State v. Brooks

Nobton, C. J.

The defendant was tried in the St. Louis criminal court, at its May term, 1886, on an indictment charging him with murder in the first degree, in killing one Charles Arthur Preller. He was convicted of the crime charged, and has appealed to this court from the judgment.

The record is very voluminous, and defendant’s counsel, with commendable zeal, have assigned a great number of alleged errors in the conduct of the trial, the first of which is that the court erred in overruling defendant’s motion to quash the indictment. The motion to quash was not based on any insufficiency of the indictment, but the court was asked to quash it on the distinct ground that, previous to the finding of the indictment, defendant had been illegally arrested, and was in custody under such arrest when it was found. Conceding (without deciding) that, previous to the finding of the indictment, the forms of law had not been pursued in arresting the defendant, and that such arrest was illegal, it affords no ground for quashing the indictment, and it has been so ruled in the following cases, and we have not been able to find a contrary ruling by any court of last resort: People v. Rowe, 4 Park. Crim. Cas. 253; State v. Brewster, 7 Vt. 118; United States v. Lawrence, 13 Blatch. 295; Dow’s case, 18 Pa. St. 37.

In the case last cited, the prisoner had b.een indicted for forgery, and was afterward arrested without legal authority, and it was held that such arrest did not entitle him to discharge before prosecution, Gibson, C. J., observing, in the disposition of the question, that “the prisoner in Brewster’s case insisted that he had been kidnapped abroad, but he was held to answer. That case has not been overruled, or before doubted ; and the English courts held the same doctrine. It was enforced in Susanna Scott’s case; and in Mack’s, as well as Kran’s, case, the broad principle was established that want of authority for the prisoner’s arrest cannot protect him from prosecution.”

The record shows that defendant made a proper application, under section 1, Acts 1885, page 74, for a special jury* and that the court made an order directing the jury commissioner to provide the sheriff with a list of the names of three hundred persons to be summoned; that a list of such names was furnished to the sheriff, and that, of the number, about two hundred were summoned, and the others were returned not served; that a list of the names of those summoned, with a list of the names of those not summoned, was furnished defendant’s counsel; that, when the name of Harry Picker was called, one Harry Vicker answered; when the name •of Ernest Gahl was called, a man responded and said that his name was Ernest Gaier, and when the name of William Richardson was called, a man came forward and stated that his name was William Riches. Defendant’s counsel objected to the list furnished, as not being correct, and objected to proceeding further until a corrected list was furnished. The court overruled the objection, and we think properly.

In case of Rex v. Mellor, 27 L. J. Mag. Cas. 143, where a juror was addressed by. and answered to the wrong name, and was afterwards sworn, upon a case reserved, the court said: “ The mistake is not a mistake of the man, but only of his name. * * * At bottom, the objection is but this — that the officer of the court, the juryman, being present, called and addressed him by a wrong name. Now, it is an old and familiar maxim of law that, when a party to a transaction, or the subject of a transaction, are either of them present, the calling of either by a wrong name is immaterial. Praesentia corporis tollit errorem nominis. ”

It is also objected that defendant did not have a public trial. This claim is based upon the fact that, during the early stages of empaneling the jury, two men were stationed on the afternoon of one day and the forenoon of the next day at the door of the courtroom, who refused to admit any one into the courtroom except jurors, witnesses, or officers of the court, or those having business in court. It appears that, when this matter was brought to the attention of the court, the court stated that no order had been made stationing men at said door, and announced that any one who wished to come into the courtroom could do so, and made an order that all persons be admitted until all the seats were filled. Had the court either refused to make such an order, or if, after making it, had refused a request on the part of the defendant that the jurors who had been examined touching their qualifications, while the men were stationed at the door, should be reexamined, this might have afforded some ground for the complaint made ; but no such a request was made.

“Publicity does not absolutely forbid all temporary shutting of doors, or render incompetent a witness who cannot be heard by the largest audience, or require a courtroom of dimensions adequate to the accommodation of all desirous of attending a notorious trial. * * * ‘And the requirement is fairly met if, without partiality or favoritism, a reasonable proportion of the public is suffered to attend, notwithstanding that those whose presence would be of no service to the accused, and who would only be drawn thither by a prurient curiosity, are excluded altogether.’ Cooley Const. Lim., top p. 380, side p. 312.” Bish. Crim. Proc., sec. 859.

