BURGESS, J.
At the April term, 1901, of the criminal court of Jackson county, the defendant was. convicted of murder in the second degree, and her punishment fixed at ten years’ imprisonment in the penitentiary, under an indictment theretofore presented by-the grand jury of said county charging her with murder in the'first degree for having at said county on the 10th day of January, 1901, shot and killed with a pistol her husband, Phillip H. Kennedy.
In due time defendant presented a motion for a new trial, which being overruled, she saved her exception, and brings the case to this court, by appeal, for review.
The defense was insanity, the homicide being admitted.
The salient facts which led to the killing are about as follows:
The defendant was about twenty-three years of age at the time of the homicide, and lived with her parents, and two brothers, Charles William and Albert K. [107]*107Prince, commonly called Bert. The deceased, Phillip H. Kennedy, was about thirty years of age at that time, and was employed as clerk and solicitor in the Merchants Dispatch Transportation Company, with offices on the second floor of the new Ridge building, situated on the east side of Main street between Ninth and Tenth, Kansas City. He lived with his father, and mother, brother and sister. The defendant and the deceased had been acquainted for about two years prior to the killing, and in the latter part of 1899 and the early part of 1900 the deceased called on the defendant frequently at her home and at the place where she worked. In the month of April, 1900, Will, the brother of the defendant, noticed the attentions of the deceased to the defendant, went to him, and asked him if his intentions were serious. On being answered in the negative Will Prince requested Mr. Kennedy to cease calling on his sister, and after that time the evidence discloses that they were together but twice until the 4th day of December, 1900.
On December 4, 1900, the deceased was called by telephone, while in his office in the Ridge building, and asked to go at once to the office of Charles H. Nearing, a lawyer in the Nelson building, at Missouri avenue and Main street, on important business. Kennedy went to Mr. Hearing's office and was there informed by Mr. Nearing that he would have to marry Lulu Prince or her father would kill him. Kennedy informed Nearing that there was no reason why he should marry Lulu Prince and that, besides, he was engaged to marry another woman. He left Mr. Nearing's office, went out into the hall, and there met C. W. Prince and Will Prince, and the defendant. On that morning before going to Nearing’s office AY ill Prince had oiled up his pistol and put it in his pocket. C. W. Prince and Will Prince told Kennedy that unless he married the defendant at once he would be a dead man in five minutes. He then went with the defendant, her father and brother, [108]*108to the recorder’s office for a marriage license, which he procured, and he and defendant then went before Judge Gibson and were married, through threats of violence to deceased by her father and brother.. The parties then left the courthouse, Mr. Kennedy returning to the office where he worked. That evening Kennedy visited the Prince household, but slept at his own home, as he continued to do up to the time he was killed. So far as the evidence discloses he did not see the defendant again up to the time of the homicide. In a conversation with, defendant Mr. Bullene asked her what was the cause of the forced marriage, and she informed him that it was because Kennedy had been engaged to marry her and was about to marry another woman. He asked her if there had been any intimacy between them and she replied that there had not. He asked her why it was that she wanted to marry a man who wanted to marry another girl and she replied that “she wanted her revenge.” A day or two before, she called on the city editor of the Star, Captain Wade Mountfort, and asked him to publish the marriage license. She said that Kennedy had been forced to marry her because he had tried to jilt her and she said that she wanted him to get some notoriety and that she wanted him roasted. On the Saturday evening following the marriage, the defendant and Will Prince called again at the Star office, saw Mountfort, and requested that an article be published in the Star to the effect that the marriage had been brought about by the fact that Kennedy was about to marry another girl after having been engaged to Lulu Prince. Will Prince stated in the defendant’s presence that the marriage was a forced marriage, but that he didn’t want that fact published, as it would annul it; and he further stated that there never had been any intimacy between the defendant and Kennedy. It was finally proposed by Mountfort that Bullene accompany Prince and his sister to Kennedy’s house to verify their story, and in response to this sug[109]*109gestión Prince assented saying, “I have had one round with that fellow, I gave him his choice of marrying the girl or going to hell, and he chose to marry her. ’ ’ He called Kennedy a puppy and a coward and other offensive names, and said that he did not deserve to live. Will Prince, the defendant, and Bnllene started on the street car for the Kennedy house, and on the way out Will Prince and the defendant proposed to Bnllene that he call Kennedy out on the porch, while he and the defendant stand around the corner of the house. This Bullene refused to do and Prince and his sister remained in the street while Bullene entered the house and had a conversation with Kennedy.
Prom the day of the forced marriage, December 4th, up to the day of the killing, January 10, 1901, Will Prince, Bert Prince and C. W. Prince had conversations with several parties in which covert threats besides those already mentioned were made against Kennedy and statements made in reference to the relations between him and the defendant, her father and brothers. Pour or five days after the forced marriage, R. J. Costello, deputy recorder, who issued the marriage license, met C. W. Prince and asked him how the couple were getting along. C. W. Prince said that the young lady was at home with him. Costello replied that it would only be a question of time until Kennedy got a divorce, and C. W. Prince said, “I would like to see him get a divorce, he is dealing with the old man now and he isn’t so old he couldn’t take care of himself.” About a week or ten days before the killing Costello again met Prince on the street car and asked him again how they, the defendant and deceased, were getting along, and O. W. Prince replied that Kennedy wasn’t doing the right thing, to which Costello replied, ‘ ‘ That boy will never live with your daughter,” and C. W. Prince answered him by saying: “He had better do the right thing, or the papers will have something to write about.”
