At the hospital, Ferguson was operated on by a physician in the vain hope of saving his life, but the next day he died. The fatal wound received by Ferguson was from a bullet which entered the abdomen three inches below and two inches to the right of the navel, taking a downward, backward, and outward course, perforating the bowels and lodging under the spine at a point about 21⁄2 inches below the brim of the hip and one to three inches in front of the spinal column.

A number of people who resided near Fifteenth and Central, that neighborhood being a residence and not a business section of the town, testified to being awakened by the shots and cries of the deceased. Their testimony agrees upon the proposition that there were two series of shots, between which there was a slight interval, and that the cries for help which they heard immediately followed the first shot. The testimony of the witness which was of most importance was that of William A. Satterlee, assistant general manager of the Metropolitan Street Railway Company, who resided at 221 West Fifteenth street, and who testified that he was awakened by the first shot, went to his window, and saw a man stand at the northeast corner of Fitteenth and Central and fire two or three shots in a westerly direction, and then turn and run east on Fifteenth street. Before these shots were fired, during the firing, and afterwards, he heard the cries for help.

The evidence in behalf of the defendant consisted of the testimony of Bailey and Moon, and that given by three painters who were working in the county jail on the date before the trial, and claimed to have heard Mrs. Biggs say that a representative of the state had told her father, her lawyer, and herself that if she testified against Forsha she would get out of jail, but if she didn't she would get 10 years in the penitentiary, and that she had also said if the sons of bitches didn't treat her right they would not get any evidence out of her.

Bailey, testifying in behalf of his associate, Forsha, stated that they, Forsha, Moon, Mrs. Biggs, and himself, had been at labor headquarters some 15 or 20 minutes before Moon had called the hack from the Landis Company, and that Forsha had not said anything in regard to a hack prior to that time; that, on the way from the Coates House to Fifteenth and Central, Forsha had called to the driver when he was going in the wrong direction, asking if he didn't know the way to Fifteenth and Central, saying that he ought to know, as he had

"scabbed long enough"; that to this remark Ferguson made reply by some muttered curses; that, when the hack arrived at Fifteenth and Central, Ferguson, with a revolver in his hand, opened the door and said, "Get out of here, you union bastards;" that Forsha then got out of the door, and was promptly knocked down by Ferguson; that Moon, following, dodged a blow; and that, as he himself got out of the hack, Ferguson shot at him, the bullet passing by his head; that he was in such position that he could not run, and so he grappled with the hack driver, who fired again, the bullet passing through his clothing and grazing his stomach, making him think that he was shot: that then he threw Ferguson from him, and the latter thereupon drew his gun over the wheel of the hack, and at that "I jerked my gun and commenced to shoot, and he done the same." He denied that Forsha said anything to him as he got out of the hack, and claimed that, at the time the shooting had begun, Forsha and Moon were running away. He also testified that there was nothing said at headquarters, or on the way to Fifteenth and Central, about shooting anybody; that he and the balance of the party were all under the influence of liquor, and while in the hack were "jollying back and forth" and singing "Bedelia." On cross-examination he admitted that he did get the revolver which he had given to Robinson, the bartender, before he left the saloon, but was not positive whether Forsha was present at the time or not. He denied having sent Mrs. Biggs up to the room to get the revolver which he afterwards gave to the bartender, claiming that he had given it to him "in a drunken way." He stated that Fifteenth and Central had been selected as the destination of their hack ride on the impulse of the moment, and that their intention in having a nonunion hack driver drive them there was "to give him a bogus call, then get out and walk away, because they (nonunion hack drivers) had been in the habit of sending us on bogus calls"; that he knew the driver of this hack was a nonunion man, and to give him a "bogus call" was the sole purpose of the ride. Witness further testified that he was not a member of the "wrecking crew" of the Hack Drivers' Union. He admitted that upon Monday after the homicide he moved from the Thelma Hotel to Hasbrook Place, and did not give his name at his new location, but claimed that he did not remain there in hiding; that he stayed close to his room because he felt bad over the "difficulty." He declined to answer as to what statements he made to the officers when arrested, but admitted that he had given Mrs. Biggs money to leave town on, but denied that it was at his suggestion that she left. Bailey stated that he had hold of Ferguson's hand in which the latter had his revolver when the second shot was fired, but could

other or others, willfully, premeditatedly, and of his malice aforethought, did with a certain revolving pistol, and that the same was a dangerous and deadly weapon, shoot one Albert Ferguson, inflicting upon him a mortal wound, from which mortal wound the said Albert Ferguson within one year thereafter, at the county of Jackson and state of Missouri, died, then you will find the defendant guilty of murder in the second degree, and assess his punishment at imprisonment in the State Penitentiary for any term not less than 10 years.

