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that the defendant bas the legal right to in- might have found him guilty of murder in voke the law of self-defense in his favor”; the first or second degree, and the court fully and in instruction No. 13 gave the usual and instructed upon both of those degrees. We full instruction on the right of self-defense. think the court properly refused to instruct There is no conflict between these instruc- upon manslaughter and either degree, in the tions. The question of the intention of Bail- light of the evidence developed in this record. ey, the defendant, as to inflicting great bod- State v. Gartrell, 171 Mo. 489, 71 S. W. 1045; ily harm upon Ferguson or of killing him, State v. Lewis, 118 Mo. 79, loc. cit. 83, 23 or the absence of such intention, determines S. W. 1082. The court carefully instructed the application of either instruction No. 4 the jury as to what constituted a just cause or instruction No. 11 to the facts of the case. of provocation to passion as to reduce the Under the testimony of the defendant, he grade of the homicide from murder in the shot in self-defense, and, according to the first degree to murder in the second degree. state's evidence, he had Ferguson, the de- 6. There was no error in refusing the inceased, bring him to Fifteenth and Central struction No. 5, asked by the defendant, to in order that he, the defendant, might kill, the effect that the jury should take into conor do Ferguson great bodily harm, and hence sideration specially what weight ought to be there was no consistent middle ground upon given the witness Catharine Biggs. Leaving which to base instruction No. 14, requested out of view that the Biggs woman was named by the defendant, to the effect that if Bailey, Gertrude, and not Catharine, there was no the defendant, provoked the difficulty with reason why the court should single out her the deceased, or produced the occasion with- testimony and comment on it separately. out any felonious intent, intending, for in- The only evidence tending to show that she stance, an ordinary battery merely, or dis- was an accomplice, and therefore the court turbance of the peace, or an annoyance of should have given a cautionary instruction Ferguson by calling him to Fifteenth and as to her testimony, was her own, and accordCentral streets for the purpose of taking ing to that she did not join in the common away from him, in order to annoy him, bis purpose of her three male companions, but revolver, or other insignia of authority, and was protesting against it all the time, and thereupon the deceased, Ferguson, attacked only accompanied the defendant upon the Bailey, and compelled Bailey, in order to hack ride in response to the demands of save his own life, to take that of deceased, Bailey. still the law, while it would not entirely 7. The court did not err in failing to define, justify the homicide on the ground of self- other than it did, the terms "self-defense" defense, would hold the defendant guilty of and "bring on the difficulty." The term no higher crime than that of manslaughter “self-defense" was fully and carefully defined in the fourth degree. There was absolutely to the jury in instruction No. 13, and the no evidence upon which to base this instruc- attempt to have defined the words “bring on tion No. 14. The evidence before us pre- a difficulty" would have simply resulted in sents two theories alone: That by the state, either confusing the jury, or have added that the defendant and his companions nothing to their plain ordinary significance. brought on the difficulty with a felonious in- Both of these terms are self-explanatory. tent of beating up the deceased in order that We think, though, this question is not before they migit have an excuse for killing him; us properly, because no exception was saved and that of the defendant, unreasonable as to the failure of the court to instruct thereon. it appears, of an innocent hack drive at 3 8. So far we have endeavored to meet and o'clock in the morning, in a lonely resident discuss the various propositions announced portion of the city, and of an entirely un- by counsel for defendant in two of the briefs provoked and uncalled-for assault by the de- filed by them, but there is still another brief ceased, a nonunion back driver, upon the by another of the counsel for the defendant, defendant and his companions, and the kill- in which it is earnestly insisted that the ing by the defendant of the hack driver as a criminal court erred in refusing instruction last resort in self-defense. In neither was No. 14 asked by the defendant. Counsel there the slightest evidence upon which to urges that there was sufficient evidence upon base an instruction of withdrawing from the which to base this instruction, and to leave it contest after the difficulty had been brought to the jury to say whether or not the defendon. Instructions in all cases, civil and crim- ant brought on the difficulty with the inteninal, must be based upon the evidence in tion of committing a mere common assault the cause. Instructions Nos. 11 and 13 fully upon, or to take away from, Ferguson, the presented the law from the defendant's deceased, his revolver, and we are again cit. standpoint. If the facts were as he testified, ed to what was said in State v. Partlow, 90 he acted in self-defense, and was not guilty Mo. 622, 4 S. W. 14, 59 Am. Rep. 31, which of any grade of homicide, and the court has often been approved and reasserted by should not have invited the jury to compro- this court, as follows: "Indeed, the assertion mise him into the penitentiary by finding of the doctrine that one who begins a quarrel him guilty of manslaughter. On the other or brings on a difficulty with the felonious hand, there was evidence from which the purpose to kill the person assaulted, and, acjury, under the instructions of the court, complishing such purpose, is guilty of mur.

