State v. Walker. support of this ground of the motion he filed an affidavit to the effect that the newly discovered witness was one Mabel Maupin; that said Mabel would, if sworn as a witness, testify that she was about fifteen years of age, and that the prosecuting witness, prior to this offense, had told her of having sexual intercourse with a colored boy, and that on another occasion she saw Nettie and a white boy go under a porch on the west end of one of the store buildings in Gallatin for the purpose of having sexual intercourse; that at another time, and prior to this offense, Nettie was visiting with her at the place she was living, when a colored boy came to the house, and, after some conversation with the two girls, asked Nettie to have sexual intercourse with him, to which she consented, and that said colored boy and Nettie did then and there indulge in sexual intercourse, and that she, witness, stood by in the room and saw them so engaged. The affidavit further states that the foregoing evidence first came to defendant's knowledge since the trial, and on Saturday night, October 28, 1911, and that "he has been trying for a long time-in fact, ever since his arrest-to learn of such evidence, but failed to learn. of it until that time, when the said Mabel told his, defendant's, father, Alexander Walker, what she would testify, and it was not owing to want of diligence that such information did not come sooner.' The affidavit of said Mabel Maupin was also filed, corroborating the statements of defendant's affidavit as to the evidence he claimed she would give. The State thereupon filed counter affidavits of ten persons to the effect that, said Mabel Maupin was "an unmarried female, the mother of a child, and that her general reputation for truth and veracity and virtue and chastity, in the town of Gallatin, where she lived during the summer of 1910, was bad." Defendant then filed the affidavits of nine persons to the effect that, while Mabel Maupin's reputation for virtue and chastity State v. Walker. was not, it was good for truth and veracity, and that she was working at the home of one of the best white families in Gallatin. Defendant on appeal assigns as error (1) the action of the court in giving to the jury instruction numbered 5; (2) in overruling defendant's motion for new trial on the ground of newly discovered evidence disclosed by the affidavits filed in support thereof. I. That portion of instruction 5 of which appellant complains is as follows: Instructions. "The court instructs the jury that if you believe from the evidence, beyond a reasonable doubt, that at the county of Daviess, and State of Missouri, on or about the day of October, 1910, or at any time within three years next before the filing of the affidavit of the complaining witness in this case, which affidavit was filed on the 4th day of February, 1911, the defendant did feloniously assault and carnally know the witness, Nettie Butts," etc., “you will find the defendant guilty," etc. The information in this case was filed April 4, 1911, and appellant insists that it was error to allow the jury to convict if they found the offense was committed within three years next before February 4, 1911, the date of the filing of the affidavit of the complaining witness, for the reason that the offense must occur within three years next before the filing of the information. It is true that section 4945, Revised Statutes 1909, concerning felonies of this character, does provide that the indictment must be found or the information filed within three years after Limitations. the commission of the offense. However, in the case at bar the appellant was not injured by the giving of the above instruction, for the reason that all of the evidence offered fixed the commission of the alleged offense as in October, 1910, and there was no Harmless State v. Walker. evidence tending to show the commission by defendant of any offense at a time which would be three years or more before the date of the filing of the information. Since the instruction in the form given did not prejudice defendant's rights in any manner, the giving of same did not constitute. reversible error. Newly Shown in II. The rule announcing the requirements necessary to be met by appellant in order to entitle him to a new trial on the ground of newly discovered evidence is well settled in this State (State v. Miller, 144 Mo. 1. c. 30; State v. Whitsett, 232 Mo. 1. c. 523); and it would serve no useful purFacts to be pose to recopy same here. Those requirements, so far as applicable here, are, that Motion. it was not for want of due diligence that appellant did not learn of the new evidence before the close of the trial, and that the character of the evidence is such that it would probably produce a different result if a new trial were granted. Appellant in his motion does not state any facts tending to show diligence. He contents himself with merely stating that he had been trying to learn of such evidence for a long time, but failed to learn of it sooner, and "that it was not owing to want of diligence that such information did not come sooner." It is thus seen that appellant did not state the facts from which diligence might appear, so that the court could pass upon the question of diligence, but in a sense appellant undertook to usurp the judicial function and to pass upon the question, and did nothing more in his application than to disclose his own finding or conclusion in regard thereto. "The statement of facts constituting the alleged diligence must be made clear and plain." [State v. Cushenberry, 157 Mo. 1. c. 183, 184.] The circumstances surrounding the newly dis 250 Mo.-21 State v. Walker. covered evidence are not such as to show that diligence would have been of no avail, and therefore such as to place this case within the exception to the above rule, as was the situation in State v. Moberly, 121 Mo. 604, cited by appellant in his brief. Neither do we think it probable that the newly discovered evidence would have produced a different result. On the trial of the case, witness Alberta Preston, who was unimpeached, testified that the prosecuting witness had told her of having had sexual relations with another party before the time of this offense, and pointed out the boy with whom she had such intercourse. The jury, however, credited the denial made by the prosecuting witness, and disbelieved the testimony of the Preston girl. It is not probable that a different result would be produced if a new trial were granted, and this newly discovered witness-impeached not only by ten persons, but also by her own admissions-allowed to testify. Discretion of The granting of a new trial upon the ground of newly discovered evidence is a matter largely resting in the sound discretion of the trial court (Insurance Co. v. Curran, 45 Mo. 142), and, absent an abuse of sound discretion, this court will not interfere. [Cook v. Railroad, 56 Mo. 380; Schmitt v. Railroad, 160 Mo. 43.] The judgment is affirmed. Roy, C., concurs. PER CURIAM.-The foregoing opinion of WILLIAMS, C., is adopted as the opinion of the court. All the judges concur. State v. Wilson. THE STATE v. MARY E. WILSON, Appellant. Division Two, May 20, 1913. 1. INSTRUCTIONS: Convicted of Lower Degree of Crime: Renders Harmless Error in Instruction on Higher Degree. Conviction of a lower degree of a crime renders harmless error in an instruction as to a higher degree. 2. EVIDENCE: Declarations of Deceased: Not Admissible: Mere Hearsay. In the trial of a woman for the killing of her husband it was proper to exclude testimony of statements of the murdered man made before the shooting, to the effect that he had forced his wife, at the point of a pistol, to write a letter incriminating herself. The State sustains no such relation to the party injured as will make his declarations admissible against the State when such declarations are not admissible as dying declarations or as a part of the res gestae. 3. : Threats and Violence of Deceased Toward Defendant: Admissible Unless Cumulative. In trials involving the question of self-defense the better rule is to allow all evidence of threats or violence of deceased toward defendant, limited only by a very sound discretion, but the rejection of evidence merely cumulative will not work a reversal. Appeal from Butler Circuit Court.-Hon. Jesse AFFIRMED. Phillips, Lentz & Phillips for appellant. John T. Barker, Attorney-General, and Thomas J. Higgs, Assistant Attorney-General, for the State. Murder. ROY, C.-Defendant was charged with murder in the first degree. The jury convicted her of murder in the second degree, but failed to agree on the punishment. The court sentenced her to ten years in the penitentiary, and she has appealed. She shot and killed her husband, Martin Wilson, in Poplar Bluff, on November 5, 1911. They were mar |