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that the defendant has the legal right to invoke the law of self-defense in his favor"; and in instruction No. 13 gave the usual and full instruction on the right of self-defense. There is no conflict between these instructions. The question of the intention of Bailey, the defendant, as to inflicting great bodily harm upon Ferguson or of killing him, or the absence of such intention, determines the application of either instruction No. 4 or instruction No. 11 to the facts of the case. Under the testimony of the defendant, he shot in self-defense, and, according to the state's evidence, he had Ferguson, the deceased, bring him to Fifteenth and Central in order that he, the defendant, might kill, or do Ferguson great bodily harm, and hence there was no consistent middle ground upon which to base instruction No. 14, requested by the defendant, to the effect that if Bailey, the defendant, provoked the difficulty with the deceased, or produced the occasion without any felonious intent, intending, for instance, an ordinary battery merely, or disturbance of the peace, or an annoyance of Ferguson by calling him to Fifteenth and Central streets for the purpose of taking away from him, in order to annoy him, his revolver, or other insignia of authority, and thereupon the deceased, Ferguson, attacked Bailey, and compelled Bailey, in order to save his own life, to take that of deceased, still the law, while it would not entirely justify the homicide on the ground of selfdefense, would hold the defendant guilty of no higher crime than that of manslaughter in the fourth degree. There was absolutely no evidence upon which to base this instruction No. 14. The evidence before us presents two theories alone: That by the state, that the defendant and his companions brought on the difficulty with a felonious intent of beating up the deceased in order that they might have an excuse for killing him; and that of the defendant, unreasonable as it appears, of an innocent hack drive at 3 o'clock in the morning, in a lonely resident portion of the city, and of an entirely unprovoked and uncalled-for assault by the deceased, a nonunion hack driver, upon the defendant and his companions, and the killing by the defendant of the hack driver as a last resort in self-defense. In neither was there the slightest evidence upon which to base an instruction of withdrawing from the contest after the difficulty had been brought on. Instructions in all cases, civil and criminal, must be based upon the evidence in the cause. Instructions Nos. 11 and 13 fully presented the law from the defendant's standpoint. If the facts were as he testified, he acted in self-defense, and was not guilty of any grade of homicide, and the court should not have invited the jury to compromise him into the penitentiary by finding him guilty of manslaughter. On the other hand, there was evidence from which the jury, under the instructions of the court,

might have found him guilty of murder in the first or second degree, and the court fully instructed upon both of those degrees. We think the court properly refused to instruct upon manslaughter and either degree, in the light of the evidence developed in this record. State v. Gartrell, 171 Mo. 489, 71 S. W. 1045; State v. Lewis, 118 Mo. 79, loc. cit. 83, 23 S. W. 1082. The court carefully instructed the jury as to what constituted a just cause of provocation to passion as to reduce the grade of the homicide from murder in the first degree to murder in the second degree.

6. There was no error in refusing the instruction No. 5, asked by the defendant, to the effect that the jury should take into consideration specially what weight ought to be given the witness Catharine Biggs. Leaving out of view that the Biggs woman was named Gertrude, and not Catharine, there was no reason why the court should single out her testimony and comment on it separately. The only evidence tending to show that she was an accomplice, and therefore the court should have given a cautionary instruction as to her testimony, was her own, and according to that she did not join in the common purpose of her three male companions, but was protesting against it all the time, and only accompanied the defendant upon the hack ride in response to the demands of Bailey.

7. The court did not err in failing to define, other than it did, the terms "self-defense" and "bring on the difficulty." The term "self-defense" was fully and carefully defined to the jury in instruction No. 13, and the attempt to have defined the words "bring on a difficulty" would have simply resulted in either confusing the jury, or have added nothing to their plain ordinary significance. Both of these terms are self-explanatory. We think, though, this question is not before us properly, because no exception was saved to the failure of the court to instruct thereon. 8. So far we have endeavored to meet and discuss the various propositions announced by counsel for defendant in two of the briefs filed by them, but there is still another brief by another of the counsel for the defendant, in which it is earnestly insisted that the criminal court erred in refusing instruction No. 14 asked by the defendant. Counsel urges that there was sufficient evidence upon which to base this instruction, and to leave it to the jury to say whether or not the defendant brought on the difficulty with the intention of committing a mere common assault upon, or to take away from, Ferguson, the deceased, his revolver, and we are again cited to what was said in State v. Partlow, 90 Mo. 622, 4 S. W. 14, 59 Am. Rep. 31, which has often been approved and reasserted by this court, as follows: "Indeed, the assertion of the doctrine that one who begins a quarrel or brings on a difficulty with the felonious purpose to kill the person assaulted, and, accomplishing such purpose, is guilty of mur

