State v. Nasello

Full title: THE STATE v. CARL NASELLO, Appellant

Court: Supreme Court of Missouri

Date published: Jun 11, 1930

325 Mo. 442 (Mo. 1930)

30 S.W.2d 132

Opinion

June 11, 1930.

1. MURDER: In Robbery: Information: Proof. A killing of a human being that occurs during the perpetration of a robbery is by statute (Sec. 3230, R.S. 1919) murder in the first degree, and proof that the killing so occurred is admissible under an indictment or information in the usual and common form.

2. ____: Information: Conspiracy. Proof that defendant and others conspired together to commit an unlawful act and that the killing of a human being occurred while they were carrying out the conspiracy may be shown under an indictment or information charging murder in the usual and common form.

3. ____: Following Robbery: Conspiracy. Notwithstanding the evidence fails to show that defendant shot and killed deceased, and does show that deceased was shot after the robbery occurred and as defendant and the other robbers were fleeing from the looted bank, firing as they fled in an automobile, evidence tending to show an unlawful conspiracy to rob the bank included the common design to escape with the loot and to shoot any person appearing to interfere with their escape, and makes a case for the jury on the issue of killing deceased in the perpetration of the robbery.

4. ____: In First Degree: Definition: Instruction on Second Degree. An instruction defining murder in the first degree as "the wilful, felonious, deliberate, premeditated killing of a human being and with malice aforethought, or any homicide in the perpetration or attempt to perpetrate a robbery" is not erroneous; and the giving of such an instruction is not error where the evidence shows that defendant and others deliberately conspired together to kill deceased as a menace to their escape, and did kill him after the robbery as they were attempting to escape, and the State tried the case on that theory. In such circumstances defendant was not entitled to an instruction for murder in the second degree.

5. ____: Instruction for Second Degree. The statute (Sec. 3232, R.S. 1919) does not require a second-degree-murder instruction where the whole evidence tends to establish murder in the first degree or innocence.

6. ____: ____: Conspiracy to Rob Bank. It depends on the circumstances attending the homicide whether the crime is murder in the first degree or murder in the second degree. Where the attending circumstances show nothing less than that defendant and others, to escape with their loot after robbing a bank, deliberately conspired together to shoot and kill any person appearing to hinder them in their escape, and did shoot and kill the policeman as they were fleeing in their automobile from the scene of the robbery, an instruction for murder in the second degree is not justified.

7. ____: Instruction: Conspiracy to Commit Any Crime: Confusing. An instruction telling the jury that if they believe and find from the evidence that there existed an agreement or understanding between defendant and others to aid and assist each other in the commission "of the crime mentioned in the information and in the evidence," etc., was not confusing and did not permit the jury to speculate as to the crime mentioned in the information and the evidence, where it also directed their attention to the only crime mentioned in either information or evidence, which was the killing of a policeman in the street, although the evidence showed other crimes committed by defendant and his confederates, such as robbery, the carrying of concealed weapons, and the wounding of a young woman as they shot at deceased.

8. ____: ____: Referring Jury to Information. An instruction telling the jury that if defendant and others conspired to aid and assist each other in the commission of the crime "mentioned in the information and in the evidence" did not erroneously refer the jury to the information to determine the crime committed, where they must have understood from the instruction and the evidence that the crime mentioned in the information was the killing of deceased.

9. ____: ____: Conspirators: Including Defendant. An instruction telling the jury that if they find and believe from the evidence that "there existed an agreement or understanding between defendants, Nasello, Messino, Mangercino, and others, or any one of them, to aid," etc., required them to find that defendant (Nasello) was one of the conspirators, and placed a greater burden on the State than it was required to bear.

10. ____: Instructions: Immaterial Conflict. An instruction which places a greater burden upon the State than it is required to bear and in that respect only conflicts with a correct instruction, creates only an immaterial conflict.

11. ____: Conspiracy: Robbery: Escape: Asportation. Escape is a continuation of and within the res gestae of a robbery; and where the evidence shows that a conspiracy existed to shoot and kill any one appearing to interfere with the escape of the robbers and thus to aid each other to escape, it is immaterial that the robbery had come to an end when a policeman on the street was shot and killed as the conspirators fled from the scene of the robbery. And asportation of the money of the bank robbed prior to the escape is immaterial and of no moment, though it is sufficient to bring the offense of the robbery into existence.

12. ____: ____: Evidence: Fatal Shot Fired by Another. The brandishing of firearms and promiscuous shooting by defendant and other occupants of an automobile as they flee down the street from the scene of the robbery, are evidence of a conspiracy to shoot and kill any person appearing to interfere with their escape; and though the shot that killed the policeman on the street was fired by another one of the robbers occupying the car, defendant, being likewise a member of the conspiracy, is responsible for any act done by any one of the conspirators in furtherance of the conspiracy, whether or not the particular act of shooting deceased was in contemplation by him.

13. ____: Instruction: Omitting Defense of Alibi: Separate Instruction. An instruction covering the whole case of murder in the first degree and authorizing a verdict of guilty is not erroneous in omitting the defense of alibi if another instruction embodying that defense is given.

