there. He did not know where they were going until he got into the hack and this order was given. "I cannot say that there was any definite statement that anything was to be done or would be done at Fifteenth and Central; I was not in a very good condition." He stated that his gun was in his overcoat pocket on the right-hand side; it was a common affair for him to carry it in his overcoat pocket. Other facts and the instructions will be noted and discussed as occasion may require in the course of the opinion.

1. The information, which has already been set forth in full in the statement of this case, is challenged as insufficient, on the ground that the defendants are not charged with having inflicted upon the deceased, Albert Ferguson, the wound of which he died. This criticism is leveled at the clause in the information which reads as follows: "And a certain revolving pistol, which was then and there loaded with gunpowder and leaden bullets, and by them the said Edgar G. Bailey, James Forsha and William Moon in their hands then and there had and held, they, the said Edgar G. Bailey, James Forsha and William Moon, did then and there feloniously, wilfully, premeditatedly, on purpose and of their malice aforethought discharge and shoot off at, upon and against him the said Albert Ferguson; and him the said Albert Ferguson with the leaden bullets aforesaid out of the pistol aforesaid then and there, by the force of the gunpowder aforesaid, by the said Edgar G. Bailey, James Forsha and William Moon shot off and discharge as aforesaid, then and there feloniously, wilfully, deliberately, premeditatedly, on purpose and of their malice aforethought did strike, penetrate and wound the said Albert Ferguson in and upon the body of him, the said Albert Ferguson, thus and thereby, then and there feloniously, etc., giving to him, the said Albert Ferguson, with the leaden bullets aforesaid, so, as aforesaid discharged and shot off out of the pistol aforesaid, by the said Edgar G. Bailey, James Forsha and William Moon, one mortal wound."

Learned counsel for the defendant has indulged in an extensive criticism of the foregoing words as ungrammatical, but, after a careful review of the elementary principles, we find ourselves unable to agree with him that the information does not charge the defendants with having inflicted the wound upon the deceased, Albert Ferguson, from which he died. The objection urged against this information was made by the same learned counsel to the information in State v. Nelson, 181 Mo. 340, 80 S. W. 947, and we held there that the indictment sufficiently charged the defendant with the infliction of the wounds upon the deceased, and called attention to the fact that it was clearly distinguishable from State v. Edwards, 70 Mo. 480, and State v. Manning, 168 Mo. 418, 68 S. W. 341. In the last-mentioned cases the

indictments charge the deceased with inflicting the wounds upon himself, but in this information it is distinctly averred that the defendants, with the leaden bullets shot out of the pistol which was held in their hands, inflicted the mortal wound of which the deceased, Ferguson, died. The information is sufficient, and not subject to the objection made.

It is further objected that the information is insufficient in that the verification contains no venue. We think there is no merit in this contention; the information and verification are upon the same sheet of paper, and the venue is laid in the beginning in the county of Jackson, state of Missouri, and the affidavit was taken and certified by the. clerk of the criminal court of Jackson county, Mo. It was entirely unnecessary for the clerk to repeat the venue under these circumstances. Every presumption of law is that the clerk took and certified this affidavit within the territorial bounds in which he was authorized to administer oaths.

2. At the beginning of the trial, counsel for defendant filed and presented to the court a motion to permit and allow exceptions to all adverse rulings on objections interposed by the defendant on the trial, without announcing such exceptions to the court at the time, on the ground that the saving of such exceptions would create in the minds of the jurors a prejudice against the defendant. This motion the court overruled. The pracItice in this state has long been settled that objections to the admission of testimony to improper remarks of court or counsel during the trial must be made at the time and the grounds of objections stated, and, if the decision be against the objector, he should have his objections at the time, and the practice in this regard is the same in criminal cases as in civil. And, unless exceptions are thus saved, it is uniformly held by this court that the rulings of the trial court will not be reviewed by us. State v. Hope, 100 Mo. 352, 354, 13 S. W. 490, 8 L. R. A. 608; Hickman v. Green, 123 Mo. 172, 173, 22 S. W. 455, 27 S. W. 440, 29 L. R. A. 39; State v. Scullin (Mo. Sup.) 84 S. W. 862; State v. Williams (Mo. Sup.) 84 S. W. 924.

