WALKER', P. J.
At the December term, 1923, of the Circuit Court of the City of St. Louis, the appellant and several other negroes were j'ointly indicted for the murder of a white man named Harry Leonard. A severance was granted and the appellant was separately tried in June, 1914, convicted of murder in the first degree, and his punishment assessed at death.
On December 30, 1923, the deceased and his wife kept a soft drink parlor on the corner of Randolph and Twenty-second streets in the city of St. Louis. The room where the business was conducted was on the ground floor of a building, the entrance to which was on Randolph Street. A bar, such as was formerly used in saloons, extended along the room from the south to the north. The room was divided by swinging doors. In
the portion of the room north of these doors and parallel with the bar was a cigar case, directly in the rear of which was a large safe, which stood against the west wall of the building. The deceased and his wife had conducted the business named at the place stated for about three years. The section was inhabited almost exclusively by negroes, who were the principal patrons of the place.
About 11:30 p. m. on Sunday night, December 30, 1923, a negro man entered the business place of the deceased and ordered and drank a glass of root-beer, which was served to him by the deceased. About the same time anothen negro entered and bought a package of cigarettes. These two left the room separately soon thereafter. Immediately after they left the room the wife of the deceased went behind the bar and began to wash her hands. While she was thus engaged three negroes rushed into the room, ordered those present to "stick ’em up.” Everyone obeyed the order, except the deceased, who, when the men rushed into the room, instead of putting up his hands when ordered so to do, walked the length of the bar, stooped down and leaned on his left side against the safe. At this juncture two of the negroes ran out of the room, and the other leaned over the cigar counter and began to shoot at the deceased, who was then almost down on the floor at the base of the safe. After firing several shots this negro left the room. The deceased was taken to a hospital, but died soon after his arrival there. An autopsy disclosed that he had died from a hemorrhage resulting from a gun-shot wound in the back.
The appellant was identified by the wife of the deceased as the man who did the shooting, and that he was the negro who came in and bought the glass of root-beer a short time before he shot the deceased. Her testimony in regard to the identification of the appellant as the man who killed her husband is thus succinctly stated by the counsel for the appellant:
A
“On Tuesday morning following the killing, Mrs. Leonard, the deceased’s wife, visited the Eighth District Police Station and found four colored men in the custody of the police; one of them was'identified by her as the colored men who had entered the room and purchased the root-beer. She also identified him as the man who leaned over the cigar counter and did the shooting which resulted in her husband’s death.”
In addition she testified that she “was very close to the appellant at the time and had a direct view of his face and could not be mistaken as to his identity.”
On the morning of the identification of the appellant by Mrs. Leonard he indicated that he desired to make a statement, and was told by the Assistant Circuit Attorney, and a police officer in whose charge he was at the time, that whatever statement he made would probably he used against him. He was further asked if he had been threatened or intimidated in ány way by police officers and answered that he had not. A number of inquiries were made of him by the Assistant Circuit Attorney prior to his confession as follows : “Have you in any way been abused, put under duress or fear; have you been promised immunity by the police or any one else; have you any hope of reward?” In addition to his negative answers to each of these inquiries, he stated that in making a statement he simply wanted to tell the truth. He was then told to go ahead. Whereupon he made an oral statement which was reduced to writing in his presence and after being read to and examined by him he said it was correct, and signed his name thereto in the presence of the police officers, the Assistant Circuit Attorney and two disinterested business men of St. Louis who were called in by the Captain of the Police or the Assistant Circuit Attorney to listen to the appellant’s statement and testify as to the circumstances under which it was made. This statement is as follows:
“My name is Leon Williams; colored; twenty-four years of age; horn in Alabama; single. 'Employed by the Municipal Asphalt Company, city of St. Louis. I
reside at 2.617 North Leffingwell Avenue; and make the following statement of my own free will and accord, and without any promises on the part of Lieutenant James P. Gunn or Officer Douglas Chamblin or Walter Cliffe on the .part of the police department.