"No. 4. The court instructs the jury that, if they find and believe from the evidence that James Forsha was present aiding and abetting Edgar G. Bailey in the act of homicide in evidence in this case, he is in law equally guilty with him who fired the shot. When two or more persons are engaged in the same illegal purpose, any act done by one of the party in pursuance of that purpose, and with reference to it, is, in contemplation of law, the act of all; and proof of such act is evidence against any or either of the others who were engaged in the combination.

"No. 5. The court instructs the jury that if you find and believe from the evidence that defendant, James Forsha, conspired and agreed with William Moon and Edgar G. Bailey to assault and beat Albert Ferguson, but not to the extent to doing him great bodily harm, and absolutely without any intention in Forsha's mind of shooting said Ferguson, and that, in pursuance of said agreement, any one or all of the parties thereto assaulted said Albert Ferguson with the intention aforesaid, and that thereafter or thereupon Edgar G. Bailey, without the consent, aid, or encouragement of defendant, James Forsha, shot and killed Albert Ferguson, then in that case you will find the defendant guilty of manslaughter in the fourth degree.

"No. 6. The court instructs the jury that, if you shall believe and find from the evidence that at the time it is charged that Albert Ferguson was killed, the defendant, James Forsha, William Moon, and Edgar G. Bailey were acting together, and that Albert Ferguson was about to kill Edgar G. Bailey or do him great bodily harm, that then he had the right to kill Albert Ferguson under such circumstances; but to justify such killing you must find from the evidence that he did believe, and had reasonable cause to believe, that such injury was about to be done, and that deceased was killed 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, and that there should have been at the time of such killing reasonable grounds for such belief. It is for you to say from the evidence in the case whether Edgar G. Bailey did believe, and had reason

harm at the time the deceased was shot was about to fall on him. If, as a fact, he did not have reasonable cause to believe that such danger was impending at the time the deceased was shot, then such killing is not justifiable. His believing himself in danger is not sufficient; he must have had reasonable cause to believe it, and of that you are to determine from all the facts and circumstances in the case. If you find that Bailey shot in self-defense as defined, then you should find defendant guilty.

"No. 7. If the jury believe and find from the evidence that Bailey, Forsha, and Moon confederated together and engaged in a common design to take deceased out on the night in question and beat him up, and that it was part of their common design and purpose, if deceased made resistance, to kill him or to do him some great bodily injury, then whatever Bailey did in carrying out the common purpose was in law the act of Forsha, the defendant, and they are equally liable for such act; and if the defendant and Bailey and Moon, in pursuance to such common design, brought on the difficulty in which Albert Ferguson was killed, and entered into it with the intention of killing or inflicting great personal injury upon Ferguson, if he should resist them, then the danger in which they, or any of them, found themselves or himself, would not extenuate the offense or reduce its grade, and there could be no selfdefense in the case.

"No. 8. The court instructs the jury that if you find from the evidence that James Forsha, William Moon, and Edgar G. Bailey conspired and agreed to entice Albert Ferguson to Fifteenth and Central streets, and there assault him, but not to the extent of killing him or doing him great bodily harm, and that upon arriving at said place James Forsha struck at or struck Albert Ferguson, but did not inflict upon him any injury suffi cient to endanger his life, and that immediately thereafter the defendant James Forsha ran away, and endeavored in good faith to withdraw from said difficulty, and Edgar Bailey then killed Ferguson, but not under circumstances to constitute complete selfdefense, as elsewhere in these instructions defined, then you will find defendant guilty of manslaughter in the fourth degree. if defendant, at the time or immediately before he ran away, incited or encouraged Bailey to kill Ferguson or to do him great bodily harm, and intended that he should kill or inflict upon him great bodily harm, then his running away would not avail the defendant anything.

But

"No. 9. The court instructs the jury that if defendant and Bailey and Moon voluntarily entered into the difficulty, or brought it on, but without any intention of killing or inflicting upon Ferguson any great personal injury, and without intending to kill him or to do him great bodily harm if he

before he was assaulted, with a deadly weapon attempted to kill Bailey or Moon or Forsha, and it became necessary for Bailey to kill said Ferguson to save himself or to save Moon or Forsha from being killed or receiving great personal injury, then the defendant cannot be entirely excused on the ground that Bailey killed Ferguson in self-defense, but in that case you should find the defendant guilty of manslaughter in the fourth degree.

