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to draw his knife which she knew he had; that she rushed to the foot of the bed, where she said she had a revolver, grabbed it up, and shot him; that she said the ball must have struck him in the side of the head, as he was scarcely half way turned. She said she knew he had a knife, and knew he had no revolver, because he had pawned his revolver several days before that, and that she knew he had no money to redeem it, because she had loaned him her meal ticket the morning or night before; that she had to kill him; that it was a question of which should die; that she was afraid he was going to attack her with a knife, and therefore she shot him; and that she then rushed downstairs, ran out of the house, and went to the Four Courts and surrendered.

The defendant introduced evidence showing that the deceased was of a wild and turbulent disposition and in the habit of becoming intoxicated, and when in that condition was very quarrelsome. The defendant testified in her own behalf substantially as follows: "On the 18th day of April, 1903, I lived at 2814 Locust street, with Mrs. Dunn. I lived in the back room of the third story. The deceased and I were married on the 13th of July, 1902. We first lived at 336 Lucas avenue, and then went to 3400 Lucas avenue; stayed there about four weeks. One night he came home about half past 11 very drunk, and I did not know what was the matter with him. I got up and asked him what was the matter. He knocked me down and called me names, and said I did not care for him. He pulled his trunk out in the hall, and said he would not live with a woman that did not love him. I pulled the trunk back in the room. He had a revolver in his hand. He went down in front and shot his revolver; came in again, and commenced to swear and beat me, and threw me on the bed. I screamed for help. He said: 'I will kill you. I don't care who comes in.' He left the room, and returned and beat me again, and I begged him not to kill me. He said he would kill me anyway. I paid the board for both of us; paid the board all the time out of my own pocket. I was working at the dressmaking business, and made $10 a week. We then moved to 2904 Morgan street. A lady came there to see him one night. We did not stay there very long, because the landlady told me that she could not have us around the house. We then moved to 2934 Lucas avenue. I was out for a week. When I came back he accused me of being out with men. He knocked me down on the floor near the table, pulled a revolver from his pocket, and was going to smash me with it. I got scared, heard some one in the hall, and pushed his revolver under the wardrobe. He then struck me and called me names. Another time he came home drunk, broke the door open, and struck me. I ran downstairs, and asked Mrs. Harris if I could not stay with her all night; that I was afraid

he would kill me. I stayed that night with Mrs. Harris in the back parlor, and he kept going up and down stairs every five minutes, saying: 'If I could get her, I would kill her, the God damn bitch. She will not run away from me.' Then I went upstairs in the room the next morning, and he was there and commenced quarreling with me-accused me of being out all night. I had not been out that night, nor the night before. After that I was working at Nugent's, and he came down there, right in at the door at the Washington avenue entrance, and came up to me, and says: 'I have got to have some money. I will have money, or there will be trouble. You know what Callaway did to his wife across the street here. If you don't get me some money, I will do the same thing.' And so I gave him $10. The next trouble we had was on Washington avenue. He got in my room that night with a skeleton key, and took $29 and all of my jewelry out of my trunk. I was going upstairs, and I met him running down, and I went upstairs and wondered how he got into the house and asked the landlady. I followed him to Washington and Garrison, screaming at the top of my voice, and caught up with him. I told him to give back my money. He said he would not do it. I went back home. I went down the next morning to the insane asylum to see him; had a talk with him; said he had my jewelry and money, but would not give it to me. I then went back near the asylum, and saw Mrs. Leissmeister, and asked her if I could get board there. I did not get board at first, but went back the second time, and she took me in; got a room and board. My husband lived there with me. I went there Saturday, and he came on the following Monday. I got the jewelry back in three weeks, but never got any money back. I had trouble with him at that place. One night he came home very drunk, and commenced to quarrel, and pointed his revolver at me; said he would kill me. I ran up to the third story, and the landlord got up and told him he must put away that revolver. He then went back to 2914 Locust street. I did not see him until the following Monday. He stole my jewelry again and $30 in money. I wrote him on the 11th of April. I did not write him a letter on Saturday, April 18th. Friday, April 17th, we got up late and had breakfast at 3100 Olive street. I paid for the breakfast. I walked to Thirty-Fourth and Channing and got his laundry; paid $1.50 for it. I brought it back to his room on Channing avenue. Saw my husband that night again. He came home to my room. We stayed together that night. The next morning we got up. and I gave him my meal ticket, and he got his breakfast at the boarding house. He came back and says, 'I have got to have some money,' and I told him I did not have any. He says, 'I will be back this afternoon, and you have got to have the money,