During the examination of the jurors on their voir dire, jurors Bauer and Bauman, after each of them had stated that he had formed an opinion based on newspaper reports, were asked whether, if sworn as jurors, they could give the accused a fair and impartial trial; this question was objected to on the ground that it was an attempt to have the juror state which way his opinion was, and we think the objection was properly overruled, the object of the question being to ascertain whether the jurors, notwithstanding the opinions they had formed, could try the case impartially. Certain other jurors were, among other things, asked: “Did you, from what you read of the case, form or express any opinion as to whether tjiis man, whose body was found in the trunk at the Southern Hotel, was killed or not ? ” “ Did you form any opinion as to whether C. Arthur Preller was killed or not ? or form any opinion as to whether or not chloroform was administered to him ? or whether, if dead, he was killed intentionally or accidentally?”

It appearing that the jurors to whom these questions were propounded had been fully examined as to the opinions formed by them on the issue to be tried, and as to the guilt or innocence of the accused, and as to their bias and prejudice, we cannot say that it was an unsound exercise of discretion by the trial judge in imposing a limit to .such examination by sustaining objections to the questions asked, especially so in view of the fact that the line of interrogation indicated by the questions put, if permitted, would tend to make such examinations interminable, without any corresponding beneficial results.

The action of the court is also excepted to in sustaining the state’s challenge to one juror who was under the age of twenty-one years ; to another who was over the age of sixty-five years; to another who was not a citizen of the state; to another who was not a resident of the city of St. Louis. The action of the court in this respect is justified by sections 2777-9, Revised Statutes.

No error was committed in sustaining the state’s challenge to juror Rich, who, after stating that he had formed an opinion from what he had read, was ashed whether, notwithstanding the opinion he had formed, he could give the accused a fair and impartial trial, to which he replied: “That is very doubtful.” If this juror had been accepted, we, doubtless, would have been requested to reverse the judgment, on the ground that the court had accepted a juror who not only stated that it was doubtful whether, if accepted, he could give the accused a fair trial, but that it was very doubtful.

Nor was there, under the ruling of this court in the case of State v. Walton, 74 Mo. 271, any error committed in refusing to sustain the challenge of the defendant to jurors Knollman and Comfort, each of whom, in effect, stated that, although he had formed an opinion from reports, which it would require evidence to remove, he could try the case fairly and impartially, on the law and the evidence. “ The rule is well settled that it is the duty of the court to superintend the selection of the jury, in order that it may be composed of fit persons. Large discretion must be confided to the trial court in the performance of this duty. Nor will the action of the court in this behalf be made the subject of review unless some violation of law is involved, or the exercise of a gross and injurious discretion is shown. * * * It is sufficient that the judge is satisfied, from his personal knowledge of the jurors; their answers to other questions ; their reputation for integrity and intelligence, and his judgment in respect to such qualifications will not be reviewed.” Thomp. & Mer, on Juries, sec. 258.

What is approvingly quoted in the case of State v. Walton, supra, may be repeated here, that the issue presented, as to whether an opinion formed by a juror is of such character as necessarily to raise the presumption of partiality, is to be tried, so far as the fact is concerned, upon the evidence; and the finding of the trial court on that issue ought not to be set aside by a reviewing court, unless the error is manifest. No less stringent rules should be applied by the reviewing court than those which govern in the consideration of motions for new trials because the verdict is against the evidence. In such cases the manner of the juror while testifying is oftentimes more indicative of the character of the (^pinion than his words. That is seen below, but cannot be on the record.