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der, and cannot avail himself of the doctrine the deceased to take them to a lonely part of of self-defense, carries with it in its very the city at 3 o'clock in the morning with the bosom the inevitable corollary that, if the deliberately expressed intention of "beating quarrel be begun without a felonious purpose, him up," and, as a part of this scheme, Forthen the homicidal act will not be murder." sha, one of his accomplices, was to grab him The law of this state is that if the original and disarm him. When the woman Biggs wrong or assault would have been a mere protested against the defendant going with misdemeanor, and such was the purpose of this party, and asked him what he wanted the accused when he committed or engaged his pistol for, he replied that he was going in it, then the homicide growing out of or to have a back driver take them to Fifteenth occasioned by it, though in self-defense from and Central, and he wanted his revolver, and any assault made upon him, would be man- if the hack driver "started anything" he slaughter. As already said, the criminal would kill him, and that he would "get ancourt instructed upon the defendant's own other scab before morning"; and the evidence evidence on the law of perfect self-defense in further shows that, as the defendant got out its instruction No. 13, and in the instruction of the hack, Forsha, one of the accomplices, numbered 4 and instruction No. 11 the court immediately said, "Shoot him, shoot him, instructed the jury "that, if the defendant shoot the son of a bitch!" And the evidence voluntarily brought on the difficulty with de- further discloses that, before any shot was

ceased with the intention of killing or inflict- fired, the deceased was heard begging for · ing upon him some great bodily injury, then mercy and crying for help. To say that this

the danger in which he found himself during evidence affords any foundation for an insuch difficulty would not extenuate or miti- struction that the defendant and his accomgate the offense, or reduce its grade at all, plices intended to commit a mere common asand there was no self-defense in the case.” sault would be to disregard all human exAnd in its instruction No. 11 the court fur- | perience, and to attribute a purpose wholly ther told the jury, however, "that if they at variance with the expressed intention of should find and believe from the evidence the defendant and his accomplices when they that the defendant, at the time he entered the started upon that extraordinary ride that back to ride to Fifteenth and Central streets, night. If the evidence of the state is to be had no intention of killing Ferguson, or of credited at all, and it evidently was believed doing him any great bodily barm, and had no by the jury, it was fairly susceptible of one

