just impressions of the facts-respecting which they are examined, or of relating them truly.” In State v. Nelson, 132 Mo. 198, it was said by this court: “It is not unusual to receive the testimony of children under nine, and sometimes under seven, years of age, if they appear to he of sufficient understanding; and it has been admitted even at the age of five years. [1 Greenleaf’s Ev. (14 Ed.), sec. 367.] Indeed, there is no precise age at which children are competent or incompetent. Their competency is to be determined by their apparent capacity.. It belongs to the judge in each case to determine by appropriate questions the competency of the infant offered as a witness, and his decision is not open to review unless there.be a clear abuse of judicial discretion, or the witness be admitted or rejected upon an erroneous view of a legal principle. [State v. Scanlan, 58 Mo. 204; State v. Doyle, 107 Mo. l. c. 42.] ” After reading the testimony of the child and the examination which the court gave her, we are of the opinion no' error was committed in permitting her to testify.

V. It. is insisted that the court should have required the State to dismiss as to the first count of the information on the ground that the evidence established that Willis Hood did not shoot the deceased as charged in that count. There was no error in this. The State had the right to charge the commission of the crime in different ways and the jury were entitled to pass upon the evidence and find the defendant guilty under whichever count the jury believed the evidence sustained. [State v. Schmidt, 137 Mo. 266; State v. Houx, 109 Mo. 654; State v. Pratt, 98 Mo. 482.] As the defendant was not convicted of assisting Willis Hood in hilling the deceased, but on the ground that he fired the fatal shot himself, no possible error could have resulted to him by reason of the submission of the other count to the jury. The defendant would have been equally guilty had the jury found that Hood fired the shot and the defendant was present aiding and assisting Hood in the attempt to perpetrate a robbery and in the commission of the murder. It is too plain for discussion that the circuit court committed no error in refusing to instruct the jury to acquit the defendant at the close of the evidence in the case. The State was. not required to elect on which count it would proceed,, nor to enter a nolle as to the first count.

VT. It is next urged that there was no such identification of the defendant Jeffries as would justify the verdict of the jury. With this contention we cannot agree. Not only was the defendant identified by Mrs. Wussler, the wife of the deceased, and Edna Wussler, his daughter, but the incriminating circumstances strongly corroborated by the admissions and statements of the defendant himself all point to his. guilty participation in-the murder of William Wussler. His association with Willis Hood in St. Charles on the' day of the homicide, and the fact that after that the two were seen within a quarter of a mile of the residence of the deceased only a few minutes before the homicide, and going in that direction; the various articles of his clothing that were found near the home of the deceased, and the tracks that were found in the soft ground near the residence of the deceased corresponding exactly with his own foot and shoe; the fact that the deceased was killed with a bullet out of a 41-calibre pistol, the fact of the finding of that pistol on the route taken by the defendant after the homicide, his identification of it as a pistol that he had owned, and by some of the witnesses as his own property, the threats of his companion Willis Hood that they would get fifty dollars or kill some one that night, their flight and attempted flight from St. Charles, the sudden change of his announced plan to go to Black Walnut, and instead, attempting to go after the shooting in the opposite direction, established a case which fully justified the jury in finding him guilty of the offense charged against him. While the defendant attempted to explain the criminating circumstances against him, it is. clear the jury did not accept his explanations, and in view of the fact that he had been impeached as a witness, it is not strange that the jury disregarded his evidence. We think there was ample evidence tending to identify the defendant as the person who shot and killed. William Wussler, and to justify the finding of the jury.

YII. Again, it is insisted that error was committed in allowing the various articles of apparel found by the sheriff and the other witnesses and identified as the property of the defendant, in evidence. We think there is no merit in this objection when it is considered that the defendant and Hood left the station together and went to Burkholt’s saloon and got the grip and were seen going off together not over an hour before the homicide was committed, and that one of the two men who shot and killed William Wussler stood in the yard with the grip in his hand at the time of the shooting, and that the two fled together .and their tracks led through the orchard up to and beyond where these articles, which defendant admitted were his own, and which were otherwise shown to have been worn by him that afternoon, were found. It was incriminating evidence of a most persuasive .character showing his presence at the homicide. Nothing said in State v. Thomas, 99 Mo. l. c. 257, 258, or in State v. Goddard, 162 Mo. l. c. 227, is opposed to this view. In neither of those cases did the evidence of the clothing show any connection with the defendant or ownership by him, whereas in this case his ownership of these articles was shown beyond a reasonable doubt.