“About nine or 9':30 o’clock p. m. on December 30, 1923,1 met Josh Cartwright, George Baker and a colored man named Reuben Bobbitts in the soft-drink parlor and dance hall conducted by Joseph Walker at 2917 Chouteau Avenue; and Josh Cartwright made the suggestion that we go out and get some money. We agreed and I told him that I knew a saloon that kept open late at night and I thought the saloonkeeper had some money. We got a car from a garage at the rear of Walker’s parlor, 'and Cartwright drove us to 22nd Street and Randolph. I and Baker got out of the machine and I walked east to 22nd Street to a soft-drink parlor, where I entered and purchased a* glass of root-beer, and while I was drinking it Baker entered the place and purchased a package of cigarettes. Baker then left the place and I drank the root-beer and followed him. Our purpose in entering the place was to see if everything was clear, and while I was in the place Baker and I did not speak to each other, as we did not want the man behind the bar to know we were together. After Baker and I left the soft-drink parlor we walked back to the machine. Baker said, ‘Everything is all right. Let’s go and make it.’ We then got our revolvers from the car and walked east to the soft-drink parlor, and Bobbitts entered the place first, followed by Baker and me. We entered the swinging doors, and Bobbitts said, ‘Stick ’em up and keep quiet.’ Bobbitts and myself each had a, revolver in our hands, and as we entered the door Bobbitts cocked his revolver. The bar-tender was sitting behind the counter. There was also a woman standing in front of the parlor behind the bar. Bobbitts told the bar-tender to get up, and if he did not he would shoot him. The bar-tender then got up and started to walk slowly towards the front part of the parlor, and Bobbitts kept him covered
with his gun. As the bar-tender was passing the woman he stumbled, but he did not fall. Bobbitts and Baker then ran out of the parlor. Thinking that the bar-tender was reaching for a revolver I fired one shot at him, and then I started towards the door. The bar-tender started to straighten up and I thought that he had a revolver and I ran back and leaned over the counter and fired two more shots at him. I then ran out of the front door and went west on Randolph Street to the machine, which had just started off and which was occupied by Baker and Cartwright and Bobbitts. I jumped on the left-hand side of the machine and opened the door and got into the car, and Cartwright drove west to Jefferson Avenue, south to Chouteau and west to Ohio Avenue, and north to the alley and west in the alley to the garage in the rear of 2817 Chouteau- Avenue, where the car was put away. We then went to the rooms occupied by Walker in the rear of 2817 Chouteau and left our revolvers. Bobbitts and I then went to the dance hall in the front part of the building, and after a few minutes Walker, Cartwright and Baker came to the dance hall. ' We then bought a half pint of whiskey, which we drank. Baker and I then went to his home, where I remained until about one o’clock a. m. I left to get a street car, and I noticed some officers near Jefferson Avenue and I became frightened and returned to Baker’s home, where. I re-* mained until five, o ’clock a. m., at which time I left and went to my home. The small blue steel revolver which is held by the police is the revolver which I used to do the shooting with. The large blue steel revolver which is held by the police is the revolver which Bobbitts carried during the holdup. Leon Williams. ’ ’
This confession was witnessed at the time by those present signing their names thereto.
On the witness stand the appellant denied that he made the confession. That he was arrested early Tuesday morning, January 1, 1924, and was taken to the Eighth District Police Station. At about 8:30 or nine o’clock a. m. a policeman came and took him out of a
cell and questioned him about the killing of Harry Leonard; that he told the officer he knew nothing about it. The latter put him back in the cell, and a short time thereafter took him out again, and upon his continued denial of any knowledge of the killing slugged him with a black jack, knocked him through a glass door and otherwise abused and maltreated liim. That despite this treatment he persisted in declaring his innocence. That the Sunday night when he is charged with having killed Leonard he was at a dance hall and remained there until about 12:3o1 o’clock, when he went home with his wife and remained there until the next morning.
The substance of the appellant’s testimony in regard to the making of the confession was that some time during the afternoon of the day of his arrest he was again taken from the cell in which he was being held, and he remembered signing some paper; that he didn’t know what it was at the time or when it was made. That Cliffe (the police officer) had taken him back to the- Captain’s office, and he said, “Sign right here;” that the paper was not read to him; that he asked what it was and “he said, ‘Oh, nothing, just sign your name;’ that’s all he said;” that the first time he ever saw the confession his lawyer showed it to him in jail and read it to him.
Arthur L. McGuire, Captain of Police, to whose office the appellant was brought, testified that a short time before the confession is alleged by the State’s witnesses to have been- made, the appellant was brought into the Captain’s presence in the forenoon of the day of his arrest, and that he made an oral statement in regard to the murder of Harry Leonard soon after he was brought in. When it had been made the Captain asked the appellant if he was willing to sign a written statement of the facts he had j'ust related and he said he was willing to do so; that such a statement was prepared by the Captain’s clerk in long-hand, which was read to the appellant by the Captain and then handed to the appellant for examination; that he examined the same for several minutes and then signed; that the freedom of his action in affix
ing his signature to this statement was in no manner interfered with and no attempt was made to conceal any portion of the statement from him, but every opportunity was afforded to enable him to act freely and to know what he was doing; that appellant had no fresh sears on his head or face that day, made no complaint to him or any one else, of which he has any knowledge, that appellant had been abused or maltreated; that no door was broken down or the glass in a door at the police station shattered on the day the appellant was brought to his office.
Captain McGuiye further testified that during all of the time the appellant was making his statement and shortly before and after it was made the Assistant City Attorney, Roy A. Fish, Lieut. Gunn, Officers Chamblin and Cliffe and two business men of the city, one named Reynolds and another whose name the witness could not recall, were present, and that they signed the statement as witnesses.
At the close of the officer’s testimony a witness named Green testified on behalf of the State that he had known the appellant for about a year, and that during all that time the scar on the left side of his forehead that appellant stated had been made by a police officer was on his forehead.
