(248 S.W.) STATE v. DENGEL. (No. 23429.) (Supreme Court of Missouri, Division No. 2. Feb. 23, 1923.) 1. Criminal law 1159 (3) Conviction for robbery will not be reversed where state has made prima facie case. A conviction for robbery in the first degree will not be reversed, where the evidence for the state made a prima facie case, even though the evidence for the defense was in conflict therewith; the record not showing bias or prejudice on the part of the jury. 2. Criminal law 407 (2) Statements of third party made in presence of defendant while in custody, and not denied, are inadmis sible. While defendant is in custody or under arrest, statements of a third party made in his presence, and not denied, are inadmissible at the trial. 3. Criminal law 419, 420(10), 448(12) — Witnesses 248(2)-Evidence as to identification of defendant held not responsive to question, hearsay, and a conclusion. In a prosecution for robbery, where it appeared that complaining witness had been brought before defendant while in custody in order to identify him, an answer of the arresting officer to the question, "Were you there when Mr. P. came down?" "Yes, sir; he identified him and said he was positively the man without any question of doubt," held not responsive, a conclusion, and hearsay testimony. 4. Criminal law 719(1)-Prosecuting attorney must confine his argument to the facts elicited. It is the duty of the prosecuting attorney to keep his argument to the jury within the facts elicited. 5. Criminal law 1037(2), 1055-Exceptions and request for correction necessary to review prosecuting attorney's argument. Before appellant may complain of the argument of the prosecuting attorney, he must save his exceptions to the action of the court and, whenever necessary, ask for a reprimand or rebuke and except to refusal so to do. Roy J. Pysher, on August 18, 1920, of a pocketbook, watch, and a diamond stud, all of the value of $392. The evidence on behalf of the state tends to show the following: On the evening of August 18, 1920, in the city of St. Louis, Mo., Roy J. Pysher and his wife drove in their autombile to Twenty-Second and Madison street in the city of St. Louis, Mo. Mr. Pysher went into a soft drink saloon to collect a bill for candy which he had sold the establishment some time before. His wife remained in the machine. When he he would have to look for the other fellow, Appeal from St. Louis Circuit Court; This man, who just came in, was the defendFrank Landwehr, Judge. William Dengel was convicted of robbery in the first degree, and he appeals. Reversed and remanded. Thos. J. Rowe, Jr., and Henry Rowe, both Statement. DAVIS, C. Appellant was convicted in the circuit court of the city of St. Louis on the 16th day of September, 1920, of robbery in the first degree, on a charge of robbing one ant in this case. He kept coming closer to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes It was also shown by several witnesses that defendant's reputation for honesty in the community where he lived was good. when the defendant commanded the other ed in their money and settled up for the day. man, who came in with the bartender and Defendant and O'Connell then took the horse Pysher, to search the s of band and wagon to the stable, arriving there about take his diamond stud and bring it to him 8 o'clock in the evening, when they separated. (defendant). This other man searched Py- It was shown by the four witnesses, in adsher, took his purse and keys from his pock-dition to O'Connell, that defendant was with ets, and laid them on the table. Defendant O'Connell all day selling cantaloupes. asked this other man if there was anything in the purse, and he said there was not. After the searching and the taking of the purse, keys, and the stud as aforesaid, defendant ordered the bartender and Pysher into the ice box and directed the other man to close it, which was done. The defendant and this other man then went out together. Pysher could see them from the ice box. The two men went out the Madison street door, proceeding west. The occupants pulled a slat off the ice box window, broke the glass, and called to some one to open the ice box. They were thus released. The diamond stud was a solitaire, worth about $350. The purse was worth about $2 and contained a $5 and $1 bill, in lawful money of the United States. The watch was valued at $35. Mrs. Pysher remained in the car for a while and, growing restless, alighted and walked around the machine. She noticed a man who remained outside walking around, but did not pay particular attention to the people passing about. Nor did she notice any one leave before her husband appeared. Pysher was forced to stay in the saloon 20 or 25 minutes. On the evening of August 19, 1920, about 1:45, a police officer arrested defendant, who