State v. Sillbaugh. This instruction correctly declares the law (Sec. 4629, R. S. 1909), as to the inference of malice in cases of the character of the one at bar; it should Malice. be read and interpreted in connection with instruction number four, given by the court, which defined all of the essential facts necessary to constitute the offense charged, and told the jury that the finding of the element of malice was one of the requisites to a verdict of guilty and instruction number five was simply explanatory thereof; in addition, the court in another instruction properly defined malice. In view of these declarations of the law the jury could not have been misled and defendant's contention is devoid of merit. Instruction numbered nine, which defendant assigns as error, is as follows: "If you find from the evidence that the defendant shot the hogs in question to protect his crops, and it was necessary to do so to protect said crops, and said act was done without malice to the animal or owner, then you shall acquit the defendant." Shooting This instruction is in conflict with the other instructions and announces a false and pernicious doctrine. The mere fact that domestic animals are trespassing gives no right to the owner of land or crops to injure or destroy them; this is true although the land-owner has such a fence as the law requires (State v. Prater, 130 Mo. App. 348; 2 Cyc. 433), which was not the fact in the case at bar. The Supreme Court of Illinois in construing a statute in substantially the same language as that of this State, says: "It is a violation of the common law, as well as of this statute, for a person to shoot or wound stock found trespassing upon his premises. He may expel them from his premises, and use the necessary force for that purpose, doing them no unnecessary damage; or he may take them up damage-feasant, if need be, to protect his State v. Sillbaugh. crops or close." [Snap and Francis v. People, 19 Ill. 80, 68 Am. Dec. 582.] While the animus and intention of the act may be shown to establish innocence (State v. Graham, 46 Mo. 490), it has never been held by our courts that, when it has been shown that the animal was injured or killed while trespassing, whether in the destruction of crops or otherwise, in the absence of malice against the owner or the animal the accused should be acquitted. The instruction, however, does not constitute reversible error, for the sufficient reason that the defendant was not thereby injured. A favorable instruction not tending to the injury of the one toward whom it leans, cannot be objected to by him. Since the law gives no redress for a wrong not resulting in injury, one who has suffered nothing from the omission of an instruction or the giving of an incorrect one will not be heard to complain. This in substance is the lucid language of Bishop in the discussion of this subject. [2 Bishop, N. Cr. Proc. (Underhill's 2 Ed., 1913) sec. 980, par. 7, p. 823, and sec. 980-b, p. 828.] A like doctrine is announced in State v. Terry, 106 Mo. 1. c. 216. The instructions given by the court properly declared the law upon every essential fact in evidence necessary to enable the jury to render an intelligent verdict and the instructions asked by the defendant were, therefore, properly refused. Finding no prejudicial error, the judgment of the trial court should be affirmed, and it is so ordered. Brown, P. J., concurs; Faris, J., concurs in result only. State v. Walker. THE STATE v. THOMAS WALKER, Appellant. Division Two, May 20, 1913. 1. INSTRUCTIONS: Limitations: Three Year Period Fixed too Remotely: Harmless Error. Where all the evidence offered fixed the commission of the offense by defendant at a time less than a year before the filing of the information, and where there was no evidence of any offense committed by him three years or more before it was filed, he was not injured by an instruction which set the three-year period to running from the date of filing of the complaining witness's affidavit, or two months before the information was filed. 2. NEWLY DISCOVERED EVIDENCE: New Trial: Discretion of Trial Court. The granting of a new trial upon the ground of newly discovered evidence is a matter resting largely in the sound discretion of the trial court, and absent an abuse of sound discretion, the Supreme Court will not interfere. 3. : Motion Must Show Facts Constituting Diligence. To entitle one to a new trial upon the ground of newly discovered evidence the motion therefor must show that it was not for want of due diligence that such evidence was not found before the close of the trial, and that the new evidence is of such kind as would probably produce a different result upon another trial. And such motion must state the facts constituting diligence. Appeal from Daviess Circuit Court.-Hon. Arch B. Davis, Judge. AFFIRMED. J. C. Leopard and Thomas H. Hicklin for appellant. (1) In cases of conflicting affidavits, where the credibility of the proposed new witness is involved, the court should not assume the functions of a jury, but should grant a new trial. 14 Ency. Pl. & Pr., pp. 794, 795, and cases cited under note 2, p. 795. (2) The proposed evidence is not cumulative, even though State v. Walker. it is additional to other evidence tending to prove the same thing, where it is of a different character and proof of a new and distinct fact. State v. Curtis, 77 Mo. 267; State v. Murray, 91 Mo. 103; 14 Ency. Pl. & Pr., pp. 815-817, and notes 1 and 2, p. 817; St. John v. Alderson, 32 Gratt. (Va.) 140. (3) The proposed new evidence would probably produce a different result on a new trial. State v. Curtis, 77 Mo. 267; State v. Moberly, 121 Mo. 614; State v. Murray, 91 Mo. 103. (4) Where evidence, as of the Preston girl, has been denied and attacked, even cumulative, newly discovered evidence would be admissible. State v. Evans, 65 Mo. 580. John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for the State. There is no error in instruction 5. The affidavit was filed February 4, 1911, and that day the prosecution was begun and the running of the Statute of Limitations was interrupted. Sec. 2441, R. S. 1909; State v. Sassaman, 214 Mo. 720. WILLIAMS, C.-Defendant was tried in the circuit court of Daviess county, upon an information charging him with having carnal knowledge of an unmarried female of previous chaste character, between the ages of fourteen and eighteen years, was found guilty, and his punishment assessed at imprisonment in the penitentiary for a term of two years. The State's evidence disclosed that the defendant and the prosecuting witness were negroes, and that at the time the offense was committed the prosecuting witness was fifteen and the defendant about thirty-two years of age. In October, 1910, Nettie, the prosecuting witness, was at the home of a neighbor, where she and another girl called Irene, being the only persons in the house, were playing on the organ and State v. Walker. singing. Defendant came into the house and room where the girls were, went up to the organ, and began pulling at Irene, who struck him with her hat pin, and told him “she was not going to do what he wanted her to do." Defendant then turned his attention to the prosecuting witness, took hold of her, "pushed" her into another room and up a flight of stairs, and over and on to a bed, where he had sexual intercourse with her. Just before the commission of the offense defendant promised to pay the girl, for her consent to the act, the sum of six dollars, and a few days thereafter he paid her the sum promised. The prosecutrix testified that this was her first act of intercourse. Several witnesses testified that prior to this occurrence the girl's reputation for virtue and chastity was good. Three of four letters proven to be in the handwriting of defendant, and addressed to the girl's parents, were offered and read in evidence, in which letters defendant sought to compromise his difficulty by offering to pay from twentyfive to fifty dollars to the parents, and to marry the girl. Defendant did not testify in his own behalf, but produced evidence tending to show that during the summer prior to the commission of the offense, the prosecutrix would remain out in town as late as ten or eleven o'clock at night, necessitating her mother's going after her, bringing her home and punishing her. Alberta Preston testified on behalf of defendant that some time in June, and prior to the offense complained of, she had a conversation with Nettie, the prosecutrix, while walking along the street, during which conversation Nettie pointed out to witness a certain white boy on the street, and said that she had had sexual intercourse with him. Defendant filed a motion for a new trial, and one of the grounds thereof was that he had discovered new and material evidence since the date of the trial. In |