Roy A. Fish, Assistant Circuit Attorney, testified as to his presence at Captain McGuire’s office at the time appellant made and signed the statement; that while at the office about ten o’clock in the forenoon, January 1, 1924, the appellant was brought into the witness’s presence. The latter’s language is as follows:
“I told him that he faced a serious charge, that of murder; that my purpose in being there was to advise him of liis rights; that he could make a statement 'or not as he saw fit, but if he made a statement in all probability it would be used against him at his trial. I asked him, if he wanted to make a statement, and I also asked him a number of other questions first; if he had been abused by any member of the police department or anybody
else, and he said he had not; if he had been struck, threatened or intimated, and he said he had not; or if duress of any kind had been used to induce him to make a statement, and he stated there had not, but that he had been treated fairly. These were his words. I then asked him if the police department or anybody else had promised him immunity or had told him it would be easier on him if he told the truth. He said they had not. I asked him why he wanted to make a statement, and he said because he wanted to tell the truth.
“He then proceeded to make the statement here in evidence. It was written down in long-hand by Captain McGuire’s clerk and after being read to the.appellant by the Captain and also examined by the appellant he signed it and I, with others present, placed our names thereon as" witnesses. ’ ’
Wm. P. Heilman, a machine-shop foreman, who was present when the appellant made the statement, identified him as the maker of same; and testified that he heard appellant malee it orally, and that.it was reduced to writing, read to the appellant by Captain McGuire and thereafter examined and signed by the appellant. That the latter was not mistreated, abused or threatened in any .manner, nor were any promises or offers of immunity extended to him to induce him to make the statement. The witness’s testimony without repeating, same, corroborated that of the witness Pish in every material particular. Heilman said he signed his name as a witness to the statement.
Claude E. Reynolds, the other business man present, further corroborated the testimony of Pish and Heilman as to what occurred at Captain McGuire’s office when the appellant made the statement, and that he signed the same as a witness thereto. Officer Cliffe was charged by the appellant with maltreating him, but denied that he had mistreated the appellant in any manner. His testimony, while given in the absence of the jury, is not properly incorporated in the bill of exceptions, as is the case with many other pages of the transcript submitted
for our consideration. However, the counsel for the defense has seen fit to characterize the testimony of this officer as a “perfunctory denial” and it is therefore not proper to refer to it here.
The burden of the testimony of the witnesses for the appellant was to establish an alibi. Aside from the testimony of the appellant himself, some three or four others of his own race and residents of the neighborhood where he lived stated that he was elsewhere than at the scene of the murder at the'time it was shown to have been committed. A like number of the same- class of witnesses testified as to the good character of the appellant.
I. The formal sufficiency of the indictment is challenged. It is -contended that the conclusion of same is defective in that the manner and form in which Harry Leonard, the deceased, was killed, is not referred to. The conclusion is as follows:
“And so the grand jurors aforesaid, upon their oath aforesaid, do say that the said Leon Williams” (and the others jointly charged) “the said Harry Leonard in the manner and form and by the means aforesaid, feloniously, willfully, deliberately, premeditatedly, and of their malice aforethought, did kill and murder,; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State.”
Appellant’s specific objection to the indictment is that it omits the word “aforesaid” after the word “form” in the conclusion; and that the comma after the phrase “in the manner and form” makes it impossible for the word “aforesaid” which follows the word “means” to refer to and include the phrase “in manner and form” and therefore the conclusion fails to state in what manner and form the deceased Harry Leonard was killed.-
If we resort to precedents, those fetishes of the common law, to guide us in the construction of this indictment, the reports are replete with cases holding like indictments to be sufficient.. An examination of the indictments construed in the cases cited by counsel for re
spondent will furnish proof of the correctness of this conclusion. However, if we ignore the rule of reference and construe ,the indictment by the words employed therein in connection with their relation to each other, little difficulty is encountered in determining its meaning. The repetitions and involved averments of the old prolix forms of indictment are no longer deemed essential by modern courts in the construction of pleadings in criminal cases. All that is or should be required as to formal allegations or that a defendant is entitled to demand, is that he be clearly informed of the “nature and cause of the accusation” against him. A court which would hold invalid a criminal charge which meets this measure would fall short of a proper administration of the criminal law and thwart justice by the interposition of hairsplitting technicalities.
The conclusion of this indictment, read, as it can only be intelligently read, in the light of the language employed, must be construed as meaning that “the manner and form and means,” conjunctively used, followed by the word “-aforesaid,” has direct reference to the theretofore averred use of a pistol and the discharge of same by the appellant in the killing of Harry Leonard. Descending to the
de minimis
portion of the appellant’s contention in this regard, it might be enough to say that in the copy of the indictment before us, no comma appears after the phrase “in manner and form.” If it did appear and the meaning of the words employed was unmistakable, as they are in this case, punctuation, or the lack* of it, would not suffice to change it. The annals' of Congress furnish an apposite and amusing incident illustrative of this truth. The construction of a treaty was under discussion. A senator contended that the meaning of a clause was to be determined by the presence of a comma. The ever ready Randolph, in reply, said: “Am I to understand that the learned senator would determine the destiny of a nation by the absence or presence of a fly speck?”
II. It is contended that there was no proof of the
corpus delicti.
That Harry Leonard was killed was clearly proved; and that the appellant killed him was shown kis identification as the perpetrator of the crime, his confession, and the proof of other relevant facts and circumstances corroborative of the two essentials necessary to establish the body of the crime. In the face of these facts the conclusion is authorized that this contention is without merit.