14. ____: ____: In Manner and by Means Mentioned in the Information. An instruction telling the jury that if they find beyond a reasonable doubt that defendant, "in the manner and by the means mentioned in the information," deliberately killed deceased, etc., is not erroneous in that it permits the jury to determine the issues and find the essential facts from the facts stated in the information. And particularly so where the information is read to them and it charges the manner and means of the homicide.

15. ____: ____: Deliberation. If the evidence shows that defendant was connected with the killing through a conspiracy of which he was a member to shoot and kill deceased, it shows deliberation.

16. MURDER: Instruction: Circumstantial Evidence: Definition. If the instruction shows on its face that it was not intended as a circumstantial-evidence instruction, the definition of such evidence is not necessary.

17. ____: ____: Wilfulness: Beyond Reasonable Doubt. An instruction unequivocally requiring the jury to find defendant guilty beyond a reasonable doubt is not erroneous because it does not expressly require them to find wilfulness beyond a reasonable doubt.

18. ____: ____: Alibi. An instruction telling the jury that if they have any reasonable doubt of the presence of defendant at the time and place the crime was committed, they must acquit him, does not put upon defendant the burden of proving beyond a reasonable doubt that he was not present at such time and place.

19. ____: ____: Covered by Other. It is not error to refuse an instruction asked by defendant involving a presumption of innocence and reasonable doubt, where the instructions given fully and correctly cover these subjects.

20. ____: ____: Conspiracy: Evidence. If the evidence tends to show nothing less than that deceased was shot in furtherance of a conspiracy to shoot and kill, and shows that defendant was one of the conspirators, and with certainty that some one of them shot and killed deceased, it is immaterial that it does not show that defendant personally fired the fatal shot, and an instruction telling the jury that if they find that defendant killed deceased they must find him guilty is not error.

21. ____: Cross-Examination: Discrediting Witness: Specific Acts. If not too remote in time, the admissibility in evidence of specific acts tending to impeach or discredit a witness is within the discretion of the court, and the witness on cross-examination may be asked and compelled to answer any question which tends to test his credibility, however disgraceful the answer may be to him, except where the answer might expose him to a criminal charge.

22. ____: ____: ____: Rebuttal: Collateral Matter. The State is bound by the answer on cross-examination of a defendant's witness pertaining to a collateral matter, and evidence in rebuttal is not permissible; but if the witness admits on his cross-examination the matters elicited from the rebuttal witnesses, the admission of the rebuttal testimony, though error, is not prejudicial.

23. ____: Evidence: Immaterial Rebuttal. The admission of immaterial evidence in rebuttal, foreign to any issue in the case or to any connection of the defendant with the offense on trial, is non-prejudicial.

24. ____: ____: Arrest of Defendant: Stricken Out: Discharge of Jury. Where defendant was riding in a Buick coach when the murder was committed, testimony by an officer in rebuttal that he had seen defendant several times driving in a Hupmobile car, and that he had "arrested him in this car" for some unmentioned offense, is immaterial, and if stricken out and the jury instructed to disregard it, a motion to discharge them is properly denied.

25. BEST EVIDENCE: Divorce: Records. Where the appellant, on cross-examination of a material witness for the State, in an effort to discredit him, by inquiries respecting a divorce granted to his wife on the ground of his association with lewd women, and the court ruled that the records in the divorce suit were the best evidence, and gave appellant time to produce the records, and he failed to produce the petition or decree or records of any kind, there was no error in the ruling.

26. ____: Converse Instructions. The failure of the court to give converse instructions where defendant offers none is not error.

27. ____: ____: Included in the State's. An instruction for the State telling the jury that "unless you so find, you will acquit the defendant" is in effect a converse instruction upon every issuable fact stated in it.

28. MURDER: Opening Statement: Calling Defendant a Bandit. For the prosecuting attorney, in his opening statement to the jury, to refer to defendant as a bandit, is error, but not a ground for discharging the jury, or prejudicial error, where the subsequent evidence tends to show cogently that he was a bandit.

29. ____: Evidence: Revolver. Testimony of a witness that a certain revolver, introduced in evidence, passed from his possession to that of defendant six months before the homicide, and evidence tending to show that the revolver was discovered in a cache with loot taken from the bank in the robbery, are admissible, in connection with the presence of defendant in the bank and in the automobile from which deceased was shot by its occupants as they were endeavoring to escape, as tending to show that defendant was in the conspiracy to kill deceased.

30. ____: ____: Correlated to the Offense: Another Crime. Competent, relevant and material evidence, correlated to the offense on trial, is not inadmissible because it tends to show defendant guilty of another and different crime.

31. ____: ____: Wife of Deceased as Witness. Permitting the wife of deceased to testify to his age, his place of birth, the number of years he resided in the city and the length of his employment on the police force is not error, where the record does not tend to show that her testimony or presence on the witness stand influenced the jury.

32. ____: ____: Loss of Weight: Confined in Jail. A brother of defendant having testified that defendant had lost weight, on cross-examination was asked how much of the time of the last year had defendant been in jail. Upon objection, the question was withdrawn, and the jury instructed not to consider it. Held, no error.