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der, and cannot avail himself of the doctrine of self-defense, carries with it in its very bosom the inevitable corollary that, if the quarrel be begun without a felonious purpose, then the homicidal act will not be murder." The law of this state is that if the original wrong or assault would have been a mere misdemeanor, and such was the purpose of the accused when he committed or engaged in it, then the homicide growing out of or occasioned by it, though in self-defense from any assault made upon him, would be manslaughter. As already said, the criminal court instructed upon the defendant's own evidence on the law of perfect self-defense in its instruction No. 13, and in the instruction numbered 4 and instruction No. 11 the court instructed the jury "that, if the defendant voluntarily brought on the difficulty with deceased with the intention of killing or inflicting upon him some great bodily injury, then the danger in which he found himself during such difficulty would not extenuate or mitigate the offense, or reduce its grade at all, and there was no self-defense in the case." And in its instruction No. 11 the court further told the jury, however, "that if they should find and believe from the evidence that the defendant, at the time he entered the hack to ride to Fifteenth and Central streets, had no intention of killing Ferguson, or of doing him any great bodily harm, and had no intention of doing so at any time previous to the time the deceased drew his revolver and shot at the defendant, if in fact they found that he did shoot at him, then the defendant had a perfect right of self-defense and to slay Ferguson." We have already said that in our opinion there was no evidence of a withdrawal from a combat brought on by the defendant, or of an intent to commit a mere common assault upon the deceased. No witness for the defendant, nor he himself, testified to any intention to go to Fifteenth and Central streets for the mere purpose of committing a common assault on the deceased or to take from him his revolver. We have searched the record carefully, and on the part of the defendant he testifies that his purpose in going to Fifteenth and Central that night was only "to take a ride," and, he supposed, "to have some drinks." not left to speculation so far as his testimony is concerned as to what his intention in tak ing this ride and in going to the place of homicide was. There is not a scintilla of evidence falling from his lips that his intention was to commit a mere common assault or to annoy the deceased by taking his revolver from him, and therefore there was nothing in his testimony which would have justified the giving of the fourteenth instruction prayed for by him. But leaving his testimony for a moment out of view, and turning to the evidence in behalf of the state, we have the case of a defendant, with two other accomplices, armed with a deadly weapon, resorting to a scheme by which they induced

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the deceased to take them to a lonely part of the city at 3 o'clock in the morning with the deliberately expressed intention of "beating him up," and, as a part of this scheme, Forsha, one of his accomplices, was to grab him and disarm him. When the woman Biggs protested against the defendant going with this party, and asked him what he wanted his pistol for, he replied that he was going to have a hack driver take them to Fifteenth and Central, and he wanted his revolver, and if the hack driver "started anything" he would kill him, and that he would "get another scab before morning"; and the evidence further shows that, as the defendant got out of the hack, Forsha, one of the accomplices, immediately said, "Shoot him, shoot him, shoot the son of a bitch!" And the evidence further discloses that, before any shot was fired, the deceased was heard begging for mercy and crying for help. To say that this evidence affords any foundation for an instruction that the defendant and his accomplices intended to commit a mere common assault would be to disregard all human experience, and to attribute a purpose wholly at variance with the expressed intention of the defendant and his accomplices when they started upon that extraordinary ride that night. If the evidence of the state is to be credited at all, and it evidently was believed by the jury, it was fairly susceptible of one construction only, and that was a deliberately formed design on the part of the defendant and his associates, Moon and Forsha, to beat up Ferguson, the deceased, for the purpose of causing him to resist, in order to have an ostensible excuse for killing him. To say that the defendant, in the circumstances following fast after his declaration that he proposed "to get another scab before morning," and armed with a deadly weapon, only intended to commit a common assault, is contrary to human intelligence and opposed to all human experiences, and, in our opinion, furnishes no basis whatever for the hypothesis announced in instruction No. 14. And it follows, therefore, that neither the defendant's own evidence, nor that on the part of the state, furnishes any ground for the fourteenth instruction asked for by the defendant, and left the case just as the instructions given by the court presented it to the jury, to wit, on the theory of the defendant, of a perfectly innocent hack drive, and an uncalled for and murderous assault upon him by the deceased, and the killing of the deceased in self-defense as his only resort; and, on the part of the state, of a preconcerted plan and formed design to kill the deceased by the defendant and his associates bringing on a difficulty with the intent to kill the deceased or do him some great bodily harm, and, if so, there was no self-defense in the case, however great the exigencies in which defendant found himself by reason of his own illegal acts.

