GANTT, P. J.
At the March term, 1902, of the Lawrence Circuit Court, the prosecuting attorney of said county filed an information charging the defendant, John Vinso, with murder in the first degree, of ’William Walter Ward, at said county on October 13, 1901.
On October 23, 1901, the defendant had been committed on his preliminary examination to await the action of 'the circuit court, and on October 26, 1901, the prosecuting attorney filed an information in the clerk’s office, charging the defendant with murder, and at the November term, 1901, defendant was duly arraigned thereon, and the cause on defendant’s application was continued to the March term, 1902.
At the March term, 1902, the prosecuting attorney, by leave of the court, filed the new information on which defendant was tried and convicted. As this information is in all respects sufficient, it is not deemed necessary to copy it in this statement.
The defendant filed his motion to quash this information on the ground that it was filed without warrant or authority of law, which motion was overruled, and defendant saved his exception. The defendant was then duly arraigned on said second information.
The testimony discloses that William Walter Ward was a young man about twenty-four years old. He was a switchman on a railroad at Dallas, Texas, at the time he was killed by defendant, but had been to Missouri on [583]*583a visit to his father and mother, who resided at or near Monett. It appears that he came from Texas about Thursday or Friday preceding his death on Sunday, October 13,1901. He had come to Pierce City that day, between one and two o’clock, to visit his brother. He went up into the city and was gone about thirty minutes, and the remainder of the time he spent with his brother at his house and then walked over with him to the station to return to Monett. A short time after deceased reached the depot and while talking to his brother, Harry Kirk and others, the defendant came walking to the station from the east. A freight train soon' ran into the station on the main track, headed east. The defendant walked along by the train with his right hand under his coat. As he walked by the deceased and his companions, he said, “I can whip any G — d d — n son of b — h on the platform,” and one of the party remarked to Mr. Kirk, “Kirk, he means that for you.” Defendant walked on, turned, and came back by the crowd, repeating the challenge, and deceased said, “You didn’t mean that for me?” The defendant answered, “Any d — n s — n of b — h.” Deceased then asked him, “What have you got under your coat?” and defendant said, “I have got a 44 and can use it,” and with that he stepped back and threw a rock, which struck William W. Ward, the deceased, on the side of the head, crushing the skull, and inflicting a wound from which he died the next morning, about 3 o’clock. . He was never conscious after receiving the wound from the rock.
Immediately after throwing the rock at Ward defendant was surrounded by the bystanders, when he drew a knife and forced his way out and fled. At the time Ward received the fatal wound he was standing with his hands in his pockets, and according to the great weight of evidence was making no demonstration of violence toward defendant.
Defendant testified in his own behalf. According to his story, something like three-quarters of an hour prior to the homicide he met his uncle, George Tate, the deceased Ward, and another man, and his [584]*584uncle said lie believed he would whip defendant just for fun, and deceased said to Tate, ‘ ‘ Go get him; ’ ’ that he backed off and finally his mother got between them and took defendant home. He had never seen Ward, the deceased before. He says he was-afraid Tate would thrash him, as he had done once before, about a year prior to this time, and concluded he would take the first train out of Pierce City for Newton, Kansas, where he had a brother living. He went over to the station to take a train west, and as he went, he got the rock with which he afterwards killed Ward. He came up on the station, saw Ward standing talking to his crowd, and concluded he would run a bluff on him; “thought'he wouldn’t jump on me. I said I was the best man in’town. No one made any reply at first, but after a little Ward said, ‘ I can whip three like you, ’ and I made him no answer. And then deceased said, ‘I used to whip two or three like you before breakfast,’ and I said, ‘You never did whip a man like me,’ and he said, ‘I’ll show you,’ and started towards me, and I had a rock and he stepped two or three steps towards me, and I throwed at him, and didn’t know whether I hit him or not. ... I was scared of him because I had seen him with Tate and the other fellow, and I didn’t know whether he had a gun or not.”
Waters, one of the two men who were with Tate that afternoon, testified that a man by the name of Forbes was the third man with them, and not the deceased, and that Tate instead of seeking a fight with defendant, took him home to keep him out of a fight with some other young men.
George Tate also testified that Forbes was the third man in his party that afternoon when the wordy altercation with defendant took place, and not Ward, the deceased. Indeed, the evidence is conclusive that the deceased had nothing to' do with the brawl between defendant and his uncle, George Tate, and that that difficulty had nothing to do with the homicide.
Other facts may be noted if necessary.
[585]*585I. The right of the prosecuting attorney to file a' new information is challenged.