III. Error is assigned as to the manner in whicii the jurors were examined by the counsel for the State to test their competency to sit as triers of the facts, or as wé say in the terminology of the law, upon their
voir dire.
In passing, it is evident that this n n n
J, -,
n , ■,
,
mncli-nsGcl and oitGii-amiSGd term, liad not become firmly embedded in the vocabulary of counsel for both parties, as it is designated by each as the
“voir doir”
examination of the jurors. This might be charged to the conventional culpability of the typewriter were it not for the frequency of its use in both briefs. This will not deter us from seriously considering whatever merit may inhere in this contention.
Appellant’s assignment, stripped of ünmeaning terms, is, in effect, that the jurors were practically pledged by the prosecutor to assess the penalty of death in, the event of their selection to try the case; that this conduct on the part of the State invaded the province of the jhry, and deprived the appellant of a substantial right accorded to him by law, that of being tried by a jury vested with discretion as to the grade of punishment to inflict.
Counsel for neither side have set forth the inquiries made by the attorney for the State in the
voir dire
examination. These inquiries embody the error, if it exists, of which the appellant complains. W'e must resort therefore to the transcript of the proceedings, preliminary to the trial, to enable us to intelligently dispose of this contention. This record discloses that the inquiries to which objections are interposed are in effect as fob
lows: “'Where the evidence to your mind establishes murder in the first degree could you or could you not vote for the infliction of the death penalty? Could you under any circumstances, where the evidence showed beyond a reasonable doubt- the guilt of the defendant, vote for the imposing of the death penalty? Do you believe in the strict, fair and impartial enforcement of the criminal law as to all persons and all offenses, including murder in the first degree? Have you any conscientious scruples against capital punishment?'”
As stated, the gist of appellant’s contention is that these inquiries tended to limit the jury’s consideration and finding as to capital punishment. Viewed compositely, rather than as separate inquiries, by which the appellant may have the advantage of an interpretation most favorable to his contention, is there anything in the language employed which may properly be construed as limiting or destroying the discretion of the jury? The burden of these inquiries was to ascertain whether, if the evidence to the minds of the jury justified the verdict, would they have any conscientious scruples against a death penalty. This was, in effect, no more than the stereotyped inquiry made in like cases.
If, under the strictest consideration, the inquiries can be construed as attempting to limit the jury’s discretion the instructions of the court removed that limitation in unequivocal terms, which the jury could not fail to understand, as follows:
“If, under the evidence and the instructions in this case, the jury finds the defendant guilty of murder in the first degree, the law provides that the defendant shall suffer death, or be punished by imprisonment in the penitentiary during his natural life; and the jdry must decide which punishment shall be inflicted, and so state in its verdict. ’ ’
To the unbiased mind therefore no tenable ground exists on which the contention can be based that the jury was in anywise prevented from deciding whether the appellant, if found guilty, should be punished capitally or
given a life sentence. We must presume that the jurors were of average intelligence and having heen qualified would determine the issue of guilt and the extent of the punishment under the facts adduced and the law as declared by the court. Thus guided there is no room for the implication (and there is nothing more) that their discretion was destroyed by the inquiries of the counsel for the State. To so hold would be equivalent to finding that they had deliberately ignored the express declaration of the court as to the extent of their power in assessing the punishment. While much latitude is given counsel in the examination of an array to test the competency of the jurors, the safest plan is to couch these inquiries in language which has received the approval of this court. Thus framed no possible basis would exist for such contentions as are here made. Fully satisfied, however, in this case, that the jury was not misled and^ that the appellant suffered no injury we overrule this contention.
IY. Error was not committed in the admission in evidence of the confession of the appellant. Only his testimony, on its face inconsistent and contradictory, was offered in denial of the making of the confession or to sustain his .contention that his signature ,. , , , , . -, r , thereto was made by him under coercion and when he had no knowledge of what he was signing. Four reputable witnesses directly contradicted theshi statements and testified unequivocally that not only was the confession voluntarily made, but that the appellant was explicitly informed of his rights in the premises and that his confession, if made, would be used against him at the trial. In addition, the correlative facts and circumstances, which in weighing human testimony may be invoked to weaken or lessen the verity of same, all tend to detract from the truth of the appellant’s testimony and to strengthen that of the witnesses for the State.
