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most instantly. The testimony on behalf of the defendant was to the effect: That Breeze began the difficulty, by using profane, obscene, and abusive words to defend ant, at the same time having a cue and a billiard ball in his band, when defendant said: “Breeze, you beat me up once,-give me the worst of it. I am not looking for the worst of it again." That Breeze continned his abuse, when the bartender came out, and asked defendant to keep quiet, and defendant told him he would, etc. That Breeze renewed the trouble and abuse, told defendant he had whipped him once, and could do it again, and drew back the billiard ball as if to throw it at defendant, saying, "I will get you now," when defendant fired his pistol off, "just to scare him," when he dodged down behind the pool table, and raised up again, as if in the act of throwing, when defendant fired again, but "not with the intention of hitting him." That when the second shot was fired, though Breeze was looking at defendant when Breeze came up from behind the table, yet he turned his face away from defendant,-turned his head around from him in order to throw the ball at him. There was other testimony corroborating, to a considerable extent, that of de fendant; one of the witnesses, in describing the attitude of Breeze when shot, saying, "He was facing to Dettmer, looking over his left shoulder, with his body to the wall." There was also testimony that Breeze bore the reputation of being a quarrelsome, turbulent man, and there was testimony of a contrary effect. And there was testimony that the reputation of defendant, as having a quiet and peaceable disposition, was good. After committing the crime, defendant fled, and was subsequently captured in Tennessee, where he was living under an assumed name. At the November term, 1893, of the Andrew circuit court, to which the venue had been changed, defendant filed his second application for a continuance on account of absent witnesses, which application was denied.
Thos. F. Ryan and Jas. W. Boyd, for appellant. R. F. Walker, Atty. Gen., and R. E. Culver, for the State.
whom the same facts can be proved as by the absent witnesses, and yet the record shows that there were several such witnesses who testified to the same facts at the trial. An application for a continuance must not only be formally sufficient, but one of its es sential elements—its prominent featuremust be an evident good faith. It must not be a mere dodge-trial paper. Whether good faith prompts the application, the trial court is obviously the better fitted more accurately to judge. For this reason it is that it has become the uniform rule of this court to defer to the trial court in such matters, and not to reverse its action unless the party assailing that action makes it plainly to appear that the judicial discretion in that regard has been unsoundly or oppressively exercised. State v. Banks, 118 Mo. 117, 23 S. W. 1079, and cases cited. No such abuse of discretion is apparent here. Besides, there were counter affidavits filed herein by the state, and that wis is the proper practice has been the settled law in this state since the early case of Riggs v. Fenton, 3 Mo. 28; State v. Bailey, 94 Mo. 311, 7 S. W. 425; State v. McCoy, 111 Mo. 517, 20 S. W. 240.
2. There was no impropriety in admitting evidence of defendant's having knocked down an old, drunken Irishman, because this was the beginning of the hostility between Breeze and defendant, as Breeze took the old man's part, and remonstrated with defendant about his unmanly conduct, which re marks led to the quarrel and fight between Breeze and defendant, resulting in the latter "getting the worst of it," and immediately afterwards making threats against Breeze, which were continued from time to time, and to different persons, almost down to the time those threats found bloody consummation in the crime which constitutes the basis of the present prosecution. It was necessary, there fore, to show the relations between the parties; the genesis of their trouble; the cause of the malice borne by defendant towards Breeze; how it had its origin; and in order to show these things—in order to understand all about the case ab ovo-it became necessary to show just how the difficulty originated, and this could only be satisfactorily done by showing that the trouble began over the attack made by defendant on the old Irishman. Otherwise, Breeze would have been made to appear as the party in fault at the very inception of bad feeling between the parties. And, if error had been committed in the reception of the testimony mentioned, that error was cured by the introduction of testimony of a similar kind in regard to the old Irishman, when defendant came on the stand to testify, at which time defendant testified that Rreeze was in fault and the aggressor in the first quarrel, and gave him a very severe beating, the effects of which, de fendant stated, he still felt. The rule is unlversal in its acceptation, that evidence of other crimes, of other fights between the same
SHERWOOD, J. (after stating the facts). 1. There was no error in denying defendant's application for a continuance, and this is true for several reasons: Both of the absent witnesses are permanent residents of Buchanan county, and were there a few days before the trial. The day before the trial a brother of the deceased saw and talked to both of the witnesses,-one in Savannah, Andrew county, where the cause was pending, and the other in St. Joseph. The record shows that a similar application on account of the absence of one of these witnesses had been granted by the court on a former occasion. The affidavit for the continuance states that affiant knows of no other witnesses by
parties, or between one of them and some , der, or by turping away his head from him stranger, may be received wherever and when- / at the very instant be was attempting to ever such testimony, otherwise inadmissible, throw at himn! When witnesses attempt to has any tendency to elucidate any pending establish a certain theory by their testimony, investigation, or to discover the hidden they must first look to it well that their tessprings which prompted any litigated step or timony must not go counter to the physical action.