If this prosecution had been by indictment and the first indictment .quashed on the motion of the prosecuting attorney, or defendant, for some defect, no doubt can be entertained that the same grand jury, if still in session, or a subsequent grand jury, might have preferred a new indictment, for such has been the unvarying rule wherever the common law obtains.
Equally well settled is the rule that a grand jury may prefer a second indictment while the first is still pending, and the pendency of the first, unquashed by any formal order of the court, is no ground for abatement or bar to further prosecution. [State v. Eaton, 75 Mo. 589; State v. Goddard, 162 Mo. 223; State v. Melvin, 166 Mo. 571; 1 Chitty’s Crim. Law, 477; Wharton’s Crim. PL and Pr., sec. 452.]
Under section 12 of article 2 of our Coustitution as amended in 1900, “prosecutions for felony may be either by indictment or information, as concurrent remedies.” If, as it is everywhere ruled, a new indictment may be preferred, pending another, and even after arraignment, and issue joined, what principle of proper procedure would deny the right of the prosecuting attorney to file a new information? As said in Kalloch v. Superior Court, 56 Cal. loe. cit. 236: “Each is but an accusation, in legal form, of the offense with which the prisoner stands charged, and for which he is to be placed on trial.” No privilege of the prisoner is taken away. He is entitled to a copy of the information before he pleads and every constitutional guarantee is vouchsafed to him that he would have in case of a new indictment preferred had the proceeding originally been by indictment. In neither is he entitled to notice of the intention to prefer a new indictment, nor to file a new information.
While the point was not raised in the recent case of State v. E. Russell Bartlett, 170 Mo. 658, decided December 16, 1902, it was in effect held by Sherwood, J., arguendo, that the prosecuting attorney could not file
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GANTT, P. J.
At the March term, 1902, of the Lawrence Circuit Court, the prosecuting attorney of said county filed an information charging the defendant, John Vinso, with murder in the first degree, of ’William Walter Ward, at said county on October 13, 1901.
On October 23, 1901, the defendant had been committed on his preliminary examination to await the action of 'the circuit court, and on October 26, 1901, the prosecuting attorney filed an information in the clerk’s office, charging the defendant with murder, and at the November term, 1901, defendant was duly arraigned thereon, and the cause on defendant’s application was continued to the March term, 1902.
At the March term, 1902, the prosecuting attorney, by leave of the court, filed the new information on which defendant was tried and convicted. As this information is in all respects sufficient, it is not deemed necessary to copy it in this statement.
The defendant filed his motion to quash this information on the ground that it was filed without warrant or authority of law, which motion was overruled, and defendant saved his exception. The defendant was then duly arraigned on said second information.
The testimony discloses that William Walter Ward was a young man about twenty-four years old. He was a switchman on a railroad at Dallas, Texas, at the time he was killed by defendant, but had been to Missouri on [583]*583a visit to his father and mother, who resided at or near Monett. It appears that he came from Texas about Thursday or Friday preceding his death on Sunday, October 13,1901. He had come to Pierce City that day, between one and two o’clock, to visit his brother. He went up into the city and was gone about thirty minutes, and the remainder of the time he spent with his brother at his house and then walked over with him to the station to return to Monett. A short time after deceased reached the depot and while talking to his brother, Harry Kirk and others, the defendant came walking to the station from the east. A freight train soon' ran into the station on the main track, headed east. The defendant walked along by the train with his right hand under his coat. As he walked by the deceased and his companions, he said, “I can whip any G — d d — n son of b — h on the platform,” and one of the party remarked to Mr. Kirk, “Kirk, he means that for you.” Defendant walked on, turned, and came back by the crowd, repeating the challenge, and deceased said, “You didn’t mean that for me?” The defendant answered, “Any d — n s — n of b — h.” Deceased then asked him, “What have you got under your coat?” and defendant said, “I have got a 44 and can use it,” and with that he stepped back and threw a rock, which struck William W. Ward, the deceased, on the side of the head, crushing the skull, and inflicting a wound from which he died the next morning, about 3 o’clock. . He was never conscious after receiving the wound from the rock.
Immediately after throwing the rock at Ward defendant was surrounded by the bystanders, when he drew a knife and forced his way out and fled. At the time Ward received the fatal wound he was standing with his hands in his pockets, and according to the great weight of evidence was making no demonstration of violence toward defendant.