or something will be done.' I went to his room in the afternoon to look for him to help him pack his trunk as he requested, but he was not there. I went then and secured a revolver, as I knew there would be trouble. My life was in danger, and I wanted something to protect myself. He had always carried a revolver, and told me this revolver had a record of two marks, and the third mark will be your mark. His revolver was then in the pawnshop. After I got the revolver I came back home. I went upstairs, and was not upstairs more than a few minutes when Cummings came in. He came in cursing and calling me all kinds of names. I asked him for my keys. He took a bunch of keys out of his pocket, and threw them on the bed, and said, 'Here is your God damn keys.' He went around the room cursing, and to the corner right in front of the dresser, picked up a pair of scissors on the stand, and he had the scissors like this, and was trying to get them open, and slung them over in the corner. I was standing at the foot of the bed, and the revolver was there on the bed. He said, 'You are a God damn bitch, and I am going to finish you right now,' and he put his hand in his pocket and got his knife open, and I grabbed the revolver and shot him. I saw the knife in his hand. He said, 'You God damn bitch, I am going to kill you right now.' I was standing at the foot of the bed, and he turned around and pulled that open knife from his pocket, and I grabbed the revolver and shot him. He was very close to me. I held the revolver right up against his face. I was almost paralyzed for a few minutes, and when I recovered I walked downstairs and called Mrs. Duff, and told her what happened. I said: 'Mrs. Duff, I shot my husband. It was my life or his, and I had to. I swear I had to save my own life.' Mrs. Duff sent for the doctor right away, and I walked upstairs to the second floor, and waited for the doctor to come, and I says: 'Here is the man. Here is the revolver. Here is the scissors.' And I asked him what I should

do. He says: 'Will tell you what to do. Go downstairs and give yourself up.' And I came right down to the Four Courts and gave myself up. I stopped at my boarding house and got a cup of tea. When I left the boarding house I walked to Twenty-Eighth and Olive, and took a street car right to Olive street and Eighteenth, and transferred to Eighteenth, and came here to the Four Courts, and I walked to the Four Courts. I walked in there, and went up to the railing, and asked for the sergeant or captain. I told him my name was Mrs. Cummings, and that I had shot my husband in self-defense. He took down my name, and called Mr. Harrington, who was standing near the railing, and he took me upstairs to the matron on the third story."

At the close of the evidence the court fully and fairly instructed the jury upon murder

of the second degree, self-defense, and reasonable doubt, and the cause was submitted to the jury; and they returned a verdict of guilty, assessing defendant's punishment at 10 years' imprisonment in the penitentiary. From a judgment rendered in accordance with this verdict, defendant in due time and form appealed, and the record is now before us for consideration.

John I. Martin, C. E. L. Thomas, and James H. Lay, for appellant. E. C. Crow, Atty. Gen., Sam B. Jeffries, H. S. Hadley, Atty. Gen., and John Kennish, for the State.

FOX, J. (after stating the facts). Numerous errors are assigned and urged by counsel for appellant as reasons for the reversal of the judgment in this cause. We will treat the assignment of errors in the order as stated in the brief, and give them such consideration as their importance merit and demand.

Appellant complains at the action of the court in its denial of her application for a continuance. The consideration of the action of the trial court upon the application for continuance leads us to the inquiry as to what are the essential requisites of such application in a criminal case. In order to conform to the requirements of the statute upon this subject, it is necessary that the application should show the materiality of the evidence of the absent witness, and that due diligence has been used to procure the attendance of such witness. It should substantially state the facts that the applicant expects to prove by such absent witness, and that the applicant believes such facts to be true. It should give the names of the witnesses, and, if known, where they reside or may be found. It should indicate in some way the probability of procuring the attendance of such absent witness, or his deposition, in the event of the granting of the continuance. It should state that the applicant is unable to prove the facts that are alleged can be proven by the absent witness by any other witness whose testimony can be as readily procured. Finally, it should state that the witness is not absent by the consent, connivance, or procurement of the applicant, and that the application is not made for vexation or delay, but to obtain substantial justice. The sufficiency of this application must be measured by the essential, necessary requisites above indicated.

