— The defendant was indicted at the April term, 1873, of the Christian circuit court, for a felonious assault upon one George W. Davis. The cause was taken on a change of venue to the Greene circuit court, ■thence to the probate and common pleas court of Greene *213county, and thence to the circuit court of Webster county,in which, at the March term, 1877, there was a trial resulting in the conviction of defendant. After unsuccessful motions made by him for a new trial, and.in arrest of judgment, he appealed to this court.
1. criminal law grand jury: sheriff
The term of the Christian court, at which defendant was indicted, commenced on the 21st day of April, 1873, an(l county court of that county having fa}ie(j t0 select a grand and petit jury in the manner provided by the act of the General Assembly, approved .March 15th, 1873, the court ordered the sheriff to summon a grand and .petit jury, and by the grand jury so-summoned, this indictment was preferred.
Defendant contends that the grand jury so summoned was not a legally constituted grand jury. If it were a question now for the .first time submitted to this court, I should hesitate to say that a grand jury selected in a manner directly contrary to that expressly prescribed by the act of the General Assembly, was to be recognized as such, but in the case of The State v. Bleekley, 18 Mo. 429, in which this question was before the court, it was held that the defendant, indicted by a grand jury selected in contravention of an express statutory enactment, could not object to the composition or organization of the grand jury, and that case has either been followed or approved in the State v. Petts, 58 Mo. 557; State v. Breen, 59 Mo. 413; State v. Jones, 61 Mo. 373; State v. Connell, 49 Mo. 282. The same cases also determine that the failure of the record to show that the sheriff and his deputies took the prescribed oath, will not avail the defendant as a ground for arresting the judgment.
2. the probate oourtMop greene ab?ushedWby tbe íonstitutiou °f
The Pi’obate and Common Pleas Court of Greene county was not abolished by the new constitution adopted in 1875; an d by an act approved March 4, 1869, jurisdiction was conferred upon that court to try any civil or criminal cause which eircujt; judge of said county was disqual*214ified from trying, and provision was made for the transference of such causes from the circuit court to the Probate and Common Pleas Court of Greene county. Having been transferred from the Greene circuit court to said Probate and Common Pleas Court, and sent by the latter court, on change of venue, to the Webster circuit court, that court acquired jurisdiction of the cause. This disposes of defendant’s objections to the grand jury, the failure of the record to show the oath taken by the sheriff and deputies, and to the jurisdiction of the Webster circuit court.
o -aw evidence.
There was an in-econcilable conflict of testimony on the trial. The evidence for the State established an unprovoked assault with intent to kill. That for the accused, by an equal number of witnesses, a clear case of self-defense. The State’s evidence all tended to show that Davis, the party assaulted, accused defendant of having instigated an assault made upon him several days before, and that defendant gave Davis the d — d lie and simultaneously drew a revolver, pointed it toward defendant and snapped two caps at him. The evidence for the defense was that Davis made the accusation and then commenced drawing his revolver, and that defendant did not attempt to shoot until Davis had drawn his pistol.
There was abundant evidence of threats made by Davis that he intended to kill the defendant, brought down to the very day that this difficulty occurred, and communicated to the defendant both before and on the day of the difficulty. The court, against the objection of defendant, admitted the evidence of R. H. Langston, that in 1875, in Texas, he arrested the defendant on an indictment in another case, and that he attempted to escape. The record does not disclose what case that was, hut the evidence of Langston was that it was not-the ease we are considering and that he was tried and acquitted of the charge for which he was arrested in Texas.
The record does show that defendant forfeited a recognizance for his appearance in this case, but that was *215the only evidence which tended to show that he had made any attempt to avoid this prosecution. The court permitted the State to read the indictment herein as evidence to the jury, in connection with the evidence of Langston and of .the forfeiture of the recognizance. It is clear, that the evidence of Langston, of the arrest of defendant in Texas, on another charge, and his attempt to escape, was inadmissible, and that under the circumstances, the court should have explained to the jury the object of introducing as evidence the indictment againt the defendant. It was admissible to show that when he forfeited his recognizance and left the State, an indictment was pending against him. It rvas competent for that and for no other purpose, and the jury should have been so informed by the court. The privilege of reading the indictment to the jury in the statement of the case, is accorded to the State. We do not knoAV that the right to do so has ever been questioned, and presume from the prevalence of the practice, that in stating this case, the indictment was read to the jury.
It may be asked how, then, could reading the indictment again to the jury have prejudiced the defendant. The reading of the indictment by the attorney in his statement, would not have the weight and significance which would attach to it, when, with the sanction of the court, read as evidence in the cause. Whatever is read or admitted to the jury as evidence, is for their consideration as such in determining the issues they are trying,' and when the court permitted the State to read the indictment as evidence, without any limitation to its application, or any explanation of the purpose for which it was introduced, the jury may have taken it as an intimation from the court that in determining the guilt or innocence of the accused, they had a right to consider the fact that the grand jury had indicted him for the crime.
We cannot say that defendant was not injured by the evidence of Langston, and the reading of the indictment to the jury, without any qualification. The case was very
*216evenly balanced on tbe evidence, and tbe testimony thus admitted, may have turned tbe scale against tbe defendant.
4.-:-.
Tbe evidence of Henry Sullivan in regard to a difficulty between Navis and other parties than defendant, on the evening of the day of the difficulty between Davis and defendant, was incompetent, and should have been excluded, and evidence of the same character is to be found in the testimony of several of the witnesses for the State. The 14th instruction asked by defendant should? therefore, have been given. It asked the court to declare .that in determining the guilt or innocence of defendant? the jury should be governed .by the evidence alone, and not. be influenced by the consideration that Davis was assaulted at other times, before or after the difficulty they were then investigating, or that Davis was subsequently killed. ■ The evidence before alluded to having been admitted, this instruction should have been given, although it may be questioned whether it would have cured the error of admitting such evidence.
In other respects we think that the instructions, though not faultless, are not so defective as to warrant a reversal of the judgment; but for the errors above indicated, the judgment is reversed and the cause remanded.
All concur.Reversed.