To illustrate, many of the facts relevant to the commission of the crime as set forth in the confession could only have been known at the time of the making of the
confession by the appellant and Mrs. (Leonard, the widow of the deceased. Their correctness as to detail as set forth in the appellant’s statement was subsequently corroborated by her. There is no evidence that she communicated these facts to those who transcribed the confession, or that they had or could have had any knowledge of same sufficient to enable them to formulate or, as the appellant now contends, fabricate the facts therein set forth for the purpose of palming it off upon the trial court and the jury to secure the appellant’s conviction. However, the jury, more competent from personal contact with the witnesses to determine the truth of their testimony than is afforded by a cold record, and possessed, as we must presume, with at least the average ability of sane men to test the truth of the witnesses’ testimony, refused to believe his denial that he made the confession, and thereby put the stamp of their approval on the testimony of the witnesses for the State. Even if an opportunity was afforded for the widow of the deceased to communicate the facts in regard to the killing to those who heard and witnessed the confession, it must be held, in order to give credence to the appellant’s oral testimony, that the Assistant Circuit Attorney, the police officers and two disinterested citizens have criminally conspired to manufacture testimony to secure the appellant’s conviction. Such a conclusion is contrary to human experience and an insult to the reason of any one, layman or lawyer, capable of determining between truth and falsehood. That there have been instances in the criminal annals of this State where maltreatment and coercion have been employed to extort confessions of guilt from persons charged with crime, it may be admitted; but, whenever such cases have been brought to the attention of this court, supported by evidencé worthy of belief, we have condemned the practice and have reversed and remanded the cases. Such a case is not here presented and the contention cannot be sustained.
V. The correctness of the trial court’s ruling is challenged in excluding the offer of the appellant to in
troduce in evidence the files of the circuit court in the case of the State of Missouri v. Joseph Walker, which, it was alleged by counsel for the appellant, would show that Walker had been indicted for the murder of Harry Leonard and had not been prosecuted for that crime. The purpose of this offer, as stated by counsel, was to furnish a connecting link explanatory of appellant’s confession. How or in wha.t manner it would have accomplished this purpose is not intimated. The trial court refused to permit these files to be introduced in evidence.
Subsequently counsel for appellant offered to prove by the latter, then on the witness stand, that’he had seen a statement purporting to be a confession by Joseph Walker. This testimony was excluded by the trial court. Thereafter counsel offered to show “that Joseph Walker had been indicted by the grand jtiry for the murder of Harry Leonard, and a regular bench warrant issued for his arrest and the case assigned to Division Number Eleven of the Circuit Court of St. Louis, Missouri, where it was dismissed by the State.”
Offers of testimony of this character are. classified as hearsay and are excluded by courts which adhere to the rules of evidence established by the common. law. The reasoning of Mr. Justice Pitney, speaking for the Supreme Court of the United States, in Donnelly v. United States, 228 U. S. l. c. 273, is pertinent and furnishes convincing reasons to sustain the correctness of the trial court’s exclusion of this character of testimony. These reasons are-, in effect, as follows: That such a confession, if in fact made, is not under the sanction of an oath; that it entails no responsibility on the part of the declarant for error or falsification; that it affords no opportunity for a court, jury or the parties, to observe the demeanor and temperament of the declarant and to search his motives and test his accuracy and veracity by cross-examination. These important safeguards of truth, present when a witness testifies in person, are therefore lacking. The conclusion in the Don
nelly case, in this regard, was in effect, that the admission of this character of evidence would so relax the ordinary safeguards as to greatly multiply the probabilities of error, and that hearsay evidence was an unsafe reliance in a court of justice. “In this country,” says the learned Justice, “there is a great and practically unanimous weight of authority in the state courts against admitting evidence of confessions of third parties made out of court and tending to exonerate the accused.”
In that excellent treatise on Criminal Evidence by Underhill it is tersely stated that “the incriminating statements of a third person that he committed the crime for which the accused is on trial are hearsay; that such persons must be produced as'witnesses.” [Underbill Or. Ev. (3 Ed.) sec. 238, p. 340.]
Authority is not lacking in this State in support of this rule. In State v. Hack, 138 Mo. 92, it is held that in a criminal case the defendant cannot introduce the admissions of a third party tending to show that he, and not the defendant, committed the crime charged. A like rule was earlier announced in State v. Duncan, 316 Mo. 288, in which it was held that evidence, in a trial for murder, that a person other than the defendant admitted that he had done some shooting at the time and place of the homicide was hearsay and inadmissible. While the accused may disprove his guilt by proving the guilt of some other person, he cannot do this by the introduction of an extra-judicial confession or the declaration of another person that he intended to or did commit the crime. [Underhill Cr. E.v. (3 Ed.) sec. 238, p. 341, and cases cited under note 99.] The contention that the trial court erred in the exclusion of this testimony is therefore without merit.
. VI. The appellant complains of the action of the trial court in permitting the State to examine in rebuttal a negro named Daniel Webster Green. This complaint is sought to be based on "the rule that where 'a defendant
is asked an immaterial question for the purpose of imPeae^raeil't an¿ affect his credibility, the party propounding the inquiry is bound by his answer. The correctness of this rule of evidence, under a state of facts which conforms to the requirements of the rule, need not be questioned. [State v. Cox, 263 S. W. (Mo.) l. c. 219, and cases cited.] However, the facts in the instant case do not conform to such requirements. To have done so it would have been necessary: first, for the inquiry made by counsel for the State to have been immaterial; and, second, for the appellant to have answered it in the negative. He was asked on cross-examination if he knew a man by the name of Green. To which, evidently not understanding the question, he said, “What?” Counsel for the State in explanation of his inquiry, said:
‘1
Green, a colored man; do you know him?” In reply the appellant said: “I don’t know no white fellow; I know a colored man’s name; I don’t know whether it is the one you are talking about or not.” Further examined, the appellant explained where and under what circumstances he had known Green — not necessary to be detailed here. Green was examined by counsel for the State in rebuttal, not to contradict the appellant as to his acquaintance with the latter, but to show that inside of a year or ten months before the trial the witness had frequently seen the appellant and at those times he had a scar on his left hand and another on his forehead, over one of his eyes. This testimony was admissible to contradict that of the appellant that the scars referred to were caused by his abuse and injury inflicted by the police after his arrest for the killing of Harry Leonard. This examination was therefore proper and there is no merit in this complaint.