33. ____: ____: Failure to Prove Promised Fact. The failure of the State to prove a statement which the prosecuting attorney says in the presence of the jury it will prove, if it has any effect, reacts upon the State, and cannot be held prejudicial to the rights of defendant.

34. ____: ____: Failure to Object or Except. Where the State on the cross-examination of a witness asked if a certain person was a fugitive from justice, and upon objection the court struck out the question and directed the jury to disregard it, there is nothing to review if no objection was made or exception saved to the ruling.

35. ____: Argument to Jury: Belief in Defendant's Guilt: No Objection. A statement by the prosecuting attorney in his argument to the jury, in asking the death penalty, that he would be as guilty of murder as any man who fired the fatal shot if he did not believe in his own heart, beyond a reasonable doubt, that defendant is guilty, and that this gang of bandits cannot be broken up or highway robbery or murder stopped by being easy with them, cannot be held to be error where appellant did not object or except.

36. ____: ____: Duty of Jury to Families: Cure. An argument to the jury by the prosecuting attorney that, when the trial was over, they must face their families; that if they believed defendant innocent it was their duty to acquit him, but if they believed him guilty it was for their conscience to make explanation to their wives, their families, their neighbors and the citizens of the county, goes no further than telling the jury that if they believe the defendant guilty it is their duty to convict him, and was not error, and if error it was cured by the ruling of the court that "the jury will discharge their duty, and do not have to explain to anybody."

37. BEST EVIDENCE; Argument to Jury: Death Penalty. An argument to the jury by the prosecuting attorney, urging that, if they believed the defendant guilty, the penalty of death was warranted by the evidence as he viewed it, but advising them to do their duty as they saw it, and to acquit him if not guilty, is not error, where under the evidence he is warranted in urging the death penalty.

38. ____: ____: Suppression of Banditry. An argument to the jury telling them that the responsibility of suppressing banditry in the county rests upon them is not error, where cogent evidence is presented to them that defendant and other bandits killed deceased.

Appeal from Jackson Circuit Court. — Hon. A. Standford Lyon, Judge.

AFFIRMED.

Edward J. Curtin and E.M. Tipton for appellant.

