— I. There was no error in modifying instruction number 4 asked by defendants, by striking out the words indicated in brackets. Neither State v. Vansant, 80 Mo. 67, nor State v. Hicks, 92 Mo. 431, relied on by defendants, warrants the giving of the instruction in its original and unmodified form. Had the bracketed words remained, especially the word ‘‘undoubting,” the tendency would have been to mislead the jury. The modified instruction was sufficient for all legitimate purposes.
II. Defendants urge that error occurred in giving instruction 5a on behalf of the state, stating that there is no evidence on which to base it. The evidence 'already set forth affords* ample ground for such an instruction. No one can read that evidence with any degree of attention without reaching the conclusion that defendants had been dogging Quigg’s footsteps that day, and, when he was about to start home, stationed themselves so that they could conveniently watch his movements, and be ready to take any advantage of him that might offer. John W. Paxton had evidently prepared for the occasion, for, a few moments before, he *514was seen buckling on bis pistol belt. • The inference is a v.ery strong one, indeed, that John W. Paxton and Ort, his son, withdrew áüd hid themselves, on seeing Quigg approach, in order that Theodore might provoke Quigg to make an assault so as to give John W. and Ort an opportunity, on the assault being made, to rush upon Quigg and wreak their contemplated vengeance on him. Taking this view of the matter, under the ruling in Partlow’s case, 90 Mo. 608, the crime was murder in the first degree.
III. But it is insisted that Theodore had no connection with the difficulty except “his getting knocked down by Quigg.” The record, however, is to the contrary, as already seen. Besides that, one witness for the state, and two for the defense, were of the impression that Theodore fired upon Quigg that day; two of the witnesses for the defense testifying that while the fight was in progress, they saw puffs of smoke issuing from where Theodore was standing, as if he was firing on Quigg. But whether he actually fired on Quigg or not, is quite immaterial, if he aided in bringing on the difficulty to the end that Quigg might be killed.
Furthermore, Theodore Paxton went upon the witness stand, and, while he testified that he had no weapon that day, yet he did not deny that he used insulting gestures and language to Quigg, and the statements of the witnesses respecting such matters, under the ruling in Musick’s case, 101 Mo. 260, must stand admitted as to the testifying defendant, as much so as if admitted in terms. To the same effect see State v. Alexander, 119 Mo. loc. cit. 461; State v. Patrick, 107 Mo. loc. cit. 174.
IY. Contention is also made that the trial court, having given instruction 5a, should have defined what a conspiracy was. There is no merit in this contention, and if there were, that merit is destroyed by reason of *515the fact that ■ when the instructions for both state and defense were given, the defendants did not except, on the ground that the court had not “instructed the jury on all questions of law arising in the case which were necessary for their information in giving their verdict.” State v. Cantlin, 118 Mo. loc. cit. 111.
While it is the undoubted duty of the trial court to instruct the jury as above indicated, in compliance with the fourth subdivision of -section 4208, yet, if there should be an oversight in this matter, it is but fair to the trial court that counsel for the defense should call attention to the fact, at least in general terms, and, then, if all needful and proper instructions are not given, to save an exception and preserve it in the motion for a new trial. Cantlin’s case, supra.
The like line of remark applies to the failure of the lower court to instruct upon a lower grade of homicide than murder in the second degree. On the point, however, as to whether the court should have so instructed, no ruling is made.
V. Another contention of the defendants is that instruction 5a, given at the state’s instance, is “in flat contradiction” of instructions given for the defendants. But, when the instructions are read together, no such repugnancy will be seen to exist. Under our former rulings, beginning with Partlow’s case, supra, if the difficulty was brought on with Quigg by defendants with a view to murder him, etc., then there was no self-defense in the case, no matter to what extremity they were driven during the self-sought combat.
VI. Instructions 9, 10 and» 11, refused defendants, were only amplifications of those already given, or else were properly refused. The evidence disclosed the relationship of the defendants to each other, and the chief difference between the refused instruction 11 and instruction 6 given for defendants consisted in such *516relationship being stated in plainer and more specific terms.
VII. It is lastly insisted that attorneys for the prosecution were permitted to go out of the record and make certain appeals to the jury. If this occurred, it has not been preserved in the bill of exceptions, and we have iterated and reiterated again and again that a mere recital in the motion for a new trial that certain statements were made by attorneys is no evidence whatever of the fact of such statements having been made.. Some day, perhaps, the attorneys of this state will grasp and comprehend this point; but, if not, we will have to continue to decide it, term after term.
In conclusion, the defendants were fairly tried; there was abundant evidence of their guilt, and we affirm the judgment of the circuit court and direct that the sentence pronounced be executed. R. S. 1889, sec. 4286.
All concur.