The appellant was charged by indictment in the Circuit Court of Clay County with murder in the first degree. Upon a trial he was convicted of murder in the second degree, and his punishment assessed at twenty years' imprisonment in the penitentiary. From this judgment he appeals.
Appellant, a young man about 24 years of age, resided with his parents on a farm in Clay County. In the same neighborhood lived a Miss Clements. She and the appellant had been sweethearts for a number of years, and until the day of the tragedy they had been engaged to be married. On that day he received a letter *Page 683 from her terminating the engagement on the ground of parental opposition. His attitude and actions upon the receipt of her letter are thus graphically detailed by his counsel: "As he sat at the table after reading the letter his face was excessively pale; apparently he could not eat; his eyes had about them an unseeing look and he sat staring at the table." He arose and went upstairs where, it was afterwards discovered, he procured a loaded pistol belonging to a farm hand; going to the barn he saddled and mounted a horse and rode away. Soon thereafter he rode into the yard at the Clements' home and hallooed. Miss Clements and her mother were sitting by a window and, hearing his call, the former went to the door and asked if he desired to see her. In his usual manner he answered, "Yep." He had formerly thus conducted himself and there was otherwise nothing unusual in his manner or actions. Miss Clements went upstairs, got a ring box evidently containing the ring he had given her, put on her cloak and went out to meet him. He had dismounted and was waiting for her further back in the yard. She approached him and handed him the ring box. He caught her by the wrist, put the ring box in his pocket, and drew the revolver, which she grasped and screamed for help. Mrs. Clements and another daughter, Mrs. Piles, ran to her assistance. Just before they reached the scene, appellant wrenched the pistol from Miss Clements' grasp and shot her three times, inflicting mortal wounds. Mrs. Clements threw her arms around her daughter and attempted to lead her away. The latter sank to the ground, and her mother took her across her lap in an effort to relieve her agony. Appellant stood near at hand, and, pointing the pistol at Mrs. Clements, he fired at but did not hit her, saying as he did this, with a vile epithet, "I'll get you too." He then went down the road and the women heard several shots in the direction he had gone. A short time after the shooting he was found lying in the road unconscious with three pistol wounds in his chest. *Page 684
Miss Clements died from the effects of her wounds about fifteen minutes after she was shot by the appellant. Appellant was taken to a hospital in Kansas City, where in a short time he recovered from his wounds, was brought back to Clay County, indicted, tried and convicted as stated.
The defense interposed to this murder was insanity. Voluminous testimony, not unusual in cases of this character, pro and con, and expert and lay, was adduced. On the part of the appellant it ranged all the way from an alleged inherited tendency to insanity due to the alcoholism of the father, and the goitre and defective heart-action of the mother at about the time of the appellant's conception, on down through his childhood and adolescence, during which time witnesses testified that he received physical and other injuries which aggravated intermittent fits or convulsions, to which he had been subject from his infancy. These paroxysms were defined to be epileptic in their nature and the medical pundits who testified as experts, basing their conclusions, as they were required to do, upon the sometimes illusory facts presented by a hypothetical question, stated that the appellant at the time of the tragedy was suffering from epileptic automatism, or more plainly put, that he was insane as a result of epilepsy, and hence was involuntarily moved to commit the crime.
A number of witnesses for the State who were personally acquainted with the appellant and had been for a number of years, testified that when they saw him he usually seemed to be in a good humor and that they never observed anything unusual in his conduct. An assistant superintendent of nurses, who qualified as an expert in regard to insanity based upon many years' experience with lunatics and who saw the appellant during the time he was under treatment for his wounds at the hospital, stated that she frequently observed him and that at no time did he do or say anything indicative of mental unsoundness. From this tangled web of contradictory conclusions the jury evolved their verdict. *Page 685
If any other facts are found necessary to the elucidation of any question raised by the appellant, they will be presented in the discussion of the case.
I. It is contended that error was committed in the giving of an instruction on murder in the second degree; that under the evidence appellant was guilty of murder in theInstruction. first degree or of no offense.