A defendant, being confronted with a serious criminal charge, must exercise reasonable diligence in preparation for trial, and ordinarily, where he or she in good faith is preparing for trial, and in fact wants the case tried on the day it is set for trial, the application for process for witnesses who are material to the defendant is made within a reasonable time before the case is set down for hearing, and is not delayed to a very few days before such hearing. Appli

cation for process for witnesses must be timely, and, if otherwise, upon request for a continuance on the ground of the absence of such witnesses, the trial court will expect and has the right to require a showing of substantial and valid reasons for such failure and delay in making application for the process. As applicable to the diligence disclosed in the application for continuance now under consideration, we find the witnesses sought by the defendant to be residents of the city of St. Louis. Whether their residence was only temporary or permanent is not disclosed in the application. The case was set for hearing on the 7th of July. Process was not procured until the 1st of July. There is no statement in the application assigning any reasons why the securing of process for these witnesses was delayed until five or six days before the case was to be called for trial. It is nowhere made to appear by the application when knowledge came to the defendant that the absent witnesses would testify to the facts alleged, to the end that the court might take that fact into consideration in the exercise of its discretion in granting a continuance. If the defendant knew that these witnesses would testify to the facts indicated, and they were located in St. Louis, we see no good reason for waiting to procure process for them until a few days before the case is set for trial, and thereby take the risk of their being absent from the city. Added to this it will also be noticed that the residence of witness Miller, or where he could probably be found, is not stated, and the application makes no indication as to the probability of securing the testimony of the absent witnesses, or in what time such testimony could be procured, in the event of granting her request for a continuance. The application failed in important particulars to conform to the requirements of the statute. Granting continuances must rest largely in the discretion of the trial courts, who are in a much better position to judge of their merits than this court can possibly be. Hence the well-settled rule, uniformly adhered to by this court, that, unless it is clearly obvious that this discretion has been abused, this court will not disturb the action of the trial court upon such applications. State v. Banks, 118 Mo. 117, 23 S. W. 1079; State v. Riney, 137 Mo. 102, 38 S. W. 718.

Numerous complaints are urged upon the action of the trial court in the admission of testimony at the trial. It is insisted that the court erred in the admission of the testimony of witness Charles F. Krone, for the reason, it is argued, that his testimony disclosed confidential communications between attorney and client. An examination of the record before us discloses that no such relation existed between the witness and defendant. Krone was the attorney for her husband upon a charge of larceny, in which case the defendant was the prosecuting witness,

and the conversations testified to by the attorney as occurring in his office were by no means confidential. In fact, he in no way was the representative of defendant in a professional capacity. We have carefully considered the examination of this witness, and the testimony detailed by him, and find no error in the admission of his testimony.

There were some objections urged to the testimony of Dr. Runge, who was connected with the asylum in which deceased had been employed. The only objections disclosed by the record to Dr. Runge's testimony were directed to his statements that "he had heard of the defendant, and that he had requested the deceased to resign his position at the asylum." While it may be said that these statements by the doctor had little or nothing to do with the case, we are unable to see how they could have possibly operated to the prejudice of the defendant in the trial of this cause. There being no other objections to the doctor's testimony, this error complained of must be ruled adversely to the appellant.

Again, it is insisted that the trial court committed error in the admission of certain testimony by witness E. D. Lingo, who was a police officer. We have patiently and carefully examined the record upon this assignment of error, and can only find two or three objections urged to the testimony of this witness, and they were without merit. First, objection was simply as to a preliminary inquiry as to the business in which deceased was engaged at the time the witness first knew him, and the character and nature of the stand or place of business. It may be conceded that this was immaterial; but it must be remembered that under the wellsettled law of this state it is not every immaterial and irrelevant matter which may happen to be injected into a case during the progress of a long and tedious trial that will constitute reversible error. It must be at least of such a character as would tend to endanger a fair and impartial trial before this court would be warranted in reversing the judgment on that ground.

The other objections were in relation to the examination of this witness as to the identity of a letter addressed to the deceased, and the objections were properly overruled. The witness did not undertake to relate any conversation between the deceased and himself in respect to this letter; but the witness saw the letter, and how it was addressed, and the questions propounded were simply those tending to obtain from the witness his knowledge as to whether or not the letter shown to the witness in court was the same letter he saw in possession of the deceased prior to his being killed.