[110]*110On the evening of January 8, 1901, Kennedy filed in the circuit court of Jackson county a petition seeking’ to annul the marriage into which he had been forced to enter.
The filing of this suit was published in the morning and evening papers of the 9th, but the summons was never served. About 4:30 on the evening of January 9th, Will Prince was seen walking around on the second floor of the new Ridge building, at and near the place where on the evening of the next day the killing took place. The same evening the defendant was also seen in the new Ridge building on the stairway between the second and third floor, from which place one could see into the office in which Kennedy was employed. That evening between five and six o ’clock the defendant met Steve O’Grady, a newspaper reporter on the Kansas City'World, at Ricksecker’s cigar store, at Ninth and Walnut, where she was waiting for a telephone mes,sage from some one, or else trying to call some one by telephone. She had a conversation with O’Grady, an acquaintance, and in this conversation O’Grady asked her what was the cause of the forced marriage, if she and Kennedy had been intimate. She said there had been no intimacy between them, but that Kennedy had been going with her and was about to marry another girl, and that she “had beat her to it, or had beat her time.” O’Grady asked her what she was going to do about the annulment suit and she answered “that her time would come to get even, or to get her revenge.” He asked her if it would be soon and she said it would.
On January 10th, Bert, Will and C. W. Prince left home at different times in the morning. Bert went to the new Ridge building some time between eight and eleven o ’clock on that morning. Will returned home at the noon hour and ate lunch with his sister. They left the house together or else joined each other shortly after and were seen walking together west on Eleventh street, between Park and Olive. When about midway between [111]*111these streets Will handed the defendant something which she retained. At Eleventh and Brooklyn the ■defendant got on an electric car, and as she did so her brother made some remark to her to which she replied, ‘‘All right.” This occurred about three o’clock. Will, went direct to his father’s pool hall in the Exchange building, to which place defendant came shortly after-wards. She veM into the pool hall and had a conversation with her father and her two brothers, Bert and Will. After which she and Will went out-into the hall and held a conversation for fifteen or twenty minutes, after which she left. At about 4:30 o’clock Bert appeared at the Fire Department headquarters on the east side of Walnut street, between Eighth and Ninth, one block north of the Ridge building. He left there, going south, across Ninth street, in the direction of the Ridge building. Between 4:30 and 5 o’clock he and the defendant were seen engaged in conversation in the hallway of the Ridge building on the third floor. They separated, she going to Dr. Cross’s office in the Rialto building, a block and a half east, while Bert took the elevator on the third floor, riding to the first floor, and went out of the Main street entrance. Sometime between 4:30 and 5 o’clock the defendant called at Dr. Cross’s office and told him she was not Mrs. Case Patten, whom she had represented herself to be on her previous visits, but that her name was Mrs. Kennedy; that the story she told him on the occasion of her last visit to the effect that she had gotten rid of her child by an abortion was not true, and that she was still in a pregnant condition. She requested the doctor to go to Mr. Kennedy’s office, and tell him that she was in the same condition that she had been in. The doctor at first refused to go, and said that he would telephone Mr. Kennedy to come to his office. He did telephone to Mr. Kennedy, but Kennedy informed him that he could not leave his office until after six o’clock. The defendant again requested the doctor to go and see Mr. Kennedy and [112]*112urged Mm to do so, saying that it would be a great favor, as the papers in the annulment sMt would be served that night, and then she added: “My father will make me fight this suit and every thing will come out. ” She also said in urging the doctor to go and see Kennedy, “I am afraid my father and brothers will hurt him.” “1 don’t remember which she said, harm or shoot him, or do some damage to him.” He asked her what was the great hurry of having the matter attended to that night, and she replied that “the papers will be served to-night, and it must be attended to this evening.” The defendant was in and out of the Doctor’s office three times that afternoon, and after he consented to go, she left, and he, after attending to some matters at his office, followed. It was about 45 minutes after her first call that the Doctor started from his office in the Rialto building for the Ridge building. He entered the Ridge bMlding at the AValnut street entrance, which is on a level with the third floor of the new Ridge building, and walked through the hall to the stairway leading from the third floor down to the second floor on which floor Mr. Kennedy worked. He met the defendant at the top of the stairs on the third floor, and stopped and conversed with her a moment. She said to him, “You go down and see him, and then I will come down. ’ ’ She, however, preceded Dr. Cross down the stairway and stepped back into the corridor towards the east, so she couldn’t be seen from the entrance of the office of the Merchants Dispatch Transportation Company, Dr. Cross came down the stairs, went to the' door of the office and asked for Mr. Kennedy, who was called to the door by Roland Butler, and he (Kennedy) stepped out into the hall. As Mr. Kennedy stepped out in the hall he was addressed by Dr. Cross, and just then Roland Butler, who was looking through a crack .in the door noticed the defendant approach Mr. Kennedy and Dr. Cross, unbuttoning her jacket. When she saw Butler she stepped back. Dr. Cross told Mr. Kennedy [113]*113what the defendant had requested him to tell him and just then the defendant