there may be stronger probabilities of his guilt than of his innocence; the policy of the law being that it is better that ninety and nine men escape punishment than that one innocent man be punished. (6) Before you can convict the defendant, you must be convinced by the evidence, beyond a reasonable doubt, that the body found was the dead body of George Tettaton, for whose death this defendant is being tried, and the proof of his identity must be so strong and satisfactory to you as to leave no reasonable doubt in your mind on that point. And, in this connection, that mere opinions of witnesses are not sufficient to establish such fact. (7) You are further instructed that, before you can convict the defendant of the crime charged against him, you must be satisfied and believe from the evidence, beyond a reasonable doubt, that George Tettaton is dead, and that he came to his death by violence inflicted by this defendant under such circumstances as to constitute murder in the first degree or murder in the second degree. And the proof relating to the death of the said George Tettaton must include proof clear and convincing of the identity of the body found as being that of George Tettaton; and such proof of identity, before you can convict, must be so strong as to leave no reasonable doubt upon that point. (8) No inference of any fact is entitled to credit which is itself drawn from premises which are uncertain; and, where circumstantial evidence is alone relied on to establish guilt, the incriminating circumstances must be proven, and not presumed. Presumptions which the jury are required to make are not circumstances in proof, and can afford no proper foundation for a further presumption where there is no reasonable connection between the fact or facts out of which the first presumption arises and the ultimate fact sought to be established. (9) Before the jury should convict the defendant, they should be satisfied from the evidence that the state has established and proved beyond a reasonable doubt that George Tettaton is dead, that the body found has been fully identified and proven to be his dead body, that he came to his death by criminal violence, and that this defendant inflicted the violence that caused his death, in Dunklin county, Missouri, under such circumstances as to constitute either murder in the first degree or murder in the second degree, as defined in other instructions given; and, unless you find and believe from the evidence that the state has so established the defendant's guilt, you will acquit him."

Defendant also asked for the following instructions: "(1) If the jury believe from the evidence, beyond reasonable doubt, that the state has proven all the facts necessary to prove that defendant did kill George Tettaton, yet, if the state has failed to establish

the mode and manner of the killing, beyond the fact that he was killed with a deadly weapon, the law presumes the death to have been caused by a wound intentionally inflicted with a deadly weapon, and, nothing further appearing, that the offense in such case is murder in the second degree. (2) The defendant requests the court to give proper instructions to the jury on all points of the law arising in the case, and to define the different degrees or grades of crime shown by the testimony, and the punishment that may be inflicted for each and all such grades."

To the refusal of the court to give each and every one of the instructions asked by defendant, and in modifying the third, fourth, fifth, sixth, seventh, and eighth by striking out the words in italics and then giving them as modified, defendant duly excepts.

1. On the 17th day of October, 1899, defendant filed his motion for a change of venue on the ground that he could not have a fair and impartial trial in the county of Dunklin, because of the prejudice and bias of the inhabitants of the county against him. The motion was overruled. During the hearing of this motion some of the witnesses were permitted to testify, over the objection of defendant, that they believed that he could have a fair trial in the county, while others were permitted to testify that they believed a fair number of jurors could be obtained to try the cause; and this is assigned for error. But it does not appear from the record that defendant objected to such testimony and saved his exceptions, and he must be considered as having waived the same. But, even if not waived, we do not think, under the circumstances, that the judgment should be reversed upon that ground. While it was held in State Burgess, 78 Mo. 234, that it was error to take the opinion of witnesses on a motion for change of venue as to whether the appli cant could have a fair trial in the county Cr not, there being enough evidence to sup port the finding of the court on that issue, the error should not work a reversal. In the case at bar there was evidence tending to show that defendant could get a fair trial in the county, and, the court having so found as a fact, that finding will not be disturbed, in the absence of a showing that the court abused its discretion. State v. Thompson, 141 Mo. 408, 42 S. W. 949.

2. On the 28th day of October, 1899, the sheriff of the county having returned into court a list of jurors from whom a panel of 40 jurors qualified in the case were to be selected, and from whose number 12 were to be selected to compose the trial jury, the court, over the objection of defendant, required the counsel for the state and defense to proceed with the voir dire examination of the persons summoned as jurors, prior

to the time at which defendant was to announce whether or not he was ready for trial; and this is assigned for error. While counsel for defendant asserts that the action of the court in this regard was error, he has not suggested or intimated in his brief why it was so, or how defendant was prejudiced thereby. Nor are we able to conceive.