We have thus examined all the assign

ments of error and the record in this case, with a view to ascertain whether the criminal court afforded the defendant a fair and impartial trial, or was guilty of prejudicial error in the trial of the defendant. We have reached a conclusion that there is no reversible error in the record, and that the evidence is sufficient to justify the verdict of the jury. The result is that the judgment of the criminal court must be, and is, affirmed, and the sentence which the law pronounces must be carried into execution, and it is so ordered.

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In homicide, where the principal actor in the crime was called as a witness for defendant, and denied upon cross-examination that he had stated that using violence and shooting people was the only way to win the strike in which defendant and his companions were engaged and out of which the homicide arose, it was competent for the state to contradict such testimony by showing that such statement, which was material as tending to refute the theory of self-defense relied upon by defendant, was made by the witness. 5. HOMICIDE

EVIDENCE

PARTICIPANCY

OF DEFENDANT-CONCLUSIONS OF WITNESS. In homicide, where the principal actor in the crime was called as a witness for defendant, and had testified that defendant had said nothing about killing deceased, and that there was no agreement or understanding that any violence was to be inflicted upon him, but defendant and witness were going with him for a purely innocent purpose, it was not error to exclude testimony as to whether, in shooting deceased, witness was actuated by anything that defendant had said or done. 6. WITNESSES CREDIBILITY OF CRIME.

CONVICTION

Where a witness admitted that he had pleaded guilty to a common assault, it was proper to show, as affecting his credibility, that he

had pleaded guilty of a charge of assault with intent to kill.

7. TRIAL-EXAMINATION OF WITNESS-PRESERVATION OF ERRORS.

Objections and exceptions to testimony must be made and saved at the time the testimony is given in order that any error therein may be available on appeal, and such error cannot be preserved by a mere motion to strike, made after the testimony has been submitted to the jury.

[Ed. Note. For cases in point, see vol. 15, Cent. Dig. Criminal Law, §§ 2639, 2674.]

8. CRIMINAL LAW-TESTIMONY OF DEFENDANT -FAILURE TO TESTIFY IN CHIEF-CONFINEMENT TO REBUTTAL.

Where defendant rested his case in chief without being introduced as a witness, it was proper for the court to confine testimony afterwards given by him to a rebuttal of the rebuttal testimony introduced by the state, and to decline to reopen the case and permit defendant to testify as a witness in chief. [Ed. Note. For cases in point, see vol. 14, Cent. Dig. Criminal Law, §§ 1618, 1620.] 9. HOMICIDE ACCOMPLICES-FLIGHT FROM

CRIME-EFFECT.

One who aids, abets, or encourages another in the commission of a homicide, telling the latter to "shoot him, shoot him," etc., is not relieved from criminal responsibility by fleeing from the scene of the difficulty before the fatal shot is fired.

[Ed. Note.-For cases in point, see vol. 26, Cent. Dig. Homicide, § 48.]

Appeal from Criminal Court, Jackson County; John W. Wofford, Judge. James Forsha was convicted of murder in the second degree, and appeals. Affirmed.

On the 19th day of April, 1904, there was filed in the criminal court of Jackson county, Mo., by the prosecuting attorney thereof, an information against Edgar G. Bailey, James Forsha, and William Moon, jointly charging them with the crime of murder in the first degree, it being alleged in the information that the parties named killed Albert Ferguson upon the 19th day of March, 1904, in Jackson county, by shooting him with a pistol. Upon application of the defendant, the court granted a severance, and the state elected to try Edgar G. Bailey first. His trial began on the 27th day of June, and ended the 2d day of July, and his conviction of murder of the first degree was affirmed by this court (not yet reported). The state elected to try James Forsha next, and his trial began upon the 18th day of July, at the April term of the criminal court of Jackson county, and ended upon the 23d day of July, 1904, resulting in a conviction of murder in the second degree, and a sentence of 18 years in the State Penitentiary. The evidence in the case offered by the state and the defendant was substantially as follows:

In the month of March, 1904, there was a strike in Kansas City, Mo., on the part of the hack drivers' union against the hack companies, in an effort to compel them to employ only union men. The defendant For sha was a member of the union, and he, Bai ley, and Moon (both of whom are also mem.