(1) The court erred in admitting incompetent and immaterial evidence, in that Joe Nasello, the father, a witness for the defendant, was asked if he was not going by the name of Nelson and if he was not living with a woman by the name of Nelson, who was not his wife, which the witness denied. This was an attempt to impeach the witness on an immaterial matter by specific acts of immorality. This was especially erroneous in that after the defense closed its case the State produced witnesses Bertha Sanderson, Forest Dusenberry and Claude Ellis to contradict the witness Joe Nasello. The State was bound by the answer of the witness Joe Nasello, and it was error to contradict him by specific acts by the above named witnesses. (2) The defendant was a witness in his own behalf and was asked questions of specific acts that would tend to impeach the defendant, which the defendant denied. Then the State placed witnesses upon the stand to contradict the defendant on immaterial matters of specific acts. There was no attempt to impeach the defendant nor his witness Joe Nasello by proving their general reputation to be bad. (3) It was error for the trial court in not permitting the State's witness Lacey to answer on cross-examination questions affecting credibility after similar question had been asked the defense witness Joe Nasello. State v. Houx, 109 Mo. 654; State v. Lasson, 238 S.W. 101; State v. Luckett, 246 S.W. 881; State v. Davis, 225 S.W. 707; State v. Baker, 262 Mo. 689; State v. Hulbert, 228 S.W. 501. The State was bound by the answer of Joe Nasello, and the answer defendant gave on cross-examination. State ex rel. Horton v. Clark, 9 S.W.2d 640; State v. Blocks, 278 S.W. 1015; State v. Long, 201 Mo. 664. (4) Instruction 2 given on behalf of the State is erroneous. (a) The first paragraph is erroneous in that it is a mere abstract proposition of law, and leaves the jury to speculate as to what crime this defendant and others conspired to commit. (b) The instruction taken as a whole is misleading and confusing and leaves the jury to speculate as to what crime the defendant and others conspired to commit. It may have been one of the felonies mentioned in Sec. 3230, R.S. 1919, or a felony not mentioned in said section, or a misdemeanor. (c) It is further erroneous in that it refers the jury to the information as to what crime the defendant and others conspired to commit. It does not mention what crime this defendant and others conspired to commit. (d) It is erroneous because it directs the jury to convict the defendant if there was a conspiracy to commit a crime without requiring the jury to find that the defendant was one of the conspirators. It reads, if you find "there existed an agreement or understanding between the defendants, Carl Nasello, John Messino, Tony Mangercino and others, or any one of them . . . then you will find Carl Nasello guilty of murder in the first degree." (e) Even if it had been correct in form it should not have been given, because the crime of robbery of the bank had been completed and the robbers had left the premises. There was no evidence to show a conspiracy to aid each other in the escape. (f) Nor was there any evidence that Officer Smith was trying to prevent their escape, nor was there any evidence of any conspiracy to kill him, or that it was necessary to shoot him or contemplated in carrying out the conspiracy. (g) It is further erroneous in that it purports to cover the whole case and yet ignores the defendant's defense of an alibi. Sec. 3230, R.S. 1919; State v. Robinett, 279 S.W. 700; State v. Hayes, 262 S.W. 1017; State v. McCaskey, 104 Mo. 644; State v. Constitino, 181 S.W. 1158; People v. Marwig, 227 N.Y. 382, 125 N.E. 535; Huggins v. State, 115 So. 214; 1 Bishop's New Criminal Law, par. 634; Burns v. State, 136 N.E. 857; State v. Heckner, 95 Mo. 332. (5) The defendant's request for an instruction to withdraw from the consideration of the jury all the testimony bearing upon the holdup of the trust company should have been given. If Instruction 2 was not given on the theory that a homicide was committed in the commission of the robbing the company, then the defendant's said withdrawal request should have been given. Moreover, this request should have been granted because the robbery was completed before the homicide was committed. People v. Marwig, 227 N.Y. 382, 125 N.E. 535; Huggins v. State, 115 So. 213; 1 Bishop's New Criminal Law, par. 634; Burns v. State, 136 N.E. 857. (6) Instruction 3 given on behalf of the State is erroneous: (a) Because it refers the jury to the information for facts that are essential for them to find. And does not include the fact necessary for the jury to find. It reads "in the manner and by some of the means mentioned in the information." (b) It is also erroneous because it gives the jury a "roving commission." It allows the jury to speculate and guess what facts are essential for it to find. (c) It is further erroneous in that it directs a verdict and ignores the defendant's defense of an alibi, an affirmative defense. State v. Brown, 104 Mo. 37; State v. Constitino, 181 S.W. 1155; State v. Bates, 232 S.W. 1013; State v. Gentry, 8 S.W.2d 28; State v. Wilson, 12 S.W.2d 445; State v. Slusher, 256 S.W. 817. (7) Instruction 6 is erroneous. Instruction 2 attempted to submit the State's theory that the homicide was committed during the perpetration of a robbery and therefore murder in the first degree. Instruction 6 attempted to submit another theory — that is, the killing of Smith was wilful, deliberate, premeditated, and with malice aforethought, and therefore murder in the first degree. (a) There was no evidence that the killing was deliberate and therefore the instruction should not have been given. Or that this defendant took any part in the killing or was a party to any conspiracy or understanding, to deliberately kill Smith. (b) Even if Smith had been killed by some one in the car in which the defendant was riding, the mere fact of the killing would have been presumed to be murder in the second degree. (c) If the defendant had anything to do with the killing of Smith it was circumstantial evidence and that part of this instruction dealing with circumstantial evidence does not correctly define circumstantial evidence. (d) The burden of proof as placed by this instruction is incorrect. It reads, "If the jury can satisfactorily and reasonably infer their existence from all the evidence, they will be warranted in finding the defendant guilty of murder in the first degree." The instruction should have told the jury they must find beyond a "reasonable doubt" from all the facts and circumstances that the killing was deliberate, wilful, premeditated and with malice aforethought, and that the fact and circumstances tending to prove his guilt were consistent with each other, but must be inconsistent with any other rational hypothesis. Sec. 3231, R.S. 1919; State v. David, 131 Mo. 380; State v. Moxley, 102 Mo. 374; State v. Garrett, 207 S.W. 784; State v. Ellis, 234 S.W. 848; State v. Miller, 237 S.W. 501; State v. Linders, 246 S.W. 558. (e) A cautionary instruction on circumstantial evidence should have been given. There was no direct proof of the killing of Smith by this defendant, and no identification by