stepped up to them. She said to Mr. Kennedy, “Wait a minute, I want to talk to you.” Kennedy replied, “I haven’t got anything to say to yon.” She then said, “Are you going to live with me?” and he answered, “No.” While these questions were being asked and answered, Dr. Cross turned to the south to go towards the elevator. Kennedy and the defendant had moved away a few steps east in the hall. Dr. Cross had gone not over ten feet when he heard the report of a revolver. When the defendant began to shoot, Kennedy turned towards the west and started for the door of the office, the defendant continuing to fire very fast. Tom Kennedy, the brother of the deceased, and Roland Butler, the stenographer, rushed out of the office as quickly as possible. Tom Kennedy grabbed the defendant just as she fired the last shot, and they fell to the floor, she uttering a scream as they fell. Just as Tom Kennedy grabbed Mrs. Kennedy he was struck from behind a blow by Will Prince, who appeared immediately upon the scene of the tragedy. Tom Kennedy sprang to his feet and grappled with Will Prince and with the assistance of two others, who had rushed out of the office, pushed him against the wall. Prince said to Tom Kennedy, “Who in the hell are you?” and Kennedy answered, “Yes, who in the hell are you?” to which Prince answered by saying, “I thought you were striking a lady.” The defendant then turned to the three men who were holding Will Prince struggling to get away, and said, “Turn that man loose, it was I who did the shooting.” No sign of recognition passed between the defendant and her brother. Prince was then released, as he was not recognized at the time, and left his hat, which had fallen off in the scrimmage, and ran up stairs to the third floor, down the hall, and out the Walnut street entrance. Kennedy got just inside the office, uttering the words, [114]*114“It wasn’t her gun that did it,” and fell dead. He had been hit six times, the number of shots fired. One of the shots entered from the front of his body, one from the side, two in the back, one pierced his ear, and the other struck his forehead. .
J. J. Mountjoy was standing in the east and west hallway on the third floor about thirty feet east of and facing the stairway leading from the third to the second floor at the time his attention was attracted to the shooting, and saw Will Prince struggling with those who were holding him, when he reached the top of the stairs on the third floor. Tomlinson and Kincaid, who were in a printing office within a few feet of the door, about fifty feet east of the place of the killing rushed out into the hall on hearing the reports of the pistol and saw Will Prince moving in a westerly direction towards Tom Kennedy.
The defendant stated in conversation with the police matron, Mrs. Patti Moore, after the shooting, that she went to the Ridge building to talk to the deceased; that he refused to talk to her, pushed or brushed her aside, and that she lost her temper and shot him. The defendant was visited that evening at the police station by her father and brother Bert. Will Prince claimed his hat when it was identified at the coroner’s inquest. Before the defendant was seen by her father and brother she told Mrs. Moore that she was afraid her father would not speak to her, but when her father and Bert came to the police matron’s room they and the defendant greeted each other pleasantly, conversed in low tones and laughed and smiled while talking. Her manner and appearance at the police station where she remained from Thursday evening to Saturday afternoon was cool and collected, and it was shown by the testimony of Mrs. Moore, who was the mother of eleven children, that the defendant suffered no miscarriage while in her charge, and showed no signs or symptoms of pregnancy. It was shown by the testimony of Dr. [115]*115Boarman, the jail physician, who saw the deféndant almost daily from January 12th to June 12th, that she suffered no miscarriage while in the county jail, and showed no signs or symptoms of pregnancy. This was in substance the case in chief made by the State. The defendant did not take the stand in her own behalf.
The evidence upon the part of the defense tended to show that Kennedy began paying attention to defendant about two years before the homicide, and under promise of marriage he debauched her, from the illicit intercourse between them she became pregnant, and that he had her go away but she returned. This was during the year 1899, but that thereafter early in the year 1900, he began to treat her with indifference, in consequence of which she became very sad, low-spirited, and cried a great deal. Upon investigation by her father he learned from her that Kennedy had maintained criminal relations with her under promise of marriage. Her father and brother Will Prince then compelled Kennedy, by threats of violence, to marry her, but he refused to live with her, and in a few days brought suit against her for an annulment of the marriage. She asked him to live with her if only for a short time until she could live her trouble down, and then was willing to let him obtain a divorce if he desired. This he refused to do. She continued to become more moody and worried. On Saturday, January 5th, she went down town. She came home and went to her room. When she was called for supper she did not respond. A servant went to her room and found her on the bed crying. In about half an hour the servant went back and found her very sick. A doctor was called who described her condition as follows: “She was ill and restless and complained of having lost sleep, with, dilated pupils. Her appearance was unusual; it was an unusual appearance.” She was confined to her bed until Tuesday; meanwhile a suit for [116]*116divorce had been filed by Mr. Kennedy. She came home about noon, went into the kitchen, laid her head upon the table, commenced crying and cried for half an hour. That night she was unable to' sleep, and talked of Kennedy and his wrong to her. The nest morning she did not get up early, and remained around home until after luncheon. She then dressed and went down town.