Another phase of the foregoing, assignment having to do with the conduct of the attorney for the State, is that he caused the sheriff to bring the appellant to his office during the progress of the trial and to ask
Green, who was also present, before he was put on the witness stand, if he knew the appellant. According to the testimony of the State’s counsel and Green this was the extent of the inquiry. The appellant on the contrary states that he in turn was interrogated by the counsel for the State as to his knowledge or acquaintance with Green. If appellant’s version of the transaction be true, although no credence seems to have been given to it by the jury sufficient to influence their verdict based upon the relevant facts in the case, how was the appellant thereby injured? The burden of the complaint of counsel for the appellant' in regard to this matter, stripped of conjectures and assumptions of improper conduct on the part' of the State’s counsel, is, that they were not given an opportunity to be present when Green identified the appellant. The conventionalities of the drawing room may have been violated by this conduct, but the appellant was thereby deprived of no right and suffered no wrong. This is the test by which the materiality of a complaint concerning the conduct of a prosecuting officer is to be determined. Without intending to manifest impatience in the disposition of this contention it seems enough to say that it is trivial.
VII. The giving by the court of instructions numbered one and five at the request of the State is assigned as error. These instruction are as follows: “1. All persons acting together with a common intent in the commission of a crime are equally guilty, and a crime so committed by two or more persons jointly is the act of all. and each one so acting.
“5. The court instructs you that when two or more persons enter into an unlawful agreement or understanding, whether such agreement or understanding be tacit or expressed, to aid and assist each other in the commission of a crime or series of criminal acts, where the crime or crimes contemplated are such that in the prosecution
thereof the natural and probable consequences are that human life will be put in jeopardy, and if in the carrying out of such unlawful design a human life is taken by any one of the conspirators, each* of the others are equally responsible for such killing, even though at the time such understanding and agreement was entered into such killing was not intended or within the contemplation of the parties as a part of the original design. In this connection you are instructed that if you believe and find from the evidence in this case there existed an agreement or understanding between the defendant Leon Williams, and Josh Cartwright, George Baker and Reuben Bobbitts, or any of them, to;aid and assist each other in the commission of the crime mentioned in the indictment and in the evidence (if you find from the evidence that such crime was committed), and further find from -the evidence in this case beyond a reasonable doubt that, while in the pursuance and execution of such common purpose (if you find there was a common purpose), the said Leon Williams in the city of St. Louis aforesaid on December 30, 1923, feloniously, wilfully, deliberately, premeditatedly and of his malice aforethought shot with a pistol, and, by such shooting killed Harry Leonard, or was then and there present aiding, abetting or assisting, or was present for the purpose of aiding, abetting or assisting, others or another in the commission of such crime, then you will find Leon Williams guilty of murder in the first degree and assess his punishment as directed in the previous instructions,- and unless you so find, you will acquit the defendant.”
The objections urged to these instructions are that they relate to the same subject-matter; that Instruction Number One is but a detached portion of Instruction Number Five, and that if authority existed for the giving of these instructions they should have been given together and not separately; that as thus given, they singled out and gave undue prominence to certain portions of the testimony; and that they are. not supported by the evidence ; that Instruction Number One assumes everything
and requires a finding of nothing. These objections may be considered in the order in which they are made. Neither their form nor subject-matter is obj'ected to. That they were given separately can constitute no objection to their propriety as they were neither inconsistent nor contradictory and were, as we will presently show, authorized by the evidence. Number One is general in its terms and definitive in its character. It correctly defines the law as to the degree of culpability of persons jointly charged with crime who are shown to have acted in its commission with a common intent. It is not necessary for an instruction of this nature to require a finding; explicit directions in this regard appear in other instructions. This is all that is required. While it is essential to their correctness that instructions shall be clear, present a harmonious whole and be supported by the evidence, it is not necessary that each should contain a finding or declare the limit of the punishment. If the rule were otherwise the well recognized canon of interpretation that all instructions must be read and construed together would lose its meaning. Furthermore, this instruction being purely definitive assumes nothing, nor can it be said to do so under the most strained con•struction. The case, State ex rel. Welch v. Morrison, 244 Mo. 193, cited by appellant to sustain this objection, has no possible application thereto. It was a suit upon an executor’s bond. Aside from its general holdings that an instruction must not assume a disputed fact and that it must be within the purview of the pleadings and the evidence, neither of which shortcomings are found in these instructions, it is held that instructions must not assume the truth of an issue in controversy. The terms of these instructions lend no countenance to the contention that they contain this defect. Nor are these instructions subject to the criticism that they are mere abstract statements of the law. Read together they concretely state the facts concerning the killing, as detailed in the testimony of which appellant’s confession forms a part. The jury are told no more than if they believe the facts, as
thus shown to he true, they may find the appellant guilty. The assumption of the appellant that the sole issue was the question as to the ldlling of Harry Leonard by the appellant is not correct. That this was the general or dominant issue is true, hut, it was not the only one. E'aoh relevant fact necessary to establish the general issue affirmed by the State and denied by the appellant was in the nature of a special or subordinate issue, and it was not improper for the trial court in the instructions to define the duty of the jury in determining the guilt of the appellant, if they found and believed the facts in. evidence concerning his participation with others in the commission of the homicide, as these facts constituted special and subordinate issues in the case. Concretely stated, the proof of the participation of the appellant with others in the killing have been made, Instruction Number Five was necessary to enable the jury to intelligently determine the guilt or innocence of the appellant in the light of the facts therein stated. In so doing, the trial court did not violate the rule prohibiting a comment on the testimony". The instruction in its general terms has often received the approval of this court.