anyone who saw the shooting by anyone in the automobile. Moreover, there was no direct evidence of a conspiracy to kill Smith on the part of this defendant. Inasmuch as this instruction sought to submit one of the State's theories on circumstantial evidence, and inasmuch as that part of the instruction did not fully cover the law on circumstantial evidence, a correct instruction on circumstantial evidence should have been given. Sec. 4025, R.S. 1919; State v. Ellis, 234 S.W. 848; State v. Miller, 237 S.W. 501; State v. Linders, 246 S.W. 558. (8) Instruction 10 is erroneous. (a) It is not based on the evidence. There is no evidence that this defendant killed James H. Smith. Nor is there any evidence that this defendant conspired with anyone to kill James H. Smith. There is no evidence that Smith was killed deliberately or premeditatedly. (b) The second paragraph of this instruction is erroneous. It is indefinite, misleading and confusing. It gives the jury a roving commission. It does not require the jury to find what crime this defendant conspired to commit. It does not correctly define conspiracy. It allows defendant to be convicted of murder, even if killed by another. And that other doing nothing in the furtherance of the conspiracy. Under this instruction the jury can convict this defendant for any unlawful crime of another. This instruction allows the defendant to be convicted even though the killing of Smith was not in the furtherance of a common design on the part of this defendant and others. In other words, the killing of Smith in no way aided in the execution of a conspiracy. And this defendant would not be liable unless he fired the fatal shot. (c) Even if correct in form, the instruction should not have been given because the crime of robbing the trust company was completed and robbers had left the trust company. It does not submit the question of whether or not there was a conspiracy on behalf of this defendant to aid another in the escape. (d) The instruction purports to cover the whole case and directs a verdict and ignores the defense of alibi offered by the defendant. (e) The converse of the instruction should have been given. State v. Darling, 216 Mo. 45. (9) The court erred in refusing to give the converse of the State's Instruction No. 2, because the defendant requested the trial court to give such an instruction before any of the instructions were read to the jury. Said request was made when defendant made exceptions to the giving and refusing of instructions. Also the converse of instructions 6 and 10, as both direct a verdict. R.S. 1919, sec. 4025; State v. Major, 237 S.W. 486; State v. Jackson, 126 Mo. 521; State v. Rutherford, 152 Mo. 124; State v. Johnson, 234 S.W. 794; State v. Cantrell, 234 S.W. 800; State v. Shields, 246 S.W. 932; State v. Hayes, 247 S.W. 165; State v. Nanna, 18 S.W.2d 70. (10) The conduct of the prosecuting attorney was such as to prejudice the right of this defendant and this cause should be reversed on that account. From the opening statement of the prosecuting attorney until the closing argument there was a deliberate attempt on the part of the prosecuting attorney to inflame the jury against the accused. In the opening statement the prosecuting attorney referred to the defendant as one of a gang of bandits. Witness Meyer was put on the stand for no other purpose than to try to show that the defendant was guilty of another crime (no conviction was shown). Smith's widow was put on the stand for no other purpose than to inflame the jury. (The death of Smith was admitted and already proven.) It was immaterial what the deceased's age was, and where he was born. Also this deliberate plan was shown when the prosecuting attorney asked defendant on cross-examination if he knew Victor Maddi — "a fugitive from justice." Also, in asking the defendant specific acts in trying to impeach defendant on collateral matters. Also in the remark of assistant prosecuting attorney that the defense was an alibi and defendant would have us believing he was going around on crutches. Also the production of witnesses Sanderson, Dusenberg and Ellis trying to impeach defendant's witness, Joe Nasello, on specific acts of misconduct. Again in the closing argument of the prosecuting attorney when he told the jury he believed the defendant guilty of murder beyond a reasonable doubt and if he did not he (the prosecuting attorney) would be guilty of murder in asking the jury to hang this defendant. And telling the jury that if they did not assess the death penalty they would have to explain to their wives. And he had done his duty and that he would not have to explain to his wife. State v. Taylor, 8 S.W.2d 37; State v. Nicholson, 7 S.W.2d 379; State v. Connor, 252 S.W. 718; State v. Dixon, 253 S.W. 748. (11) Instruction 8 given by the court is erroneous because it places on the defendant the burden of proving beyond a reasonable doubt that he was not present at the time and place where the crime was committed. And in refusing to give Instruction D requested by defendant on reasonable doubt. State v. Hayes, 256 S.W. 747. (12) Instructions 2, 3, 4, 6 and 10 taken as a whole are erroneous. (a) There is no evidence that the defendant fired the shot that killed Smith and the instructions that told the jury that if "the defendant Carl Nasello either alone" is erroneous because there is no evidence to base it upon. (b) The instructions failed to inform the jury that if Smith was killed by one of the alleged conspirators to the robbery, and was not done in the furtherance of the original plan, but was an act of one of the conspirators foreign to the original common design and growing out of the individual's independent act which resulted in Smith's death, then the person who fired the fatal shot only would be guilty. (c) These instructions permitted the jury to convict this defendant upon a conspiracy to kill Smith, when there was no evidence to base any such conspiracy. (d) These instructions were further erroneous in that they permitted the jury to return a verdict of guilty against the defendant even though the killing of Smith did not grow out of the perpetration of a robbery or attempted robbery. That crime had been completed and was not in the furtherance of any plan to aid any of the alleged robbers to escape. (e) These instructions peremptorily directed a verdict of guilty without requiring the jury to find from any state of facts constituting the alleged offense upon which the defendant was tried. There was no proof of deliberation. (13) The court erred in failing to give an instruction on second degree murder. (14) Every instruction given on behalf of the State directing a verdict failed to require the jury to find the killing of Smith was done during the perpetration or attempted perpetration of one of the felonies named in Sec. 3230, R.S. 1919. (15) There was no evidence that Smith was deliberately killed, therefore there was a presumption that the killing of Smith was second-degree murder, and an instruction on second-degree murder should have been given. (16) Under Section 3230 the jury must say whether it is first degree murder or second degree murder. Secs. 3231, 3233, R.S. 1919; State v. Lewis, 264 Mo. 420; State v. Swearingen, 269 Mo. 177.

