Defendants were charged by information with murder in the first degree and convicted of murder in the second degree. After unsuccessful motions for a new trial and in arrest of judgment, they appeal. Their plea was self-defense.
It was charged that on the 26th day of February, 1921, in the County of Butler, they shot and killed one Charlie Board with a shot gun.
For the State, the testimony showed that both of the defendants resided at the village or town of Qulin in said county and that the deceased lived a few miles from there, on a slough or body of water, where he had a contract to clear a right-of-way for a drainage district; that a brother of the deceased and another were working for deceased on said right-of-way not far from the house where deceased lived; that the appellants appeared about ten o'clock in the morning and inquired of said parties if deceased were at home and being answered in the affirmative asked if they were sure of that fact. They proceeded to the home of the deceased, where they found him engaged in the performance of some chores about the house. Appellants *Page 7 remained at the home of the deceased until some time toward the middle of the afternoon. They ate their dinners with him. During their visit, various conversations were had as overheard by several witnesses. At one time the appellants and the deceased were negotiating with respect to a trade for one of two revolvers owned by the deceased and exhibited at the time. One was a large revolver without loads, a fact that was discussed, and particularly as it was of such a size that cartridges could not be conveniently obtained for it. This revolver was the subject of the negotiations. The smaller revolver was loaded.
Defendant Hembree carried a single-barreled shotgun and, during the visit, deceased used said gun in shooting at a can or some object, which one of the appellants had thrown in the air. The general attitude of the parties on the surface seemed to be one of friendliness.
In the course of the day, appellant Jacobs told deceased that there was a warrant out for him and, upon inquiry by deceased as to who held the warrant, said that one Owen Temples was responsible for it. At the same time he indicated to deceased that he should leave the community, and that he, Jacobs, would give him $20 to aid him in his flight. Here it may be noted that Owen Temples was the former husband of the wife of the deceased; that deceased and his wife had been married less than two months, and that appellant Jacobs was an uncle of deceased's wife, and there was testimony indicating that the relations between Jacobs and the wife of the deceased had been intimate. Apparently no trade or exchange of property was effected between the parties, and the three left the house together, the deceased carrying his smaller pistol loaded and his larger pistol unloaded. The three came to the place where the deceased's brother, Elmer Board, and Jesse Roark were working on the right-of-way, as above stated, and after some conversation the appellants indicated *Page 8 a purpose to return to their home at Qulin and the deceased said that he must return to his own house, whereupon it was suggested that the three could go a portion of their respective ways together. They crossed the aforesaid slough by a foot log, a short distance from where Elmer Board and Roark were working, and had gone a short distance along the road when the muffled report of a gun was heard and shortly thereafter appellant Hembree, carrying the shot gun, came running back toward the slough. A considerable distance behind him appellant Jacobs was observed running from the place where the report of the gun was heard. Jacobs then faced about and returned to the place from which the sound of the gun had come. When he came away again, witnesses, who resided in the vicinity, inquired of him whether there was any trouble and received an evasive reply. Attention had been attracted by these rather suspicious circumstances, and upon investigation, the body of the deceased was found in the road with a gun shot wound in the breast. This had been instantly fatal. The larger revolver was in one of the pockets of a jacket worn by the deceased, and the smaller revolver was in his right hand.
Appellants admit that appellant Hembree shot and killed the deceased, but say that the shot was fired in self-defense. According to their testimony there had been no ill feeling during the day of the tragedy, and the three were proceeding amicably along the road when suddenly the deceased made a statement regarding his father-in-law, who he said had been coming to his house with his hands in his pockets, and that he proposed to take some measures against him if that were repeated, and then accused appellant Hembree with having had trouble with Elmer Board, a brother of the deceased.
Appellants testified that the deceased was assured that such trouble had been adjusted and forgotten, and that without more ado the deceased became contentious in his own behalf and informed both of the appellants *Page 9 that he intended to kill, or had bullets for each of them, and proceeded to draw both of his revolvers; that Hembree then shot deceased with his shot gun, inflicting a wound from which, after the deceased had walked some ten or twelve steps, he fell and expired, and that both of the appellants ran away from the scene of the trouble.
There was testimony that previously appellant Jacobs had made threats against the life of the deceased. Other pertinent facts will be discussed in the course of the opinion.
I. At the conclusion of the State's evidence each of the defendants interposed a demurrer and they complain here that the court erred in failing to grant such requests. When their respective demurrers were overruled appellantsDemurrer. proceeded to offer testimony in their defense and in so doing they waived their right to be heard on their demurrers at the close of the State's evidence. [State v. Ellis,290 Mo. 219, 234 S.W. 845; State v. Jackson, 283 Mo. 18,222 S.W. 746; State v. Belknap, 221 S.W. 39, l.c. 45; State v. Mann, 217 S.W. 67, l.c. 69; State v. Martin, 230 Mo. 680, l.c. 700, 132 S.W. 595; State v. Lackey, 230 Mo. 707, l.c. 713, 132 S.W. 602; State v. Starling, 207 S.W. 767.]
