State v. Butler. fore the committing magistrate, under statutes the same in effect as they exist today, was allowed to be introduced by the State, upon a showing that the witness was dead, and also in the face of the argument that the Constitution guaranteed to the defendant the right to be met face to face by the witness at the trial. The rule allowing the State to use such testimony only upon showing of death of the witness is evidently held within that restriction by reason of the constitutional requirement of allowing the accused a faceto-face meeting with the witness, which constitutional requirement was nothing more than a restatement of the common law of England. For, as was well stated by Judge LEONARD in the case of State v. McOBlenis, supra, "It may as well be the boast of an Englishman living under the common law, as of a citizen of this State living under our Constitution, that in a criminal prosecution he has a right to meet the witnesses against him face to face." And it was at a time when the common law made such guarantee to the accused that the rule was created whereby the Crown was permitted to introduce testimony of this character only upon showing the decease of the witness. While many States have enlarged the rule, and have permitted the prosecution to use testimony of this character in many instances when the witness is alive, yet the rule in this State as to the offer by the prosecution has remained as determined in the case of McO'Blenis and by the case of State v. Houser, 26 Mo. 431. However, when the defendant makes offer of such testimony, and shows that the witness is not within the jurisdiction of the court, the constitutional guaranty of confrontation can be waived by him (State v. Wagner, 78 Mo. 644), and the evidence, otherwise material and competent, should be received. In the cases of State v. Riddle, 179 Mo. 297, and State v. Rose, 92 Mo. 201, the right of the defendant to have testimony in this form admitted is not doubted, and is by infer State v. Butler. ence sanctioned, this court holding in those cases that the defendant did not make showing sufficient to come within the rule. The Supreme Court of California, in the case of People v. Bird, 132 Cal. 1. c. 264, after discussing the limitations interposed against the State in offering evidence of this kind, very clearly states the rule with reference to the rights of the defendant as follows: "But, upon the other hand, there is in this no restriction upon the rights of a defendant. The rule as to him is the same as it was before the adoption of the codes, and as it stood at common law. He may waive his right of confrontation, if he so desires, and introduce in evidence the testimony of such dead or absent witnesses, whether that testimony was given at the preliminary examination or upon a former trial of the cause." The transcript offered showed that witness McHugh testified that he heard the deceased make the threat to defendant on the Saturday evening preceding the killing, which occurred on Sunday. This testimony corroborated that of defendant on that point. Mrs. Walsh contradicted defendant's testimony in that regard. Both Mrs. Walsh and defendant were interested witnesses. McHugh, so far as the record shows, was disinterested, and defendant was entitled to have the jury consider his testimony concerning the former threat, the showing of threats being very material to the defense interposed, and it was error to refuse it. II. Defendant next complains of the action of the court in not instructing on manslaughter in the fourth degree. A careful review of the Instructions. evidence fails to disclose any provocation sufficient in law to reduce the offense from murder to manslaughter. The evidence on the part of the State tended to prove murder in the first or second degree, State v. Butler. and that upon the part of the defense, justifiable homicide committed in self-defense. The court properly refused to so instruct. [Wharton on Homicide (3 Ed.), sec. 172.] III. Defendant next contends that the court committed error in refusing certain instructions requested by defendant. Refused instruction 3 is as follows: Letters Not in Evidence. "No. 3. The court instructs the jury that the fact, if it be a fact, that the defendant wrote a letter to the witness, Frazer, which was of such a character as to offend the deceased, or other members of the Walsh family, and the fact, if it be a fact, that during the conversation in the Walsh yard, on Sunday, the defendant stated that the statements contained in said letter were true, did not authorize or warrant Eugene Walsh or any one there present to attack, assault, or attempt to attack or assault the defendant, and in passing upon the guilt or innocence of the defendant in this case it is wholly immaterial whether defendant wrote a letter to Frazer or not, and it is also immaterial whether the statements contained in said letter were true or false, or that defendant asserted they were true. There is no evidence before you as to what said letter contained, and the letter and its contents do not in any way affect the guilt or innocence of the defendant in this case." Reference to such letter necessarily occurred upon the trial, in relating the conversation that took place at or near the time of the killing. Defendant contends that the State's attorney construed the letter and its suggested contents as a sort of moral justification of the attack made on defendant by the deceased, and that an effective slogan of the State was, "Poor Gene Walsh had a right to defend his sister's honor." If such remark was made by counsel for the State (which does not appear in the record), the de State v. Butler. fendant, by proper and timely objection and exception, could have protected his rights, but nothing of the kind appearing in the record, the matter is not before this court for review. Defendant was not entitled to an instruction in the above form, but under the circumstances of the case, and owing to the fact that the jury might give undue importance to the letter and its suggested contents, the defendant was entitled to have the court, by instruction, call the attention of the jury to the fact that the letter was not in evidence, and that the jury should not consider the letter, or any of its suggested contents, in passing upon the guilt or innocence of the defendant. The remaining instructions offered by defendant and refused by the court relate to the questions of self-defense, threats and defendant's Points Covered apprehension of danger; but in so far by Other Instructions. as said instructions contain proper declarations of law applicable to the case, the same were fully covered by the instructions given by the court, and such refusal was therefore not error. [State v. Maupin, 196 Mo. 164.] The judgment is reversed and the cause remanded. Roy, C., concurs. PER CURIAM.-The foregoing opinion by WILLIAMS, C., is adopted as the opinion of the court. All the judges concur. State v. Cain. THE STATE v. BILL CAIN, Appellant. Division Two, February 19, 1913. 1. CONTINUANCE: Absent Witness: Diligence of Defendant: Concealed Weapons. An application for a continuance in a criminal case on account of absence of evidence, must show the facts constituting diligence on the defendant's part. 2.- -: Discretion of Trial Court. The question of continuance is largely within the discretion of the trial court and that court's action will not be interfered with unless it appears that there has been an abuse of discretion. Appeal from Greene Criminal Court.-Hon. Alfred Page, Judge. AFFIRMEL A. W. Lincoln for appellant. Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State. ROY, C.-The defendant was convicted of carrying a pistol concealed on his person and sentenced to a year in jail and to pay a fine of one hundred dollars. Ed Drew was the proprietor of a pool hall which was upstairs over the saloon of Joe Rose in the city of Springfield. Drew had been convicted of keeping a gambling house. There was gambling of some kind going on on the night of the alleged offense. The prosecuting witness, Fred Bateman, and the defendant got into a quarrel over the ownership of a dime which was lying on the billiard table and which had been bet by the defendant in some way. Bitter words and threats passed between them. The proprietor ordered them both out of the hall and they went downstairs. Bateman's evidence was to the effect that the defendant was in his shirtsleeves, and that soon after |