tery; and on his trial for murdering her, several months thereafter, it was held that it "might properly be considered by the jury on the question of motive." In People v. Williams, supra, it was held that the prosecution was properly permitted to prove that some time before the killing of the wife she had complained of her husband as a disorderly person, and that he was adjudged to pay two dollars weekly for her support. The matters that were held to be admissible as evidence in each of those cases for the purpose of showing a motive for the killing were acts of the deceased, not merely her statements, as in the case at bar. The other cases cited in support of the opinion were either actions for criminal conversation, or civil actions growing out of the domestic.relations of husband and wife, and exceptions to the general rule. It will thus be seen that the principal case is not supported by the authorities cited, nor any other authority that we have been able to find, and should be overruled. The statements of the wife which were offered to be proven were not part of the res gestae, as exclamations of pain, nor were they with respect to her health, as in Reg. v. Johnson, 2 Car. & K. 354; Goins v. State (Ohio) 21 N. E. 476; State v. Moxley, 102 Mo. 374, 14 S. W. 969, and 15 S. W. 556. See, also, 1 Greenl. Ev. (14th Ed.) § 102,-and were properly excluded, and So were her statements to the effect that she intended to kill herself, for the same reasons. She was no party to the prosecution, and the state was not bound by anything she may have said. McMillen v. State, 13 Mo. 31; Com. v. Densmore, 12 Allen, 535; State v. Nocton (Mo. Sup.) 26 S. W. 551. It will not be seriously contended that if defendant's wife had been living, and he had been indicted for assault with intent to kill her, anything she might have said in regard to their amicable relations would have been admissible against the state; and, if not then admissible, the fact that she was dead at the time of trial did not make such statement permissible.

Nor do we think the court committed er ror in excluding the evidence which was offered by the defense tending to show that deceased was an expert with a pistol. It had no tendency whatever to show that she killed herself, or to show that defendant was not guilty.

Another contention is that the court erred in instructing the jury on manslaughter in the first degree. That there was no evidence whatever upon which to predicate such an instruction is admitted by the attorney general in his printed brief, but he argues that of this defendant cannot complain, because, we presume, of his conviction of a less offense than that of which he was indicted and put upon his trial. We do not understand this to be the law. While, by statute, It is made the duty of the court to instruct upon every phase of the case warranted by the evidence, it is not its duty to instruct

upon any grade of offense not authorized by the evidence, and it is error to do so. State v. Allen, 116 Mo. 548, 22 S. W. 792; State v. Herrell, 97 Mo. 105, 10 S. W. 387; State v. Wilson, 88 Mo. 13; State v. Turlington, 102 Mo. 642, 15 S. W. 141. In State v. Starr, 38 Mo. 272, it is said "that it is the duty of the court to instruct the jury with reference to the testimony in the case, and, when the evidence all tends to prove one offense, it is wrong to mislead the jury by giving instructions in relation to a different one." The instruction only had a tendency to mislead the jury, which it is evident from the facts in this case as disclosed by the record, it did do. Defendant was either guilty of murder in the first degree, or not guilty of any offense at all, and the instructions should have been confined to that offense.

Defendant asked the following instruction: "Before the jury can find the defendant guilty in this case, they must believe from the evidence, beyond all reasonable doubt, that the defendant, on or about the 5th day of January, 1894, at the county of Buchanan and state of Missouri, willfully, deliberately, premeditatedly, on purpose, and of his malice aforethought, shot, with a revolving pistol, and killed, the said deceased; and unless the jury so find they will find the defendant not guilty, and so return their verdict." The court modified the instruction by inserting after the words "not guilty," "of murder in the first degree," and then gave it as modified; and in this, it is urged, error was committed. The instruction was evidently drawn upon the theory that defendant was either guilty of murder of the first degree, or of no offense at all; and the modification only made it more explicit, and confined it to that offense in which there was no error. It is not at all applicable to any degree of manslaughter, and was not before its alteration.

The fact that a note was found in the bosom of the deceased after her death could not, for the same reasons that any statements she may have made have been read in evidence, and was not a proper subject of comment by counsel before the jury, as nothing but vague and uncertain conclusions could have been drawn therefrom.