It is earnestly insisted that the testimony of A. F. Edmonston, who was a reporter on the St. Louis Star, was improperly admitted. In the statement of this case we have briefly stated the testimony of this witness.

There is no necessity for its repetition here. It is sufficient to say that we have read in detail the testimony of this witness, as disclosed in the record, and have reached the conclusion that there was no error in its admission. It was simply the reception in evidence of a conversation by a witness with the defendant, a short time before the homicide, which indicated the relations existing between the defendant and the deceased, and, in addition, declarations of the defendant in the nature of a threat to make the deceased suffer for what had been published in the paper by the reporter, and for what he had told the reporter in respect to the defendant killing her first husband. This testimony was competent, and there was no error in admitting it.

Complaint is also made in the brief of counsel in respect to the testimony of witness Tony Leismeister, notwithstanding the record discloses that not a single objection was made to his testimony. It is too late now for the first time in the appellate court to urge objections to testimony of witnesses offered upon the trial. We are not exercising original jurisdiction of this cause, but simply reviewing the action of the trial court upon errors assigned which have been properly preserved in the record before us.

It is earnestly complained that references to defendant's former husband by witnesses Krone and Morgan were incompetent, erroneously admitted, and prejudicial to the rights of the defendant. An examination of the record again discloses that no proper objections or exceptions at the time were preserved to such alleged error.

Again, it is insisted that certain statements made by the circuit attorney in his closing remarks were improper, and constitute error. The testimony referred to by the prosecuting officer in his closing address was given by Krone and other witnesses without any objection or protest on the part of counsel for appellant during the progress of the trial; nor was there any subsequent effort to have it stricken out. Hence we feel a reference to any part of the testimony by the prosecuting attorney, which was admitted without objection, does not constitute error. The only objections disclosed by the record to the testimony of Krone, upon whose testimony the state's counsel based the remarks to which counsel for appellant now urge objections, was that the conversation between defendant and witness Krone was incompetent on the ground that the witness was acting as counsel for the defendant and could not divulge the communications, and that the questions were leading and suggestive.

There was one other objection to the testimony of witness Krone, directed to any conversation not in the presence of the defendant. This, however, need not be considered; for it is apparent that the entire conversation detailed was between witness and

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defendant, and the defendant and deceased, when all of them were present. We are simply confronted with this proposition: appellant, during the progress of the trial, permit testimony to be introduced without objection, and then complain that the prosecuting attorney improperly based remarks upon it? The proper and only time to make the test as to the admissibility of testimony is at the time it is offered. We are unwilling to sanction the practice, conceding that incompetent evidence was introduced, of allowing the testimony to go to the jury, and wait until counsel in his closing argument proceeds to comment upon it, before interposing objections to it. This is practically this question; for the reference in the conversations to the killing of her former husband, to which the prosecuting attorney referred in his closing address, went to the jury without objection and exception.

There is no merit in the complaint urged by counsel as to the use of the diagrams of the premises and room where the killing occurred. At the time the diagram was made, the room, together with its furnishings, were in about the same condition as when the homicide occurred, and it is but common practice to use such diagrams in trials of this character, to the end that the triors of the facts may be put in full possession of the full surroundings at the time of the tragedy.

As to the affidavits in support of the motion for new trial, the record discloses that the court gave a reasonable time in which to prepare and file the affidavits, and afterwards extended the time for such filing. Still we find that they were not filed for at least two weeks after the expiration of such extended time. The trial court was warranted in refusing to consider them; but, aside from that, they absolutely failed in many particulars to comply with the essential requisites of application for new trials upon the ground of newly discovered evidence. That was the only ground for which they could be legally considered, for the application for a continuance had previously been adjudged insufficient, and the correctness or incorrectness of the action of the trial court upon that application can only be determined from the application at the time it is presented, and its allegations cannot be reinforced by affidavits filed subsequent to the trial of the cause.

Finally, it is insisted that the trial court committed error in its failure to instruct the jury upon murder of the first degree. This would not constitute error, even if there was a charge of that nature upon which to base it; but the record settles this question. The indictment in this cause, as shown by the record, only charges defendant with murder of the second degree. The former Attorney General, who briefed this case, as well as the counsel for appellant, doubtless failed to observe the omission in the indictment of

the charge of deliberation, which is an essential element in murder of the first degree.