YIII. Error is predicated upon the fact that on the night of the 26th of April, during the progress of the trial of said cause, the sheriff, with two of his deputies, took the jury together to a public performance in the opera house in the city of St. Charles, and the defendant brought this matter to ■ the attention of the court, and requested the discharge of the panel of jurors and summons for a new panel. On the part of the State it was shown by the sheriff and his two deputies, Hehner and Mades, that they did take the jury to a minstrel performance in the opera house of St. Charles on the night mentioned. The sheriff and his two deputies and every member of the jury testified that they sat in a section to themselves and no member of the jury had any communication with any person or persons during the said performance, nor was any member of the said jury, or the said jury at any time, in going and returning from the said performance, subjected to any outside influence whatever; that the entertainment was simply a song and dance affair consisting wholly of comic songs and dances, and there was no reference of any nature to the trial of the case in any way. A program of the entertainment is incorporated in the record and consists entirely of comic and sentimental songs with an occasional dance to relieve the tedium. This motion the court overruled, and as already said this action of the sheriff is assigned as error. The irregularity in this case occurred before the conclusion of the trial and before the jury had finally been charged with the fate of the prisoner. That it was an irregularity and improper for the sheriff to have taken the jury to the opera house after they had been selected and sworn to try the case, we take it that there can be little difference of opinion. From time immemorial it has been a part of our system of ■criminal trials under the common law in all capital cases to sequester the jury from the rest of the community, and our statute accentuates this principle. It is not a matter of insubstantial form, but one of the means provided by the law to have the verdict-of the jury founded entirely updn the-law and the evidence in the case uninfluenced by outside opinions. The original common law rule was based upon the theory that the jury should be kept while the trial was progressing under the eye of the court, or what was in legal effect the same thing, under the eye of the officers of the court. When, therefore, criminal trials became the business of several days, it was deemed no deflection of the original rule to place the jury in charge of a sworn officer of the court with instructions not to permit any communication between the jury and other persons in regard to the case on trial. Thus, in The King v. Stone, 6 Tr. Rep. 527, the trial having lasted more than one day, Lord Kenyon, who presided, permitted the jury to retire to an adjoining tavern where accommodations were prepared for them, the bailiffs being sworn “well and truly to keep the jury and neither speak to them themselves nor suffer any other person to speak to them touching any matter relative to the trial.” Our statute evidently had its origin in this principle indicated by the action of Lord Kenyon in that case.

In State v. Orrick, 106 Mo. l. c. 125, it was said by this court: “The rule was followed in this State for many years that the separation of a jury, in a criminal case, was not sufficient to authorize a reversal of a judgment, unless it appeared that improper influence had been exerted, or there was just ground for suspecting such influence. The history of the administration of the criminal law demonstrates that during the time it was followed, granting new trials was a common occurrence upon this ground, and a conviction was seldom obtained that was not attacked on the ground that the jury had been permitted to separate, and, during such separation, improper influences had been exerted over them. [Whitney v. State, 8 Mo. 165; State v. Mix, 15 Mo. 153; State v. Barton, 19 Mo. 227; State v. Igo, 21 Mo. 459; State v. Carlisle, 57 Mo. 102; State v. Brannon, 45 Mo. 330; State v. Bell, 70 Mo. 633.] Under the revision of 1879 three new sections on this subject were adopted, sections 1909, 1910 and 1966. Revised Statutes 1879 (now secs. 2628, 2629 and 2688. R. S. 1899). These new sections were-evidently designed to effect some change in the conduct of criminal trials. Section 1909 so far as it affects the trial of' capital cases was but declaratory of the common law, which forbade the separation of the 'jury during the-trial in all felony cases. [1 Bish. Crim. Proc., sec. 995.] In so far as said section authorized the separation of the jury in felony eases other than those made capital by the statute, it effected a relaxation of the common-law rule to the extent of permitting a separation of the* jury by the consent of the parties. If this section stood alone no such change in the statute could be-seen as would require any change of the practice in respect to the separation of the jury, or the rule, above mentioned, requiring suspicion of improper influences-upon the jury before a verdict would be set aside on account of a separation. It is not so, however, in regard to sections 1910' and 1966. These were evidently intended to effect a radical change in the previous law and practice; yet it will be observed that these sections, by their express terms, only apply -to the conduct of juries after they retire, under the charge of a sworn officer, to deliberate upon their verdict. From that time until their final discharge the law is imperative that they shall be kept together. A failure to observe the requirements of section 1910 will be cause for a new trial under section 1966. These sections are held to he mandatory to the extent, at least, of preventing any opportunity for misconduct on the part of the jurors, or suspicion of improper influences upon them. [State v. Collins, 81 Mo. 652; State v. Murray, 91 Mo. 95; State v. Woodward, 95 Mo. 129; State v. Rush, 95 Mo. 204; State v. Gray, 100 Mo. 524; State v. Witten, 100 Mo. 527.] ” Accordingly, the conclusion was reached in that case that a separation of the jury before they retired to deliberate on their verdict, will be a ground for a new trial, unless it be shown affirmatively by the State that the jurors were not subjected to improper influence. In this case there was no separation of the jury, but in our opinion, a like principle should obtain, the case being a capital one.