On the trial, the court, against defendant’s objection, allowed one J. P. McCullough to testify as to a confession of defendant. It is insisted that error was committed in receiving this evidence, because the confession was not voluntary, and because the witness by whom it was proposed to prove it was incompetent, for the reason that said McCullough, who was a detective, with the connivance of the circuit attorney and his assistant, had himself arrested on a fictitious charge of forgery, under the name of Dingfelder; that he waived preliminary examination, and was indicted by the grand jury on the evidence of witnesses testifying before them to facts supposed by them to be true, but known to all who connived at his arrest to be false; that to this indictment he pleaded not guilty, and was confined under the charge forty-seven days in jail, with a view of obtaining a confession from defendant, and that it was during this confinement that the confession received in evidence was made.

It appears from the record that Dingfelder, while-being thus confined, ingratiated himself in the confidence of the defendant, informed him of the charge on which he was confined, and stated he was connected with a gang of forgers and lawless men; that, in the interview had between them, defendant said: “If I could get a witness to testify to anything like that, I could beat the-state easily.” “I asked Mm what way, what he meant by it. He said: ‘ If I conld get witnesses to testify that I had so much money on leaving Boston, I could beat the state — that is the missing link in my case. I would give anything if I could get two witnesses to testify to that.’ ” Witness asked him what he wanted the two witnesses to testify to. He said he wanted them to testify he had so much money on leaving Boston; that he had seven or eight hundred dollars. Witness then said: ££I would have to have the particulars of your case, and what you done in Boston, so that these people could act intelligently in regard to testifying for you.” He then went on, and after stating the time he arrived in Boston, what he had done there, what time Prellerleft Boston, and full particulars, he made the statements offered in evidence as his confession. The objection that the confession thus made was not voluntary is not well taken, under the rulings made in the cases of State v. Patterson, 73 Mo. 695; State v. Phelps, 74 Mo. 128; State v. Hopkirk, 84 Mo. 278.

It is further insisted that, owing to the methods resorted to to obtain the confession, it was error to receive it in evidence. While the officers whose duty it was to prosecute criminal offences, may, in their anxiety to ferret out the circumstances concerning the death of Preller, have overstepped the bounds of propriety in the course pursued by them, which is not to be commended, but condemned, it affords no legal reason for rejecting the evidence and not letting it go to the jury whose peculiar province it was to pass upon the credibility of the witness who detailed the confession and give to it such weight as, under the circumstances, they believed it entitled to. It was for the court to say what evidence should be received and for the jury to say what weight it should have when received.

While the fact that artifice and deceit were resorted to in obtaining the confession might properly be considered as affecting the credibility of the witness, it did not render him incompetent as a witness, and this has been so ruled in the following cases: State v. Patterson, 73 Mo. 695; State v. Phelps, 74 Mo. 128. In the case last cited it is said: “ There is one particular in which this case differs from Patterson] s ease, and that is, here the officers in charge of the prisoner asked questions and used artifices, cunning, falsehood, and deception to obtain a disclosure from the prisoner. But no law is better settled than that such practice will not render Inadmissible a confession obtained by such means.” To the cases cited in the opinion in support of the proposition therein stated, the following may be added: State v. McKean, 36 Iowa, 343; Campbell v. Commonwealth, 84 Pa. St. 187; Hickey v. State, 12 Neb. 490.

It appears from the record that, on Saturday, the twenty-ninth of May, during the progress of the trial, counsel for defendant called the attention of the court to the fact that the state had, without notice to defendant, caused the body of Preller to be exhumed and requested the prosecution that, some time during the day, the defence be allowed to use this evidence and to have experts examine the parts of the body. In response to this request, the state attorney said in effect that the body of Preller had been exhumed, and the parts removed from it had been entrusted to eminent surgeons for examination, and that the state expected to offer the result of that examination in evidence by way of rebuttal, and for that reason declined compliance with the request, whereupon, the court used the following language: “Of course, the court knows nothing of this matter, and I can only say the way it strikes the court now. Of course, if such testimony as that is presented In rebuttal * * * the court will give you all the facilities in reason that it can, in order to get experts, if you desire to examine and look into it. * * * At present, of course, I must simply look at the evidence as it is presented. If you are taken by surprise at that time, why the court will endeavor to assist you as far as it can, and give you sufficient time to examine it. That is the best I can do for you now.”