As to the testimony in this case, it is sufficient to say that there was no eyewitness to this homicide, except the defendant. Of course, if her version of what occurred at the time of the killing was true, and the jury believed her testimony, then she should have been acquitted; but under the law of this state the jury are the sole and exclusive judges of the credibility of the witnesses and the weight to be attached to their testimony. It was for them to pass upon her testimony, in connection with the other facts and circumstances in evidence. They heard her testify, and doubtless observed her conduct and demeanor on the stand. They could believe or disbelieve any of her statements. Dennis Cummings was killed and that defendant killed him there is no dispute. The Jury heard all of the testimony, it was specially their province to consider it and weigh it, they returned a verdict of guilty as herein indicated, and we are unwilling to say that there was not substantial support in the evidence for such verdict.

That

We have thus reviewed the record in this cause, as it is presented. There are no objections to any of the instructions of the court given at the trial. In fact, this record indicates a trial with a view that no objections or exceptions were necessary. That may be true, if the rulings of the lower court upon questions are concededly correct; but it must not be forgotten that such concession cannot, subsequent to the trial, and for the first time in the appellate court, be withdrawn. This court will only review such errors of the trial court as were timely and properly preserved by the record before us. We find no errors, upon the record presented, which warrant the disturbance of this judgment. It is ordered affirmed. All con

cur.

HARRISON v. POUNDS. (Supreme Court of Missouri, Division No. 2. July 3, 1905.)

1. APPEAL-REVIEW-EVIDENCE.

The ruling of the trial court on a demurrer to the evidence will not be reviewed unless all the evidence is before the Supreme Court. [Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 2911-2915.] 2. SAME-CONFLICTING EVIDENCE.

It is not the province of the Supreme Court to settle the weight of conflicting evidence. [Ed. Note. For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 3983-3989.] Appeal from Circuit Court, Jefferson County; Frank R. Dearing, Judge.

Action by Judson Pounds against Josiah R. Harrison. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Byrns & Bean, for appellant. schmidt & Reppy, for respondent.

Klein

GANTT, J. This is an action of ejectment, originally brought to recover 16 acres of land in the north part of United States survey No. 872 in Jefferson county of this state, and was a tract of land between where Big river now runs and where it formerly ran according to the field notes of the United States government survey made by Philip Reilly, county surveyor, whose testimony dis closes that he never found an original cor ner. After the evidence had been heard, plaintiff filed an amended petition, to con form, as he states, to the evidence, in which he sues for one acre, a part of United States survey No. 872, and lying on the north side of said survey, and bounded on the north by the old bed of Big river, on the west by a fence on the east side of a tract owned by plaintiff and occupied by William May. Ouster was laid as of July 2, 1893. The answer was and is a general denial. The cause was tried to the court without a jury, and the finding and judgment was for defendant, to reverse which defendant prosecutes this appeal.

The court gave three declarations of law prayed by plaintiff, and gave none for defendant. The sole ground of error alleged is that the circuit court erred in not rendering judgment for plaintiff upon the undisputed and uncontradicted evidence. This insistence places the burden on this court of investigating the evidence. This controversy is between adjoining proprietors. Plaintiff owns land in survey No. 872 on the south side of the Big river as it originally ran, and defendant's lands lie in survey No. 3,195 on the north side of said river; that is to say, the plaintiff and defendant are opposite riparian owners. The evidence tends to establish that about 12 or 13 years ago there was a sudden change in the course of the river, caused by the falling of large trees in it, and cutting off what the witnesses called "Harrison's Island," which is north of the present bed of the river. Various if not all the material witnesses appear to have testified with reference to certain plats which were in evidence but which are not set forth in or attached to the abstracts of the record before us. As far as we can glean from the evidence, one of the controlling facts necessary to determine this controversy was the location of the old line of the river. That there was a conflict as to this we think there can be no two opinions. The plats are not before us, and it is the settled rule of law in this court that where we are asked to pass upon a demurrer to the evidence, or as to whether there is any evidence to establish a fact, that the appealing party must bring all the evidence before this court, otherwise we will not disturb the finding of the trial court. The assumption of plaintiff that, because counsel for defendant stated on the trial that defendant did not claim anything south of where the river used to run, and that plaintiff had established that the

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