Learning of this suit she went to the office of Dr. Cross, and, while, she had stated to him on a former occasion that she was Mrs. Case Patten and thought she was pregnant, she stated to him that this was not so, that she was Mrs. Kennedy and wanted him to tell Kennedy that she said she was in the same condition that she had been all the time. On the day of the homicide and a few minutes before it occurred, she was in Dr. Cross’s office, and at her request he went to see Kennedy for her, when the homicide occurred as before stated.
Other facts will be hereafter stated in course of the opinion.
The court instructed for murder in the first and second degrees and manslaughter in the fourth degree.
I shall not undertake in this opinion to call attention to the many errors with which this record abounds, nor, to say that defendant is not guilty, under the facts. and law, of some criminal offense, but I shall try to satisfy the unbiased mind, however enormous the crime with which defendant stands charged, that she did not have a fair and impartial trial, but was manifestly convicted in utter disregard in many respects of the law in regard to criminal prosecutions.
In the first place, notwithstanding the statute (sec. 2627, R. S. 1899) provides that after the jury is impaneled. and sworn, “the prosecuting attorney must state the case and offer the evidence in support of the prosecution; second,"the defendant or his counsel may then state his defense and offer evidence in support thereof; third, the parties may then respectively offer [117]*117rebutting testimony, ” the prosecuting attorney was permitted to make two statements, an opening statement, and a reply statement to the statement in behalf of the defendant, and, in the latter, over the objection and exception of defendant, was permitted to make an assault upon defendant’s character, and to state, “If evidence in support of the contention suggested by defendant’s counsel is brought before you, the State in rebuttal will introduce along two lines: first will relate to the character and reputation of the defendant, a line of investigation unpleasant to those connected with criminal prosecutions. ... In reference to the first branch of rebuttal testimony to which I have referred it will be shown in evidence by reputable people that in the years ;prior to the time when the defendant in this case came ■into the life of the deceased, her reputation, her conduct and her course of life were such that she couldn’t have been led by him aside from the path of virtue.”
There had been no statement that defendant would be placed upon the witness stand to testify in her own behalf, nor was she, but even if she had been, unless she first put her character in issue by offering evidence of her good character, the prosecution could not have attacked it; “the reason being that such evidence is too likely to move the jury to condemnation irrespective of his actual guilt of the offense charged.” [3 Greenleaf on Evidence (16 Ed.), sec. 14, b; State v. Lapage, 57 N. H. 289-296; People v. Sharp, 107 N. Y. 427.] Citations are hardly necessary for support of this fundamental rule. These statements, made as they were with the approbation of the court, could but have led the jury to believe they were true, and were just as prejudicial as if they had been proven, and could but have from the very inception of the trial imbued the jury with the idea that defendant was for years prior to the time she formed the acquaintance of deceased of bad reputation for chastity. This of itself is sufficient to reverse this case.
[118]*118It is said that the court erred in permitting the introduction of testimony on the part of the State, for the purpose of showing a conspiracy between defendant, her father and brothers to kill Kennedy, they not being included in the indictment, and no such an averment contained therein. There is some conflict among the authorities upon this question. For instance, Mr. Wharton in his work on Criminal Evidence (9 Ed.), sec. 700, says: “It makes no difference as to the admissibility of the act or declaration of a conspirator against a defendant, whether the former be indicted or not, or tried or not, with the latter; for the making one a co-defendant does not make his acts or declarations any more evidence against another than they were before; the principle upon which they are admissible at all being that xhe act or declaration of one is the act or decía-' ration of all united in one common design, a principle which is wholly unaffected by the consideration of their being jointly indicted.”
The same rule seems to be announced in-Bishop’s New Criminal Procedure, secs. 1248, 1249; 3 Greenleaf on Evidence (13 Ed.), sec. 92.
On the other hand, it was held in State v. Carroll, 31 La. Ann. 860, that the conversations of an accused, on trial for murder, after the alleged killing, with a person jointly indicted for the murder, are not admissible in evidence when the indictment does not charge conspiracy. The court observed: “It is too elementary to require reasoning, that if the indictment did not charge a conspiracy, the conversations were not admissible.” While we are constrained'to hold in accordance with the rule announced by Mr. Wharton, we do so very reluctantly, for certainly the better practice is, to make all of the conspirators parties defendant to the indictment, or to aver therein the existence of such conspiracy, the parties thereto if known, and their purpose, for then the defendant upon trial will have reason to anticipate what evidence will, or may be, offered [119]*119against him, and to prepare to meet the same; otherwise he will not.
A conspiracy is a combination by two or more persons to do a thing criminal or unlawful in itself, and may be proven by facts and circumstances, if sufficient, and when shown to have existed, then the statements and acts of each of the conspirators made or done in pursuance of the common design may be proven against the others upon a prosecution against them for the commission of the crime, but nothing said or done by them after the crime has been accomplished is admissible. But to justify the admission of such evidence, the proof must show prima facie in the first place in the opinion of the judge that the conspiracy existed, and thereafter the question of the actual existence of such conspiracy submitted to the jury. [State v. Walker, 98 Mo. 95; State v. McGee, 81 Iowa 17, and authorities cited.]