3. On the 31st day of October, 1899, defendant presented his application for a continuance of the cause upon the ground of the absence of the following named witnesses: Lien Stank, P. P. Johnson, H. J. Cashion, Jack Gibbons, James Gideon, John Davis, W. E. Davis and Davis (his wife), William Lane, and Mamie McKinzie. The motion was overruled. Two of these witnesses, viz. Jack Gibbons and William Lane, were present and testified on the trial, so as to them no error was committed. As to the witnesses W. E. Davis and

Davis,

his wife, it was not stated in the motion that defendant could not safely proceed to trial without their presence, nor that a subpoena had ever been issued for them, nor that it was even probable that their evidence could be procured by the next term of the court if a continuance be granted, or their attendance at such term. As to the other absent witnesses, their evidence would have been cumulative, merely, or irrelevant. Besides, it always has been held by this court that whether a case will be continued or not rests largely in the discretion of the court, and unless it is manifest that such discretion has been abused this court will not interfere. State v. Webster, 152 Mo. 87, 53 S. W. 423; State v. Dewitt, 152 Mo. 76, 53 S. W. 429. And it does not seem to us that such discretion was unwisely exercised in this instance.

4. Dr. Harrison, a witness for the state, was permitted to testify, over the objection of defendant, to the condition of the several bodies found in the fire at the place of the alleged homicide; and defendant claims that the evidence should not have been admitted, because the body of George Tettaton was not identified by the witness, and for the further reason that it tended to prove the commission of other homicides by defendant. The evidence clearly showed that the Tettaton family consisted of five persons, the mother and four children, all of whom resided together at the place of the homicide,-George Tettaton, a boy, being the eldest and largest of the children; that five bodies were found in the ruins the next day after the fire, and none of the family, in so far as the record shows, were ever seen alive after that time up to the time of the trial. Under the circumstances, the evidence was entirely proper, as tending to identify the body of George Tettaton, that he was one of the family, and that he came to his death by foul means. It is manifest from the evidence that all of the family were murdered by the infliction of some mortal wound

upon their persons, and that the house in which they resided and were at the time they were murdered was burned for the purpose of concealing the crime.

5. It is insisted that the court should not have permitted witnesses to testify with respect to the condition of the wounds on defendant's head, as they existed after his head was shaved. The contention is that the act was involuntary, and was compelling defendant to give evidence against himself. But this contention is not borne out by the record, which shows that it was not only voluntary on the part of the defendant, but that it was necessary in order to enable the physicians to treat the wounds. Even if the shaving of his head had been against his will and consent, there can be no question but that physicians could have examined his head, and then testified to the condition of the wounds, their character, and whether or not done with a sharp or blunt instrument.

6. Nor is there merit in the claim that error was committed in permitting the witness Esterhim to testify to the action of defendant at the house of deceased for about a month prior to the date of the alleged homicide. While but little importance could be attached to this evidence, and it might just as well have been excluded, its admission was evidently nonprejudicial, and the judgment should not be reversed upon that ground.

7. A witness by the name of Barnett was permitted to testify that the next day after the alleged homicide he had a conversation with defendant in which Barnett detailed a conversation that Mrs. M. J. Tettaton, then deceased, had had with him, and in which defendant said that she did not feel kindly towards him, on account of some matters growing out of his father's estate. In the admission of this evidence it is urged that error was committed. If the defendant had been upon trial for the murder of Mrs. Tettaton, we think the evidence would have been admitted as tending to show the existence of unfriendly relations between the defendant and her, and motive for the killing. And as the homicide of Mrs. Tettaton and George Tettaton was evidently a part of the same tragedy, and for the same purpose, we are inclined to hold that no reversible error was committed in admitting it. It need only be said in this connection that no error was committed in admitting the evidence of McDaniel, of similar import.