While there is, in our opinion, sufficient evidence of anger or a heat of passion on the part of appellant towards deceased at the time of the killing to authorize the giving of the instruction, as we have held in numerous cases (State v. Wieners,66 Mo. 13; State v. Grugin, 147 Mo. l.c. 51; State v. Marsh,171 Mo. 528; State v. Robertson, 178 Mo. 505; State v. Minor, 193 Mo. l.c. 612; State v. Bobbitt, 215 Mo. 10; State v. Johnson, 192 S.W. l.c. 442), the contention may be more satisfactorily determined under what is termed our criminal Statute of Jeofails (Sec. 5115, R.S. 1909, now Sec. 3908, R.S. 1919) which provides, in effect, that no judgment or other proceeding shall be deemed stayed or in any manner affected because the evidence shows or tends to show the defendant to be guilty of a higher degree of the offense than that of which he is convicted, and also another statute (Sec. 4903, R.S. 1909; now Sec. 3692, R.S. 1919) more specifically applicable to the case at bar, which provides: "Upon indictment for any offense consisting of different degrees, as prescribed by this law, the jury may find the accused not guilty of the offense charged in the indictment, and may find him guilty of any degree of such offense inferior to that charged in the indictment, or of an attempt to commit such offense, or any degree thereof; and any person found guilty of murder in the second degree, or of any degree of manslaughter, shall be punished according to the verdict of the jury, although the evidence in the case shows him to be guilty of a higher degree of homicide." Construing this statute in State v. Barnes, 204 S.W. l.c. 266, we have held that the giving of an instruction *Page 686 authorizing a conviction of murder in the second degree when the evidence conclusively showed that the crime was murder in the first degree, is not error. The reason for this conclusion is to be found, first, in the express authority of the statute, and, second, in that the instruction for the lower degree being favorable rather than otherwise to the defendant, he has no ground of complaint. [State v. Clinton, 278 Mo. 344; State v. Whitsett, 232 Mo. l.c. 522; State v. Bobbitt, 215 Mo. l.c. 38; State v. West, 202 Mo. l.c. 138 et seq.; State v. McMullin, 170 Mo. l.c. 630; State v. Frazier, 137 Mo. l.c. 340; State v. Berkley, 109 Mo. l.c. 675.]
II. Appellant assigns error in the refusal of the trial court to permit him to introduce in evidence certain subpœnas and records of court entries which, it was alleged, would tend to show that, while appellant was being held under an information charged with the same crime for which he was beingEvidence tried; his relatives and other witnesses had beenbefore brought before the grand jury and required toGrand Jury. testify concerning the crime; and that the transcript of such testimony was being used by the prosecuting attorney in the examination of the witnesses at the trial, to appellant's prejudice. This assignment seeks for its support Section 5078, Revised Statutes 1909, now Section 3870, Revised Statutes 1919, which provides, in effect, that after the finding and returning of any indictment, neither the foreman of the jury, nor the prosecuting attorney, nor the clerk of the court shall have the right to cause any subpoena or other process to be issued for any person who is known or believed by such foreman, prosecuting attorney or the jury to be a witness in behalf of the person or persons so indicted, or who has been subpœnæd as a witness for such person or persons, or who such foreman, prosecuting attorney or jury may have reason to believe will be sworn as a witness for such person or persons in regard to a matter or matters charged in such indictment, except *Page 687 upon the written order of the judge of the court in which such indictment is returned. It is not contended that the express terms of this statute were violated, but that they should be so construed as to inhibit the issuance of subpoenas by a grand jury for the examination of witnesses of one charged by information as well as by indictment. The purpose of the statute is evident. The examination of witnesses before a grand jury is an ex parte proceeding, and after an indictment has been returned against the accused it would afford the State an unfair advantage to secretly interrogate his witnesses. The reason for a like inhibition upon a grand jury when the accused is charged by information does not exist. Filed, as the information is, by the prosecuting attorney, who acts independently of the grand jury, his action, in the absence of an express statute, should not be held to limit the power of the grand jury, whose duty it is to diligently inquire and true presentments make of all offenses against the laws of the State in that county. Furthermore, the inhibition is inapplicable except as to indictments, because the State has no power to interrogate witnesses for the accused after the filing of an information except at the preliminary examination or upon the trial. This conclusion finds support in our ruling in State v. Faulkner, 175 Mo. l.c. 604, where we held that the statute should be strictly construed to prohibit the issuance of process for witnesses by a grand jury only "after the finding and returning of an indictment." Subsequently, in State v. Lehman, 175 Mo. l.c. 626, the statute was again under consideration and the ruling in the Faulkner case was approved.
Incidentally, it may be remarked that the record at bar discloses that upon the finding and returning into court by the grand jury of the indictment against appellant, the prosecuting attorney entered a nolle prosequi to the information. The only pertinency of this is its legal effect in nullifying the information. [State v. Taylor, 171 Mo. l.c. 473; State v. Williams, 191 Mo. l. *Page 688 c. 212.] It is not contended by the appellant that there was any irregularity in the finding or returning of the indictment against him; but in some manner, not definitely stated, it is insisted that the refusal of the trial court to permit the papers and record entries in regard to the information being introduced in evidence, was prejudicial to him. There is no merit in this contentention. The information having been legally suspended by the finding and return of the indictment and actual dismissal of the former by the prosecuting attorney in recognition of this suspension, all matters in relation thereto were foreign to the case on trial. The court, therefore, properly excluded the testimony offered, and we overrule appellant's contention.
III. Instruction numbered 8, given by the court, is alleged to be erroneous. It is as follows:
"Insanity is interposed by the counsel of the defendant, as an excuse for the charge set forth in the indictment.Insanity.