II. At the close of all of the testimony the appellants renewed their requests for peremptory instructions in the nature of demurrers and were overruled. They complain that this was error. The statement of a few facts will be sufficient toSufficient show that a case was made for the jury. The testimonyEvidence. showed that Jacobs had made threats against the life of the deceased; that he had been intimate with the wife of the deceased while she was the wife of Owen Temples; that on the day of the tragedy appellants were particular in their inquiry as to whether the deceased was at his home; that they spent several hours with the deceased without evincing any business reasons *Page 10 therefor (there were no intimate social relations existing between them); that appellant Jacobs told the deceased that there was a warrant out for him and proposed to give him $20 to aid in his flight; that after the shooting of the deceased both the appellants fled away from the scene of the tragedy, and appellant Jacobs returned to the scene immediately thereafter, and then upon inquiry, as to whether there was any trouble, made an evasive answer which was tantamount to a denial. Moreover, it was admitted by them that Hembree had shot and killed the deceased and the story detailed by each of them was of such nature as to warrant the jury in drawing adverse inferences therefrom. The muffled report of the gun, indicating that the gun was pressed against the body of the deceased, became a matter of serious consideration and the position of the body of the deceased rather tended to contradict the theory of self-defense advanced by appellants. One of the revolvers was in his pocket, and the other, while in his hand, was in such position as to raise a serious question for the jury, in view of the attendant circumstances, as to how it got there. The testimony was sufficient to raise an issue for the jury. [State v. McKenzie,177 Mo. 699, l.c. 717; State v. Williams, 186 Mo. 128, l.c. 135 et seq.]
III. As to appellant Jacobs, the court instructed only on murder in the first degree, whereas the verdict was for murder in the second degree. The fact that the jury returned a verdict more favorable to appellant Jacobs than the instructionsInstruction would warrant is not a matter about which he mayOnly for justly complain. This court has repeatedly held thatMurder. if a jury returned a verdict finding the defendant guilty of an offense below that charged in the indictment or information and authorized by the instructions it is not a basis of a complaint. [State v. Hutchison, 186 S.W. 1000; Sec. 3692, R.S. 1919.] *Page 11
IV. The trial court did not err in giving an instruction to the jury on the question of a conspiracy. The testimony was sufficient to support the instruction. A conspiracy may be proven by circumstantial evidence and its existence may beConspiracy. deduced from attending circumstances, without showing a formal understanding. [State v. Kolafa,236 S.W. 302; State v. Bersch, 276 Mo. 397, l.c. 414; State v. Walker, 98 Mo. 95, l.c. 104; State v. Porter, 199 S.W. 158.]
V. The court of its own motion gave the jury seventeen separate instructions. The second instruction followed the language of the information and told the jury that if the defendantReasonable Glenn Hembree "wilfully, deliberately, premeditatedlyDoubt. and of his malice aforethought, shot with a shotgun, and by such shooting killed Charlie Board, you will find him guilty of murder in the first degree."
Appellants complain that the question of reasonable doubt should have been put in this instruction. That question was fully covered by other instructions, and it is the law that instructions are to be read and considered as a whole. [State v. Burgess, 193 S.W. 821; State v. Murray, 193 S.W. 830; State v. Arnett, 210 S.W. 82; State v. Reppley, 278 Mo. 333, 213 S.W. 477; State v. Jones, 225 S.W. 898.]
VI. Complaint is made against instruction numbered 11 on the subject of motive, on the grounds that it refers the jury to the information to ascertain the elements of the crime. We do not thus read the instruction. It told the jury that ifReferring "you further find and believe beyond a reasonableJury to doubt that the defendant, Glenn Hembree, shot andInformation. killed Charlie Board as charged, then you will find the defendant guilty, regardless of any proof of motive." It would be as reasonable to say that this reference "as charged" was to the charge contained in other instructions and not a reference to the information. *Page 12 Our attention is called to the case of State v. Constitino, 181 S.W. 1155, l.c. 1157, where, in an obiter, it was suggested that an instruction thus prepared might be error. In the case of State v. Burgess, 193 S.W. 821, l.c. 826, the same question was squarely before the court and WALKER, J., used the following language in reference thereto:
"We have found no authorities here or elsewhere in which a reference to the information or indictment rendered an instruction invalid, unless it left the jury no other alternative than such reference to determine their duty."
The learned author then said that no such state of facts existed in that case, and so say we here, as the other instructions had fully and fairly covered every element of the crime and the jury were not relegated alone to the information for the facts as to the charge. [State v. Herring, 268 Mo. 514, 188 S.W. 169.]
VII. Instruction numbered 8 given by the court was on the subject of the credibility of the witnesses and was in the usual form. Appellants complain that said instruction was defective because it did not tell the jury that they shouldCharacter take into consideration the character of theof Witnesses. witnesses. They say that that question was specially significant in this case. If appellants desired an instruction more direct as to that point, they should have requested such an instruction, and failing to do so they have no basis for complaint. [State v. Herring, supra.]
VIII. Instruction numbered 12 covered the subject of reasonable doubt and referred to both of the defendants. Appellants complain that the instructions should have been drawn soReference to that the jury may have acquitted either one ofBoth Defendants. the defendants, if a reasonable doubt arose in their minds as to his guilt. As above stated, all the instructions must be considered together, and instruction *Page 13 numbered 7 told the jury that they might find both the defendants guilty, or both not guilty, or that they might find one guilty and one not guilty, as the facts would warrant. The jury was not misled by this instruction, and we rule the point against the appellants.
A careful examination of all the assignments of error made by the appellants fails to reveal any errors of which the appellants or either of them may justly complain and we accordingly affirm the judgment of the trial court. It is so ordered. Railey, C., concurs; White, C., not sitting.