8. Defendant further complains of the action of the court in the admission of evidence showing that empty cartridges were found about the burned building a week or more after the alleged homicide. The argument is that the finding of the empty cartridges was too remote from the date of the homicide. This contention we think untenable, and for this reason: Evidence was

work of a revolver containing no cartridges was found at the place where the house stood, shortly after it was burned; and this evidence was competent for the purpose of showing that the homicide was committed by shooting with a pistol, and, when considered in connection with the fact of the finding of the unloaded pistol at or near the same place where the cartridges were found, tended to sustain the charge in the indictment that the killing was done with a pistol, and that the one found was the instrument of death. This being the case, it must follow that no error was committed in permitting to be exhibited to the jury the empty cartridges in question, as tending to show that they were the ones from which the bullets were fired that caused the death of the unfortunate victims.

9. It was shown on the part of the state that Mrs. Tettaton had sued defendant in the circuit court of Dunklin county, and the petition and summons were read to the jury. She had also filed in the probate court a petition asking that her homestead be set off in the land of her deceased husband, which he occupied as his homestead at the time of his decease, and this petition was also read to the jury. Defendant was not only the administrator of his father's estate, but he was an heir thereto, subject to the homestead right of the widow and her minor children, and by their death the title vested at once in him; and the petition in regard to this matter tended to show that defendant may have had a motive in committing the crime, in order to prevent the admeasurement of the homestead, in that he might at once come into its possession. The petition in the suit in the circuit court was properly admitted in evidence, in connection with the other facts in evidence, as tending to show in a remote degree a disagreement between defendant and Mrs. Tettaton in regard to demands against her husband's estate.

10. The state's first instruction is criticised on the grounds, as claimed, that it does not properly define "deliberately," that it tells the jury "that they have nothing to do with fixing the punishment," and that it assumes that George Tettaton was killed with a bullet. With respect to the definition of the word "deliberately," it is in almost the exact words of what was said in State v. Ellis, 4 Mo. 474, to be a correct definition of "deliberately," where, as in the case at bar, there was no evidence of heat of passion. Here there was no evidence whatever of heat of passion, the only question being the identity of a murderer. In the case of State v. Kotovsky, 74 Mo. 247, an instruction which defined "deliberately" as meaning "in a cool state of the blood, not that heated state which the law denominates passion; and the passion here

but that, and that only, which is produced by some reasonable provocation,"-it was said that: "The instruction would have been accurately correct if the defense had relied upon a blow received by the accused from the deceased, but in a case where there is evidence of a just provocation given, which the court holds sufficient to reduce the crime to murder of the second degree, it would be error. As there was no evidence in the case of any such provocation or heat of passion, the error was harmless." In speaking of the instruction in the case last cited, Sherwood, C. J., in State v. Ward, 74 Mo. 253, said: "This instruction is almost identical with that given in State v. Kotovsky, 74 Mo. 247, and, though not in accord with recent decisions of this court, could not have worked the defendant any hurt, since there was no provocation at all, either lawful or otherwise,-nothing of that nature which could reduce the offense from murder in the first degree to some lower grade of homicide. For this reason the error was harmless." So that although the instruction in the case in hand is not in accord with the decision of this court, as there was no evidence whatever of provocation of any kind which reduced the offense from murder in the first degree to any lower grade of crime, the instruction was harmless. Nor was the instruction erroneous in that it told the jury that they were charged with no responsibility with respect to the punishment, as it was simply telling them what the law was, and nothing more. With respect to the contention that the instruction assumed that George Tettaton was killed with a bullet, it is not borne out by the record. This question was submitted to the jury in words so plain that no one could but comprehend them, and it was well warranted by the evidence of the family physician, Dr. A. M. Nix, who testified that he was the family physician of the Tettaton family, and was well acquainted with them, who were all females, except two, George Tettaton and a brother; that they had a great deal of sickness, and that he was there frequently; that he examined the five bodies found in the ruins of the Tettaton home; that he examined the remains of a boy or male, and found feathers adhering to his body, as if from a feather bed, and a wound made from a missile discharged from a firearm right in the top of the head, and from the size of which, and the appearance of the body, and his acquaintance with the family, he was of the opinion that it was George Tettaton. Dr. Harris testified that the gunshot wound on the head of George Tettaton was sufficient to produce death. Clearly, the evidence fully justified the instruction.

11. Several others of the state's instructions are challenged upon various grounds, but without any apparent reason therefor.

They are in form often approved by this court, and presented the case very fairly to the jury. Defendant has no complaint on this score.