Learned counsel, however, call our attention to the fact that in the circuit court for the trial of civil cases in Jackson county the judges invariably allow such exceptions to appear in the record and bill of exceptions, by common consent, without the exception having been called to the attention of the court at the time. The conduct of a trial is oftentimes a matter within the discretion of a trial court. The rule above noted is for the protection of trial courts, that they may not be adjudged guilty of error in a matter which was not called to their attention, and an opportunity given them to correct any oversight or error they may have committed, without putting the injured party to the expense of an appeal to this court; but if

the circuit courts see fit to consider the exceptions saved to every ruling which they make, and certify to this court that the exceptions were duly saved, we can see no objection to the practice; but because one trial court sees fit to allow this course to be pursued is no reason why another court should decline to do so, and elect to be governed by the universally accepted practice in such matters. It is too plain for discussion that the criminal court did not err in overruling this motion, and requiring counsel to save their exceptions in the due and orderly course of practice long approved by this court.

3. The next assignment of error is that the criminal court erroneously permitted the state to call and examine several witnesses, among others, Mrs. Stevens, Miss Johnson, Miss Hudson, Mr. Satterlee and his wife, and two others, although their names had not been indorsed upon the information when it was filed. It should be stated in this connection that the trial began on the 27th of June, 1904, and the examination of witnesses began on the 30th of June. On the 29th of June the prosecuting attorney served Mr. Riggs, one of the counsel for the defendant, with a list of names of additional witnesses which had not been indorsed upon the information, and upon that list the names of the witnesses above mentioned appeared. This objection is predicated upon section 2517, Rev. St. 1899, which provides "that when an indictment is found the names of all the material witnesses must be endorsed on the indictment; other witnesses may be subpoenaed or sworn by the state." This section has been before this court for consideration on various occasions, and, as said in State v. Shreve, 137 Mo., loc. cit. 5, 38 S. W. 549, "while this court has invariably held that the spirit and letter of our law both concurred in requiring the names of the witnesses to be indorsed in order to enable a defendant to know by whom the charge against him is to be established, still it must often occur that new evidence is discovered, and no good reason appears why the state must be denied the right to use it." Certainly the objection in this case has little merit, since the supplementary list of witnesses whose names were not indorsed on the information was furnished counsel for the defendant before any witness was sworn in the case, and after the defendant had received this supplementary list he neither asked for a continuance or time in which to investigate concerning these additional witnesses, and those to which this objection was made were persons easily accessible to the defendant, and so well known in the city where the trial was held that no unfairness or injustice can reasonably be charged because they were not indorsed on the information. Thus Clara Stevens and Mabel Hudson were employés at the Thelma Hotel, Dr. Boarman was assistant coroner of Jackson county, Mr.

Lyman was assistant prosecuting attorney, and Mr. Satterlee assistant general manager of the Metropolitan Railway Company, and three of the other witnesses were election officers who were at the election booth with defendant on the day of the homicide, and doubtless well known to him. Mr. Hayes was chief of police of Kansas City. The conduct of the prosecuting attorney, instead of displaying any disposition to take an advantage of the defendant, was eminently just and fair. No case in this court on this statute gives any countenance to the contention of the defendant on this point. State v. Henderson (Mo. Sup.) 85 S. W. 576.

4. In the several able and exhaustive briefs by counsel for the defense it is earnestly insisted that the criminal court committed prejudicial error in permitting the state to prove that on the same night, and prior to the killing of Ferguson, these same four parties, Bailey, the defendant, Moon and Forsha, and the woman Biggs, had called up another nonunion hack and driver and had directed him to take them to a roadhouse on Southwest Boulevard, and, while they were at this roadhouse, forcibly and feloniously took from Meyers, the said nonunion hack driver, a revolver, with which the defendant afterwards killed Ferguson. It is urged that this evidence was utterly incompetent and irrelevant, and tended to prove a crime not alleged either as a foundation for a separate punishment, or as aiding the proofs that the defendant was guilty of the one charged, and does not fall within the exceptions to the general rule which excludes evidence of other crimes than that for which the defendant is on trial; and State v. Spray, 174 Mo. 569, 74 S. W. 846, is relied upon to sustain this exception and assignment of error. In this last-mentioned case both the rule and the exceptions received the most careful consideration and distinction, and with the conclusion reached therein we are entirely satisfied.

The question presented now is whether the evidence falls within either of the exceptions recognized by this court, in the Spray Case, and so lucidly stated in People v. Molineaux, 168 N. Y. 264, 61 N. E. 286, 62 L. R. A. 193, wherein it is stated: "Generally speaking, evidence as to other crimes is competent to prove the specific crime when it tends to establish: First, motive; second, intent; third, the absence of mistake or accident; fourth, the common scheme or plan embracing the commission of two or more crimes, so related to each other that proof of one tends to establish the others; fifth, the identity of the person charged with the commission of the crime on trial." an argument against the admissibility of this evidence of the assault upon and of the forcible taking of the revolver from Meyers, the nonunion hackman, at the roadhouse on Southwest Boulevard a few hours prior to the homicide under investigation, counsel for