was walking leisurely along Twenty-Second street towards Madison. The officer had seen him frequently at the saloon at Twenty-Second and Madison, both day and night, and had the description of the defendant at the time he made the arrest, which had been given him by Pysher. The arresting officer was assisted by his partner. The defendant testifying in his own behalf stated that he had been a huckster nearly all of his life and had never been convicted of any criminal offense. He denied holding up and robbing Pysher and offered an alibi as a defense. Opinion. I. The information is sufficient in substance and form. State v. Flynn, 258 Mo. 211, 167 S. W. 516; State v. Lamb, 141 Mo. | 298, 42 S. W. 827. The verdict also is in proper form and responsive to the issues. II. Defendant urges that the instructions to acquit, offered at the close of the state's and the entire case, should have been given; that the jury disregarded the instructions of the court, and returned the verdict as the result of bias and prejudice. The prosecuting witness alone identified the defendant. His was the only evidence upon which defendant could possibly have been convicted. At the time of the alleged robbery, the prosecuting witness was talking to the bartender in a soft drink parlor, probably lighted by electricity. There was plenty of light. He states that defendant came in, edged toward him, and, when within three feet, whipped out a revolver and proceeded with the robbery. He does not relate whether the robber was masked or not. He does, however, identify the defendant as the robber. [1] While the jury may readily have found for defendant, we may not disturb the ver The evidence on behalf of defendant tends dict where the evidence for the state makes to show the following: a prima facie case, even though the evidence for the defense is in conflict therewith. State v. Swisher, 186 Mo. 1, loc. cit. 8, 84 S. W. 911. The record does not show bias or prejudice on the part of the jury. III. Defendant complained of the admission of certain evidence, which, with the objection, reasons, ruling thereon, and exception saved, is as follows: The defendant, William Dengel, was a huckster and worked, with another huckster by the name of O'Connell, all day on the 18th day of August, 1920, selling cantaloupes from a one-horse wagon on Delmar avenue, from Pendleton to Kingshighway. They arrived at the market about 7 o'clock in the morning, bought a load of melons, and left with them about 9 o'clock a. m. At about 2:30 p. m., they stopped for lunch on Kingshighway and then worked over Kingshighway to Easton avenue, where they encountered, about 6 o'clock p. m., an acquaintance named Regan. Regan got on the wagon and rode with them to Grand and Easton avenue, arriving there about 7 o'clock, when and where Regan left them. Defendant and O'Connell met the owner of the wagon at Leffingwell and Cass Mr. Rowe: Ask that the last part of the anavenue in a soft drink parlor and there turn-swer that Mr. Pysher said he was positively Q. Now, officer, after you arrested this man, what did you do with him? A. We brought him to the Fifth District Station and held him there suspected of robbéry and sent for Mr. Pysher to come down and look at him to see if he could identify him. down? A. Yes, sir; he identified him and said Q. Were you there when Mr. Pysher came he was positively the man without question of doubt. (248 S. W.) the man be stricken out, for the reason it is] not responsive to the question and incompetent and hearsay testimony. Court: The defendant was there at the time? A. Yes, sir. The court overruled the objection, to which action and ruling of the court defendant by his counsel then and there duly excepted, and still continues to except. Defendant denied that he was present at the time or place of the alleged robbery, or that he robbed the complaining witness. His defense was an alibi, supported by the evidence of hucksters working with him all day, by a member of the mounted police, and the owner of the horse and wagon driven by the defendant on that day, and others. A number of witnesses testified that defendant's reputation for honesty was good, among whom was the chief clerk of the circuit court for criminal causes of St. Louis, and an employee of the United States Quartermaster's Department, each of whom had known defendant for 15 and 10 years, respectively. [2] The rule of the law in this state is well settled that, while the defendant is in custody or under arrest, statements of a third party, made in his presence, and not denied, are inadmissible at the trial. In State v. Howard, 102 Mo. 142, 14 S. W. 937, a similar state of facts to those here presented were held inadmissible. We quote as follows: [3] The answer of Officer Fritsche to the question, "Were you