Stratton Shartel, Attorney-General, and Don Purteet, Assistant Attorney-General, for respondent; Otto Potter of counsel.

(1) The trial court committed no error in permitting witness Higgins, a police officer, to testify in rebuttal that he had seen defendant drive a Hupmobile car. The testimony had no proper place in the State's case in chief, inasmuch as defendant in his own behalf, upon cross-examination, testified that he had never owned or driven a Hupmobile car. The testimony was proper to rebut defendant's statements. The admission of rebuttal testimony is in the sound discretion of the trial judge. In this instance no abuse of that discretion is shown. State v. Keller, 281 S.W. (Mo.) 960; State v. Steelman, 273 S.W. (Mo.) 409. (2) The trial court properly refused to discharge the jury because of unresponsive answers on the part of witness Higgins. Upon the request of defendant's counsel the unresponsive answer was stricken out and the jury instructed to disregard it. The voluntary or unresponsive answer was not called for by the question of the prosecution. Under such circumstances this court will not convict the lower court of error for refusal to declare a mistrial. State v. Thomas, 300 S.W. (Mo.) 826; State v. Mulconry, 270 S.W. (Mo.) 377. (3) The trial court committed no error in permitting the prosecuting attorney to ask Joe Nasello, a witness for the defendant, on cross-examination, if he had not gone under the name of Nelson and kept a woman by the name of Mrs. Nelson at 1105 East Tenth Street. The propriety of the question as to whether the witness had gone under an assumed name is not before this court for review, inasmuch as the question was answered before an objection was interposed. In the absence of timely objections to cross-examination questions, the point will not be reviewed. State v. Blocker, 278 S.W. (Mo.) 1014; State v. Parsons, 285 S.W. (Mo.) 412; State v. Lively, 279 S.W. (Mo.) 76; State v. Murray, 316 Mo. 38. The same observation may be made in connection with the question as to whether the witness had kept a woman named "Mrs. Nelson." The question was asked and answered by the witness before an objection was interposed. State v. Palmer, 5 S.W.2d 95; State v. Townsend, 289 S.W. (Mo.) 570. However, the prosecuting attorney persisted in asking the question and when he repeated it the second time defendant's counsel interposed an objection. It was not improper, let alone reversible error, for the prosecuting attorney to ask the witness whether he kept a woman named Mrs. Nelson at the address mentioned. Muller v. Hospital Assn., 5 Mo. App. 401; Muller v. Hospital Assn., 73 Mo. 242; State v. Miller, 100 Mo. 606; State v. Hack, 118 Mo. 99; State v. Taylor, 118 Mo. 159; State v. Long, 201 Mo. 674; State v. Davis, 284 Mo. 704; State v. Wade, 307 Mo. 304; State v. T.B. Smith, 250 Mo. 366. This line of cross-examination is always permissible and its extent is in the sound discretion of the trial court. No abuse of discretion is disclosed. State v. Potts, 239 Mo. 413; Page v. Payne, 293 Mo. 620; Brendel v. Electric Light Power Co., 252 S.W. (Mo.) 640; State v. Osborne, 246 S.W. 879. The State introduced three witnesses in rebuttal. None of the testimony of the three rebuttal witnesses contradicted or rebutted the answer of the witness Joe Nasello. Their testimony possesses no probative force whatsoever. It was, perhaps, irregular and erroneous for the court to permit the State to introduce testimony of the three rebuttal witnesses, however, it does not go to the substantial rights of the defendant, consequently, is not of sufficient magnitude to call for a reversal of the case. Muller v. Hospital Assn., 5 Mo. App. 402. As a general proposition, this court will not reverse a case on account of irregularities and errors which are not within themselves harmful and prejudicial to the substantial rights of the defendant. (4) The trial court committed no error in permitting witness Meyers to identify a certain revolver as one which had passed from his possession to that of the defendant some time prior to the date of the crime charged in the information. The evidence was proper and highly competent for the purpose of connecting defendant with the crime. The revolver was found in a cache which contained a part of the loot from the bank, also other guns and paraphernalia identified as having been used in the robbery and the commission of the crime charged in the information. "The weapons, bullets, tools, instruments, or other articles which appear from other evidence to have been employed in the commission of the crime are admissible in evidence." 16 C.J. 618; State v. Wilson, 223 Mo. 189; State v. Gartrell, 171 Mo. 507; State v. Cooper, 259 S.W. (Mo.) 436: State v. Johnson, 289 S.W. (Mo.) 789: State v. Browman, 182 N.W. 831; State v. Ball, 14 S.W.2d 638; State v. Yeager, 12 S.W.2d 30. (5) Error cannot be predicated upon the admission of alleged erroneous evidence, where the court at defendant's request's struck out the objectionable testimony and withdrew it from the consideration of the jury. State v. Wilson, 223 Mo. 190. (6) The trial court did not err in refusing to discharge the jury because of the remarks of the prosecuting attorney in the presence of the jury. The remark was simply in answer to a long statement of Mr. Curtin, defense counsel, in the presence of the jury. Such matters are largely within the discretion of the trial court. No abuse of the discretion is here shown inasmuch as the statement was called out by the remarks of the defendant's counsel. There is nothing in the record to show that the remark in anywise tended to prejudice the substantial rights of the defendant. State v. Balfour, 19 S.W.2d 758. (7) Instruction No. 1, is the usual, ordinary and stock form declaration of law, setting out and defining the elements of the crime of murder in the first degree, and as such has many times received the approval of this court. State v. Davis, 226 Mo. 515; State v. Darling, 199 Mo. 181; State v. Todd, 194 Mo. 388; State v. Jackson, 253 S.W. (Mo.) 736. (8) Instruction No. 2 was proper. State v. Hayes, 262 S.W. (Mo.) 1037. The evidence as a whole, direct and circumstantial, overwhelmingly shows that defendant conspired with others to rob the bank and during the progress and execution of the felony, the conspirators incidentally took the life of deceased. (a) The first paragraph of the instruction is not a mere abstract proposition of law standing unconnected or unrelated to the remainder of the instruction. State v. Williams, 274 S.W. 435; State v. Robinett, 281 S.W. (Mo.) 29; State v. Vaughan, 200 Mo. 17. (b) The instruction, taken as a whole, was not misleading or confusing in its terms to the jury. The jury was not misled or left to speculate as to the crime the defendant and others conspired to commit. The instruction specifically states "and in the evidence." These words, taken in connection with the first paragraph of the instruction, confined the jury to the crime of robbery of the bank, inasmuch as that is the crime which the evidence shows the defendant and others conspired to commit. There is no evidence that they had a common purpose to commit any other crime, hence, the jury could not