12. Defendant also contends that there was no proof of the mode or manner of killing, and therefore the first instruction asked by him should have been given; but this contention is answered by the tenth paragraph of this opinion, and is without merit. The killing was either murder in the first degree or nothing, and it would have been error for the court to have instructed upon any other degree of homicide. There was, therefore, no error in eliminating from the instructions asked by defendant the words in italics, with respect to murder in the second degree. There was no error in striking out the words in italics in the 3d, 4th, 5th, and 6th instructions asked by defendant, because they could have only tended to confuse, rather than enlighten, the jury. Besides, the instructions given covered every phase of the case, and none others, or additions to those given, were necessary.

13. A final contention is that there was no proof of the corpus delicti, and therefore the verdict of the jury was not authorized by the evidence. But the facts connected with the homicide establish the death of George Tettaton beyond any reasonable doubt, and no one, after a careful perusal of this record, can come to any other conclusion than that defendant murdered him by shooting him in the head, while he was lying in bed, and then, after having murdered the whole family, fired the building in order to conceal his crime. No one else seems to have had a motive to commit the crime, while the evidence showed that defendant had. The family physician identified the body of the deceased, George Tettaton, and another physician testified that the shot in the top of his head must have been fatal, and the facts show beyond peradventure that defendant fired it,-his previous actions towards his stepmother; the litigation that had been pending between them; the fact that a few nights before the offense was committed the defendant, at a late hour of the night, went to the house of Mrs. Tettaton for the purpose of staying all night, and upon finding another person there, not a member of the family, stated that he had better go on home; that his little boy was sick. Then, while all of the members of the family came to their deaths by reason of gunshot wounds, the defendant does not pretend that he was fired at, or attempted to be fired at, but claims that, after he escaped from the murderers by jumping through a window of the house, he was assaulted by them with a pistol, knocked unconscious, and his head lacerated and bruised, while the evidence showed that the wounds upon his head were not inflicted by a blunt instrument, but were inflicted with a knife or some sharp instrument. When the

neighbors went to the burning home they found defendant lying upon the ground near the building, pretending to be unconscious; and after he had been removed a short distance from the fire his pocketknife was found near him, with blood upon it. A bloody receipt which he had taken from Mrs. Tettaton was also found near him. Two weeks thereafter a receipt was found in his pocketbook, with blood upon it, also, which he claimed to have received that night from his stepmother. These facts conclusively show that defendant inflicted the wounds upon his own head with his own knife. Besides, the framework of defendant's pistol was found in the débris, and a few days thereafter empty cartridges were found near the same place. These facts, aside from other criminating circumstances in evidence which we have not stated in detail, show conclusively that George Tettaton was shot and killed, and point as conclusively and unerringly to the guilt of defendant as does the needle to the pole. We therefore affirm the judgment, and direct the sentence of the court to be executed.

GANTT, P. J., and SHERWOOD, J., con

cur.

PETERSON v. SEAGRAVES. (Supreme Court of Texas. Feb. 11, 1901.) MEDICINE PRACTICE-BOARD OF EXAMINERS -TEMPORARY CERTIFICATE-VALID

ITY CONTRACTS.

1. Rev. St. tit. 82, requires the appointment of a board of medical examiners for each judicial district, who shall meet semiannually to conduct examinations and grant certificates. Sayles' Civ. St. 1897, art. 3786, provides that any member of said board shall have authority to grant a temporary certificate until the next regular meeting of the board, at which time the temporary certificate shall cease to be of force. Pen. Code, §§ 438, 440, make it a misdemeanor for any person to practice without a certificate from some authorized board of medical examiners. Held, that a third temporary certificate issued to an applicant by one member of the board after two failures to pass the required examinations at the regular board meetings conferred no authority to practice medicine.

2. A contract to render medical services, made by a physician who is practicing under an unauthorized temporary certificate from one of a board of medical examiners, is not enforceable.

Certified questions from court of civil appeals for Second supreme judicial district.

Action by B. H. Seagraves against Andrew Peterson. Judgment for plaintiff was affirmed by the court of civil appeals. Pending rehearing, questions certified. Reversed.