What irregularity, on the part of the officer will require a new trial has been discussed in a number of cases. In 17 Am. and Eng. Ency. Law (2 Ed.), 1202, it was said: “It is not improper for an officer in charge to take the jury for a walk, provided proper precautions are taken that no communication with outsiders takes place; nor is it a ground for new trial that such walk extend beyond the limits of the county or even of the State. . . . Nor will the verdict be set aside because the officer took the jurors to a theatrical performance involving a burlesque of judicial proceedings, or because they were taken to church and there heard a sermon applicable to the case on trial, such application not being intended.”

In Moore v. People, 26 Colo. 213, it appeared that the jury after they were impanelled but before any evidence was introduced in the case, were permitted by the court under the charge of sworn bailiffs to attend a theatrical performance; it was alleged and attempted to be shown by the affidavit of one of the jurors in support of the motion for new trial upon this ground, that during the performance divers persons, not jurors, were permitted to intrude upon and occupy seats among the members of the jury; that confusion prevailed at the time the jurors were being reassembled and collected after the conclusion of the performance; that the entertainment they attended was a burlesque representation of judicial proceedings; that in short the performance was a satire upon the judiciary and judicial proceedings. Counter-affidavits of the bailiffs in charge of the jury were filed to the effect that the jurors were seated in line with one bailiff at each end of the line; that there was no improper conduct indulged in by said jurors; that they were at no time allowed to separate, and that the bailiffs were constantly on watch and in touch with the jurors. Affidavits of six of the jurors were filed of the same purport, and were further to the effect that the play had no effect upon their minds, either for or against the defendant, and that they were not influenced by witnessing it. Upon this state of facts the Supreme Court said: “While the practice of allowing jurors impaneled in important criminal cases to attend public entertainments should not be permitted, yet, under the rule announced in former decisións in this court, in the absence of any showing that defendant’s rights were thereby prejudiced, the mere fact that such indulgence was granted, is not in itself sufficient reason for setting aside the verdict. [Jones v. People, 6 Colo. 452; May v. People, 8 Colo. 210; Chesnut v. People, 21 Colo. 512.] ” And it was held that it was no error to refuse to set aside the verdict under the circumstances.

In Jones v. People, 6 Colo. l. c. 463, it appeared from the testimony of the officer in charge of the jury, as well as every member of the jury, that the entire jury in charge of a sworn officer of the court attended a theatrical play at a hall or opera house in Georgetown where the court was sitting; that they occupied seats especially engaged for them in a body; that no one occupied these seats but the jurors and the officer in charge; that they did not separate either while there or in going to and from the place and had no conversation or communication with any one except between themselves and the officer; that-no other spectators at the theatre mingled with them; that they were all the time while there, as well as while going and coming, in charge of said officer, and that they so attended the theatre by permission of the judge trying the case. These facts were not contradicted in any part. In that case the record was silent as to the literary dr moral character of the play, whether tragical, comic or sentimental, and it was held that where it does not appear that the acts complained of have affected the jury in the full and impartial discharge of their duties in trying the case, there was no sufficient cause for holding the verdict thereby vitiated, or for setting it aside. The court said: “We are not to be understood as approving the practice of an indulgence to jurors, such as were granted here; on the contrary, such a relaxation, as a rule, is not to be countenanced; but in this particular instance . . . since it appears to have been harmless, we cannot hold that there was error in the refusal of the court to set aside the verdict on this ground.” That was a case of murder with a sentence of imprisonment for life.