have been misled or confused. It was wholly unnecessary for the instruction to refer to the crime defendant and others conspired to commit, by its legal name, to-wit, robbery, inasmuch as the jury, under the evidence, could not have found that there was a conspiracy to commit any other crime. State v. Williams, 274 S.W. (Mo.) 434; State v. Baker, 278 S.W. (Mo.) 989. (c) It is absurd to say that because of this technical omission in the instruction, defendant's substantial rights were invaded and prejudiced to a point of reversible error. Equally absurd, we think, is it to say that the instruction permitted the jury to roam around and speculate as to whether defendant and others conspired to commit the crime of carrying concealed weapons, larceny, firing guns in the street, violating the traffic laws, or any crime other than the felony of the robbery of the trust company. All the State's testimony points to the crime of robbery on the part of the conspirators. It is manifest that the jury so understood the instruction. No criminal case should be reversed, except for prejudicial error. State v. English, 11 S.W.2d 1023; State v. McNeese, 284 S.W. (Mo.) 785; State v. Baumann, 1 S.W.2d 153. (d) The common design being to commit a robbery, the homicide committed in pursuance or execution of that purpose was murder in the first degree, whether the death was intended or not. Sec. 3230, R.S. 1919; 29 C.J. 1097; State v. Hayes, supra, 1037; State v. Robinett, 279 S.W. (Mo.) 700; State v. Baker, 278 S.W. (Mo.) 989; State v. Williams, 274 S.W. (Mo.) 428; State v. Bobbitt, 215 Mo. 33; State v. Vaughan, 200 Mo. 17; State v. Meyers, 99 Mo. 113. (e) Defendant did not deny there was a conspiracy to rob the bank or that during the execution of the conspiracy a murder was committed. He simply denied his identity as one of the participators in the conspiracy to rob the bank or in the crime of the murder of deceased, by way of an alibi, hence, it is too late for him to say that the jury found him guilty without first finding that he was a member of the conspiracy to commit the robbery. (f) Any technical error in Instruction 2 was cured by instructions 3, 6 and 10. Each one of these instructions requires the jury to find that defendant "either alone or knowingly acting in concert with another, or others, took the life," etc. One paragraph in number 10, standing alone, is sufficient to cure the error; it reads, "The court instructs the jury that when two or more persons knowingly act together in the commission of an unlawful act or purpose, that what either does in carrying out such unlawful act or purpose, is, in law, the act of each of said persons." This court considers all of the instructions in a criminal case. State v. Carr, 256 S.W. (Mo.) 1047; State v. Williams, 274 S.W. (Mo.) 435. (g) There is no merit in the contention that the instruction should not have been given because the crime of robbery of the trust company had been completed and the robbers had left the premises before the murder of deceased. State v. Vaughan, 200 Mo. 17; State v. Robinett, supra, 699. (h) It was unnecessary to show that there was a prearranged understanding to kill or shoot Smith, for when two or more persons enter upon an unlawful undertaking with a common purpose to aid and assist each other in whatever may grow out of the undertaking, each is responsible for everything which may proximately result from such unlawful purpose, whether contemplated at the time the arrangement was made or not, and whether actually performed by all or any one of the wrongdoers. State v. Vaughan, supra. (i) Under the evidence, the plan and design to rob the trust company called for the wanton murder of all policemen and people who attempted to prevent the robbers from making a successful "getaway." The robbery and the killing of Smith occurred within the short space of four or five minutes. The robbers came out of the bank firing their guns in all directions, got into a swift moving automobile and moved in the direction of a traffic corner in a large city where they knew an officer of the law was stationed. They continued firing at the buildings and the people on each side of the street. The evidence shows that the deceased was attracted by the fire from the guns of the bandits and had moved forty or fifty feet in their direction. It also shows that Smith was in uniform. The murder of Smith was a part of and grew out of the plan to rob the trust company. State v. Bobbitt, 215 Mo. 39; State v. Robinett, 279 S.W. 699. (9) Instruction 3 is not erroneous as referring to indictment in disregard of facts. The facts which it was necessary for the jury to find were hypothesized in other and different instructions. Such being the case, it cannot be said that the reference in the instruction constituted reversible error. State v. Nevitt, 270 S.W. (Mo.) 337; State v. Moon, 283 S.W. (Mo.) 468; State v. Aurentz, 286 S.W. (Mo.) 69. All of the instructions must be read together to determine the correctness of any one. State v. Ross, 300 S.W. (Mo.) 785; State v. English, 11 S.W.2d 1020; State v. Hicks, 3 S.W.2d 230; State v. Robinett, 281 S.W. 29. It was, perhaps, technically inaccurate for the instruction to refer to the information; however, where other instructions hypothesized the facts necessary for the jury to find, this court has never held the irregularity to be reversible error. State v. Constitino, 181 S.W. (Mo.) 1157. (10) Instruction 6, is a correct declaration of law. Many years of approval by this court renders it stare decisis in this jurisdiction. The evidence was amply sufficient to support it. The converse of it is contained in Instruction 2, which submits, also, the theory of a deliberate murder. State v. Hart, 237 S.W. (Mo.) 482. (11) The court did not err in failing to instruct on circumstantial evidence. Where the evidence is both direct and circumstantial, a circumstantial instruction has no place in the case, unless requested. Here, none was requested. State v. Hadlock, 289 S.W. 945; State v. Keller, 281 S.W. (Mo.) 960; State v. Dickens, 285 S.W. (Mo.) 445; State v. Nave, 285 S.W. (Mo.) 723; State v. Hahn, 289 S.W. (Mo.) 845; State v. Hart, 237 S.W. (Mo.) 482; State v. Lowry, 12 S.W.2d 469. (12) There was no place in the case for an instruction on murder in the second degree. No evidence to support it; defendant was guilty of murder in the first degree or nothing. (13) The trial court committed no error in refusing to discharge the jury during the prosecutor's opening statement. Opening statements are largely within the discretion of the trial court. State v. Marshall, 297 S.W. (Mo.) 63; State v. Henggeler, 278 S.W. (Mo.) 743; State v. Richmond, 12 S.W.2d 34. The prosecutor was sustained in his remark by the evidence produced. Unquestionably, the evidence shows defendant to have been a "bandit." (14) It was not error for the prosecuting attorney to call to the attention of the jury the prevalence of crime in the community as a matter of common knowledge, and to vigorously urge the jury to do their duty by fixing the maximum punishment where he believed the evidence would warrant it. State v. McBride, 231 S.W. 594; State v. Murray, 316 Mo. 38; State v. Greer, 12 S.W.2d 87.