P. Mounts and H. E. Lobdell, for appellant. Bates & Roark and Owsley & Ragsdale, for appellee.

WILLIAMS, J. The following certificate has been made by the court of civil appeals

for the Second district, and the questions therein stated have been submitted for decision:

"Or. December 5, 1898, suit was instituted by appellee in a justice court of Denton county upon an account for medicines and medical services rendered appellant's wife at his request during her last sickness. The appellant pleaded in reconvention for damages in the sum of $150, and specially that at the time of the service for which appellee sued he was not authorized to practice medicine, in that he (appellee) was then practicing under a void temporary certificate issued by Dr. J. M. Inge, a member of the board of medical examiners. Appellee prevailed in the justice court, and also on an appeal to the county court. The judgment of the county court in appellee's favor was affirmed by us on November 10, 1900, Justice Hunter dissenting, and the cause is now here pending on motion for a rehearing, in which appellant prays that the question of law involved be certified; and we have decided to do so, as provided in Rev. St. art. 1043.

“So far as necessary to an understanding of the question involved, the facts are that Dr. J. M. Inge, who at all times herein stated was one of the duly-appointed and acting members of the board of medical examiners for the district that included Denton county, on the 16th day of November, 1897, issued and delivered to appellee a temporary certificate, as provided by article 3786, Sayles' Civ. St. Tex. 1897. This was the third temporary certificate issued by Dr. Inge to appellee, the board of medical examiners for the district at each of its regular biennial meetings after the issuance of the two preceding certificates having refused to issue to appellee a permanent certificate after examination. At appellant's request, appellee, during the life of said third certificate, attended appellant's wife, and performed certain services and administered certain remedies, not necessary to here particularize, which the evidence tended to show were beneficial, and for which appellee charged the usual and reasonable physician's fee; and it therefore became material to determine, and we accordingly certify to your honors for decision, the question involved, that is, whether, under the facts stated, and under the law regulating the practice of physicians, Dr. Inge had the authority to issue to appellee the third temporary certificate of November 16, 1897, and consequently whether thereunder appellee was authorized to practice as a physician, and to charge for his services as such."

Both questions are answered in the negative. The statutes (title 82, Rev. St.) provide for the appointment of a "board of medical examiners" for each judicial district, to be composed of not less than three physicians, and such board is required to meet "regularly semi-annually" in its dis

trict to conduct examinations and grant certificates. The board is required to examine thoroughly all applicants for certificates of qualification to practice medicine, and, when satisfied as to the qualifications of an applicant, to grant him a certificate entitling him to practice medicine in any county when the same has been recorded as further provided. By article 3786 it is provided as follows: "Any two of the members of such board of medical examiners may grant a certificate of qualification to an applicant, and any member of said board shall have authority to grant a temporary certificate to an applicant upon examination until the next regular meeting of the board, at which time the temporary certificate shall cease to be of force." This title of the Revised Statutes contains no express prohibition against the practice of medicine by persons without certificates, but article 438 of the Penal Code makes it a misdemeanor for any person to practice "without first having obtained a certificate of professional qualification from some authorized board of medical examiners, or without having a diploma from some accredited medical college," etc.; and article 440 makes it a misdemeanor for any person to practice without having first filed for record his authority to do so, mentioned in article 438. Both the Civil Statutes and the Penal Code make certain exceptions, which are unimportant here. This court had occasion in the case of Wilson v. Vick, 93 Tex. 88, 53 S. W. 576, to consider the effect of these several provisions upon a different question from that now presented. The effect of the provisions of title 82 is to give to the board, or two members thereof, authority to issue a certificate, which, when recorded, shall permanently entitle the recipient to practice medicine, and to each member of the board authority to give a temporary certificate entitling the applicant to practice until the next meeting of the board. No authority save this is conferred upon one member of the board, and consequently he can have no other. Not only is there an absence of express authority to issue more than one temporary certificate to the same person, but there is an express limitation of the duration of such certificate to the next meeting of the board. The purpose was to afford opportunity to any person who might be able to satisfy one of the board of his qualifications to engage at once in practice, without waiting for a regular meeting of the board, but not to substitute the judgment of the individual member for that of the board after the latter had once acted. If one member, after the board has decided against an applicant, may continue his license to practice, it is apparent that the special and limited authority conferred on such member may be made to supplant the general control given to the board,-a result antagonistic to the spirit and purpose of the statute. The board is required to