5. HOMICIDE (§ 122*)-EVIDENCE-DEFENSE OF | denied circulating the report about Willis ANOTHER-INSTRUCTIONS.

Where a brother of accused intended only an ordinary battery on decedent, who began to shoot at the brother after the killing of another brother, accused's right to protect his brother was equal to the right of the brother to protect himself, and an instruction on selfdefense leading the jury to believe that they could convict accused of murder, regardless of the intent with which his brother began the assault, was erroneous.

[Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 177-181; Dec. Dig. § 122.*] 6. HOMICIDE (§ 309*) - CRIMINAL LAW (§ 814)-MANSLAUGHTER-INSTRUCTIONS.

An instruction authorizing a conviction of manslaughter, though the killing was not done in necessary defense of the brother, was misleading and inapplicable to the evidence.

[Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 649-656; Dec. Dig. § 309: Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. 814.*]

killing his wife. George Eastham then ran up and began striking deceased with his fists, whereupon defendant shot deceased several times. Deceased then drew a revolver and killed Willis Eastham, and shot at George Eastham, wounding him slightly. The shots fired by defendant caused Stacey, the deceased to fall and drop his pistol, whereupon George Eastham picked up the pistol and struck deceased over the head with it, crushing his skull. A physician testified to five gunshot wounds in the body of deceased, that any one of three of them was necessarily fatal, and also that the blows upon his head were likewise sufficient to produce death. Defendant denied drawing his revolver until he saw a revolver in the hands of deceased; that his brothers, Willis and George, were both unarmed; and that he did not shoot until deceased had killed his brother Willis and

Appeal from Circuit Court, Ripley County; was shooting at his brother George. George J. C. Sheppard, Judge.

William Eastham was convicted of murder, and he appeals. Reversed and remanded.

Eastham testified that before he left his father's house he saw Stacey draw a revolver, and that he did not strike deceased, but only tried to grab the revolver out of his hand to prevent the killing of his brother Willis.

After the homicide, defendant fled from the state, and three or four years later was captured in the state of Arkansas. Defendant seeks a reversal on account of the admission of alleged improper evidence on the part of the state, and the exclusion of legal evidence offered by defendant. He also contends that the instructions given by the court. of its own motion contain reversible error.

J. H. Raney and E. A. Green, for appellant. The Attorney General for the State.

At the November term, 1910, of the circuit court of Ripley county, defendant was convicted of murdering one Charles Stacey, and appeals from a judgment of that court fixing his punishment at 30 years in the penitentiary. The homicide which resulted in this conviction occurred on a public road in front of the home of defendant's father, in Ripley county, near an open spring. The evidence indicates that defendant and his brothers, Willis and George, were angry with deceased because of a report that deceased had accused Willis of murdering his wife. On Sunday, June 10, 1906, deceased passed the Eastham home in company with a young lady en route to church. About noon of the same day, as he returned from church, in company with several young people, he stopped at the Eastham spring to drink. Defendant and his brother Willis were at or near the spring. After drinking, deceased started to leave, when George Eastham, another brother of defendant, appeared at the door of the Eastham home, some 20 yards away, and hollowed to Willis Eastham to "make Stacey take back the lies he had told." According to the testimony of eight witnesses for the state, Willis Eastham was at first disinclined to precipitate any difficulty with Stacey, but defendant and George Eastham demanded that the matter be settled then. On hearing George hollow to Willis, defendant stopped, and said he did not want any trouble then, but would see defendant at 2:30 that day. Some of the state's witnesses testified that defendant drew a revolver and walked up to within a few yards of deceased and cursed him; that Willis then picked up some rocks, and demanded that Stacey take back the report he had circulated. Stacey For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