YIII. It is insisted that error was committed in the refusal of the trial court to give appellant’s Instruction G concerning the defense of an alibi.
1 11 An instruction, “Number Eight,” on the rights of the appellant under this defense, was given at the request of the State. This instruction is as follows:
* ‘ 8. The defendant has interposed as a defense what is known in law as an alibi, that is, that even if the offense was committed, as charged, he was at the time of the commission thereof at another and different place than that in which such' offense was committed, and, therefore, was not and could not have been the person who committed the same. Now, if the evidence leaves in your minds a reasonable doubt as to his presence at the place where the offense was committed at the time of the commission thereof, you will find him not guilty.”
The objection made to this instruction is that it does not advise the jury as to the
quantum
of proof necessary to establish the defense of alibi. This instruction was given in connection with one on reasonable doubt and a presumption of innocence. Where this is the case an instruction on alibi which tells the jury, as this did, that if the evidence of this defense in connection with all of the other relevant facts, raised a reasonable doubt of the presence of the accused at the time and place of the crime, he should be given the benefit of such doubt and be acquitted, is not objectionable. The instruction given conforms to these requirements and limits the jury ’s consideration to the same rule as in the weighing of other testimony; but does not direct the jury as to a particular manner in which the evidence in support of this defense should be considered. Thus framed the State’s instruction accords with the rule announced in many cases.
The instruction approved in State v. Hillebrand, 285 Mo. l. c. 296-, is, in all of its essential features, identical with the instruction here under review.
In State v. Bonner, 259 Mo. l. c. 348, a capital case, in which the punishment was fixed at death, the defensp of an alibi was interposed and the court instructed the jury thereon, in more meager terms than at bar, in these words: “The court instructs the jury that if there is any evidence before you that raises in your minds a reasonable doubt as to the presence of the defendant at the time and place where the crime is charged to have been committed (if you find a crime was committed) you will acquit the defendant.” The complaint pf counsel for the defense there, as here, was that the instruction should have more forcibly and definitely directed the attention of the jury to the evidence on the subject. This court held in the Bonner case that “the instruction was clear and complete and was, therefore, as definite and forcible as it-was proper to make it.” The cases cited follow the rule announced in many others determined by
this court, and the objection sought to be raised here may be said to be finally foreclosed.
It is further contended that the instruction on alibi asked should have been given as a converse instruction to that given at the request of the State. It is ^ ^ well in this connection to understand what is meant by a converse instruction. An illustration may serve a better purpose than a definition. When an instruction given at the request of the State embodies all of the essential elements of the crime charged and instructs the jury that if these be found and believed they may find the defendant guilty, the defendant is entitled to a converse instruction that if these essentials be not found they may find the defendant not guilty.
That an alibi constituted the essential element of the appellant’s defense, as we held'in State v. Worten, 263 S. W. l. c. 126, is evident, but the instruction given for the State was in its terms, except as to the phraseology of its subj’ect-matter, in full conformity with that asked by the appellant, in that it authorized the jury if tfiey found and believed the evidence of an alibi they would acquit the appellant. At the instance of the State therefore the appellant received the benefit of such an instruction as he now contends was not given to him. This being true the statute (Sec. 4025, R. S. 1919) requiring’ trial courts to instruct juries upon all questions of law arising in cases necessary for their information in giving their verdicts, was fully complied- with, especially as to the defense of an alibi, being in its language as to the finding authorized, identical with an instruction on that subject had -it been given at the instance of the appellant.
In the Worten case we reviewed with sopae degree of care the later cases in this jurisdiction on the subject of an alibi, and they will be found to sustain the conclusion reached herein.
IX. Appellant complains of the refusal of the trial court to give instructions asked by him designated as ‘ ‘ C ” and “D”.
The first defines the manner in which the jhry is to consider the testimony concerning the appellant’s admissions and statements as proofs of the crime; and the second instructs them as to the weight and credibility to he given to such statements and admissions.