Mr. Pauntleroy, of defendant’s counsel, then said in substance that the law required that such examination could only be made by the state on due notice to the defendant. In reply to which the court said : “I will hear you on that when you produce your authorities. Produce your authorities and I will hear you now. When this matter comes up I will pass upon it. It would not be proper for me to comment on anything, because there is nothing before me.”

Mr. Pauntleroy then said: ‘ ‘ The state declines that request — refuses it. Now we ask that the court make an order that we be permitted by experts to examine the parts.” In response to which the court said : “I cannot do so at present. I don’t know what I may do on Monday.” To this action defendant excepted, and announced that the defence rested.

There is nothing in what is above quoted indicating any other purpose on the part of the court than a desire to be informed on the question of law raised by counsel as to the necessity of notice of the exhumation and examination of Preller’s body, and authorities upon the point not being produced, no error was committed by the court in putting the matter over till Monday, at which time defendant again raised the point as to necessity of notice, when the state offered in rebuttal the result of the expert examination of the parts removed from the body, which was properly overruled, on the authority of State v. Leabo, 89 Mo. 247, where it is expressly held that the evidence of medical experts, as tó the condition in which they found the body of the deceased on a second post-mortem examination, is not inadmissible because such examination was made without notice to the defendant.

After the introduction of this evidence in rebuttal and the state had closed its case, the following colloquy between counsel occurred, as shown by the bill of exceptions:

Mr. Pauntleroy: “We would now ask that we be permitted, through experts, to examine these parts that have been referred to in this matter.”

Mr. Clover: “Well, who do you want to submit them to?”

Mr. Pauntleroy: “To Dr. Bauer and others.”

Mr. Clover : “I want to know to whom they are to be entrusted, because I have that evidence. I want to know to whom they are to be entrusted. We want them to furnish the names.”

Mr. Pauntleroy: “Well, we name Dr. Bauer for one.”.

Mr. Clover: “I am willing to submit them to any reputable physician in the city of St. Louis, but I' don’t wish to "submit them to Dr. Bauer ; not because I question his reputability, but because he is assisting thedefence and has suggested questions to the counsel when medical experts were on the stand ; but if they say they will submit them to Dr. Gregory, President of the American Association of Physicians and Surgeons, to-Dr. Mudd, or to Dr. Timelake, or any other physician, they can have ample opportunity to do it.”

Mr. Pauntleroy: “ Without furnishing the names of any physicians, we ask that they submit these parts to the inspection of Dr. Bauer and such other reputable-physicians as we may see fit.”

It was then remarked by the court: “There is the-circuit attorney. They are not before the court and have never been before the court.”

Mr. Fauntleroy: “ I understand that that request-is to be complied with.”

Mr. Clover: “I have nothing to say, Mr. Fauntleroy.”

Whereupon Mr. Fauntleroy replied: “If the state, your honor, takes that attitude, we close the case here.” And both sides rested.

The question as to whether error was committed in what was said and done as above detailed, is not before us for determination, inasmuch as the record does not show that any exception was taken or saved at the time. State v. Burk, 89 Mo. 635; State v. Ray, 53 Mo. 345: State v. Lett, 85 Mo. 52.

It is further insisted that error was committed in allowing defendant to be cross-examined as to matters not referred to by him in his examination in chief. The examination in chief of defendant covers about eighty pages of legal-cap paper in type-writing, and his cross-examination, including controversies between counsel during the continuance, was quite as extensive, and it would serve no useful purpose to incorporate in this opinion, in minute detail, the various matters testified to by defendant in his direct and cross-examination, and we feel justified, after thorough investigation, in simply announcing the conclusions arrived at, and the principles of law relied upon, in reaching the conclusion. It is provided by statute (R. S., sec. 1918), when a defendant in a criminal case offers himself as a witness, that “he shall be liable to cross-examination as to any matter referred to in his examination in chief, and may be contradicted and impeached as any other witness.” In the case of State v. Palmer, 88 Mo. 568, it is held that, while a defendant can only be cross-examined as to the matters referred to in his examination in chief, that the same rules and tests, with that exception applicable to the contradiction and impeachment of other witnesses, also apply to him, and in the case of State v. Beaucleigh, ante p. 490, it is held that, even though a defendant may be cross-examined as to a matter not referred to in Mb examination in cMef, if such cross-examination relates to matters of no importance, and which could not affect the verdict, such error affords no ground for reversing the judgment. Guided by these rules, we have reached the conclusion that they have not been violated in the cross-examination of the defendant, inasmuch as he had either referred to the matter inquired about in his examination in chief, or the matter inquired about was contradictory of what he had stated in his examination in chief, or the matter inquired about was trivial and unimportant and having no prejudicial bearing on the case.