there when Mr. Pysher came down?" Answer: "Yes, sir; he identified him and said he was positively the man without any question of doubt," was not responsive to the question, was a conclusion of the witness, and incompetent and hearsay testimony. The defendant's attorney could not anticipate that the answer would not be responsive to the question, and his motion to strike out, for the reasons aforesaid, was timely and should have been sustained. State v. Foley, 144 Mo. 600, 46 S. W. 733. For the officer to state that the prosecuting witness identified defendant, and that he was positively the man without question of doubt, was tantamount to saying: "This is the robber-this is the man that robbed me." This evidence emphasized and bolstered the statement of the prosecuting witness. It tended to induce the jury to attach greater weight to the prosecuting witness' evidence than it otherwise might have done. The error crept in; but it was error, and probably influenced the jury. [4, 5] IV. Defendant complains of certain portions of the argument of the prosecuting attorney to the jury. While it is the duty of the prosecuting attorney to keep his argument to the jury within the facts elicited, inasmuch as the matters, charged as error, may not occur upon a retrial, we will not "During the night of the homicide, the offi- discuss them. It may not be amiss, however, cer who arrested defendant took him to the to say that, before defendant may complain, hospital to which deceased had been removed. he should save his exception to the action of This officer testified: 'I took Howard up to the the court, and, whenever necessary, ask for a side of the table where Kelly was lying. I ask- reprimand or rebuke, and except to a refusal ed him if he knew this man (pointing to Howso to do. Norris v. Railroad, 239 Mo. 695, ard). He said: "I ought; he put a bullet in my 144 S. W. 783; Dutcher v. Railroad, 241 Mo. belly." Howard did not say a word; he was under arrest at this time.' This evidence was 137, loc. cit. 177, 145 S. W. 63; Stauffer v. admitted, we presume, on the principle that, Railroad, 243 Mo. 305, loc. cit. 324, 147 S. W. statements made in the presence and hearing 1032. Nor is it necessary to pass upon the of a party, and not denied, are implied admis- question of newly discovered evidence. sions; but the rule has no application when the V. Defendant was sentenced to five years' person is under arrest at the time the state-imprisonment in the penitentiary upon the ments are made in his presence. State v. identification of one witness, who had never Young, 99 Mo. 674; State v. Mullins, 101 Mo. 514. This error, however, should not operate as a reversal, for the evidence only tended to identify the defendant as the person who shot Kelly, a fact disclosed by the evidence on both sides and not disputed by any one. The evidence could not have prejudiced the defendant. State v. Hamilton, 55 Mo. 520; State v. Owens, 78 Mo. 367." The above rule has been adhered to and is now in force in this state. State v. Murray, 126 Mo. 611, 29 S. W. 700; State v. Foley, 144 Mo. 600, 46 S. W. 733; State v. Swisher, 186 Mo. 1, 84 S. W. 911; State v. Kelleher, 201 Mo. 614, 100 S. W. 470; State v. Young, 99 Mo. 666, 12 S. W. 879; State v. Frame (Mo. Sup.) 204 S. W. 8; State v. Fitzgerald (Mo. Sup.) 201 S. W. 86; State v. Goldfeder (Mo. Sup.) 242 S. W. 403, collating some additional authorities. seen him before that night. He may be guilty, but we think reversible error was committed by the court in overruling defendant's motion to strike out the statement of Officer Fritsche, to wit: "He (Pysher) identified him and said he was positively the man without a question of a doubt." In view of all the evidence, the error was prejudicial. The judgment is reversed, and the cause remanded for a new trial. RAILEY and HIGBEE, CC., concur. PER CURIAM. The foregoing opinion of DAVIS, C., is hereby adopted as the opinion of the court. All concur. STATE v. DELCOUR. (No. 23830.) (Supreme Court of Missouri, Division No. 2. Feb. 23, 1923.) 1. Criminal law 1124(1)-Errors assigned in motion for new trial, not included in the record, not considered on appeal. Errors assigned in motion for new trial, because the court overruled defendant's application for continuance, plea in abatement, and motion to quash, which are not included in the record, cannot be considered on appeal. 2. Homicide 174(8)-Defendant's statements after the killing, connected with the offense, charged admissible. In a prosecution for murder evidence of defendant's statements made after the killing and connected with the offense charged was admissible. 3. Criminal law ←1036(1)—Timely objection must be made to questions indicating answer. Where timely objection is not made to a question which clearly indicates the character of the answer sought, and no specific ground is stated for striking out the testimony, it cannot be considered on appeal. 