Defendant testified in his own behalf. According to his story, something like three-quarters of an hour prior to the homicide he met his uncle, George Tate, the deceased Ward, and another man, and his [584]*584uncle said lie believed he would whip defendant just for fun, and deceased said to Tate, ‘ ‘ Go get him; ’ ’ that he backed off and finally his mother got between them and took defendant home. He had never seen Ward, the deceased before. He says he was-afraid Tate would thrash him, as he had done once before, about a year prior to this time, and concluded he would take the first train out of Pierce City for Newton, Kansas, where he had a brother living. He went over to the station to take a train west, and as he went, he got the rock with which he afterwards killed Ward. He came up on the station, saw Ward standing talking to his crowd, and concluded he would run a bluff on him; “thought'he wouldn’t jump on me. I said I was the best man in’town. No one made any reply at first, but after a little Ward said, ‘ I can whip three like you, ’ and I made him no answer. And then deceased said, ‘I used to whip two or three like you before breakfast,’ and I said, ‘You never did whip a man like me,’ and he said, ‘I’ll show you,’ and started towards me, and I had a rock and he stepped two or three steps towards me, and I throwed at him, and didn’t know whether I hit him or not. ... I was scared of him because I had seen him with Tate and the other fellow, and I didn’t know whether he had a gun or not.”
Waters, one of the two men who were with Tate that afternoon, testified that a man by the name of Forbes was the third man with them, and not the deceased, and that Tate instead of seeking a fight with defendant, took him home to keep him out of a fight with some other young men.
George Tate also testified that Forbes was the third man in his party that afternoon when the wordy altercation with defendant took place, and not Ward, the deceased. Indeed, the evidence is conclusive that the deceased had nothing to' do with the brawl between defendant and his uncle, George Tate, and that that difficulty had nothing to do with the homicide.
Other facts may be noted if necessary.
[585]*585I. The right of the prosecuting attorney to file a' new information is challenged.
If this prosecution had been by indictment and the first indictment .quashed on the motion of the prosecuting attorney, or defendant, for some defect, no doubt can be entertained that the same grand jury, if still in session, or a subsequent grand jury, might have preferred a new indictment, for such has been the unvarying rule wherever the common law obtains.
Equally well settled is the rule that a grand jury may prefer a second indictment while the first is still pending, and the pendency of the first, unquashed by any formal order of the court, is no ground for abatement or bar to further prosecution. [State v. Eaton, 75 Mo. 589; State v. Goddard, 162 Mo. 223; State v. Melvin, 166 Mo. 571; 1 Chitty’s Crim. Law, 477; Wharton’s Crim. PL and Pr., sec. 452.]
Under section 12 of article 2 of our Coustitution as amended in 1900, “prosecutions for felony may be either by indictment or information, as concurrent remedies.” If, as it is everywhere ruled, a new indictment may be preferred, pending another, and even after arraignment, and issue joined, what principle of proper procedure would deny the right of the prosecuting attorney to file a new information? As said in Kalloch v. Superior Court, 56 Cal. loe. cit. 236: “Each is but an accusation, in legal form, of the offense with which the prisoner stands charged, and for which he is to be placed on trial.” No privilege of the prisoner is taken away. He is entitled to a copy of the information before he pleads and every constitutional guarantee is vouchsafed to him that he would have in case of a new indictment preferred had the proceeding originally been by indictment. In neither is he entitled to notice of the intention to prefer a new indictment, nor to file a new information.
While the point was not raised in the recent case of State v. E. Russell Bartlett, 170 Mo. 658, decided December 16, 1902, it was in effect held by Sherwood, J., arguendo, that the prosecuting attorney could not file [586]*586a new information in a county other than that in which the offense was committed when a change of venue had been granted, but it was said that a new indictment could only be preferred in the county where the crime was charged to have been perpetrated, so likewise the prosecuting attorney was limited in his right to file a new or amended information to the original county, but that he could proceed by a new information was clearly conceded. At common law the right to amend, even after plea pleaded, was well settled.
In King v. Harris et ah, 1 Salkeld 47, Ch. J. Holt in a perjury case said: “As to mending after plea pleaded there is no great matter in that; after a record has been sealed up, I have known it amended, even just as it was going to be tried. ’ ’
In Rex v. Wilkes, 4 Burr. 2527, all the precedents as to the amendment of informations was brought under review by Lord Mansfield, and the conclusion reached that at common law an information was amendable. In the course of his opinion he asks, “And why should it not be amended? If it had not been amended, the Attorney-General would have dropped this information, if he thought there was a slip in it, and have brought another. And this would have been more inconvenient to the defendant, and have harassed him more; he would have no benefit, and more vexation. This amendment avoids delay, and saves expenses. . . . There is a great difference between amending indictments and amending informations. Indictments are found upon the oaths of a jury; and ought only to be amended by themselves; but informations are as declarations in the King’s suit. An officer of the crown has the right of framing them originally; and may, with leave, amend in like manner as any plaintiff may do.”