facts in the case, for, if it does, neither courts 3. The instructions which were given by | nor juries are required to stultify themselves the court were 20 in number, and embraced by disbelieving the immutable physical facts all grades of homicide, except manslaughter in the case, and so we have said on a numin the first and second degrees, and on other | ber of occasions. State v. Anderson, 89 Mo. points the instructions were such as have 332, 1 S. W. 135; State v. Bryant, 102 Mo. often been approved by this court. But it is | 21, 14 S. W. 822; State v. Turlington, 102 urged that an instruction asked by defend Mo. 012, 15 S. W. 141; State v. Nelson (Mo. ant on the subject of manslaughter in the Sup.) 23 S. W. 1088; State v. Nocton (Mo. fourth degree should have been given. Sup.) 26 S. W. 551. When this record is carefully read, however, Now, regarding an instruction as to manit is difficult to resist the impression that slaughter in any degree: There is the testineither instructions on manslaughter in any mony of at least three witnesses that defendof its degrees, nor on the subject of self ant, on the night of the first difficulty, and defense, should have been given. Not on the two weeks before the last one, made omi. subject of self-defense, because the right of nous threats of revenge against Breeze, re that nature is not to be invoked unless all peated at least twice afterwards, and down other means fail. It is the dernier ressort, almost to the night of the homicide; that on and in order to justify a homicide on the that night, and just a short time before the ground of self-defense the doer of the homi. homicide, Berry asked defendant to lend him cidal act must have done every thing in his his pistol, but defendant told him "he might power, consistent with his safety, to avoid want to use it" himself. On that night, too, the danger and to avert the necessity, and while in Porter's saloon, he kept his hand in he must retreat, if retreat be practicable. his pocket where he had his pistol, and preKerr, Hom. 203, and cases cited; State y. sumably on tbat weapon. So that the testi. Tabor, 95 Mo. 585, 8 S. W. 744; State v. Gil mony lays a broad basis for the existence of more, 95 Mo. 554, 8 S. W. 359, 912. This rule preconceived malice on defendant's part, is applicable to the facts of this case, al aside from the fact of the use of a lethal though it has its well-ascertained exceptions. weapon; and where malice is shown to have Here defendant made no attempt to avoid been harbored, and a fresh provocation aristhe dire necessity of firing the fatal shot. es to the party cherishing the malice, the He did not retreat, nor even attempt to do so. provocation is to be disregarded, unless the He simply stood his ground, and not satis murderous purpose can be shown to have been fied with firing one shot at his adversary, abandoned before the act was done, because, causing him to dodge down behind the table | where provocation intervenes between exto avoid his murderous aim, he continued to pression of malice and killing, the presumpfire after his enemy's back was turned, and tion is that the killing was upon the malice, when he was fleeing from him. There is and not upon the passion produced by the abundant testimony to this effect. It is true, provocation. Kerr, Hom. 91, and cases there is some to the contrary, but the former cited. for these reasons no error occurred testimony is supported by the physical facts in refusing to give defendant's instruction as in the case, to wit, that Breeze is found dead to manslaughter in the fourth degree, nor with a bullet which entered the back of his would error have been committed had in. head, and ranged forward over his right eye, structions as to all degrees of manslaughter and by the further physical fact that no man been refused, as well as instructions on the was ever known to attempt to throw at an theory of self-defense. These views result in other by looking at him over his left shoul- | an affirmance of the judgment. All concur.