The conduct of the court with respect of remarks made by it in connection with various of its rulings during the trial, and the treatment of counsel for defendant as well, is severely criticised by them in their brief, because of their effect upon the jury, in prejudicing their minds against the defendant. Some of the remarks of the court, as set forth in the bill of exceptions, were unseemly, but evidently not intentionally so. Trials, especially of the character of this, where a human being is upon his trial for his life, should be so conducted that no critic, however astute, could discern any feeling upon the part of the court, or anything that would have the slightest tendency to indicate that

1. An indietment for assault with intent to kill, which charges that defendant committed the assault feloniously, on purpose, and with malice aforethought, "with the intent then and there him, the said S., on purpose, and of his malice aforethought, to kill and murder," need not charge that the assault was committed with a felonious intent, or with an intent feloniously to kill.

2. On trial for assault with intent to kill, where it is shown that the person shot at was standing unarmed in his own yard, talking to a friend, and that defendant got within shooting distance by creeping along the yard fence, and that at the time of the shooting the person shot, on the advice of his friend, had started to go into his house, evidence of a difficulty less than an hour before between defendant and the person shot is inadmissible.

3. On trial for assault with intent to kill, where the evidence fully establishes an assault on purpose, with inalice aforethought, and with a deadly weapor, it is not error to refuse to charge that the jury may convict of a lower grade of crime.

4. The verdict cannot be impeached by the affidavit of a juror that the time of imprisonment was fixed by each juror writing on a piece of paper the number of years he was in favor of and dividing the aggregate by 12.

Appeal from circuit court, Lincoln county; E. M. Hughes, Judge.

Robert Woods was convicted of assault with intent to kill, and appeals. Affirmed.

Wm. R. Young, for appellant. R. F. Walker, Atty. Gen., for the State.

GANTT, P. J. The indictment is in the following words: "State of Missouri, County of Lincoln-ss.: In the circuit court of Lincoln county, Missouri, at the spring term, A. D. 1893. The grand jurors for the state of Missouri, duly impaneled, sworn, and charged to inquire within and for the body of the county of Lincoln, and state of Missouri, upon their oath charge and present that Robert Woods, on or about the 8th day of January, A. D. 1893, at the county of Lincoln, in the state of Missouri, in and upon one William Shannon, feloniously, on purpose, aud of his malice aforethought, did make an assault, and did then and there on purpose, and of his malice aforethought, feloniously shoot him, the said William Shannon, in and upon the back of

the head and neck of him, the said William Shannon, with a certain shotgun, loaded with powder and leaden balls, as aforesaid, he, the said Robert Woods, then and there in both his hands had and held, with the intent then and there him, the said William Shannon, on purpose, and of his malice aforethought, to kill and murder, against the peace and dignity of the state. Edgar B. Woolfolk, Prosecuting Attorney Lincoln County, Mo." The prisoner was convicted, and sentenced to the penitentiary for a term of four years. The errors assigned for reversal will be considered in the order of appellant's brief.

The defendant challenged the sufficiency of the indictment, both by his motion to quash and in his motion in arrest of judgment, for the reason that it failed to charge that the assault complained of was committed with a felonious intent, or with an intent feloniously to kill. The indictment is sufficient. It specifically charges the assault to have been committed feloniously, on purpose, and with malice aforethought, "with the intent then and there the said William Shannon, on purpose, and of his malice aforethought, to kill and murder." It was decided as early as the case of the State v. Comfort (1838) 5 Mo. 357, that in an indictment under the section under which this indictment was preferred it was unnecessary to conclude with the words, "with intent feloniously to kill," but that it was sufficient to aver, "with intent to kill." The ruling in that case was followed in State v. Chandler, 24 Mo. 371, and this indictment is in the identical form expressly approved in State v. Jones, 86 Mo. 623, and State v. Webster, 77 Mo. 566. The intent averred is that denominated by the statute itself, and ex vi termini includes the felonious intent required to charge a felony, and could not have appeared any more clearly by the unnecessary repetition of the word "feloniously."

2. There was no error in excluding the evidence concerning a previous difficulty which had occurred on the same day between defendant and William Shannon. After that difficulty they separated, and Shannon went to his home, and was standing, unarmed, in the yard to his dwelling house, talking to the witness Finley. The defendant was seen by Finley stealthily creeping along the yard fence, with a double-barreled gun in his hands. Finley a lvised Shannon he had better go into the house, and Shannon immediately started to do so, when the defendant, Woods, shot him in the back of the head. Defendant at one time stated this was an hour after the first difficulty, and at another that it was only a few minutes, or so long only as was necessary for him to go to his home, a half mile distant, get his gun, and then creep up the fence to Shannon's house, to shoot him. Under the circumstances, the former difficulty was no justification of his conduct, and the court correctly excluded it.