The facts of this last-cited case are in all respects similar to the one before us for review. In this ease the three officers in charge of the jury and every member of the jury testified that they occupied a separate section of the theatre by themselves; that they were never separated and had no communication either going or coming from the opera house, or while there, or at any other time with any person outside of their number. Neither is it charged in the affidavit that they did so and' their evidence was wholly uncontradicted on this subject. While we think it was an irregularity that is not to be countenanced or approved, in view of the uncontradicted testimony on the subject showing the performance, a copy of the program of which is included in the record, to have been nothing more than a minstrel performance consisting of sentimental and comic songs, we are constrained to hold that the circuit court did not err in refusing to set .aside the verdict on this ground.

IS. Finally, it is insisted that the remarks of the prosecuting attorney in his argument to the jury constituted error for which this judgment should he reversed. We have read what appears to he a full report •of the prosecuting attorney’s argument, both in opening and closing the case. Among other things he said: "“When the two murderers went up the road that night "to that man’s house, they were going to get money ■or his life blood. They were preparing for a crime not coneeiveable in the heart of a man born of a woman hut of a fiend from hell.” To this statement Mr. Jones, ■counsel for the defendant, objected on the ground that it was improper argument and misconduct on the part •of the prosecuting attorney. The court made no ruling on the matter and no exception was saved and "the counsel proceeded with his argument. In discussing the testimony the prosecuting attorney said, “Mrs. Wussler, the woman you made a widow, said she recognized you by the scar you now bear upon your face. She recognized you from the stubby mustache. She recognized you by the- shirt found by the officers, the red shirt you had on, and by the pants she positively identified.” At this point the counsel for the defendant said, “I object to the actions of the prosecuting attorney in shaking his fist at the defendant, and I want that shown in the record.” The prosecuting attorney replied, “I do not want this taken out of my time. ” Counsel for the defendant, “I want the gestures and approaching the defendant and shaking his fist at him to go into the record.” Thereupon, the court ordered the prosecuting attorney not to direct his argument to the defendant in person. No exception was taken and the court was not notified that his rebuke or reproof was not sufficiently severe. Again, in the course of his argument the prosecuting attorney was discussing the evidence given by the defendant on the stand and said: “I asked him, ‘What did you do the first thing after you got to town?’ and he commenced to laugh in a. sneering way, you saw it, laughing when his life was at stake, laughing when a man’s life is at stake, trying to vindicate himself for a murder. He laughed in a sneering way when I' asked him what is the first thing he did when he came to town and he said, ‘I guess the first thing we did was to hunt up a saloon.’ ” Objected to by counsel for the defendant as improper argument. The objection was overruled and exceptions saved. Thus it appears that of the objections made by the counsel for the defendant to the argument of the prosecuting attorney the court rebuked the prosecuting attorney and directed him not to make his argument to the defendant but to the jury. As to the first objection noted, he saved no exception whatever and obtained no ruling from the court, the only exception saved was to the argument for the counsel for the State in his criticism of the manner of the defendant in testifying, his laughing in a sneering way when asked as to what he did when he first came to St. Charles that day. We have read the whole address, and we agree with the learned circuit court that there is nothing out of the way in this criticism of the defendant’s manner of testifying. It has been so often ruled that if counsel use objection-: able argument or make statements not authorized by the testimony on the facts in the casé, it is the duty of the opposing counsel to object to the court and if the court overrules their objections to save an exception thereto and incorporate the same in their bill of exceptions, that a citation of the cases is deemed entirely unnecessary. It follows that this last assignment furnishes no ground for a reversal of the sentence in this case.

The record in this case is very voluminous, but we have gone through it with a purpose to discover whether the defendant has been deprived of that fair and impartial trial to which he is,entitled under the law, and have weighed and considered. the evidence and all the propositions advanced by his able and industrious counsel and have been unable to find any reversible error in the record, and have reached the conclusion that the evidence in the case fully warranted the verdict of the jury. The judgment of the circuit court- must, therefore, be affirmed, and the sentence which the law pronounces is directed to be carried into execution.

Fox, P. Jand Burgess, J., concur.