The defendant was indicted for murder in the first degree at the September term, 1880, of the Stoddard couuty circuit court, and being put upon his trial at the September term, 1881, of said court was convicted of murder in the second degree, and brings the case before us on writ of error. The points made by counsel will be considered in the order made.
It is insisted that the indictment is insufficient m not locating the wound with certainty and because of repugnancy and inconsistency. Omitting the formal parts of the indictment it charges that: “ Defendant him, the said Charles Flint, feloniously, wilfully, deliberately, premeditatedly and of his malice aforethought, did strike, stab and thrust in and upon the right side of him, the said Charles Flint, and also in and upon the back near the left shoulder of the body, giving to the said Charles Flint then and there, with the knife aforesaid, in and upon the right side, and also upon the back near the left shoulder of the body of him, the said Charles Flint, one mortal wound of the length of two inches, of the breadth of half an inch and of the depth of three inches,” etc. The objection is not well taken, for under the ruling of this court in the case of State v. Edmundson, 64 Mo. 398, where the case of the State v. Jones, 20 Mo. 61, relied upon by defendant’s counsel to sustain his objection, was considered, it was held that the case of the State v. Dias, 7 Blackf. 20 upon the au*137■thority of which the point in the case of the State v. Jones, supra, was decided had, in effect, been overruled in 10 Ind. 309, 359; 14 Ind. 441 and 22 Ind. 1.
It appears that one Lance, who saw the encounter between defendant and deceased, "was introduced as a witness and stated among other things, that defendant call deceased a G- — d liar, that deceased replied you are another, that they struck at each other and defendant fell, and on getting up drew a bottle of whisky and tried to strike witness who was trying to keep him quiet. Defendant objected to so much of said evidence as related to his attempt to strike witness, which was overruled. This objection "was properly overruled, as it was part of the res gestae, and tended to show the animus of defendant. State v. Testerman, 68 Mo. 415.
It appears from the record that, after the first assault, deceased and defendant became separated, and deceased walked twenty or thirty feet away, and one of the witnesses was allowed to state, over defendant’s objection, that deceased, while standing at the mill hopper and before the fatal encounter, “ looked scared,’*’ “ looked as if he wanted to get away.” Under the authority of Wharton Or. Ev., section 751, where it is said evidence that defendant was confused, embarrassed, or under the influence of terror is receivable, the trial court did not err in its ruling.
It is, also, objected that the court erred in refusing to allow a witness to state whether defendant was drunk or sober. Inasmuch as drunkenness neither extenuates nor excuses crime, the ruling of the court was proper. State v. Hundley, 46 Mo. 416; State v. Dearing, 65 Mo. 530; State v. Edwards, 71 Mo. 312.
It appears from the record that defendant’s counsel, in stating his case to the jury, was proceeding to detail a difficulty which had occurred between a son of the deceased and the defendant, long previous to the homicide, and the court refused to allow him to proceed with the narrative, and this action of the court is assigned for error. The *138matters referred to were not relevant to the issues, and evidence in regard to said difficulty would have been wholly inadmissible, had it been offered on the trial, and the action of the court in refusing to allow counsel to detail the transaction was not improper.
It, also, appears that defendant filed an application for a continuance on account of the absence of material witnesses, in which he set forth what he expected to prove by each of said witnesses, that the prosecuting attorney admitted that the witnesses named in the affidavit, if present, ■would testify as therein stated, and agreed that such statement should he received and admitted as their evidence upon the trial. On the trial, defendant read to the jury the statement of each of said absent witnesses, except the statement of one Edwards, which the court refused to permit him to read on the ground that said Edwards was present during the trial, and defendant could have had him sworn as a witness. It does not appear from the record before us, that this action of the court was excepted to at the time, and it is not, therefore, subject to review.
It is, also, objected that the court should have instructed the jury defining manslaughter in some of its degrees. The evidence on the part of the State tended to establish that the difficulty which resulted in the death of Flint was sought for and brought on by defendant, and that after having provoked he took advantage of it and fatally stabbed the deceased. On the other hand, the evidence on the part of defendant tended to establish that the killing was done in self defense. If the jury believed the evidence on the part of the State, the defendant was guilty of murder; if, on the contrary, they believe the evidence of defendant, he was guilty of no offence but was justifiable in killing deceased. The jury was instructed in regard to murder in the first and second degrees, as well as in regard to the law of self-defense, j ustifiable and excusable homicide.
No exception was taken to the instructions, in the court below, nor is any presented here.
*139The prosecuting attorney, in his closing argument, referred to the-flight of defendant as evidence of guilt; also stated that voluntary drunkenness was no excuse for crime, and should not be considered by the jury, and, also, that the “ blood on defendant was the blood of his murdered victim, Flint.” It is insisted that the judgment should be reversed because said remarks were not justified by the evidence. As to the flight of defendant, the record shows that after he had stabbed Flint and he had fallen dead, “that Ramsey, Russell and Garland rushed out of the mill to the wagon, got Ramsey in it, and started off as fast as they could,” so that his flight was a proper subject of remark, as well as whether the blood on Ramsey was or not the blood of deceased, it appearing from the evidence that when Flint was stabbed both Ramsey and Flint were on the floor of the mill and Ramsey was taken off of deceased upon his exclaiming “ take him off he has cut me all to pieces.”
We find nothing in the record authorizing us to interfere with the judgment, and it is hereby affirmed.
All concur.