BROWN, J. (after stating the facts as above). [1] The record discloses that several months before defendant was placed on trial his brother George had been acquitted of killing or participating in the killing of Charles Stacey, and one Nellie McKinney, since deceased, having testified at that trial the defendant called one McAutrey, who served as a juror in said trial, and offered to prove by him the facts testified to by said deceased witness. The state objected to that evidence on the ground that the testimony of Nellie McKinney was given upon the trial of a different case; and the court sustained the objection. However much concert of action there was between defendant and George Eastham in the unfortunate tragedy which resulted in Stacey's death, the evidence of the deceased witness would not necessarily have been the same on both trials had she lived to testify again. It is a well-known fact that a great many witnesses in criminal cases shade or color their evidence in proportion to the degree of their sympathy for or hatred of the person on trial. For this reason alone, the testimony given by the de

that the danger should have been actual or real or that the danger should have been im

ceased witness in the trial of George Eastham was properly excluded at the trial of defendant. It is only when a witness has tes-pending and immediately about to fall. All tified in a former trial of the same criminal case that evidence of such witness, if dead, becomes admissible. State v. Porter, 74 Iowa, 623, 38 N. W. 514. The cases of State v. Able, 65 Mo. 357, and Carp v. Insurance Co., 203 Mo., loc. cit. 340, 101 S. W. 78, cited by appellant on this point, do not sustain his contention.

case.

that is necessary is that the defendant had reasonable cause to believe and did believe these facts. But, before you acquit on the grounds of defense of his brother, you ought to believe that defendant's cause of apprehension was reasonable. Whether the facts constituting such reasonable cause have been established by the evidence you are to deter[2] One Josie Street, who testified on be- mine, and, unless the facts constituting such half of defendant, was asked by the prose-reasonable cause have been established by cutor if she did not at the preliminary exam- the evidence in the cause, you cannot acquit ination of George Eastham testify to a state in such case, on the ground of self-defense, of facts at variance with her evidence in this even though you may believe that the defendSaid witness denied making the state-ant really thought his brother was in danger. ment attributed to her, whereupon the prose- But on the other hand, gentlemen, the law cutor, over the objection of defendant, called does not permit a person to voluntarily seek one J. K. Langford, the magistrate who held or invite a combat, or put himself in the way the preliminary examination of George East- of being assaulted, in order that when hard ham, and proved by him that the evidence of pressed he may have a pretext to take the said Josie Street upon the said preliminary life of his assailant. The right of self-dewas in conflict with her evidence as then fense does not imply the right of attack, and given in this case. The court committed no it will not avail in any case where the diffierror in permitting said witness to be im- culty is sought for and induced by the party peached and discredited in this manner. It by any willful act of his, or where he volunis always permissible to discredit a witness tarily and of his own free will enters into it, in that way if during the trial his attention no matter how imminent his peril may beis called to the time and place where the come during the progress of the affray. The prior inconsistent statement was made; and necessity being of his own creation shall not it matters not whether such prior statement operate to excuse him, nor is any one justiwas made in court as a witness in the same fied in using any more force than is necesor a different case or made outside of a court sary to get rid of his assailant, but if he does at a time when the witness was not under not bring on the difficulty or provoke it, nor oath. voluntarily engage in it, he is not bound to flee to avoid it, but may resist with adequate and necessary force until he is safe. Now, if you believe from the evidence in this cause that the defendant's brother George Eastham or Willis Eastham voluntarily sought or invited the difficulty in which said Charles Stacey lost his life, or that they provoked or commenced or brought it on by any willful act of their own, or that they voluntarily and of their own free will, engaged in it, then, and in that case, you are not authorized to acquit him on the grounds of self-defense or defense of his brother, and this is true no matter how violent his passion became, or how hard soever he was pressed, or how imminent his peril became during the progress of the affray. In determining who provoked or commenced the difficulty, or made the first assault, you should take into consideration all the facts and circumstances in evidence before you.

The court submitted to the jury the issues of murder in the first and second degrees, and manslaughter in the fourth degree.