4. Criminal law 696(4)-General objection in motion to strike testimony given insufficient. A general objection in a motion to strike out testimony already given is insufficient. 5. Criminal law 723(1), 1171(1)-Argument of assistant prosecutor held improper but not prejudicial. In a prosecution for murder statements of the assistant prosecutor in argument that capital punishment had been abolished by the Leg islature at one time was improper, but defendant, under the facts of the killing, was not prejudiced thereby. 6. Criminal law 1171(1)-Prosecutor's argument that jury represented deceased not reversible error. In a murder prosecution argument of the prosecuting attorney that when the jury was called to the bar of justice and there with deceased they could say to him that 12 honest men represented him at the trial of defendant, if improper, was of little importance and harmless. 7. Homicide 340(1)-Form of instruction on self-defense held under the facts not reversible error. In a murder prosecution, where defendant took the stand and admitted the killing which under the evidence was either murder in one of the degrees or justifiable on the ground of self-defense, and the instruction on self-defense eliminated justification, unless the jury found the killing was done under reasonable apprehension of great harm to defendant, and, if they failed to so find, then the alternative was to find him guilty of some degree of murder, in concluding the instruction, "unless you so believe you should find the defendant guilty and assess his punishment as provided in these instructions," there was no reversble error. Appeal from Circuit Court, Shannon County; E. P. Dorris, Judge. Frank Delcour was convicted of second de- DAVID E. BLAIR, P. J. Tried for murder in the first degree and convicted of the second degree of that offense, wherein imprisonment for 45 years was imposed by the jury, defendant has appealed. The homicide occurred on January 19, 1921, in Shannon county. Defendant (whose correct name appears to be Delcore, instead of Delcour, as charged in the information) killed one Jack Hoover near Blue Spring on Current, river. Delcore was 35 years of age. Deceased was apparently much younger, since he is referred to by the witnesses as "this boy Hoover." A number of men and women were gathered at Blue Spring for a picnic and fish fry. The day was Sunday. Near the spring was a house which seems to have been occupied by one Will Holland, and it was at this house that the killing occurred. Since no question is raised as to the sufficiency of the evidence to authorize submission of the case to the jury on first degree murder, it will be unnecessary to detail the evidence at any length. The testimony on the part of the state tended to show the following facts: Defendant, one Oscar Reistach (or Reisteak), and Evart Barnhardt went from the home of Tom McCabe, a stepbrother of the defendant to the Blue Spring. At the ford near the spring they saw deceased, Alex Larkin, and some women. They reached the spring near noon and there found Holland and Larkin and others. Defendant and one of the others came on horseback. Defendant was carrying a Winchester rifle. Defendant and some of his party had been drinking whisky, although the extent of their indulgence is not clear. It seems that defendant had some reason to think the deceased was mad at him. Defendant and Oscar Reistach and Evart Barnhardt found the deceased at Holland's house. He had a weapon in his hand which was described by the witness as a "22 gun." The question of whether deceased was mad at the defendant was then discussed, and deceased denied it. Defendant then insisted upon deceased taking a drink with him and, after some disclaimer of the habit or any desire to indulge, deceased finally yielded and took a drink. Deceased asked defendant if it was true that he had stated that he had come to shoot up the bottoms or tear up the fish fry or something to that ef For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes fect. (248 S.W.) Defendant denied this, and deceased away; that after he was shot he fell toward seemed contented and set his gun down in the gun. Neither of the two disinterested the corner of the porch, and then sat down eyewitnesses corroborated defendant's story on the other end of the porch at a distance of the killing. We quote from defendant's of 12 to 16 feet away from his gun. The testimony as follows: porch was variously estimated at from 61⁄2 to 8 feet wide and from 12 to 16 feet long. During the conversation, but how long after does not clearly appear, defendant asked deceased who told him he had said he was going to shoot up the bottoms and