As examples of the objections made to the cross-examination, the following may be referred to: Defendant was asked: “What reason had you for telling Mr. Warren that your father was dead, if he was alive ? Did you tell Mr. Warren that you expected, on your father’s death, to inherit a considerable property? Didn’t you, in your early conversations with Mr. Preller, in the early part of your acquaintance, tell him that you had friends in London?” Objections to these questions were overruled, and, we think, properly. In his direct examination, he had testified to conversations with Preller, and had also testified that his father was living at the time of the trial, and also that he had conversations with Warren on board the ship which brought him to this country, and conversations and correspondence after he came. On his cross-examination, defendant was asked whether the following paper, which the state had put in evidence in their case in chief, was in his handwriting, viz.:

“The Royal College of Surgeons, London, incorporated A. D. 1416. Diploma: Be it remembered, That, in the day and year hereunder written, Walter Horace Lennox-Maxwell, of the city of London, was duly admitted to be a member of the Royal College of Surgeons, London, it having been first certified, under the hands and seals of the council of medical education, that he hath complied with the requirements, and hath made, taken, and subscribed to declaration and affidavits, as provided by the charter of the college.

“ Given under my hand, this 14th day of May, in the year of our Lord.”

The question was objected to and the objection overruled, and the paper having been read to the jury by the state in its case in chief, was, over the defendant’s objection, again read, for the purpose of examining defendant in relation thereto, and he was asked if it was a diploma of the Royal College of Surgery, London, and when he obtained possession of it, and for what purpose he wrote it; all of which questions were objected to. The defendant, in his direct examination, had stated that he had never had a diploma; had never been licensed as a physician, and had never represented himself to be a regular physician. In view of these statements, it was competent to inquire of him if he had not, either orally or in writing, represented himself to be a member of the Royal College of Surgeons, London.

The second instruction given by the court is objected to on several grounds, the first of which is that as the third count of the indictment is defective, in not charging that defendant did deprive Charles Arthur Preller of life, that the court committed error by supplying this omission in the instruction, telling the jury that said count did charge the defendant with depriving said Preller of life, and in further telling them that if they believed defendant did kill and murder Charles Arthur Preller, in manner and form charged in either count of the indictment, they should find him guilty of murder in the first degree. The third count of the indictment is defective in the particular specified in the objection, and but for the ruling of this court, in the cases of State v. Hollenscheit, 61 Mo. 302; State v. Man, 69 Mo. 317; State v. McDonald, 85 Mo. 539; State v. Miller, 67 Mo. 604, the point made would be well taken.

In the first case above cited, it is held that where an indictment contains more than one count charging only a single offence, and of the same degree, merely varying the statement as to the crime charged to meet the evidence, the court need not charge separately as to each count, but may, in one instruction, refer to them all, and tell the jury to render a verdict of guilty, if they find the accused committed the crime in the manner charged in the indictment; and in the case of State v. Blan, supra, where the indictment contained five counts for murder in the first degree, three of which were bad and two good, the judgment of conviction was upheld, although the court had given an instruction to the effect that if the jury found that the accused feloniously, wilfully, deliberately, premeditatedly and with malice aforethought killed the deceased in some one of the modes described in the indictment, they would find him guilty of murder in the first degree. In the cases of State v. McDonald and State v. Miller, supra, it is held that a general finding of guilty, on an indictment containing several counts relating to the same offence, is sufficient without specifying the count on which the verdict is based.