3. There was nothing in the evidence calling for an instruction on the lower grade for an

assault to kill, under Rev. St. § 3490. The evidence fully established a case of an assault on purpose, and with malice aforethought, and with a deadly weapon; and under such circumstances the court should not invite the jury to find for a lower grade than is made by the evidence.

4. The court properly refused to receive the affidavits of the juror to impeach his verdict by showing that the different jurors each placed the number of years for defendant's imprisonment on a piece of paper, and then added the several numbers, and divided the sum by 12, to determine his punishment. The paper was not even found in the jury room, and, if it had been, with no other explanation, it would not impach the verdict, and, excluding this juror's affidavit, there was none. The judgment is affirmed. All concur.

STATE v. JOHNS et al. (Supreme Court of Missouri, Division No. 2. Nov. 5, 1894.)

OBSTRUCTING TRAINS-ARGUMENTS OF COUNSEL.

1. On trial of defendants under Rev. St. § 3588, making it a felony for any person to willfully and maliciously tear up or remove any portion of a railroad track with intent to obstruct the passage of cars, it appeared that they had loosened a rail, and then warned the engineer of the next train in time to avoid the danger with the intention of obtaining some reward from the company for preventing wreck. Held, that the offense was complete when the rail was removed, although there was no intent to derail the train or imperil the lives of the passengers.

a

2. On trial for obstructing a train, counsel for the state may, in the argument to the jury, properly discuss and comment on the peril to which the passengers were exposed by the acts of defendants in removing a rail.

Appeal from circuit court, Macon county; Andrew Ellison, Judge.

Harley Johns and S. O. Reynolds were jointly convicted of feloniously obstructing the passage of a railroad train, and appeal. Affirmed.

Dysart & Mitchell, for appellants. R. F. Walker, Atty. Gen., Morton Jourdan, and R. W. Barrow, for the State.

GANTT, P. J. At the September term, 1893, of the Macon circuit court, defendants were indicted under section 3588, Rev. St. Mo. 1889, which provides that "every person who shall willfully and maliciously place any obstructions by stones, logs, or other things on the track of any railroad, or shall tear up or remove any portion of a railroad, or the works thereof, with intent to obstruct the passage of a car or cars thereon, or throw them off the track, shall upon conviction be imprisoned in the penitentiary not exceeding twenty years." They were jointly tried and convicted at the same term, and sentenced to imprisonment in the penitentiary for two years, from which they appeal. The indictment charges that the defendants did on the

3d day of August, 1893, at Macon county, loosen and remove a rail on the Wabash Railroad, "with the intent then and there, willfully, maliciously, and feloniously, to obstruct the passage of a train of cars, then next to come along said track, and did then and there, in manner and by the acts aforesaid, willfully, maliciously, and feloniously, obstruct the passage of a train of cars carrying passengers along and over said railroad, against the peace and dignity of the state." The defendants are each about 18 years of age. On the night of the 3d of August, 1893, the defendant Harley Johns signaled and stopped the passenger train coming from the north near a bridge some three-quarters of a mile north of Atlanta, a station on the Wabash Railroad, in Macon county. When the train stopped, Johns told the engineer and conductor that train wreckers had been interfering with the track; that he had overheard them talking; and that he had come to signal and warn the train. The engineer and Johns walked down the track, and the train slowed down after them; and, at a point about one-fourth of a mile south from the place where the train was stopped, they found a loose rail. It was the east rail, and the spikes had been drawn at the north end of the rail, and this end of the rail was pushed out of line some 15 or 18 inches. The rail was put in place, and the train passed on, having been delayed about 30 minutes. The officers of the railroad company instituted an investigation, and, prior to the arrest of the defendants, they both made a confession, admitting that they had drawn the spikes, and turned out the end of the rail, and then arranged to signal and stop the train before it reached the place where the end of the rail was moved out. There is no conflict of evidence as to the intent and purpose of the defendants. It was to remove the rail, and then notify the engineer of the next train, and thus commend themselves to the railroad officials, to have them believe that they had rendered a signal and timely service, and thereby to obtain some reward, by way of promotion in the service of the company, or otherwise. Johns was or had been in the service of the company, and his father was, and still is, station agent at Atlanta. He had access to the office at Atlanta, and knew the time of the arrival and departure of the trains at that town. The evidence shows that defendants took steps to insure the stoppage of the train before it reached the place of removal. The defendant Reynolds had not been in the service of the company, but he was to share in whatever reward and emolument that should be obtained by Johns. The defendants proved a good general reputation, both for honesty and fair dealing, and for truth and veracity, prior to the indictment. The court, of its own motion, instructed the jury as follows: "If the jury believe from the evidence that on or about the 3d day of August, 1893, at the