As

the defendant, in his brief, says: "When defendant was arrested, he admitted the killing and claimed self-defense; when Moon and Forsha were arrested, they stated Bailey did the killing-which facts were in possession of the state before the commencement of the trial." This statement of counsel is not borne out by the record, in which it appears that Bailey denied the killing, and all knowledge of it, when charged with having committed it by the chief of police; and nowhere in the record does it appear that Moon and Forsha stated that Bailey did the killing. Neither does it appear that the criminal court admitted this evidence for the purpose of showing that the defendant and his said associates had committed a murderous assault on the other nonunion hack driver, but limited the evidence as to what occurred at the roadhouse to the fact that Bailey, the defendant, Moon, and Forsha took from Andrew Meyers, the nonunion hackman, the pistol with which Bailey, the defendant, afterwards killed Ferguson. Keeping in view the distinct theories of the state and the defendant as to the purpose and intent of the defendant and his associates in making the cali for Ferguson, the deceased hackman, and in causing him to meet them at the Coates House several blocks distant from the Thelma Hotel, from which place they sent the order by telephone to the Landis stables, the state contends that this evidence demonstrated that the defendant and his associates had Ferguson, the deceased, meet them at the Coates House and drive them to Fifteenth and Central, a lonely resident portion of the city, for the purpose of committing upon him a felonious assault, and, if he resisted, kill him. On the other hand, it was the theory of the defense that the defendant and his associates had the deceased drive them to this lonely part of the city for the sole purpose that they might enjoy a hack ride and perhaps get some drinks. It was the contention of the state that evidence that the defendant and his associates had not only been active in the hack drivers' strike then going on in Kansas City, but had determined upon a course of violence in order to accomplish the purpose of the strike, and that, as tending to show the intent with which they lured Ferguson, the deceased, to drive them out to Fifteenth and Central; and to show a common scheme embracing the commission of two or more crimes so closely related to each other that proof of one tends to establish the others, it was pertinent and competent to show that on this same night, and but a few hours previous to the homicide, they had another nonunion hack driver, one who bore the same relation to the strike that Ferguson, the deceased, did, take them to the roadhouse on Southwest Boulevard, another remote and lonely place, and had there by violence taken the pistol from him with which the defendant afterwards killed

the deceased, Ferguson. That it was entirely competent for the state to prove that the pistol with which defendant killed Ferguson was the property of the other nonunion hack driver, Meyers, and the circumstances under which the defendant obtained it from Meyers a few hours before he killed Ferguson, and that it tended to prove that defendant was the person who did the killing, or, in other words, the identity of the person charged with the commission of the crime, we think there can be no sort of doubt; but we go further in this case: The defendant is charged with willful, deliberate, and intentional murder, and it devolved upon the state to show the intent and the circumstances tending to prove deliberation, and the motive, if possible; and we think it was en. tirely competent to show the felonious as sault by the defendant and his associates upon the other nonunion hackman, Meyers, as a part of a common scheme to insure the success of the hack drivers' strike by resorting to acts of violence and felonious assault upon nonunion hackmen, and thereby intimidate and so terrorize them that they would not dare to drive a hack or work for transfer companies and liverymen who insisted on employing nonunion hack drivers. In a word, this evidence tended strongly to show that the calling of the nonunion hackman, Meyers, and causing him to drive them to a remote part of the city, and then and there by violence and force taking his revolver from him, was a part of the same composite crime or plan which the defendant and his associates were pursuing with reference to other nonunion hack drivers, and shed light upon the purpose which they had in view when a few hours afterwards they succeeded by false representations to have Ferguson, the deceased, meet them at the Coates House and drive them to Fifteenth and Central, and that purpose was to commit upon him a felonious assault, and, if he resisted, kill him. This evidence was calculated to disprove the claim of the defendant that their only purpose was to enjoy a hack ride at 3 o'clock in the morning, or to get drinks, when they were driving away from the place where the saloons were kept into a remote neighborhood of private residences only. The case is clearly distinguishable in all its facts from State v. Spray, supra, in which no question of motive or intent was involved, but in which the robberies in each case were separate and distinct transactions, and the facts of each furnished its own motive and intent. It has long been decided in this state that evidence of this character, illustrative of the principal act in the tragedy, and a part of a system of criminal acts so connected together that each tends to establish the guilty intent, design, and purpose of the other, is competent. Underhill, in his work on Criminal Evidence, § 88, thus states the doctrine: "No separate and isolated crime can be given in evidence. In order