It will not be contended that the evidence did not show a conspiracy between defendant, her father and brothers to compel Kennedy to marry defendant, and to kill him if he refused to do so, nor that there was not a conspiracy between defendant and her brother William to kill him if he refused to live with her after such marriage, nor that the homicide was not committed in pursuance of the conspiracy with William; hence, his'acts and statements with respect thereto after such conspiracy was formed, up to and at the time of the homicide with respect thereto, were admissible in evidence against her. But I contend that there was no such conspiracy as this last one either expressed or implied between defendant, her father and her brother Bert Prince, or between defendant and either of them, and that, therefore, their statements and acts, whatever they may have been, were inadmissible in evidence against her. To establish the conspiracy between defendant, her father, C. W. Prince, and Will Prince, the State was permitted to show by one Fred S. Bullene, a newspaper reporter, that he was in the recorder’s office when [120]*120Kennedy, defendant, her father, and her brother Will Prince came in, and he thought Kennedy asked for a marriage license ; that the clerk started to issue it when Kennedy got up and started to come over where witness was; that he had a pen in his hand and started to take notes. That as he started towards witness, C. W. Prince stepped up in between Kennedy and himself, and with a motion of his hands to his side either touched him or Kennedy, shoving them apart. That C. W. Prince then said: “No you don’t; this isn’t over yet.’ That Kennedy then said, “All right.” Witness then testified to the facts attending the ceremony of marriage.
The objection to the admission in evidence of these statements by Bullene was upon the grounds “that it was incompetent, irrelevant and immaterial,” but the objection was overruled and exceptions saved. But whether the objection was specific enough or not, the remark of O. W. Prince, “No you don’t, this isn’t over' yet,” had no reference whatever to anything other than the marriage, and can not be tortured into anything tending to show a conspiracy between defendant and him and defendant’s brother Will, to kill Kennedy it he did not live with defendant after he was married to her. The preliminary steps to the marriage were theu being arranged, and the expression and acts of C.'W. Prince could not by any fair construction have had reference to anything else.
Another circumstance relied upon as tending to show a conspiracy between defendant and her father to kill Kennedy was that after the marriage he presented a. bill to Kennedy for $40 for one month’s board of his wife, which Kennedy refused to pay, and upon being asked by defendant’s father, “Are you going to pay it?” and deceased said, “No,” to which the father replied, “I will show you what a low-down son-of-a-bitch you are; you don’t deserve to live.” Defendant was not present at the time of this controversy, nor is [121]*121it pretended that she knew anything about the bill, or its presentation, or that she was in anywise concerned in it, and the conversation between Kennedy and C> W. Prince with respect thereto was clearly inadmissible against defendant; nor did the remark of C. W. Prince to Kennedy have any tendency to show a conspiracy between him and defendant to kill Kennedy, or even a threat by C. W. Prince to do so himself.
Still another circumstance relied upon by the State as tending to show a conspiracy between defendant, her father, and ber two brothers was that on the evening of the killing and shortly prior thereto, Will Prince went to his father’s pool room where defendant soon joined him, and that she, her father and two brothers bad a conversation, after which she and Will went into the hall and held a few minutes conversation in which a witness stated, “They seemed to be very much interested,” after which, some where between 3:30 and four o’clock, she left.' There was no evidence of any whispered conversation as claimed by the State between defendant and Will, nor as to what the conversation was about. But it will scarcely be contended, even if it were proven that defendant and her father and brothers were engaged in a private conversation, that such an occurrence is unusual between persons occupying such a relation, or that it could be inferred therefrom that they were conspiring to kill Kennedy. These and other facts not tending in any way to show that C. W. Prince and Bert Prince had conspired with defendant to kill Kennedy, was the basis for the admission in evidence against defendant of the statement of Bert Prince, when reading an account of the suit in an evening paper by Kennedy against defendant for annulment of the marriage, “that was a shotgun wedding, and you will read something a good deal worse than that;” and of other statements made by him, and also of the statement of a witness for the State by the name of Costello, who testified that on the evening of the homicide and just [122]*122after it occurred Ire met C. W. Prince at the entrance to the Ridge building, and spoke to him; that about that time somebody came running out of the building and said there was a woman up there shooting her husband, whereupon witness said to Prince, “That is your daughter up there shooting that fellow Kennedy, her husband,” to which Prince replied: “That is who it is,, keep still.”