Now, it is obvious from the whole context of his opinion that Lord Mansfield recognized two methods of procedure by the crown officer. He could elect to file an entirely new information, or he could ask leave of the court to amend by interlineation or erasure, the information already filed, and of course in the latter [587]*587case, especially after issue joined, notice should be given defendant of the amendment. In this case the prosecuting attorney had elected to file an entirely new information, and we have no doubt whatever of his right so to do, or of the propriety of the decision overruling the motion to quash, based on the ground that it was not allowable to amend an information. In State v. Kyle, 166 Mo. 287, we held that “information,” as used in our Constitution, means the common-law information, and in the absence of statutory provisions to the contrary, the common-law practice prevails, and we have seen amendments proper were allowed at common law as a matter of course at any time before trial. [State v. White, 64 Vt. 372.]
II. In the brief of counsel it is urged that incompetent evidence was admitted on behalf of .the State as to a “difficulty between defendant and one Williams, subsequent to the difficulty with deceased.” There is testimony in the repord of a quarrel with a young man named Williams prior to the homicide, which George Tate stopped by taking defendant home. If this was the evidence no objection or exception was taken to it. .If, however, counsel refers to what occurred between defendant and Kelley when Kelley and others attempted to apprehend defendant immediately after he had struck deceased, we are clear no error was committed. It was a part of the res gestae and admissible as evidence of his effort to escape. The evidence simply was that as soon as he had knocked Ward down, the bystanders, Kelley and others, started to close in around defendant, and he drew his knife, and thus cleared his way, and ran away.
III. The position is advanced that there is no evidence of murder in the first degree; in a word, “no deliberation.”
In State v. Fairlamb, 121 Mo. loc. cit. 144, it was said: “It is not necessary under our statute in order to constitute murder in the first degree that the murder should be committed by means of poison, or by lying in wait, or that it shall be committed in the perpetration [588]*588or attempt to perpetrate arson, rape, robbery, burglary, or mayhem, but any kind of -willful, deliberate and premeditating killing is murder in the first degree. ’’ [State. v. Chas. Ellis, 74 Mo. 207.]
What are the substantial facts?
An unoffending citizen is standing at a public railroad station awaiting the arrival of a train on which he expects to take passage. He is quietly chatting with a brother and other friends. At this juncture the defendant appears on the scene with a rock in his right hand and hidden under his coat, and without the slightest cause or provocation from anyone he begins to -boast of his ability to whip any person on the platform, coupling the challenge with vile epithets. None of the party notice his challenge and he passes by. Returning to where they stood he again announced his ability to whip any one on the platform, whereupon Ward, the deceased, remarks to him, “You don’t mean that for me?” and defendant replied thgt he meant it for “any d — n s — n of a b — h, ” whereupon without anger or excitement deceased said to him, “Pard, you might get whipped for saying such things as that,” and turned so that his side was toward defendant, and thereupon defendant, without more, drew the rock from under his coat and hurled it at deceased, striking him on the side of the head, crushing the skull and driving the hone into the brain and inflicting a necessarily fatal wound, from which Ward next morning died. Defendant then drew his knife to make his way clear and fled. The rock was a deadly missile and had been secreted in his hand under his coat until he threw it with murderous force at deceased, who was standing with his hands in his' pockets at the time.
The defendant testified that he selected this stone some distance from the station and when he reached the station he thought Ward was one of the three persons with whom he had had an altercation that afternoon before coming to the depot, and he concluded he would bluff him. He admits, however, that deceased paid no attention to him, and was making no demonstra[589]*589tion toward assaulting him, and that he began to use the vile and insulting challenges until he evoked the caution which deceased gave him as to such conduct. We have then a man arming himself with a deadly weapon, going into a peaceable crowd at a public station and without either just provocation growing out of any degrading or insulting epithets, or reasonable or lawful provocation caused by a blow or slap or other personal indignity, striking down one who had merely advised him against the folly of his conduct. That defendant had ample time to fully form the intention to kill Ward, and that he was not acting under a violent passion suddenly aroused by any just, lawful or reasonable provocation,. is too clear for discussion. That his act was also premeditated and deliberate we think the facts clearly establish. By has acts and contemporaneous expressions we must judge his purpose. It is no palliation of his conduct that he had not previously known deceased and hence could have had no motive for killing him rather than some other person.
He evidently came to the station seeking an opportunity to vent his malice upon some one, and upon the baseless pretext that he thought deceased was one of the men who was with George Tate with whom he had had a quarrel that afternoon, he struck him down when deceased was making no effort to renew that quarrel, and making no show of violence. These facts demonstrate that he killed him for revenge, which would bring it clearly within all the definitions of deliberation.