bers of the union) were taking an active part in the strike. The headquarters of the Hack Drivers' Union was located on Central street, a little to the north of Ninth street, and for two weeks prior to the date of the homicide, Bailey had been living with a woman by the name of Gertrude Biggs at the Thelma Hotel, at the corner of Ninth and Central, and the room in this hotel occupied by Bailey and Mrs. Biggs, and the saloon that was located therein, seem to have been a place of rendezvous for Bailey, Forsha, and Moon, and from which upon the night of the homicide they started out. By the 18th of March the feeling engendered by the strike had become so pronounced that the defendant and his associates seemed to have determined upon a course of violence in order to accomplish the purpose of the strike, and this determination appeared in evidence from the statements shown to have been made by the defendant and his associates, in which nonunion hack drivers were referred to as "scabs," such designation being further emphasized by the use of vile epithets, accompanied by threats of death or bodily harm. On the night of the 18th of March, 1904, the defendant Bailey, Moon, and Mrs. Biggs were together at labor headquarters, just north of the Thelma Hotel. From there they went in a hack driven by one W. E. Ferguson, who was a union hack driver, to a saloon kept by one O'Flaherty upon South Main street. After drinking a while at this saloon, the Biggs woman ordered a hack, by telephone, of the Walnut Street Livery Company, a hack company employing nonunion hack drivers, to come to 1625 Main street, which was a house of prostitution. After ordering this hack, it being directed to come to the house of prostitution so as not to excite suspicion as to the purpose of the call, the defendant, Bailey, Moon, and Mrs. Biggs went to the house of ill repute, and when the hack arrived they entered it and ordered the driver, whose name was Andrew Meyers, to take them to a roadhouse at Twentyninth and Southwest Boulevard. They stopped, however, on the way at Broadway and Southwest Boulevard at a saloon, at which place they had the hack driver bring them out a round of drinks. When they arrived at the roadhouse at Twenty-ninth and Southwest Boulevard, Meyers, the hack driver, was invited to go into the roadhouse by Moon, who helped him hitch his team. After they entered the roadhouse, Meyers was invited to take a drink with the party, who were standing in front of the bar. While they were standing there, Bailey asked Meyers what it was that he had on his coat, and if he had a pistol. Meyers told them that he had a star as a special officer, and that he had a pistol in order to protect himself and his passengers. At that Bailey jerked the star from Meyers' coat, passed it to Moon, who handed it to Forsha. As Meyers

was starting to take the star from Forsha, who was pretending to return it, Bailey drew his pistol upon Meyers, threatening to kill him if he took the star or put it on again, and at that Meyers received two blows on the head, delivered from behind. Moon grabbed him around the neck, while Bailey took his pistol, and Forsha took from him his cartridge belt. Forsha began beating Meyers over the head with the cartridge belt, and he fell to the floor unconscious. When the hack driver regained consciousness, he tried to run from the room, but Forsha struck at him again with the cartridge belt, which was filled with cartridges, and Meyers dodged to avoid the blow, and Moon then struck him, knocking him to his knees upon the floor. At that Bailey fired at Meyers, failing, however, to hit him, and Meyers regained his feet and ran from the roadhouse. Bailey followed him from the roadhouse, and, while he was partially dazed from his previous blows and partially blinded by blood flowing from his wounds, Bailey struck him twice over the head with a pistol, felling him again to the ground and rendering him again unconscious. While Meyers was being disarmed and beaten up in the roadhouse saloon, he kept begging for mercy, saying to his assailants: "Please don't shoot me; please don't hurt me; I will go away, and you won't have to pay me for your hack fare." The answer these three men gave to these supplications for mercy were the assaults that have been described, accompanied by vile epithets which they applied to the hack driver. Leaving Meyers unconscious and covered with blood in the roadhouse yard, the party of four separated, Bailey and the Biggs woman leaving together, and Moon and Forsha together. They met, however, about a block from the roadhouse, where, in discussion of the assault, they expressed the opinion that they had killed Meyers. Fearing that they might be arrested, they again separated, but were soon together again at the Thelma Hotel. Bailey and Mrs. Biggs arrived there first and went up to their room. Bailey, after wiping the blood from the nonunion hack driver's pistol, secreted it, and one which he himself carried, behind the radiator in their room. They then went downstairs to the saloon, where, with Forsha and Moon, as usual, a round of drinks was ordered. While in the saloon, at the request of Bailey, Mrs. Biggs went upstairs and got the pistol which had been taken from Meyers, and gave it to Bailey, who in turn handed it to the bartender. The circumstances of the assault were then gone over in the presence and hearing of the bartender, each one telling his part in the assault. Bailey stated that he believed that he had killed the hack driver, to which remark Forsha made reply by saying that if he did not "kill him he ought to have done so." After having remained in the saloon