In the instruction complained of, the court told the jury that if they believed from the evidence that the defendant did “kill and murder Charles Arthur Preller, in the manner and form charged in either of the counts of the indictment, they should find the defendant guilty of murder in the first degree.” It is insisted that this instruction is erroneous, because the court did not insert, before the words “kill and murder,” the words “wilfully, deliberately, premeditatedly, and with malice aforethought.” This point is not well taken, inasmuch as the court, in a previous part of the instructions, had fully explained to the jury that the indictment not only set forth the means and modes used by defendant in killing Preller, bnt that it also charged him with killing Preller by these means, feloniously, wilfully, deliberately, premeditatedly, and with malice aforethought, and inasmuch as the jury were required by the instruction to find that the killing was done not only in the manner, but also in the form charged by the indictment. Neither is there any force in the objection made to the use, in the instruction, of the word murder, without explaining the meaning, inasmuch as it was only necessary for the jury to find that the accused did kill the deceased, as charged in the indictment, and this the instructions required them to find.

Neither is there any force in the objections to the following instruction: “Plight raises the presumption of guilt, and if the jury believe and find, from the evidence, that the defendant, after the commission of the homicide alleged in the indictment, fled from the state of Missouri, and tried to avoid arrest and trial for said offence, they may take this fact into consideration, in determining his guilt or innocence. The court instructs the jury that, although they may believe and find from the evidence, that the defendant fled from the state of Missouri, after the commission of the homicide alleged in this indictment, yet, if they believe and find, from the evidence, that he did not flee from a motive to avoid arrest and trial on this charge, they should not consider it as an element in arriving at their verdict as to defendant’s guilt or innocence of this charge.”

The defendant, on his examination, on being asked what he did after he found that Preller was dead, answered as follows: “My first impulse was to communicate with the authorities. The next thought that struck me was, ‘ well, here I am a stranger in a strange city ; I know no one here ’; I was totally ignorant of the fact that I might testify in my own behalf. I was ignorant that the same rule of law did not prevail here that prevails in England, that a defendant cannot testify in his own behalf, and I thought the best thing I could do was to get away.” This statement justified the court in giving the instruction, and it is as favorable to defendant as the facts warranted. State v. Martin, 5 Mo. 361; State v. King, 78 Mo. 555; State v. Griffin, 87 Mo. 608.

All the instructions given appear in the report of the case, and as to those of them objected to and not specially noticed in this opinion, it may be said that they are such as have been repeatedly approved by this court except the last one in the series, and of this it may be said that it was neither misleading nor confusing, but, on the contrary, emphasized the fact that the jury in reaching a verdict should be guided alone by the evidence and instructions in the case. While the instruction as to robbery is subject to verbal criticism it could not have misled the jury when applied to the facts in evidence, it appearing from defendant’s own evidence that he took Preller’s money after he had brought about his death.

The following authorities establish the proposition that an extra-judicial confession, uncorroborated and without proof aliunde that the crime had been committed, will not justify a conviction. Robinson v. State, 12 Mo. 592; State v. Scott, 39 Mo. 424; State v. German, 54 Mo. 526; State v. Patterson, 78 Mo. 695. In the first case above cited, there was no proof of the corpus delicti, and the judgment was reversed because of the court refusing to give an instruction asked by defendant, to the effect that an extra-judicial confession was not sufficient to convict. unless corroborated and the crime proved to have been committed by other evidence. In the case before us, there is corroborative evidence, and also other evidence proving the corpus delicti. We do not understand that counsel dispute this, but to insist that it was the duty of the court, though not requested, as in the case of Robinson v. State, supra, to give such an instruction as was refused in that case, and that its failure to do so is reversible error, and in support of this contention we have been cited to several cases, of which the case of State v. Branstetter, 65 Mo. 149, is a representative. That case has been criticised and explained, in the case of the State v. Kilgore, 70 Mo. 558, where it is said, “The witnesses for the state, offered to contradict Mrs. Eailey, testified to certain statements made by her in conflict with her evidence, substantially to the effect that she did not see the difficulty, but heard the shots, and soon after defendant came to the house with a shotgun in his hand and said he had killed Willingham. The defendant’s counsel now contend, although they asked no instruction on the subject, that it was the duty of the court of its own motion to instruct the jury that the declarations of Mrs. Eailey were only admitted for the purpose of impeachment and were not to be regarded by them as. evidence for any other purpose. In State v. Branstetter, 65 Mo. 149, it was held to be the duty of the court to declare the law applicable to every crime or grade of crime of which, under the evidence, the jury might convict the accused. As to collateral matters it is for the-respective parties to ask such instructions as they may be entitled to.” If the instruction in this case had been asked, “it should have been given, or if one objectionable in its phraseology had been asked and refused the court should have given a proper instruction on the subject, but the Branstetter ease carries the doctrine far enough and it cannot be extended without serious detriment to the administration of the criminal law.” In the case of State v. Clump, 16 Mo. 385, where the court refused to give an instruction asked by defendant, telling the jury that they should receive the evidence,, meaning the verbal confessions of defendant, with great caution, this was assigned for error, and in passing on-the question it is said: “This court will not reverse for refusing such instruction in civil or criminal cases.”'