construction only, and that was a deliberate. the time the deceased drew his revolver and ly formed design on the part of the defendant shot at the defendant, if in fact they found and his associates, Moon and Forsha, to that he did shoot at him, then the defendant beat up Ferguson, the deceased, for the purhad a perfect right of self-defense and to slay pose of causing him to resist, in order to have Ferguson.” We have already said that in our an ostensible excuse for killing him. To say opinion there was no evidence of a with- that the defendant, in the circumstances foldrawal from a combat brought on by the de- lowing fast after his declaration that he profendant, or of an intent to commit a mere posed “to get another scab before morning," common assault upon the deceased. No wit. and armed with a deadly weapon, only inness for the defendant, nor he himself, tes- tended to commit a common assault, is contified to any intention to go to Fifteenth and trary to human intelligence and opposed to Central streets for the mere purpose of com- all human experiences, and, in our opinion, mitting a common assault on the deceased or furnishes no basis whatever for the hypothto take from him his revolver. We have esis announced in instruction No. 14. And searched the record carefully, and on the it follows, therefore, that neither the defendpart of the defendant he testifies that his ant's own evidence, nor that on the part of purpose in going to Fifteenth and Central the state, furnishes any ground for the fourthat night was only "to take a ride," and, he teenth instruction asked for by the defendsupposed, "to have some drinks." We are ant, and left the case just as the instructions not left to speculation so far as his testimony given by the court presented it to the jury, is concerned as to what his intention in tak. to wit, on the theory of the defendant, of a ing this ride and in going to the place of perfectly innocent hack drive, and an homicide was. There is not a scintilla of called for and murderous assault upon him evidence falling from his lips that his inten- by the deceased, and the killing of the detion was to commit a mere common assault ceased in self-defense as his only resort; or to annoy the deceased by taking his re- and, on the part of the state, of a preconcertvolver from him, and therefore there was ed plan and formed design to kill the denothing in his testimony which would have ceased by the defendant and his associates justified the giving of the fourteenth instruc- bringing on a difficulty with the intent to kill tion prayed for by him. But leaving his tes- the deceased or do him some great bodily timony for a moment out of view, and turn- harm, and, if so, there was no self-defense in ing to the evidence in behalf of the state, we the case, however great the exigencies in have the case of a defendant, with two other which defendant found himself by reason of accomplices, armed with a deadly weapon, his own illegal acts. resorting to a scheme by which they induced 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 reversi. ble 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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STATE V. FORSHA, (Supreme Court of Missouri, Division No. 2.


The omission of the seal of the court to the jurat of the clerk does not invalidate the verification of an information.

[Ed. Note.-For cases in point, see vol. 27, Cent. Dig. Indictment and Information, $ 165.) 2. JURY CHALLENGES SUFFICIENCY OF FORM.

An objection after the close of the examination of a juror, “Challenged for cause, is insufficient to preserve for appellate review any error in overruling the challenge.

[Ed. Note.-For cases in point, see vol. 31, Cent. Dig. Jury, $ 559.] 3. SAME-DISQUALIFICATION FORMATION OF OPINION. .

The fact that jurors have formed and expressed opinions as to the guilt of defendant from rumor or newspaper accounts does not disqualify them, where they state that they can give defendant a fair and impartial trial on the testimony as it may be introduced before then.

[Ed. Note.-For cases in point, see vol. 31, Cent. Dig. Jury, 88 449 457.) 4. WITNESSES IMPEACHMENT—CONTRADICTION.

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


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, 88 2639, 2674.] 8. CRIMINAL LAW-TESTIMONY OF DEFENDANT


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 hit defendant to testify as a witness in chief.

(Ed. Note.-For cases in point, see vol. 14, Cent. Dig. Criminal Law, 88 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 bad 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 back 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 back drivers, to come to 1625 Main street, which was a house of prostitution. After ordering this back, 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 back arrived they entered it and ordered the driver, whose name was Andrew Meyers, to take them to a roadhouse at Twentypinth 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 back 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 Forsba, 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 pigtol, 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 and then he and Moon ran east on Fifteenth go to bed, but at the request of Bailey she street. JIrs. Biggs had immediately foldressed herself and came back downstairs, lowed Bailey out of the back, and started to and the four then went to labor headquar- run east on Fifteenth street, preceded by ters, where the three men discussed the ques- Forsha and Moon. Bailey and Ferguson were tion as to what carriage company they would at that time in the rear of the hack. When be most likely to get a driver from whom