"No. 10. The court instructs the jury that, if they find the defendant guilty of manslaughter in the fourth degree, they will assess his punishment at imprisonment in the State Penitentiary for a term of two years, or by imprisonment in the county jail not less than six months nor more than twelve months, or by a fine not less than five hundred dollars, or by both a fine of not less than one hundred dollars and imprison, ment in the county jail not less than three months, nor more than twelve months.

"No. 11. The court instructs the jury that any statements which the proof shows Edgar Bailey made after the homicide was committed, and not in the presence of the defendant Forsha, are not binding upon the defendant, but can only be considered so far as it may throw light upon the acts or testimony of Bailey.

"No. 12. If verbal or written statements of the defendant have been proven in this case, you may take them into consideration, with all the other facts and circumstances proven. What the proof may show you, if anything, that the defendant has said against himself, is presumed to be true, because against himself; but anything you may believe from the evidence the defendant said in his own behalf you are not obliged to believe, but you may treat the same as true or false, just as you believe it true or false, when considered with a view to all the other facts and circumstances in the case.

"No. 13. The court instructs the jury that the law presumes the innocence and not the guilt of the defendant, and this presumption of innocence attends the defendant throughout the trial, and at the end entitles the defendant to an acquittal, unless the evidence in the case, when taken as a whole, satisfies you of the defendant's guilt beyond a reasonable doubt as defined in these instructions.

"No. 14. The court instructs the jury that the burden of proof in this case rests upon the state.

"No. 15. The court instructs the jury that before they can convict the defendant they must be satisfied of his guilt beyond a reasonable doubt. Such doubt, to authorize an acquittal upon reasonable doubt, must be a substantial doubt of the defendant's guilt, with a view to all the evidence in the case, and not a mere possibility of the defendant's innocence.

"No. 16. The jury are the sole judges of the credibility of the witnesses, and of the 88 S.W.-48

weight and value to be given to their testimony. In determining as to the credit you will give to a witness, and the weight and value you will attach to a witness' testimony, you should take into consideration the conduct and appearance of the witness upon the stand, the interest of the witness, if any, in the result of the trial, the motives actuating the witness in testifying, the witness' relation to or feeling for or against the defendant or the alleged injured party, the probability or improbability of the witness' statements, the opportunity the witness had to observe and to be informed as to the matters respecting which such witness gives testimony, and the inclination of the witness to speak truthfully or otherwise as to matters within the knowledge of such witness. All these matters being taken into account, with all the other facts and circumstances given in evidence, it is your province to give to each witness such credit, and the testimony of each witness such value and weight, as you deem proper. If, upon a consideration of all the evidence, you conIclude that any witness has sworn willfully false as to any material matter involved in the trial, you may reject or treat as untrue the whole or any part of such witness' testimony.

"No. 17. The court instructs the jury that the defendant is a competent witness in this case, and you must consider his testimony in arriving at your verdict; but in determining what weight and credibility you will give to his testimony in making up your verdict, you may take into consideration, as affecting his credibility, his interest in the result of the case, and that he is the accused party on trial, testifying in his own behalf.

"No. 18. The court instructs the jury that the statement read to you as the dying declaration of Albert Ferguson should be received by you as such declaration, but because it is a dying declaration you are not necessarily bound to believe it, but you will give it that weight which you think it ought to have when considered in connection with all the other facts and circumstances in evidence.

"No. 19. The court instructs the jury that the defendant is not charged in this case with making an assault upon Albert Meyers, and you will not consider the testimony before you upon that subject, except in so far as it may tend to throw light upon the motives or intentions of Bailey, Moon, and this defendant; whether or not it does throw light on the motives and intentions of defendant and Moon and Bailey, you will be the judges, when it is viewed in connection with all the other facts and circumstances in the case."

The cause was submitted to the jury upon the testimony and the instructions of the court as herein indicated, and they returned a verdict of guilty of murder of the s degree, and assessed defendant's pu

1

at imprisonment in the penitentiary for 18 years. Sentence and judgment was rendered in accordance with the verdict, and from this judgment defendant prosecutes this appeal, and the cause is now before us for consideration.

W. F. Riggs, for appellant. H. S. Hadley, Atty. Gen., and North T. Gentry, for the State.

Numer

FOX, J. (after stating the facts). ous complaints are urged by learned counsel for appellant as grounds for the reversal of the judgment in this cause. This is a companion case of State v. Bailey (not yet reported) 88 S. W. 733, and the testimony as to the main facts upon which this judgment rests, with a few exceptions, are substantially the same as in that case.