It is also insisted that the judgment should be feversed because of certain remarks made by tke prosecuting counsel in kis closing argument to tke jury, to tke ■effect tkat “defendant kad left Hyde a tkief, and tkat wken tke Cepkalonia, [a vessel on wkick defendant and deceased came to tkis country], left tke skores of England from tke piers of Liverpool, it kad on board a man by tke name of W. H. Lennox-Maxwell, wko was a liar, a tkief and a forger.” Tkese remarks were objected to •on tke ground tkat tkere was no evidence to tkat effect. Tke evidence skows tkat defendant left England under an assumed name; tkat ke left witk magic lanterns, tke property of anotker, wkick ke offered to sell in St. Louis to raise money for kis own use, and in answer to tke question under wkat circumstances ke procured tkem, gave no otker explanation tkan to say tkey were not kis, and belonged to one Dr. Sidebottom. Tke evidence also tended to skow tkat ke kad in kis possession a document, unsigned, written by kimself, purporting to be a •diploma graduating kim as a member of tke Royal College of Surgeons, London, under kis assumed name. It is apparent from tke record tkat wkat was said by tke attorney was in reply to wkat kad been said by counsel for tke defence as to tke good ckaracter of defendant, and it was legitimate for counsel to comment on tke facts in evidence and deduce tkerefrom suck conclusions as tkey migkt warrant, and wkile tke license may kave been pusked beyond tke line of propriety, in view of wkat is said in tke case of State v. Zumbunson, 86 Mo. 111, and State v. Emory, 79 Mo. 461, it is not sufficient to justify an interference witk tke judgment.

It appears tkat counsel for tke state kad argued tkat tke depositions as to tke good ckaracter of tke defendant were of no value by reason of tkeir negative ckaracter, and tkat, in replying to tkis, Mr. Pauntleroy, of counsel for defendant, offered to read to tke jury certain passages from 68 Missouri Reports, page 27, to tke effect tkat tke réputation of a person wkose ckaracter is in question may be proved by a witness living in Ms neighborhood, although he may never have heard it discussed or questioned. This the court refused to permit, and we will not' say that the discretion of the court was unsoundly exercised, especially so in view of the fact that if theory had not been sufficiently instructed on that point counsel should have asked the court for further instructions, and of the further fact that the practice of reading from law books to the jury is one not to be commended.

It is also insisted that error was committed in allowing the state attorney to say, in his closing argument: “If the defence had acted honestly, uprightly, and fairly with the state, the state would not have presented testimony that it has done, being in ignorance of' the defence they were to establish.” It is apparent, from the record before us, that counsel for defendant', had indulged in denunciation of the attorneys for the-state, in the management of their side of the case, and the judge trying the case, having heard what was said,, was in a better position than we are to determine-whether he should interfere, and to what extent, in moderating remarks made in response to assaults provoking them. In closing this branch of the case, it may be said that, until within a recent period, this court was; never called upon to interfere, and asked to reverse a. judgment, for such causes as we have been last considering, and then the practice is one, the growth of which ought not to be encouraged.