If, on the other hand, deceased was not with Tate and Waters, as the facts fully establish, but out of the very malignity of his heart, he slew him without any provocation given by deceased, and had time to fully form the design to kill him, then he is equally guilty of a willful, deliberate and premeditated murder.
The law does not require that he should have brooded over the matter for a week or an hour. As said by Judge Ring in Com. v. Daley, 4 Penn. L. J. 157: “No specific length of time is required for such deliberation. It would be a most difficult task for human wit [590]*590to furnish any safe standard in this particular. Every case must rest on its own circumstances. The law, reason and common sense unite in declaring that an apparently instantaneous act may he accompanied with such circumstances as to leave no doubt of its being the result of premeditation.”
“The true view,” says Wharton, in his work on Homicide, section 180, “is that ‘intent’ and ‘deliberation’ are to be inferred from facts; that they are not to be negatived because there is no direct proof of their existence prior to the fatal blow; and that the character of the weapon used,, if it is used coolly and intelligently, is sufficient to give inferences by which the nature of the intent can be determined.” In this case the intent is shown by every act of the defendant, and his conduct was such as evinced a heart void of social duty and wholly bent on mischief. The murderous purpose to draw some one into a dispute with him and then strike him down with his hidden weapon is made apparent and furnished ample grounds for the jury to find that the killing of deceased was premeditated and deliberate.
The fourth instruction given by the court fully and correctly declared the law on this point to the jury, and this exception must be held to be unsupported. The plea that defendant was in a violent passion and excited state of mind will not avail him as a defense or palliation of his act in killing deceased who was in no manner responsible by word or act for the assumed violent passion. A man can not embroil himself in a controversy with one man and when that is over kill another unoffending and unsuspecting citizen who was no party to his quarrel and who had given him neither just nor lawful provocation, and the court properly refused to instruct the jury that the passion aroused in defendant, if any, by his quarrel with his uncle, George Tate, was a defense or palliation for his unprovoked assault upon "Ward, the deceased. Such a doctrine would enable the murderously inclined to feign a difficulty with one as a pretext for killing any unoffending citizen. There is no warrant for it in the cases cited, nor anywhere else [591]*591in our criminal law, and hence the court correctly instructed the jury in its twelfth instruction.
IY. Error is assigned^ on the failure of the court to instruct on manslaughter in the third and fourth degrees. It is obvious that an instruction on manslaughter in the third degree would have been, without support in the evidence. There can, under our statute defining manslaughter in the third degree, be no such thing as manslaughter in the third degree when the killing is intentional. Here all the evidence shows the killing was with a deadly weapon, and but one intent, that of an intention to kill, can be deduced from defendant’s act. [State v. Dunn, 80 Mo. 681; State v. Pettit, 119 Mo. 416; State v. Barutio, 148 Mo. 255.]
But without pursuing the failure to instruct on manslaughter in either degree further, it is sufficient to say that the defendant neither asked an instruction on either and did not pray the court to instruct on all the law of the case, and did not save any exceptions to its failure so to do, and hence the point now raised is not before us for decision. Such has been the unbroken line of adjudications in this court since the case of State v. Cantlin, 118 Mo. 100. [State v. Albright, 144 Mo. 642.]
But counsel argue that the amendment of the fourth subdivision of section 2627, Eevised Statutes 1899, enacted by the General Assembly at the session of 1901 (Laws 1901, p. 140), whereby it is provided that 11 whether requested or. not, the court must instruct upon all questions of law in the case, ’ ’ shows a clear intention to change the law as declared by this court. If we could so construe that amendment, it would be our duty to conform to it, but in our opinion it does not reach the point decided in the Cantlin case.
Without this legislative declaration it has been the law of this State since the State v. Hardy, 7 Mo. 609, that it was the duty of the court in a criminal case to declare the law applicable to the case. But this is no more imperative than is its duty to admit only proper evidence in the case or to perform any other well-defined statutory duty, the neglect of which is ground for ob[592]*592jection, and exception, and unless exceptions be properly saved to the error of the court in failing to perform’such duty, there is no ground for reversal of the judgment.
So, while under the amendment (which, after all, is only declaratory of the law, as it has been declared by this court since 1842) it is the duty of the court in a criminal prosecution to declare all the law of the case, “whether requested or not,” its failure so to do is only error, and error to which the defendant must save his exceptions if he would have this court review it.
We have read the record and given a most careful consideration of the assignments of error and have reached the conclusion that defendant had a fair trial and there is no reversible error in the transcript. The judgment and sentence of the circuit court is accordingly affirmed, and the sentence of the law is directed to be executed.
All concur.