The defendant, a negro, appeals to this court, having been convicted of murder in the first degree, he having killed his wife by repeated blows of an ax, the twenty-ninth of June, 1895. The indictment is in usual form and subject to no objection. The sole defense in this case was insanity.
The facts disclosed by the record are these in substance and effect: During the forenoon of the twenty-ninth day of June, 1895, the defendant and his wife and several small children were residing in Vernon county, Missouri. The wife of the defendant had that fofenoon gone upon a visit somewhere in the neighborhood; the defendant had returned home just before the noon hour, found her absent and went to divers of the neighbors in search for her; of Maria Haley he inquired as to the whereabouts of his wife, and to her he said that his wife had put the dinner on and it had burned up; that he, the defendant, had strapped her, and that she, his wife, had run away. Defendant stated that he would never hit her again, but that the next time he would kill her. During the same morning he went to the home of Emma Merschel, inquiring for his wife, and stated to Emma Merschel he wanted his wife to come out of the house, that he intended to kill her. Soon after these threats defendant returned to his house; he saw his children in the yard and he called to them, “Come here daughter, you and Jimmie/7 and that his wife, addressing the children, said, “Gro back, honey, go back.” He went into the hous6 whei’e some trouble occurred, the exact nature of which the testimony does not show; but the next seen of the parties was the wife of the defendant attempting to release herself from the defendant at the door. She finally succeeded, and ran away a distance of several hundred yards, with the defendant in hot pursuit, armed with *417anas. His wife was screaming, “Mnrder, murder!” Defendant said, “G — d—you, I will kill you.” He finally overtook her and struck her on the top of the head with an ax, knocked her to the ground, when he struck her three more licks upon the head; then with the edge of the ax struck her right arm, almost severing it from the body. Another one of the injuries inflicted by him was that one of her fingers was entirely cut off. Immediately after this brutal killing the defendant made his escape and was not apprehended for some time, nor until he had reached Ash Grove, Missouri.
Several witnesses, among whom are two physicians, testified that in their opinion the defendant was insane. It is also shown by depositions of witnesses taken on behalf of defendant that at one time he had been incarcerated in an insane asylum in Alabama.
In rebuttal, a number of. reputable physicians, who had examined the defendant, testified that in their opinion he was not only sane at the time of the killing, but was sane at the time of the trial. This issue of fact as to the insanity of the defendant was submitted to the jury, and they found him sane at the time of the homicide.
The court of its own motion gave twelve instructions, and, at the instance of defendant, six, and refused eight more which defendant asked. These instructions will accompany this opinion and it is unnecessary to discuss them in detail.
1. As to instructions 5, 7, and 9 given by the court of its own motion, respecting which special exception is taken, it is sufficient to refer to our former rulings on the point of insanity whereby they are fully supported. State v. Schaefer, 116 Mo. 96, and cases cited.
*4182. And, as to the eleventh instruction asked by defendant, it was properly refused as being in contravention of the ruling laid down |n Shaefer’s case and others there cited. The burden is on a defendant who interposes a plea of insanity to sustain that defense to the reasonable satisfaction of the jury. It is in the nature of a plea of confession and avoidance; it confesses the homicide, but denies the crime of it. State v. Pagels, 92 Mo. 300.
To the jurors was compiitted the duty of determining the matter of the plea of insanity, and as there was evidence to support the charge of murder it is not our province to interfere.
3. Very properly Dr. Calloway was permitted to give his opinion respecting the sanity or insanity of defendant, having for a basis the hypothetical case, together with what he had learnedv from his examination of defendant. If, however, this had not been so,, no advantage could be taken of that fact, because defendant’s objection to the admission of the evidence was absolutely worthless; i. e., “incompetent and immaterial,” which counts for no objection at all. State v. Smith, 114 Mo. 406; State v. Harlan, 130 Mo. 381; State v. Moore, 117 Mo. 395; State v. Adams, 108 Mo. 208; State v. Nelson, 132 Mo. 184.
4. Contention is made that counsel for the state while arguing the cause to the jury, improperly made use of the following language: “I intend to show that these depositions are absolutely false; that the people who signed them did not know what they were signing. They were not properly certified; that is what I mean.” Upon defendant objecting to this language, the court, sustaining the objection, said: “The depositions were properly in evidence and should be considered by the jury.”
The objection raised by defendant was sustained *419and no exception was saved to the language used by state’s counsel. Besides, the court instructed the jury to regard the depositions, which was equivalent to a rebuke of the expressions used concerning them. Again, the use of such language, in order to be taken advantage of, required an exception, but there was and could have been none unless the court had refused to take some action asked by defendant, which refusal did not occur. If defendant had objected to the words used by the attorney for the prosecution and the court had overruled the objection and defendant had excepted to such overruling, and then saved the point in his motion for a new trial, then a case would have been presented for us to consider, whether, considering the circumstances, the exception was well taken; as it is, we have nothing before us, as defendant got all he asked. If he thought that a reprimand was deserved by counsel for using the objectionable language, he should have asked for it, and then, if refused, preserved the point in the proper manner.
5. For the reasons that the instructions given covered the entire case, there occurred.no, error in refusing those refused, even conceding their correctness, about which it is unnecessary to speak. Therefore judgment affirmed, and the sentence pronounced ordered to be executed.
All concur.