When the evidence of this last witness was offered it was objected to by counsel for defendant upon the grounds that it was “incompetent, irrelevant, immaterial; there is no charge of any conspiracy in the indictment ; it is not part of the res gestae, and there had not been any evidence of any nature tending to show a conspiracy.” The court observed: “The question of conspiracy is a question of fact, that is of course-left to the jury; is isn’t necessary for the indictment to charge a conspiracy in order for it to be proven. . . . It isn’t offered by the State as a part of the res gestae. The question for the jury is whether a conspiracy is proven or not. I will overrule the objection.” Defendant saved exception. As there was no-conspiracy shown to exist, as we contend, between defendant, her father and Bert Prince, or between her and either of them to kill Kennedy, it was error to admit the statements made by them or of their acts at any time with respect to the homicide in evidence against her. If the evidence showed them to be guilty of any connection with the homicide, it was that of accessory or principals, but certainly not as conspirators. It was upon the theory alone that they had conspired to take the life of Kennedy that the testimony with respect to the statements and acts of C. W. and Bert Prince.were admissible, which tended to show that the homicide was committed with malice and deliberation, and defendant guilty of murder in the first degree, when but for such evidence defendant might have been found guilty of manslaughter, hence, prejudicial to her.
[123]*123But the conversation between C. W. Prince and this witness was inadmissible even though C. W. Prince was a conspirator to the homicide, because Kennedy had then been killed and the conspiracy, if there ever was one, ended, and anything said by Prince thereafter with respect to the homicide was inadmissible as evidence against the defendant. [3 Greenleaf on Evidence (16 Ed.), sec. 94.] It was not offered as res gestae.
The State was permitted to introduce, over the objection and exception of defendant, evidence in chief that in the summer of 1900, one Case Patten, a professional baseball player, came to Kansas City as one of the pitchers on the local team, and that he and defendant soon thereafter became acquainted, and that he called upon her a few times at her home, that she called for him on several occasions where he boarded, that they walked together on the streets,’ and were out riding together upon one occasion. That she wore his gold watch and chain during the summer of 1900, and she loaned him her diamond ring, which he wore. That in the latter part of September or the early part of October, the defendant called to see Case Patten at his boarding house one evening and arrangements were made that Patten should call at her home on the next morning and return to her her ring. This Patten did not do, as he got out of town that night without letting the defendant or her family know of his departuré. On the 15th of October the defendant went to the police station in Kansas City and stated to Andy O’Hare, a city detective, that Case Patten had left Kansas City with a diamond ring belonging to her, and requested that a letter be written to the chief of police of West-port, New York, where Patten lived, requesting that the ring be secured and returned. In defendant’s presence the following letter was written by Mr. Hickman, the secretary of the chief:
[124]*124“Kansas City, Mo., Oct. 15, 1900.
“Chief of Police, Westport, N. Y.
“Dear Sir: Miss Lnln Prince called at my office this morning and reported that last July she loaned a small diamond ring to Case Patten, who was a ball player with' onr local clnb the last year, and that he left for his home (which is yonr city) Saturday night, taking the ring with him? Will you kindly see Mr. Patten and get the ring and express it to me?
“Thanking you in advance, I am, very truly,” etc.
That the defendant called at the police station at police headquarters to inquire in reference to this matter, and finally, no reply having been received, she told O’Hare that she was going to Westport, New York, and see Patten and get her ring. 0’IIare asked her the value of the ring and when the defendant told him it was worth about $20 he suggested to her that it would be cheaper to let him keep it. That the defendant replied that she intended to go and see Patten and get the ring back even if it cost her several times its value. That she left the city for Westport, New York, her brother Will knowing of her departure and the reason of it. That he tried to dissuade her from the trip, and offered to buy her another ring, but she refused the offer. That shortly after her return she met O’Hare, showed him a ring and told him she had been to West-port, New York, and had seen Patten and had recovered the ring.
The admission of this evidence, if it be entitled to be called such, is attempted to be justified upon the ground that it was competent to go to the jury to disabuse their minds of the belief that the mind of defendant had been deranged by brooding over the faithlessness of deceased; that it showed that deceased was not a suitor, but had been a visitor, and that during the summer of 1900 the defendant was the constant associate of another young man, Case Patten, to whom she had loaned her ring; that she was wearing his watch, [125]*125was seeking Ms company, and made a trip to New York to get her ring. That it was entirely competent to prove her acts and statements to show she was perfectly rational; that' her conduct was that of a sane, and- not that of an insane person, as the defendant intimated she was. But this position is absolutely untenable, for the record shows that it was not offered for any such purpose, but was offered for the sole purpose of besmirching defendant’s character.. It was introduced in chief, when it could not properly have been introduced under any circumstances otherwise than in rebuttal of evidence offered by defendant as to good character [State v. Gabriel, 88 Mo. 631; State v. Creson, 38 Mo. 372; Whar. on Crim. Evi. (8 Ed.), secs. 62, 63; People v. Bodine, 1 Denio 281], and as defendant did not testify there was nothing to rebut.
Great stress was placed upon the fact that Case Patten was a professional baseball player, both in the opeMng statement of the prosecuting attorney to the jury, and throughout the trial. For instance, the following is a sample of the questions that were permitted to be asked over the objection and exception of defendant:
“ Q. I will ask you to state if you saw the defendant and Case Patten, this baseball pitcher, together in the summer and fall of 1900? A. I have, walking up and down Olive street.”
And as if to make that fact more prominent and, ■ by innuendo, that he was a disreputable character, the - court took it upon itself to ask a witness for the State the following questions:
“He played with a professional baseball team?”
Witness: “Yes, sir.”