■ An instruction given at the request of the State fully and correctly advised the jury as to their duty in regard to this character of evidence. This instruction is in the form many times approved by this court and further discussion of same other than the citation of some of the cases in relation thereto is deemed unnecessary. [State v. Hamilton, 263 S. W. (Mo.) l. c. 131, and cases there cited; State v. Simenson, 263 Mo. l. c. 266; State v. McCleave, 256 S. W. (Mo.) 814]
X. Instruction Number Nine, given at the request of the State, defined the limits of a presumption of innocence ; that the burden of establishing guilt rests upon the State; what constitutes a reasonable doubt; the manner in which the good character of the appellant was to be considered and the province of the jury as to the credibility of the witnesses and the manner in which their testimony was to be weighed.
The portion of said instruction to which objection is made has reference to the limit of the jury’s province in the rejection of a witness’s testimony. It is as follows:
“In this connection you are further instructed that if you believe that any witness has knowingly sworn falsely to any material fact, you are at liberty to reject the portion of such witness’s testimony you may believe to be false.”
The usual form of the instruction on this subject, often approved by this court, is as follows: “If you believe and find from the evidence that any witness has wilfully sworn falsely to any material fact in controversy, you are at liberty to reject any portion or all of said witness’s testimony.”
The form of the instruction given in the case at bar was under review in State v. Wicker, 222' S. W. 1014, and met with our approval on the ground that the limitation of the jury’s power to the rejection of false testimony alone, instead of telling them that they might reject any or all of a witness’s testimony, if they found any of same to be false, was held not to be error.
The reason therefor may be stated to be that the giving of this character of an instruction is discretionary with the trial court, dependent upon the facts in each particular case, and unless it appears that such discretion has been abused to the injury of the defendant, its exercise will not be interfered with. [State v. Hayes, 262 S. W. (Mo.) 1034; State v. Barnes, 274 Mo. l. c. 631; State v. Hickam, 95 Mo. 322; White v. Maxcy, 64 Mo. 552.] While the trial court, therefore, in the exercise of its discretion, under the facts at bar, might have properly told the jury that they were authorized, if they found any of a witness’s testimony to be false, to reject all of same, it did not do so, but limited the jury’s power to the rejection of false testimony. Instead of this being injurious to the defendant it was otherwise, in that it gave him the benefit of all of his testimony not found to be false. We therefore dismiss this contention from further serious consideration.
XI. The remarks of the attorney for the State in his argument to the jury are assigned as error.
A review of these assignments justifies their characterization as finical. They are, in the main, deductions in the argument of counsel for the State, drawn from the testimony; as such, unless it clearly appears, as it does not when fairly construed, that they were prejudicial to the appellant they will not constitute grounds for reversal. The trial court in ruling upon the objection of counsel to these remarks, in a majority of the instances, sustained the same. While the court did not, in sustaining the objections, rebuke the State’s counsel as was requested, the rulings of the court carried with them a re
buke as much so as if expressed in exact words to that effect. In addition, two instructions, designated as Numbers Ten and Eleven, were given, defining the duty of the jury in regard to objections of this character. They are as follows:
“10. You are further instructed that remarks made by counsel on either side during the argument of any question before the court are addressed to the court only and should have no influence whatever upon the jurors in the consideration of their verdict. Remarks of counsel for the State or for the defendant addressed to the court or addressed to each other are not evidence and are not to be considered as evidence by the jurors.
“You will also,-in arriving* at a verdict, disregard all questions directed by counsel to witnesses to which the court has sustained objections and all testimony of witnesses objected to and to which the court has sustained objections and also all testimony which the court has ordered stricken out of the record.
“11. The argument of counsel is for the purpose of aiding you to reach a proper verdict in the cause by refreshing in your mind the evidence which has been given to you in this cause, and by showing the application of the law thereto; but whatever counsel may say, you will bear in mind that it is your duty to be governed in your deliberations by the evidence as you understand it and remember it to be, and by the law as given by the court in these instructions, and render such verdict as in your conscience and reason and candid judgment seems to be just and proper.”
The non-prejudicial character of the remarks in question probably rendered the giving of these instructions unnecessary; but having been given they cannot be construed as otherwise than beneficial to the appellant ; they clearly defined the duty of the jury and limited their deliberations in the finding of their verdict to the facts in evidence. Of this the appellant cannot complain. In addition, they were expressly directed to disregard remarks of counsel. Thus guided, unless we presume
that the jurors lacked ordinary intelligence or were unmindful of their oath, they were not influenced by the remarks in question.
This murder was as ruthless as any which blackens the annals of crime. The impelling cause of its commission was purely sordid. No pretense is made that it was the result of passion suddenly aroused or to satisfy a spirit of revenge. The appellant, when those associated with him in the attempted robbery fled from the scene, deliberately shot and killed Leonard, who at the time, probably paralyzed with fright, was offering no resistance. No effort was made to introduce any palliating circumstances in the appellant’s defense. There were none. Reliance for a reversal was based wholly upon errors claimed to have been committed during the trial. The record discloses none which warrant a -reversal.
The judgment of the trial court is affirmed.
All concur.