"This defense, when established, is one which the law recognizes, and should insanity be proven, by the evidence in the case, to the reasonable satisfaction of the jury, it would be the duty of the jury, in that event, to acquit the defendant altogether.
"Insanity is a physical disease, located in the brain, which disease perverts and deranges one or more of the mental and moral faculties, so far as to render the person suffering from this affliction incapable of distinguishing right from wrong, in reference to the particular act charged against him, and incapable of understanding that the particular act in question was the violation of the law of God and of society.
"Wherefore the court instructs the jury that if they believe and find from the evidence that at the time he did the killing charged in the indictment, the defendant was so perverted and deranged in one or more of his mental and moral faculties, as to be incapable of understanding, at the moment that he killed Elizabeth Clements, *Page 689 that such killing was wrong, and that he, the defendant, at the time was incapable of understanding that this act of killing was a violation of the laws of God and of society; if the jury find that he was so insane, they should find him not guilty. Insanity is either partial or general. General insanity always excuses. Partial insanity does not always excuse. One may be partially insane and yet be responsible for his criminal act.
"The law does not excuse, unless the derangement is so great that it actually renders the person incapable, at the time of its commission, of distinguishing between right and wrong in the particular act charged and proved against him."
The use of the word "excuse" in the initial sentence instead of the word "defense" is urged as prejudicial. This is a rather finical distinction. One of the well defined meanings of an excuse is a justification. A defense is nothing more. An excuse is also defined, especially in legal literature, as a plea offered in extenuation of a fault. [Bouvier L. Dict.; State v. McDaniel, 68 S.C. 304; Reg. v. Harvey, Law Rep. 1 Cole. Cas. 284, 11 Cox, C.C. 662; 17 Cyc. 874.] A defensive plea, therefore, to a criminal charge is in a sense an excuse. We said as much in State v. Pagels, 92 Mo. l.c. 309 and in numerous later cases. BURGESS, J., in that virile English which characterized his best opinions, gave express recognition to this meaning of the word in State v. Lewis, 136 Mo. l.c. 92, in saying: "But the homicide being shown to have been committed by the defendant, the burden was upon her to show some legal justification or excuse for it, and if excusable on the ground of insanity, it must have been shown to the reasonable satisfaction of the jury."
In State v. Holloway, 156 Mo. l.c. 228, a capital case in which the verdict was sustained, the leading instruction begins with the identical language employed at bar, viz: "Insanity is interposed by the counsel for the defendant as an excuse for the charge set forth in the indictment." *Page 690
Later cases are of like effect. [State v. Speyer, 207 Mo. l.c. 555 and cases; State v. Paulsgrove, 203 Mo. l.c. 200.]
In the Paulsgrove and Holloway cases the leading instructions in each contained the following language: "Insanity is either partial or general. Total insanity always excuses. Partial insanity does not excuse." etc., and each closed with the following: "The law does not excuse unless the derangement," etc.
This should suffice to dissipate the tenuous plea of prejudice on account of the use of the word complained of.
The further contention is made that the instruction is erroneous in that it does not inform the jury as to the weight to be given the expert testimony. The jury was correctly informed as to the law in this regard in a separate instruction which, in like form, we approved in State v. Crane, 202 Mo. l.c. 84. It is exceedingly elementary that all of the law applicable to the case under the evidence need not be given to the jury in one instruction. Separate instructions are clearly permissible, the only limitation being that when construed together they shall correctly declare the law and present a harmonious whole. [State v. Shout, 263 Mo. l.c. 375.]
It is also urged that the instruction is erroneous in not authorizing an acquittal if the evidence disclosed that the appellant was "incapable of exercising his will." Where a plea of insanity is interposed, as at bar, the test of mental capacity is not whether the accused was capable of exercising his will, but whether, by reason of his insanity, he was rendered incapable of distinguishing between right and wrong at the time of the commission of the offense. [State v. Rose, 271 Mo. l.c. 27, and cases; State v. Paulsgrove, 203 Mo. l.c. 205; State v. Miller, 111 Mo. l.c. 551; State v. Turlington, 102 Mo. l.c. 654; State v. Erb, 74 Mo. l.c. 203.]
In the Rose case, after announcing the rule as above stated, we said: "This measure of mental responsibility has uniformly been applied in this State when the defense of insanity has been interposed. [Citing cases.] *Page 691 "This rule accords with reason and avoids the technical distinctions invoked in other jurisdictions in the presence of a plea of insanity, which tends only to interfere with a wholesome administration of the criminal law. The presumption of sanity which always obtains in the absence of countervailing proof (State v. Barker, 216 Mo. l.c. 544) was not removed in this case, and the jury was reasonably satisfied from a preponderance of the evidence that the defendant was sane at the time of the commission of the crime."
As in the Rose case, we find no cause for interfering with this finding.
The judgment of the trial court is therefore affirmed. All concur.