The Court: “They went on trips sometimes?”
Witness: “Yes, sir.’’
The Court: “Did he play on Manning’s team here ?’’
Witness: “Yes, sir. They went out in Kansas for a trip.”
[126]*126Can it be thought for a moment that, if it had been some gentleman of high character, who was engaged in any unquestionable business, any such questions would have been ashed the witness ? The question furnishes its own answer. These facts threw no light whatever upon the homicide, for certainly defendant’s flirtation with Patten could not, and did not furnish a motive for the homicide, and no one will so contend, so that, it must follow, they were inadmissible for any purpose.
Moreover, when the facts connected with this episode are considered in connection with the testimony of Dr. Cross, hereafter discussed, also introduced in chief by the prosecution, that she was pregnant by Patten, it is apparent that the purpose was to assault defendant’s private character by proving specific acts, and by innuendoes, which was clearly erroneous and prejudicial. But it is said the facts connected with the Patten episode were properly admitted in evidence to prove hex acts and statements to show she was perfectly rational; that her conduct was that of a sane and not an insane person as the defendant insisted she was. But there is not one word in this immense record of over six hundred and fifty typewritten pages which tends to show that it was introduced or admitted in evidence for any such purpose, nor was it, but that it was admitted for the sole purpose of showing defendant to be guilty of unchaste conduct, and to attack her character by specific acts of immorality and as the associate of a disreputable person, clearly appears.
The facts with respect to defendant’s association and connection with Case Patten, and everything connected therewith and growing out of it, had nothing whatever to do with the homicide, either directly or indirectly, and threw no light upon it, nor the condition of defendant’s mind at the time of the homicide, and were not, as it seems to us, within the range of legitimate inquiry, but were even beyond what might be [127]*127properly called the boundary line of even the shadow .of evidence, and were improperly admitted and prejudicial to defendant.
■ So with respect to the contents of the petition for the annulment of the marriage which counsel for the State say in their brief was read to the jury. They were nothing more than the statements of deceased, which were not competent evidence for any purpose or from any standpoint, and no more so than if the statements had been merely verbal, which no one will seriously contend would have been permissible.
It is also said that the court erred in permitting Dr. Cross, a physician who prescribed for defendant, to testify over her objections to statements made to him during that time. The following occurred:
‘ ‘ Q. Before you proceed to that, did you make an examination? A. Yes, sir.
“Q. Did she give you a history of her condition? A. Simply a history that led me to believe.
‘ ‘ Q. What did she say ?
“Mr. Nearing: Wait a minute; we object to that as incompetent and privileged conversation.
“The Court: You are asking what the defendant said?
“Mr. Hadley.: Yes, sir.
“The Court: Overruled.
“Q. I will ask you to state to the court whether ■or not she made any statement to you on the occasion of the third visit, whether or not she was then in a pregnant condition?
“Mr. Nearing: Objected to as incompetent, irrelevant and immaterial, and privileged communication.
“The Court: That isn’t necessarily privileged communication.
‘‘ The. Court: I will ask you the question, you can save your exception to it: When she came to you did she call for treatment for any purpose with reference to her pregnancy?
[128]*128“Mr. Nearing: Objected to as incompetent, irrelevant and immaterial and privileged communication.
“The witness: I can’t say; she asked treatment for sleeplessness, but not for pregnancy.
“The Court: You may state whether at that time she said she was pregnant or not.
“Mr. Nearing: Objected to as incompetent and immaterial and privileged communication.
“The witness: I asked her if she was all right otherwise; she said all right.
"“Mr. Nearing: Exception, and ask that it be stricken out for the same reason.
‘ ‘ The Court: Overruled.
“Mr. Nearing: Exception.
“Mr. Hadley: Answer the question.
“The witness: I understood from her she was not.
“Mr. Hadley: Not what?
“The witness: Pregnant.
“Mr. Woodson: We move to strike it out.
“The Court: Strike out what?
“Mr. Woodson: He asked her if she was all right otherwise, and she said, yes, sir.
“The Court: I am ruling it is not privileged for her to say whether she was pregnant or not; I hold that is not a privileged communication.
“Mr. Woodson: Exception.
“The Court: That is a communication that may be made to anybody.
“Mr. Woodson: Exception.
“Q. I will ask you to state to the jury whether or not she told you about having been treated — about having had an abortion performed by another physician in the city.
“Mr. Nearing: Objected to as incompetent, irrelevant, immaterial and privileged communication.
“The Court: Objection overruled.
“Mr. Nearing: Exception.
[129]*129“Q. The statement made to you on the occasion of her third visit, namely, that she wasn’t in a pregnant condition, was it true or not true?
“Mr. Nearing: We object to that.
“The Court: Overruled; tell what she said.
“Mr. Nearing: Exception.”
It will be observed that no exceptions were saved to the action of the court in overruling a number of objections to questions propounded to this witness, but beginning with the question propounded by the court and beginning with the following language, “I will ask you the question, you can save your exceptions,” and from that on the objections were timely made and exceptions duly saved.