deceased refused to tell him, and, according to at least one of the witnesses, told defendant he could shoot him before he would tell. Thereupon defendant lifted his rifle and shot deceased in the face while he was still sitting on the porch at least 12 feet from his gun. He apparently died instantly. It appears from the testimony of Oscar Reistach and Evart Barnhardt that deceased was not making the slightest attempt at the time of the shooting to reach for his gun or to draw any other weapon or to make any aggression whatever against defendant. Some of the state's witnesses testified to statements of defendant made prior to the killing of a general threatening nature, but not specially directed toward deceased. For example, one Laura Moon testified that she heard defendant say "Boys, I have just started out, and I am going to be a worse man than Luther McIntire ever was." Since we are not enlightened concerning the extent of the depravity of Luther McIntire, we cannot know just how bad defendant intended to be. Other witnesses testified to remarks of a similar character. Presumably Luther McIntire had at least some local reputation as a "bad man." The record is exceedingly vague concerning the acts of defendant after the shooting. It rather unsatisfactorily appears that he hid himself in the woods for some time thereafter and was fed by his friends; that some sort of pursuit was organized appears from defendant's own testimony, wherein he said that two men of the neighborhood, upon one occasion when they were hunting him, shot at him several times. One witness testified that defendant finally came in and gave himself up. "A. We rode up to the fence, the three of us, Barnhardt and Reisteack and I spoke and Holland and Larkins did not speak. They went on towards the Spring, Holland had a gun and went on towards the Spring and Jack Hoover was standing on the porch with a gun and he said, 'Frank I heard you have come up here to tear up the fish fry' and I said I had not done he said, 'All right I will set my gun down then.' it, and Reisteack commenced apologizing, and "Q. Where did he set it? A. Down by the door facing, the door was about--hardly middle way of the room, it was nearer one end than the other and he sat down on the other side of the door, about four or five feet, facing me and I walked up to the end of the porch and asked him who told him I was going to tear up this fish fry, and he said he would not tell me, and I said 'Why?' and I asked him again and he said, 'Shoot if you want to, I won't tell you nothing,' and he reached for his gun, and I shot. "Q. Which way did he fall when he fell? A. Towards his gun. "Q. Tell the jury if you thought he was going to get his gun and use it on you? A. Sure, I thought he was going to shoot me; that occurred to me. "Q. Did he and Holland both come out with the guns when you went up there? A. Yes, sir; Holland was ahead of him. Hoover had his gun something like this at first. (Indicating.)" There was some evidence offered by de fendant tending to show bad feeling on the part of deceased toward defendant and predictions by deceased of trouble with defendant over a gun belonging to deceased. It ap pears that one Shelton had broken or bent said gun by striking defendant over the head with it. Apparently deceased thought defendant ought to pay for the gun, and said they might have trouble. Charlie Allison, a witness for defendant, testified that deceased said if he had to get into trouble with Delcore, he would want a shell that had powder in it. It was intimated that some one had previously tried to shoot defendant, and the cartridge was found not to contain any powder. The trial court submitted the case to the jury on murder in the first and second degrees and upon self-defense. Although defendant asked an instruction on manslaughter and excepted to its refusal, no complaint is made in the motion for a new trial that the court failed to instruct on all the law of the case. Defendant admitted the killing, but sought to justify his act on the ground of self-defense. There is some testimony by at least two witnesses that defendant told them deceased snapped his gun at him three times and he had to kill him. One of them, John Reisteak, testified that defendant told him Oscar (meaning Oscar Reistach) would swear Hoover snapped his gun at him three times, and that defendant asked said witness to see [1] I. There are three assignments of error Oscar and post him up a little better. De- in the motion for a new trial, which we are fendant denied these conversations, and tes- unable to consider, for the reason that there tified that deceased reached for his gun, but is nothing in the record upon which to base did not get to it, as it was four or five feet a review. Error is assigned because the trial |