for some time, Mrs. Biggs went upstairs to go to bed, but at the request of Bailey she dressed herself and came back downstairs, and the four then went to labor headquarters, where the three men discussed the question as to what carriage company they would be most likely to get a driver from whom they could beat up with impunity. Bailey suggested the Depot Carriage & Baggage Company, but Forsha objected to this company, as the men that they employed would not, he contended, be as easy to beat up as the man that they had at the roadhouse. At Moon's suggestion, a hack driver was called from the Landis Livery Company and notified to be at the Coates House in half an hour. This occurred in the neighborhood of half past 2 o'clock. When the party left labor headquarters, Bailey told Mrs. Biggs to go upstairs in their room in the Thelma Hotel and get his revolver. To this Mrs. Biggs objected, telling Bailey that he should not have his pistol; that she had the key to the room, and would not give it up; that he, Bailey, was drinking too much, and that they had gotten into enough trouble for one evening. Bailey replied that he wanted a pistol, as he was going to get another son of a bitch before morning. Forsha then told Bailey to go in the saloon and get the revolver he had given to the bartender. Bailey went into the saloon and secured the revolver from the bartender. The party went up to the Coates House, and, when the hack arrived, Forsha directed the driver, who was Albert Ferguson, the deceased, to drive them to Fifteenth and Central, this place having been agreed upon on the way to the Coates House at the suggestion of Forsha that it was a dark place, suitable for beating up nonunion back drivers. As they were riding from the Coates House to Fifteenth and Central, a plan of action was agreed upon when they should arrive at the point of destination. It was agreed that Forsha and Moon should get out of the hack and grab Ferguson, the hack driver, and then he was to be beaten up, as Meyers had been served earlier in the night. Bailey added prophetically that if the hack driver "started anything" he would kill him. Bailey was carrying his pistol in his hand. The plan of action decided upon seemed to be that if Ferguson, when seized and disarmed, quietly submitted to being "beat up" by these three men at this lonely place at this hour of the morning, then they would be satisfied; but if he should attempt to "start anything"-that is, to defend himself-then he was to be killed. When the hack driver arrived at Fifteenth and Central, it stopped near the northeast corner. Ferguson, the driver, opened the door, and Forsha stepped out, quickly followed by Moon, and the two grappled with the driver. As soon as Bailey got out of the hack, Forsha, standing on the corner, said, "Shoot him; shoot him; kill the son of a bitch;"

and then he and Moon ran east on Fifteenth street. Mrs. Biggs had immediately followed Bailey out of the hack, and started to run east on Fifteenth street, preceded by Forsha and Moon. Bailey and Ferguson were at that time in the rear of the hack. When the Biggs woman had gone about a half block she heard a shot, followed by the cry from Ferguson, "Help! help! oh my God! I'm shot." This cry was immediately followed by another shot, and then in a short interval a number of shots were fired.

Bai

ley, leaving the scene of the murderous assault, ran in the direction of his associates, overtaking them at the first corner east on Fifteenth street, where he said that he thought that he had killed the son of a bitch, and that they must "run like hell," or they would get caught. It was agreed that they should scatter; Moon and Forsha going in one direction, and Bailey and the woman in another. The party of four, however, went to the Thelma Hotel according to agreement, where they met at Bailey's room. There they proceeded to coolly discuss the incidents of the homicide, Forsha relating how he had hit the deceased with a pair of brass knucks, and that it "didn't seem to daze him." Moon told how he hit him, and Bailey said deceased had put up "a hell of a fight," but that he "thought he had killed him," and Moon added that "if he did not he ought to." Forsha exhibited a bruise on the jaw he had received in the fight, and told how he had left the cartridge belt, a knife, and a pair of brass knucks at a saloon up on Ninth street. Forsha and Moon soon left the hotel after having another round of drinks at the saloon.

Ferguson was taken from the place of the homicide to the police station, from which place he was taken to the German Hospital, where he made a dying declaration to the assistant prosecuting attorney, A. S. Lyman, which is as follows:

"Mch. 19, 1904.

"I, Al. Ferguson, now at the German Hospital, believing that I am about to die, and having no hope of recovery, do make the following statement of the facts leading up to my being shot and wounded this morning at about three o'clock:

"This morning, shortly before 3 a. m., we got a call from the Coates House. Went there, and took three men and a man dressed in woman's clothes into my hack. They wanted me to drive them to Fifteenth and Central street. I drove there, and got down to let them out. I opened the hack door. I found that the man had removed his womIan's clothes, and there were four men there. As they got out they began to attack me. I defended myself as best as I could. The third man who got out of the hack shot me in the abdomen. He was a medium-sized man, with black hair. The first man who got out of the hack said to me, 'We have got you, you son of a bitch; what are you going

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