The defendant complains of instructions numbered 5, 6, and 7, given by the court of its own motion attempting to define the defendant's right of self-defense and the right to protect or defend his brother, which instructions are as follows:

"(5) The right to defend one's self or his brother against danger not of his own seeking is a right which the law not only concedes, but guarantees to all men. The defendant may have therefore killed Charles Stacey, and still be innocent of any offense against the law, if at the time he shot the deceased he had reasonable cause to apprehend on the part of the deceased a design to do his brother some great personal injury; and there was reasonable cause for him to apprehend immediate danger of such design being accomplished, and to avert such appre- "(6) And the jury is further instructed hended danger he shot, and at the time he that defendant in defending a brother will did so he had reasonable cause to believe, not be justified in doing for him what the and did believe, it necessary for him to use brother would not be justified in doing for his pistol in the way he did to protect his himself. If, therefore, the jury believe from brother from such apprehended danger, then the evidence that defendant's brother had and in that case the shooting was not felo- provoked and brought on a difficulty with the nious, but was justifiable, and you ought to deceased, Charles Stacey, and that in the acquit him on the ground of necessary self-progress of such difficulty said brother of de defense. It is not necessary to this defense fendant was placed in imminent danger, and

that defendant knew that his said brother | him with a pistol, have had the right to kill had sought or provoked or brought on such his adversary without being guilty of any difficulty, then if the jury believe from the greater crime than manslaughter. Defendant evidence that defendant, William Eastham, saw and knew all that took place between shot and killed Charles Stacey while thus George Eastham and the deceased. Conseengaged in the controversy with defendant's quently, under the facts in this case, the brother, you will find him guilty. right to protect his brother George after Stacey shot him was exactly the same-no greater, no less-than the right of George to protect himself. But the instructions hereinbefore set out would lead the jury to believe that they could convict the defendant of murder, regardless of the intent with which George Eastham began the assault.

[5] In this case, if George Eastham intend-1. CRIMINAL LAW ( 1166%*) - APPEAL – HARMLESS ERROR. ed only an ordinary battery upon Stacey, the The prosecuting attorney's indorsement of deceased, he would, after Stacey assaulted the name of one of the jurors on the informa

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

tion as a witness, and then excusing the juror from the panel, was harmless, if erroneous.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. 88 3114-3125; Dec. Dig. 11662.*]

2. CRIMINAL LAW (§ 422*)-EVIDENCE-DECLARATIONS OF CO-CONSPIRATORS.

In a prosecution for maintaining a gambling device, where defendant had been granted a severance from his codefendant, and there was ample evidence to support the state's the ory as to the conspiracy between them, evidence of the acts of defendant's co-conspirator was admissible.

DENCE.

9. CRIMINAL LAW (§ 761*)—TRIAL-INSTRUCTIONS WEIGHT OF EVIDENCE.

In a prosecution for keeping a gambling device, an instruction that a witness who testified on behalf of the state was an accomplice was erroneous in assuming as a matter of law that accused had committed a crime, for until the crime has been committed there can be no accomplice.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1731, 1738, 1754-1764, 1771; Dec. Dig. § 761.*]

10. CRIMINAL LAW (§ 721*)-TRIAL-ABGUMENTS OF COUNSEL.

[Ed. Note.-For other cases, see Criminal Under Rev. St. 1909, §§ 5242, 5243, proLaw, Cent. Dig. §§ 984-988; Dec. Dig. § 422.*] viding that an accused may testify in his own behalf and may be cross-examined only 3. WITNESSES (§ 372*)-IMPEACHMENT-EVI-as to matters referred to in his examination in chief, and that his failure to testify or to Where a prosecution for the same offense testify to certain facts shall not raise any prewas pending against the state's principal wit-sumption of guilt or be referred to by any atness, it was proper for purposes of impeach- torney in the case, it was erroneous for the ment to ask him on cross-examination whether prosecuting attorney, in a prosecution for keephe had made an arrangement with the prose- ing a gambling device, to refer to accused's cuting attorney whereby the prosecution against objection to answering a question as to what him should be dismissed in consideration of was his business at a prior time. his turning state's evidence.

[Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 833, 834; Dec. Dig. § 372;* Gaming, Cent. Dig. § 286.]

4. CRIMINAL LAW (§ 1168*)—APPEAL-HARM

LESS ERROR.

Where the state's principal witness had expressly denied that he had been promised immunity for turning state's evidence, the sustaining of objection to further questions on that line was harmless.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2687-2690; Dec. Dig. § 1168.*]

5. WITNESSES (§ 349*)—EXAMINATION-CROSSEXAMINATION-SCOPE.

On cross-examination a witness may, in the discretion of the trial court, be compelled to answer any question, however irrelevant it may be to the facts in issue, or disgraceful to himself, except when the answer may expose him to a criminal charge.

[Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 1135-1139; Dec. Dig. § 349.*] 6. WITNESSES (§ 350*)-EXAMINATION-SCOPE -DISCRETION OF TRIAL COURT.

It is not an abuse of the trial court's discretion to refuse accused permission to show on the cross-examination of a witness that he had taken a woman to New Mexico for the purpose of operating a bawdyhouse; such act being criminal.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 1140-1149; Dec. Dig. § 350.*]

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 1672; Dec. Dig. § 721.*]

Appeal from Circuit Court, Jasper County; Joseph D. Perkins, Judge.

F. W. Potts was convicted of setting up and keeping a gaming table and gambling device, and he appeals. Reversed and re

manded.

Clay & Davis, for appellant. Elliott W. Major, Atty. Gen., and John M. Dawson, Asst. Atty. Gen., for the State.

KENNISH, J. At the June term, 1910, of the circuit, court of Jasper county, appellant was convicted of the offense of setting up and keeping a gaming table and gambling device, commonly known as a crap table, was sentenced to imprisonment in the penitentiary for a term of three years, and appealed to this court.

The information was in two counts. The

first count charged F. W. Potts, Charles Can-
non, and W. L. Smith with setting up and
keeping a poker table, and the second count
charged them with setting up and keeping a
crap table.
separately.

The defendant Potts was tried

The evidence for the state tended to show 7. GAMING (§ 97*)-PROSECUTION-EVIDENCE. the following facts: In the month of DeIn a prosecution for maintaining a gam-cember, 1909, gambling games were carried bling device, evidence of the kind of dice used on in a room over the Southern Club Saloon in the game, that a tag containing accused's name was found on the table, and that table covers had accused's name stamped thereon, was admissible to prove the corpus delicti.

in Webb City. The room was fitted up with gambling paraphernalia, consisting of poker tables, chips, cards, crap tables, and dice. On the night of December 11th, the room was raided by the sheriff, and the gambling paraphernalia was taken out of the room. At the time of the raid a large number of men were in the room, engaged in playing poker and craps for money. Charles Cannon was in the room. O. A. Walker, who testified as a witness for the state, was in charge The defendant of one of the crap tables.

While the testimony of a witness on a former trial may, upon proper foundation, be introduced for purposes of impeachment, the entire testimony of a witness given in the trial of accused's codefendant is not, without any foundation, admissible for impeachment. [Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 1233-1242; Dec. Dig. § 388.*] was in the saloon below. There was eviFor other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r indexes