that one crime may be relevant as evidence of another, the two must be connected as parts of a general and composite scheme or plan. Thus the movements of the accused prior to the incident of the crime are always relevant to show that he was making preparations to commit it. Hence on a trial for homicide it is permissible to prove that the accused killed another person during the time he was preparing for or was in the act of committing the homicide for which he is on trial; and generally, when several similar crimes occur near each other, whether in time or locality, as, for example, several burglaries or incendiary fires upon the same night, it is relevant to show that the accused, being present at one of them, was present at the other, if the crimes seem to be connected." This connection was made to appear in this case, not only by the relation which the defendant and his associates as union hackmen on a strike bore to the deceased and other nonunion hackmen, but also from the statements of the defendant of his intention to kill "another scab before morning," and the similarity of the plan with which he and his associates had treated both Meyers and the deceased, Ferguson. State v. Dettmer, 124 Mo. 433, 27 S. W. 1117; State v. Mathews, 98 Mo. 129, 10 S. W. 144, 11 S. W. 1135; State v. Jones, 171 Mo., loc. cit. 407, 71 S. W. 680, 94 Am. St. Rep. 786; State v. Rudolph (Mo. Sup.) 85 S. W. 584; State v. Greenwade, 72 Mo. 300. Hence, as already said, we think this evidence was competent to establish the identity of the defendant as the person who committed the crime, to show that it was intentional and willful, and to show that he was one of a band organized together to commit crimes of the kind charged, and to connect the offense with which he is charged in this case as a part of a common, unlawful, and felonious scheme. The statement of the defendant on the same day of the homicide and subsequent thereto, in the presence of the witness Cooper, when one of the judges had stated that the hack drivers could never expect to win a strike by shooting people, to the effect that "that was the only way to win, and they all ought to be killed," was not improperly admitted; it was a voluntary statement of the defendant, and, taken in connection with the other facts already noted, tended to establish the motive and intent which actuated him at the time of the homicide. There is nothing in the case of State v. Evans, 65 Mo. 574, which militates in the least against this conclusion. In the Evans Case the defendant, and not the state, offered to prove his own declarations, which were no part of the res gestæ -a very different thing from the state proving statements or admissions made by the defendant, whether before or after the commission of the offense.

Now, as to the sixth assignment, which relates to the state's witness Lee as to a statement as to the vile epithet applied by

the defendant to nonunion hack drivers the morning after the killing, it is to be observed that the counsel for the defendant did not object to the question until after the witness had partially answered it. The witness never finished the sentence, but, as far as he did go, his answer showed a bitter feeling on the part of the defendant towards the nonunion hack drivers, but it is clear that the simple fragment of evidence that they thus elicited furnishes no ground for reversal of the judgment.

5. Among other instructions, the court gave the following instruction, No. 13: "The court instructs the jury that if you find from the evidence that the defendant, Edgar G. Bailey, shot and killed the deceased, and, at the time he shot him, the deceased was about to kill defendant or to do him some great bodily injury, he had the right to shoot and kill in his own defense; but to justify such shooting and killing, you must find from the evidence that the defendant did believe, and had reasonable cause to believe from all appearances, that such injury was about to be done him, and that he shot deceased to prevent such injury. It is not necessary that the danger should have been actual and about to fall on him, but it is necessary for him to have believed it from all appearances, and that there should have been at the time he shot reasonable cause for such belief. It is for you to say from the evidence in the case whether the defendant did believe, and had reasonable cause to believe from all appearances, that such impending harm at the time he shot was about to fall upon him. If, as a fact, he did not have reasonable cause to believe from all appearances that such danger was impending at the time he shot, then it is not justifiable. believing himself in danger is not sufficient; he must have had reasonable cause to believe it from all appearances, and of that you are to determine from all the facts and circumstances in the case." And instruction No. 4: "The court instructs the jury that if the defendant voluntarily brought on the difficulty with deceased, or voluntarily entered into a difficulty with deceased, with the intention of killing or inflicting upon him some great bodily injury if he should resist, then the danger in which he found himself during such difficulty, no matter how great it might be, would not extenuate or mitigate the offense or reduce its grade at all, and there can be no self-defense in the case." The criticism made on this instruction is that the phrase, “with the intention of killing or inflicting upon him some great bodily injury," does not modify or qualify the antecedent phrase, "that if the defendant voluntarily brought on the difficulty with deceased," but that said phrase "with the intention of killing," etc., applies only to the second clause, that of "voluntarily entering into the difficulty with the deceased," and, when thus divided, the first clause of the instruction