Section 4659, Revised Statutes 1899, provides that “a physician or surgeon shall be incompetent to testify, concerning any information which he may have acquired from any patient while attending him in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or do any act for him as a surgeon. ’ ’
We take it that the physician or surgeon must, as a general rule, under the statute, determine for himself whether the information acquired by him from his patient is necessary, for him to prescribe for such patient, and in the absence of some showing to the contrary, as in the case at bar, the presumption must be indulged that the information in question was necessary for that purpose; otherwise, he would not desire it. To rule otherwise would be to usurp the prerogative of a physician, learned in his profession, which we have no inclination or right to do. We, of course, do not mean to say that we will not pass upon questions which are apparent to the ordinary observer, and to one not learned in the sciences of medicine and surgery which have nothing whatever to do with the case under consideration, and hold them not privileged.
[130]*130In Gartside v. Conn. Mutual Life Ins. Co., 76 Mo. 446, it is said: “Not only the statements from the patient, but the information obtained through his observation or examination while attending the patient in a professional capacity, are privileged.”
In the case of Edington v. Mutual Life Ins. Co., 67 N. Y. 194, the court said: “The statute is very explicit in forbidding a physician from disclosing any information received by him which is necessary to enable him to prescribe for a patient under his charge. It is a just and useful enactment, intended to give protection to those who were in charge of physicians from the secrets disclosed to enable them to properly proscribe for diseases of the patient. To open the door to the disclosure of secrets revealed on the sick bed, or when consulting a physician, would destroy confidence between the physician and the patient, and, it is easy to see, might tend very much to prevent the advantages and benefits which flow from the confidential relationship. The point made, that there was no evidence that the information asked for was essential to enable the physician to prescribe is not well taken, as it must be assumed from the relationship existing that the information would not have been imparted except for the purpose of aiding the physician in prescribing for the patient. Aside, however, from this, the statute in question being remedial, should receive a liberal interpretation, and not be restricted by any technical rule. ’ ’
No error was committed by the exclusion of the evidence of the witnesses for defendant, Lewis and Kuhn, unless what they testified to was part of the res gestae (State v. Curtis, 70 Mo. 594; State v. Nocton, 121 Mo. 537; State v. Punshon, 124 Mo. 457; State v. Fitzgerald, 130 Mo. 407; State v. Bauerle, 145 Mo. 1), and we do not think it was.
While the authorities all hold that “it is for the court, in the first place, to say whether there is any [131]*131evidence of a conspiracy, and for the jury to determine whether there was one, and its objects” (State v. Walker, 98 Mo. 95; State v. McGee, 81 Iowa 17; 2 Thompson on Trials, sec. 2455), and the conrt so announced from the bench; the case was tried by the State upon the theory that there was a conspiracy between defendant, her father, and brothers, Bert and Will Prince; to force the deceased to marry her, and to kill him if he did not do so and .thereafter live with her, and the ease is so presented in this court, yet the trial court ignored this theory of the case in the instructions; in fact, did not say one word about a conspiracy, but usurped the province of the jury in that regard, regardless of the law governing the ease.
In State v. McGee, supra, it is said: “The rule is as to a conspiracy, to justify such evidence, that the proof must show prima facie, in the opinion of the judge, its existence. [1 Greenl., Ev., sec. 111; Rosc. Crim. Ev. (7 Amer. Ed. 1874), secs. 417, 418; State v. George, 7 Ired. 321; Card v. State, 9 N. E. (Ind.) 591.] The question of the sufficiency of such proof is one peculiarly for the determination of the trial court. [Card v. State, supra.] It should be borne in mind that the question of the actual existence of a conspiracy is one to be finally submitted to the jury, and that the finding or conclusion of the trial judge is only a basis for the admission of evidence.”
The court should have instructed the jury in effect as was done in Hardin v. State, 4 Tex. App. 355, that is, if they believe from the evidence that the State has proven a conspiracy between the defendant, her father and brothers, or with any of them acting with her, to force Kennedy to marry her, and to take his life if he refused to do so, and to live with her thereafter, and that she and her father and brothers, or any of them, acting with her, did so force Kennedy to marry her, and did so take the life of Kennedy because he thereafter refused to live with her, then in considering the guilt [132]*132or innocence of the defendant, yon may take into consideration every act and declaration of each member of the confederacy, in pursuance of the original concerted plan, and with reference to the common object, which has been given in evidence before you. [2 Thompson on Trials, sec. 2455.]
As the court announced from the bench that “the question of conspiracy is' one of fact the jury has to decide, ’ ’ and of its own volition instructed them it was wholly unnecessary for defendant to ask it to instruct on the question of conspiracy, or, after the instructions were read, to call its attention to the fact that it had failed to do so, because it can not under such circumstances be presumed that it was an oversight that it did not do so. As to whether or not there was a conspiracy between defendant and others to kill Kennedy was a question to be found in the affirmative by the jury before the statements and acts of the conspirators could be considered in evidence against defendant, and the court should have so instructed the jury, whether asked to do so or not (sec. 2627, R. S. 1899), and in failing to so do committed error.
For these intimations the judgment should be reversed and the cause remanded.
Fox, J., concurs; Gantt, P. J., dissents.