END OF CASES in Voi. 27.
| To set aside conveyance, see "Fraudulent Con-
- deed of trust, see "Assignment for Benefit
aside its preferential deed of trust, there may
| Where plaintiff in trespass to try title obtains
The filing of a petition, with instructions to
issue citation, is the beginning of an action,
within a contract providing suit shall be brought
within 40 days.-Gulf, C. & S. F. Ry. Co. v.
Wilbanks (Tex, Civ. App.) 302.
See “Executors and Administrators."
Of debt to bar the statute, see “Limitation of
Adverse Claims to Land.
See "Ejectment"; "Quieting Title--Removal of
Cloud"; "Trespass to Try Title.”
Title by 10 years' adverse possession is limit-
ed to 160 acres where such term had not expired
”) before the taking effect of Rev. St. 1879, art.
3195.-Eldridge v. Anderson (Tex. Civ. App.)
Presumption that the heirs of a wife of the
him, had notice of the conveyance by the pat-
entee which involved a repudiation of any trust
in the land in favor of such heirs of the wife.-
uance"; "Limitation of Actions"; "Parties'';
Title to land does not inure to a distributee of
an estate through possession by a third person
under a lease from the administrator of the
estate.-White v. Rosser (Tex. Civ. App.) 1062.
Where the purchaser at a void tax sale has
adverse possession under a deed properly de
scribing the land for two years, the title of the
former owner is barred. Cooper v. Lee's Heirs
Civ. App.) 736,
Possession of land, believing it to be within
Live-stock shipments, see "Carriers.'
treading over the ground after Texas cattle
are liable to contract Texas fever is a matter
Sufficiency of evidence to justify verdict
country.-Grimes v. Eddy (Mo.) 479.
See, also, “Certiorari”: “Error, Writ of"; "Ex-
ceptions, Bill of”; “New Trial.”
In criminal cases, see "Criminal Law."
civil appeals, though the mortgage is for $60
Where one of several cotenants of two tracts Adm'r v. Robinson (Ky.) 973.
Appealable judgments and orders.
An appeal lies to the court of chancery from
an order of the county court allowing an ex-
ecutor's account.--Stanberry's Adm'r v. Robin-
son (Ky.) 973.
An order appointing a receiver, and directing
the delivery to him of property in suit pending
an accounting, is not a final order, from which
an appeal will lie.-Greeley V. Missouri Pac.
Ry. Co. (Mo.) 613.
Where nine suits against the same defendant
have been consolidated, and four of them were
disposed of, all separate verdicts and judg-
ments, the latter are not final where the other
cases are not disposed of.-Mills v. Cooney
(Tex. Civ. App.) 207.
Appeals from inferior courts.
of a plea to the venue in a justice court, the
case was continued by consent, was not ground
for striking out such plea when again made on
, (lefendant's appeal to the county court.-Ma-
| honey v. Cope (Tex. Civ. App.) 157.
An appeal will lie to the county court from a
judgment of a justice dismissing a complaint.
-Winston v. Masterson (Tex. Civ. App.) 691.
A motion to dismiss an appeal from a justice
the case made by plaintiff.-Hilderbrand v. Wal-
ter A. Wood Mowing & Reaping Mach. Co.
(Tex. Civ. App.) 826.
On appeal from a justice by a person unable
to give bond, the county judge need not state
the facts as to appellant's ability in his certifi-
cate.-Cox v. Wright (Tex. Civ. App.) 294.
Where an appeal from a justice's docket
showed "suit upon account and contracts," it
Civ. Apice's dock it