delivered the opinion of the court.
The defendant was indicted at the September term, 1854, of the Criminal Court of St. Louis county, for wilfully, felonious" ly, on purpose, and of malice aforethought, assaulting, cutting, wounding and mutilating William 0. Hoffman, with a knife, then and tüere being a deadly weapon. The act was charged to have been committed on the 14th day of March, 1854, at St. Louis, in St. Louis county.
The second count charges the act to have been done felo-niously, on purpose, and of malice aforethought; and to have been done violently, cruelly, immoderately, and by means likely to produce death and great bodily harm ; — charges the cutting, wounding and mutilating as in the first eount.
The third eount charges the assaulting and scourging with a cowhide, and cutting and wounding with a knife, to have been done feloniously an<f wilfully, and by the act and procurement of said Baker, giving, by such wounding, cutting, beating and scourging, unlawfully.and feloniously, great bodily harm to said Hoffman, so that his life was endangered and himself wounded and disfigured.
The defendant pleaded not guilty; a change of venue was taken from the Criminal Court to the St. Louis Court of Common Pleas, and a second change to the Circuit Court of St. Louis county. The defendant was found guilty under the third count’, and acquitted on the first and second counts.
The State produced as a witness S. C. Simmons, who testified that he was recorder of the city of St. Louis in March, 3:854; that the paper sworn to him is the official examination made by him as recorder in the case of the State v. Wilson C. ¡Baker, Milo Smith and Benjamin Embree, on the charge of *451feloniously wounding William 0. Hoffman, with intent to maim. Baker, the defendant, was present at the examination by himself and his counsel, U. Wright. Hoffman was sworn and his examination written down by the clerk of the recorder’s court, and Hoffman subscribed his signature to the same when taken in the presence of the defendant Baker ; and at the time of the examination, conducted under my direction as recorder, Smith was discharged and Baker and Embree bound over to answer to the Criminal Court. I, as recorder, attested the examination, and when certified by me, as it now appears, it was handed over to my clerk. Hoffman is dead. I saw him dead not a great while after the examination. Baker and Embree gave bail. The clerk of the recorder’s court is appointed by the mayor; the office is created by ordinance. Hoffman’s death was not caused by the injuries for which the examination was had. He died from another cause.
The paper referred to by the witness was then offered in evidence by the State and objected to by the defendant as incompetent evidence under the constitution, and as irrelevant evidence under the issues of this caiise. The court overruled the objection and permitted the paper to be read in evidence. The defendant excepted to this ruling and saved the point. I am unwilling to insert this paper in the opinion of the court, because such a detail of facts had for the honor of humanity better remain where few will have occasion to read it. The testimony of the physicians who attended to the wounds of Hoffman and managed the case for him is also omitted. The testimony shows a most cruel and inhuman infliction of injuries and wounds on the naked body of Hoffman, and in such number and on such parts of his body as at least to have caused great bodily harm, if not to have endangered life. The record shows that every instruction asked for by both parties was given. Many of these instructions relate to the first and second counts in the indictment, and therefore are not necessary to notice, as the jury found the defendant not guilty of the offences in these counts.
The third and eighth instructions are those principally com*452plained of by tbe defendant. Now in regard to instructions we must look at tbe evidence offered and given before tbe jury. Tbe third instruction as well as tbe eigbtb must be considered in relation to tbe case as made out. Tbe court did not intend nor could tbe jury understand that by tbe wounding mentioned in this instruction any accident or unintentional wounding was meant. When the facts in proof are considered, tbe instruction was not liable to mislead tbe jury; it must be understood in reference to tbe case made out before them. We can not reverse by reason of any thing said against this instruction. Tbe sixth and seventh instructions put tbe case very fully and fairly before tbe jury; and tbe defendant can not complain of any thing in tbe eigbtb instruction with propriety. This instruction is very lengthy, and unnecessarily embraces hypothetically many of the facts detailed in proof, and is liable to criticism ; but this court is not satisfied that any illegality is contained in it, or that it operated on tbe minds of tbe jury preju-dicially to tbe rights of tbe defendant.
Upon all tbe questions arising then on this record, except tbe admissibility of tbe examination of Hoffman before tbe recorder’s court, this court is unanimously of opinion that there is no error. Tbe question on admitting that examination has been heretofore settled by a majority of tbe court in tbe case of the State v. McO’BIenis. Judge Ryland dissents on this point, and refers to bis opinion in tbe O’Blenis case. ' Tbe judgment of tbe court below is affirmed ;
Judge Ryland dissenting on the one point only.The case of the State v. McO’Blenis was decided at the March term, 1856; that of Baker at the October term, 1856. The constitutional question involved in the cases of O’Blenis and Baker has again come before the Supreme Court in a somewhat different form. In the case of Houser, indicted for murder, the St. Louis Criminal Court, upon the trial, admitted in evidence against the accused a deposition taken before the committing magistrate, where it appeared that the witness was out of the state. There was no proof of her death. Houser was convicted of murder in the first degree — [Rep.