the Bi

woman had gone about a half they could beat up with impunity. Bailey block she heard a shot, followed by the cry suggested the Depot Carriage & Baggage from Ferguson, "Help! help! oh my God! Company, but Forsha objected to this com- I'm shot." This cry was immediately folpany, as the men that they employed would lowed by another shot, and then in a short not, he contended, be as easy to beat up as interval a number of shots were fired. Baithe man that they had at the roadhouse. ley, leaving the scene of the murderous asAt Moon's suggestion, a hack driver was sault, ran in the direction of his associates, called from the Landis Livery Company and overtaking them at the first corner east on notified to be at the Coates House in half an Fifteenth street, where he said that he hour. This occurred in the neighborhood of thought that he had killed the son of a bitch, half past 2 o'clock. When the party left and that they must “run like hell," or they labor headquarters, Bailey told Mrs. Biggs would get caught. It was agreed that they to go upstairs in their room in the Thelma should scatter; Moon and Forsba going in one Hotel and get his revolver. To this Mrs. direction, and Bailey and the woman in anBiggs objected, telling Bailey that he should other. The party of four, however, went not have his pistol; that she had the key to the Thelma Hotel according to agreeto the room, and would not give it up; that ment, where they met at Bailey's room. he, Bailey, was drinking too much, and that There they proceeded to coolly discuss the they had gotten into enough trouble for one incidents of the homicide, Forsha relating evening. Bailey replied that he wanted a how he had hit the deceased with a pair of pistol, as he was going to get another son brass knucks, and that it "didn't seem to of a bit before morning. Forsha then told daze him." Moon told how he hit him, and Bailey to go in the saloon and get the re- Bailey said deceased had put up "a hell of volver he had given to the bartender. Bai. a fight,” but that he "thought he had killed ley went into the saloon and secured the bim," and Moon added that "if he did not he revolver from the bartender, The party ought to." Forsha exhibited a bruise on the went up to the Coates House, and, when the jaw he had received in the fight, and told hack arrived, Forsha directed the driver, how he had left the cartridge belt, a knife, who was Albert Ferguson, the deceased, to and a pair of brass knucks at a saloon up on drive them to Fifteenth and Central, this Ninth street. Forsha and Moon soon left place having been agreed upon 'on the way the hotel after having another round of to the Coates House at the suggestion of drinks at the saloon, Forsha that it was a dark place, suitable Ferguson was taken fro the place of the for beating up nonunion back drivers.


homicide to the police station, from which they were riding from the Coates House to place he was taken to the German Hospital, Fifteenth and Central, a plan of action was where he made a dying declaration to the agreed upon when they should arrive at the assistant prosecuting attorney, A. S. Lyman, point of destination. It was agreed that which is as follows: Forsha and Moon should get out of the hack

“Mch. 19, 1904. and grab Ferguson, the back driver, and “I, Al. Ferguson, now at the German Hosthen he was to be beaten up, as Meyers had pital, believing that I am about to die, and been served earlier in the night. Bailey having no hope of recovery, do make the added prophetically that if the hack driver following statement of the facts leading up "started anything" he would kill him. Bai- to my being shot and wounded this morning ley was carrying his pistol in his hand. at about three o'clock: The plan of action decided upon seemed to “This morning, shortly before 3 a. m., we be that if Ferguson, when seized and dis- got a call from the Coates House. Went armed, quietly submitted to being “beat up" there, and took three men and a man dressed by these three men at this lonely place at in woman's clothes into my hack. They this hour of the morning, then they would wanted me to drive them to Fifteenth and be satisfied; but if he should attempt to Central street. I drove there, and got down "start anything"-—that is, to defend him- to let them out. I opened the back door. I self-then he was to be killed. When the found that the man had removed his womhack driver arrived at Fifteenth and Cen- an's clothes, and there were four men there. tral, it stopped near the northeast corner. As they got out they began to attack me. I Ferguson, the driver, opened the door, and defended myself as best as I could. The Forsha stepped out, quickly followed by third man who got out of the back shot me Moon, and the two grappled with the driver. in the abdomen. He was a medium-sized As soon as Bailey got out of the hack, For- man, with black hair. The first man who sha, standing on the corner, said, "Shoot got out of the hack said to me, 'We have got bim; shoot him; kill the son of a bitch;" you, you son of a bitch; what are you going

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