county of Macon and state of Missouri, Harley Johns and S. O. Reynolds willfully and maliciously did tear up and remove an iron rail from its place in the track of the Wabash Railroad Company, with the intent to obstruct the passage of a train of cars along said railroad, and in fact did obstruct a train, then you should find them guilty, and assess the punishment of each at imprisonment in the penitentiary for not less than two years, nor more than twenty years." "The jury are instructed that it is not necessary for the state to prove that defendants intended at the time to wreck the train, nor throw it from the track, nor to actually endanger the lives of any persons on the train; but if you believe from the evidence that the defendants removed said rail from its place, and then intended to and did give the danger signal, and stop the train in safety before it reached the torn-up rail, for the purpose of fraudulently obtaining a reward from the railroad company or the passengers, and that they intended, by removing this rail, to obstruct the passage of a train, and did so obstruct its passage for about thirty minutes, then they should find the defendants guilty," and refused to instruct the jury, as prayed by defendants, that the guilt or innocence of the defendants depend ed upon the intent with which they removed the rail and stopped the train; and to acquit if it was not their intent or purpose to obstruct the cars, but to acquire and gain some notoriety and favor, or to recommend themselves to the company. Over the objection of the defendants, the court permitted the counsel for the state to argue and comment to the jury upon the great danger and peril to which persons on the train had been exposed by the conduct of the defendants, and refused to permit counsel for defendants, in reply, to read the two sections in question,-3588 and 3589,-and comment on the same, to show that section 3589 and the peril to passengers and other persons were not involved in the case.

It is earnestly insisted by counsel for defendants that as defendants removed the rail from the track only for the purpose of affording themselves an opportunity of commending themselves to the railroad company, and thereby procuring a job or employment by the company, and perhaps a reward from the passengers, under the mistaken view that they were indebted to defendants for averting a wreck of the train, and not with the malicious intent of derailing the train, and imperiling the lives and limbs of the passengers and operatives, defendants cannot be convicted under the evidence of the offense charged. In other words, it is assumed that, to constitute this statutory felony, the defendants must not only have had the design of removing the rail, which constituted an essential part of the railroad track, and actually removed it, and obstructed the train, but they must have had the specific intent to in

jure the railroad, or kill and cripple its employés and passengers. To this contention we cannot yield our assent. To constitute a crime, there must be a criminal intent but this intent need not include all the evil consequences that may or naturally will follow a given criminal act. It was perfectly competent for the legislature to declare that an act so violative of the rights both of the railroad company and its passengers and employés, and so fraught with peril to them, as this evidence discloses was committed by these defendants, should be felony. Such an act is wrongful and unlawful in itself; and, when this act of tearing up and removing this rail was intentionally done, the criminal intent-the intent to do a wrongful, unlawful act-existed, and the offense denounced by the statute was complete. The mere fact that defendants not only intentionally removed the rail, in violation of the statute, but also intended thereby to place the company under an obligation to them to give them lucrative employments, and the passengers to pay them a reward for a supposed virtuous act, in no sense deprives the act of removing the rail of its criminal character, but, on the contrary, aggravates it. These ulterior purposes were wicked and fraudulent in themselves, but they were not needed to make the offense complete; that was done when they intentionally did the act which the law declared was a felony. Clifton v. State, 73 Ala. 473; Crawford v. State, 15 Lea, 343. We find no error in the instructions given, or in the action of the court in refusing those asked by defendants.

2. The remaining assignment is that the court erred in permitting counsel for the state, in his argument, to argue and comment upon the great danger and peril to which the passengers on the railroad cars were exposed by the conduct of defendants, because the indictment was under section 3588, and not under section 3589, Rev. St. 1889. The counsel for defendants in these public prosecutions seek to narrow the rights of the counsel for the state in argument to exceedingly narrow limits. In this case it would be hard to conceive of a reasonable discussion of this case that would omit the reason for the statute itself. It is true, defendants claim there was no crime in their act, because of their precautions to avert the nat-. ural consequences of it; but their contention need not restrict the state to such a view. It must be borne in mind that this train would reach this broken rail at a late hour of the night, and these defendants had assumed the burden of warning the engineer of the danger which they had created. The attention of the engineer might have been attracted in another direction until too late to avoid the danger, to say nothing of the accidents that might have befallen defendants to prevent their giving the signals. Moreover, they were looking for one train only. They had taken no precautions to learn