Another ground alleged in the motion for new trial is that Coulahan, one of the jurors who tried the case, concealed, in his voir dire examination, the fact alleged in the motion that he had previously formed and expressed an opinion hostile to the defendant, which he did not disclose on such examination. One Meilert, in his affidavit, stated that, in August, 1885, in the office of Justice CroMn, he had heard Coulahan say, “that the d — d scoundrel [Maxwell] ought to be hung, and I would like to hang him.” One Friese stated, in his affidavit, that in the morgue, on the nineteenth of August, 1885, he heard Coulahan “denounce Maxwell in very-strong language, but couldn’t give the exact words.” It was stated in the affidavit of one Bradshaw that, prior to the trial, he heard Coulahan, in his (affiant’s) paint-shop, say that hanging was too good for Maxwell. In the affidavit of Flood, it is stated that, some time in the month of August, 1885, he heard Coulahan say : “Maxwell ought to be hung, and I would like to help hang him, and would like to make the rope that would hang him.” Coulahan, the juror, filed his affidavit, denying, in the most positive and emphatic terms, that he had ever had any such conversations as these affiants imputed to him, and averred that he had, at no time, expressed any opinion as to the guilt or innocence of Maxwell; that the answers made, by him on his voir dire examination were true, and that, when sworn, he had no prejudice, bias, or feeling in the case. The reputation of Coulahan for integrity and truth was established by five witnesses, while that of Friese was shown, by four witnesses, to be bad; that of Flood to be bad by two, and that of Meilert to be bad by one, who stated that he would not believe him on oath. The defence filed the affidavits of ten witnesses, who testified that the characters of both Friese and Flood for truth were good, and seven that Meilert’s character for truth was good. It does not appear that any two of the affidavits refer to the same conversation with Coulahan, in which the language imputed to him was used, thus leaving the oath of Coulahan, whose character for truth was established by five witnesses, opposed to the oath of Friese, Flood, and Meilert, each of whom had been partially impeached as credible witnesses, and the court, in this view of it, if for no other reason, was justified, under our ruling in the following cases, in molding that the charge against the jnror was not proved: State v. Gonce, 87 Mo. 627; State v. Cook, 84 Mo. 40; Morgan v. Ross, 74 Mo. 318.

It also appears that defendant, having filed his motion for new trial within the time prescribed by law, thereafter, and fourteen days after the rendition of the verdict, asked leave of the court to file what is denominated a supplemental motion for new trial, which the court refused, and this is also assigned for error. It is provided by section 1967 that “motions for a new trial shall be filed before judgment and within four days after the return of the verdict.” This statute is mandatory, and, according to the uniform ruling of this court since the case of Allen v. Brown, 5 Mo. 323, a refusal to grant a new trial on a motion made more than four days after the trial is not error, and it has been further held that, unless it affirmatively appears by the record that the motion for a new trial was filed within four days after trial, this court will not consider the question it presents. Welsh v. St. Louis, 73 Mo. 71; Moran v. January, 52 Mo. 523, and cas. cit. In the case of State v. Marshall, 36 Mo. 400, where defendant was convicted of murder in the first degree, it is said: “No excep-

tions will be noticed here where no motion for a new trial has been made, or what is the same thing, where none is made and filed within the time prescribed by law.” If authority is to be found putting it in the discretion of the court to authorize the filing of a supplemental motion for new trial, in view of the time the court gave defendant to make proof of the matter set up in the motion, which was filed in time, and in view of the length of time consumed in the trial, we would be unwilling to say that the court exercised its discretion arbitrarily in refusing such an application.

It is sufficient to say of other errors assigned, though examined and considered, that they will not be specifi-’ cally noticed, because they rest on no better foundation than those specially referred to in this opinion. We find that no right of defendant, either under the constitution of this state or of the United States, has been denied Mm, and, having carefully examined the record without finding reversible error, the judgment is hereby affirmed,

with the concurrence of the other judges, except Sherwood, J., who dissents.