the stand and denies that, and when asked, 'What is your business'-I want to leave it to you 12 men if that isn't a fair question to ask any citizen in Jasper county, here, now or any time, 'what is your business,' and I want to say-" Defendant objected to the remarks of the prosecuting attorney, on the ground that the court had sustained an objection to the question. The court overruled the objection and directed the prosecuting attorney to proceed. During the course of the remainder of the argument of the prosecuting attorney, the following transpired: "Mr. Coon: Now, gentlemen, when you retire to your jury room, take into consideration the character of the offense this man is charged with. He is charged with setting up this gambling paraphernalia, and arranging it for men to go up there and go against a brace game. Not even giving them a percentage of ordinary craps, but they have cut them down and increased the percentage of the house. This is the kind of business this defendant was engaged in, and do you wonder why, gentlemen, when I asked this defendant here on the witness stand, 'During the month of December, prior to December 11, 1909, what business were you engaged in? the counsel for the defendant, first the little one and then the big one, 'We object,' and they are objecting now. Mr. Clay: Can't we make an objection? We object to that. The Court: Objection overruled to that. Mr. Clay: We except, and we object to his referring to matters excluded by the court. The Court: That is a fact in this case he is referring to." And to this ruling defendant again excepted.

dence to the following effect, tending to con- | placed the money there. And Potts takes nect the defendant with the setting up. and keeping of the gaming tables and gambling devices: Cannon, who was generally in the room when the games were in progress, sometimes acting as dealer at one of the tables, and who usually furnished the dealers at the different tables with money to run the games, hired the witness Walker to run one of the crap tables and otherwise assist in running the games. On one occasion a dealer at one of the crap tables asked Walker to go to the saloon below and ask defendant to come upstairs. When the defendant arrived, the dealer informed him he was about out of money, whereupon the defendant supplied him with money to use in the game. The games played on the crap tables were what are known as "bank games"; that is, the players did not bet against each other, but against the "house." Defendant at another time carried money from the dealers at the tables to the saloon below and placed it in a safe behind the bar. On the day the raid was made, but earlier in the evening, defendant had acted as dealer at one of the tables. When the games were in progress, the defendant was usually in the gambling room or in the saloon below, and in both places had frequent conversations with Cannon. When the defendant was in the gambling room, and Cannon was absent, the dealers at the tables went to defendant for information. On one of the crap tables found in the room there was a shipping tag, showing that the table had been shipped from Parsons, Kan., to Pittsburg, Kan., by F. Potts. Defendant had formerly lived in Parsons. The name "Potts" was also stamped on the covers of the poker tables. At the close of the state's evidence, the prosecuting attorney elected to stand upon the second count, which related to the crap table.

The defendant, as a witness in his own behalf, denied that he had ever furnished any money to use in any of the games, denied that he was ever in the gambling room or ever put any money in the safe in the saloon, and denied that he had any interest in the gambling room or in the games operated there. One of the owners of the Southern Club Saloon testified that only he and his partner had access to the safe, and that defendant had never placed any money therein. In the cross-examination of the defendant, the prosecuting attorney asked him what his business was in December, 1909. The question was objected to by the defendant on the ground that it was a matter not referred to in the examination in chief, and the court sustained the objection. During the prose cuting attorney's closing argument to the jury, he made the following remarks: "What are the material facts sworn to by the witness Walker that tend to convict Potts? They are these: That Potts went behind the bar; that he went to the safe; that he 144 S.W.-32

[1] 1. Appellant first complains that the court erred in permitting the prosecuting attorney to indorse the name of one of the jurors on the information as a witness, and then excusing said juror from the panel. As no suggestion of prejudice resulting from such ruling is made or can be perceived, further consideration need not be given to this complaint.

[2] 2. It is assigned as error that the court permitted the witness Walker to testify that he frequently saw the defendant and Cannon talking together in the gambling room. It appeared in evidence that the defendant and Cannon were jointly charged with the crime for which the defendant was then on trial, and, although a severance had been granted, it was nevertheless competent for the state to prove a conspiracy or common purpose between the two in the commission of the offense charged, in order to render admissible in evidence against the defendant the acts and declarations of Cannon. State v. Fields, 234 Mo., loc. cit. 623, 138 S. W. 518; State v. Roberts, 201 Mo. 702, 100 S. W. 484; State v. Darling, 199 Mo. 168, 97 S. W. 592; State v. Sykes, 191 Mo. 62, 89 S. W. 851.

There was ample testimony to support the