At the very inception of the consideration of this cause, it is well to see what legal propositions were disposed of in the Bailey Case, for, as to questions involved in that case, we see no reason to depart from the conclusions announced, and they must be treated as being settled.

The defendant Bailey, Forsha, and Moon were jointly charged with murder in the information now under consideration, and its sufficiency is challenged in this cause upon the same ground as urged in State v. Bailey, supra. It is unnecessary to repeat the reasons assigned in the Bailey Case, for, holding the charge as made in the information sufficient, that proposition must be treated as settled. State v. Bailey, supra; State v. Nelson, 181 Mo. 340, 80 S. W. 947. It will be sufficient to say, as to the additional ground urged in the motion to quash the information, "that the seal of the court was not affixed to the jurat of the clerk, and that the oath was administered by the deputy clerk," that there is no merit in such contention. The court to whom this motion was addressed is presumed to know its officers and their signatures, and the omission of the seal of the court to the jurat does not invalidate the verification. The purpose of affixing the seal of the court to the jurat of the clerk is in the nature of an attestation of the genuineness of his signature, but the affixing of the seal is not an indispensable requisite to such jurat, as was very appropriately said by the Court of Appeals in State v. Pfenninger, 76 Mo. App. 313: "The judge of a court having a clerk will take judicial notice of the signature of the clerk, and an attestation of such signature by a seal is not indispensable to satisfy the judge of the genuineness of his signature; and, when the attention of the judge was called to the signature of the clerk by the motion to quash in this case, it will be presumed, in the absence of any evidence to the contrary, that he inspected the signature of the jurat and saw that it was genuine."

The assignment of error upon the admis

sion of testimony in respect to the difficulty with Meyers on the night of the homicide was fully and exhaustively treated by Judge Gantt in State v. Bailey, and it is only necessary to say that we are fully satisfied with the conclusions reached upon that proposition, and see no reason for a reconsideration of that question, or departing from the rules of evidence announced in that case.

It is insisted by appellant that the court erred in retaining jurors Shaw, Duncan, Bell, and Ryan on the panel from which the jury of 12 was to be selected to try this cause. We have carefully considered the record disclosing the examination of the jurors upon their voir dire. The record discloses, after the close of the examination of each juror, that counsel for appellant contented themselves with a simple objection, "challenged for cause." This was insufficient to preserve the error complained of for review. It has been uniformly held by this court that the grounds of challenge must be specifically stated. State v. Taylor, 134 Mo. 109, 35 S. W. 92, and cases cited; State v. Evans, 161 Mo. 95, 61 S. W. 590, 84 Am. St. Rep. 669; State v. McGinnis, 158 Mo. 105, 59 S. W. 83. We may also add, in addition to the failure to preserve the question of disqualification of the jurors for review in this court, that their examination did not disclose their disqualification. While they had formed and expressed opinions as to the guilt of the defendant from rumor or newspaper accounts of the killing of Ferguson, they finally state that they could give the defendant a fair and impartial trial upon the testimony as it may be introduced before them. In State v. Reed, 137 Mo., loc. cit. 132, 38 S. W. 574, the rule upon this subject was clearly and tersely stated. It was there said: "It is well settled in this state that a person otherwise qualified to sit as a juror in a criminal case is not disqualified by reason of having formed an opinion as to the guilt or innocence of the accused from reading partial newspaper accounts of the homicide, or from rumor, when he states on his voir dire that he can give the defendant a fair and impartial trial;" and, "moreover, a general objection did really not amount to an objection."

Numerous complaints are made upon the admission and exclusion of evidence during the progress of this trial. Some of them are doubtless not seriously made; however, we have fully considered all of them, but must be content with the expression of our views upon those which are of sufficient merit to demand serious consideration. It is insisted by appellant that the testimony of L. R. Cooper, in which the witness stated that on the 19th of March he had said in the presence of Bailey that "the strikers could not expect to win as long as they are using violence and shooting people; they will get public sentiment down on them;" and that Bailey replied, "that is the only way to

win"-was incompetent, and its admission constituted reversible error. The objection to this testimony is predicated upon two theories: First, that the statement was made in the absence of this defendant, and cannot be binding upon him; and, secondly, that it was in the nature of a confession or admission of a co-conspirator after the commission of the act and termination of the conspiracy. Appellant clearly misconceives the purpose of the testimony of Cooper. Bailey was called as a witness for defendant in this cause, and the state was, beyond question, privileged to introduce any testimony which tended to contradict him, and, Bailey having denied upon cross-examination that he had made any such statement as testified by Cooper, it was clearly competent for the state to contradict him in that respect. The statements of Bailey were relevant in this controversy, for he was the principal actor in the commission of the homicide, and his statement to Cooper tended to refute the theory of self-defense, and was therefore material, and, being so, the state had the right to contradict the witness in respect to such testimony.