His

would clearly be erroneous, and in conflict with the rule announced in State v. Partlow, 90 Mo. 603, 4 S. W. 14, 59 Am. Rep. 31. It is further objected to this instruction that it tells the jury that the defendant is guilty if he had a felonious intent upon condition. Now, as to the first objection to the instruction above noted, we think there is no merit in the criticism. The phrase, “with the intention of killing or inflicting upon him some great bodily injury," clearly refers to and modifies both of the preceding clauses in the instruction, and, when thus read and understood, in no manner conflicts with the rule announced in State v. Partlow, or State v. Herrell, 97 Mo. 105, 10 S. W. 387, 10 Am. St. Rep. 289, but simply announces the sound and wholesome law that, if one brings on a difficulty with the purpose of wreaking his malice by slaying his adversary or doing him some great bodily harm, and, actuated by such a felonious purpose, does the homicidal act, then there is no self-defense in the case, and he is guilty of murder in the first degree, and nothing less. State v. Sharp, 183 Mo. 715, 82 S. W. 134; State v. Pennington, 146 Mo., loc. cit. 35, 47 S. W. 799.

As to the second ground of objection to this instruction, to wit, that it charges the jury that the defendant is guilty if he had a felonious intent upon condition, we think it is clearly groundless. One may intend to waylay another and kill him "if" that other comes that way, or he may arm himself and go in search of another intending to kill him "if" he can find him, or "if" any one interferes; in either of which cases, if he does encounter his victim, and, under such circumstances and with such intention, slay him, he will be guilty of murder in the first degree. The evidence in this case on the part of the state tended to show that the defendant and his companions, Moon and Forsha, went out to Fifteenth and Central streets with the intention to assault and beat up the deceased, Ferguson, in order to create an opportunity to kill him. The alleged condition expressed in these circumstances was no condition at all, for the defendant and his companions well knew or were bound to know that no man of any spirit whatever would stand still and submissively permit another to beat him up without resisting. The fact that the defendant took two confederates with him, and went armed with the deadly weapon on what his counsel are pleased to call "an innocent hack drive," shows that he was expecting resistance, and was actually seeking and trying to bring on a difficulty for the purpose of killing Ferguson, whom he had denominated "a scab hack driver"; in a word, intended to present to Ferguson the alternative of quietly submitting to a brutal assault or being killed. The so-called "condition" upon which Ferguson might have escaped death was in fact no condition, as far as the intention of the defendant and his associates was concerned,

and under the deliberate plan of action agreed upon by the defendant and his associates. In 1 Wharton's Cr. Law (10th Ed.) § 315, the learned author says: "Independently of the statutes, it had been said that though A., in anger, from preconceived malice, intended only to severely beat B., and happened to kill him, it will be no excuse that he did not intend all the mischief that followed; for what he did was malum in se, and he must be answerable for its consequences. He beat B. with an intention of doing him great bodily harm, and is therefore answerable for all the harm he did." And in section 108 of the same volume the learned author says: "No plan of wrong, therefore, can be framed by even the most capable and cautious of conspirators which they must not regard as dependent upon contingencies for its consummation. An as'sailant, therefore, in meditating an attack on another, must contemplate the possibility of miscarriage. This possibility may be greater or less. A good marksman may be almost sure of hitting his intended victim; a man who sends an explosive compound to an enemy may estimate that the probability of injuring his enemy is slight. If the means adopted are such as cannot possibly succeed, then there is no such connection between the instrumental intent and the final intent as is essential to constitute guilt. But if there be no such impossibility, and if the means adopted, improbable as it would seem, have a fatal result, then the end is to be regarded as having been intended." The Supreme Court of Illinois in Mayes v. People, 106 Ill. 306, 46 Am. Rep. 698, said: "Where an act, unlawful in itself, is done with deliberation, and with intent of mischief or great bodily harm to some particular person, or of mischief indiscriminately, fall where it may, and death ensues from such act, against or beside the original intention of the party, it will be murder." "The plea of provocation will not avail in any case where it appears that provocation was sought for and induced by the act of the party in order to afford him a pretense for wreaking his malice." Wharton on Homicide, 197; 2 Bishop on Cr. Law, § 702; State v. Pennington, 146 Mo. 36, 47 S. W. 799.

In this connection it is earnestly insisted that instruction No. 4 completely eliminated the question of self-defense; but the court in instruction No. 11 told the jury "that if they found and believed from the evidence that the defendant, at the time he entered the hack which took him and the others to Fifteenth and Central streets, had no intention of killing Albert Ferguson or to do him great bodily harm, and had no intention at any time previous to the time the said Albert Ferguson drew a revolver and shot at the defendant, if you find from the evidence that he did so shoot at him, then the right of self-defense on the part of the defendant exists in law, and the jury are instructed