There was no error in the exclusion of the answer of Bailey to a question propounded, that, in shooting Ferguson, he (Bailey) was not actuated by anything that this defendant said or did. He had fully testified on that subject, had denied that this defendant had said anything to him about killing Ferguson, or that there was any agreement or understanding that any violence was to be inflicted upon any one, and stated that the mission in taking the drive with Ferguson was purely an innocent one. We are unable to see what force the answer to the question could have added to what he had already testified. His answer was nothing more than a conclusion of the witness from the facts to which he had given testimony, and it was the province of the jury to frame their conclusions from such facts, and the testimony was properly excluded.

The record discloses complaint upon the cross-examination of witness Moon, for defendant. A careful consideration of that entire examination fails to disclose any error. The state, as affecting the credibility of the witness, could legitimately inquire of the witness if he had been previously convicted of a criminal offense. After the witness admitted that he had pleaded guilty to a common assault, there was nothing improper in permitting the state to show by the record that the witness had pleaded guilty to a charge of an assault with intent to kill. This testimony was admissible as affecting the credibility of the witness. State v. Howard, 102 Mo. 142, 14 S. W. 937; State v. Blitz, 171 Mo. 530, 71 S. W. 1027.

Again, it is urged that the testimony of witnesses W. E. Ferguson and Mrs. Clara Stevens was incompetent, and should have been excluded. An examination of the record

as to the testimony of the witnesses above noted discloses that the examination of these witnesses was complete before any effort was made to exclude this testimony, and, while the questions and answers in the examination cover a number of pages, there is an entire absence of a single objection or exception to the testimony given. After the testimony was all submitted to the jury, then counsel for appellant moved that it be stricken out. This method of preserving complaints to the action of the trial court has not met with the approval of this court. It was ruled in State v. Marcks, 140 Mo., loc. cit. 668, 669, 41 S. W. 973, 43 S. W. 1095, that, where timely objections and exceptions were not made to testimony at the time of its introduction, it was not error to refuse to exclude it afterwards; and, in the discussion of the proposition, Gantt, J., in speaking for this court, said: "A party cannot speculate upon the effect of evidence which is objectionable upon its face when offered, as this clearly was, if ever, and then complain of a refusal to reject it later in the trial. Maxwell v. Railroad, 85 Mo. 95; State v. Hope, 100 Mo. 347, 13 S. W. 490, 8 L. R. A. 608; People v. Chacon, 102 N. Y. 669, 6 N. E. 303; Miller v. Montgomery, 78 N. Y. 282; Quin v. Lloyd, 41 N. Y. 349; Barkly v. Copeland, 86 Cal. 483, 25 Pac. 1; 1 Rice, Ev. §§ 258, 259; Hickman v. Green, 123 Mo. 165, 22 S. W. 455, 27 S. W. 440, 29 L. R. A. 39." This rule of practice as announced in the case last cited was approved in Roe v. Bank, 167 Mo. 426, 67 S. W. 303.

This leads us to the complaint urged in respect to the examination of defendant in this cause as a witness in his own behalf. The record before us discloses that the defendant rested his case in chief without being introduced as a witness in the cause, and the court properly ruled that his testimony should be confined to rebuttal of the rebuttal testimony introduced by the state. The record discloses numerous questions propounded to the defendant, and his answers excluded without any objection or exception on the part of the appellant; hence the action of the court as to those questions and answers were not properly preserved, and are not subject to be reviewed by this court. Counsel for appellant, with commendable frankness, concede that no proper objections or exceptions were made in respect to these matters. The defendant was permitted to testify fully as to all matters which were in rebuttal of the testimony introduced in rebuttal by the state. It is apparent from the record that the main purpose of introducing defendant as a witness was to explain the statement in writing made by him, introduced by the state. There is no pretense that he did not make the statement offered in evidence, or that it is ambiguous or uncertain in any of its terms, and, so far as any explanation of this statement at the time it was made, and what was said at the t