DAVIS, C.

In a verified information filed in the Circuit Court of Jackson County by the prosecuting attorney, defendant and others were charged with murder in the first degree with the killing of one James H. Smith. Upon a severance taken, defendant was tried to a jury. The verdict of the jury was guilty of murder in the first degree, as charged in the information, and the punishment assessed was death. After an unsuccessful motion for a new trial, the court entered judgment in accordance with the verdict. Defendant appealed.

The evidence submitted on behalf of the State warrants the finding that, on June 14, 1928, at Kansas City, in the County of Jackson, the Home Trust Company, at 1117-19 Walnut Street, operated a banking institution. Between nine-twenty and nine-thirty on that morning, while the officers and employees of the banking institution were about their duties, five or six men, masked and with revolvers and shotguns, appeared in the foyer of the institution. At once a command was heard, "Hands up! This is a real holdup." The president and other officials were ordered to lie on the floor, face down, behind a partition in the foyer. One of the men went to a cage in which a teller kept money. When he was first observed, his face from his eyes down was covered by a mask of cloth, but immediately thereafter it fell from his face and hung around his neck, with his face observable. An employee of the bank in the teller's cage and a customer making a deposit identified this man during the trial as defendant. Defendant gathered up the money in the cage, and upon the cry that they were being gassed due to the explosion of a gas tear-bomb into the foyer by an employee on the steps leading from the basement below, the men departed forthwith. Over $19,000 in money, and in addition some Liberty-bond coupons, were taken. On the street in front of the institution confederates sat in a Buick coach. The robbers, upon leaving the trust company, boarded the coach in which their confederates awaited them, which then proceeded north on Walnut Street some few blocks until trace of it was lost for the nonce. The coach was later discovered in a garage rented by Messino. It was identified as used in the escape by a broken door-handle found in the street, which was knocked off by contact with a traffic sign. Various witnesses testified that the coach on leaving the scene of the holdup ran at a rate of speed of from fifteen to thirty-five miles an hour. As the car ran, its occupants brandished revolvers, a sawed-off shotgun and a machine gun, and fired in the air and along the street. At Eleventh and Walnut streets police officer James H. Smith, in charge of traffic, was shot by some occupant of the Buick as it went north. Small bullets, said to be buckshot, penetrated the right side of his neck and chin, causing him to die the same day. Bullets also hit and wounded a young woman in the line of firing. As the car sped north, two witnesses, who were acquainted with defendant by sight, identified him as an occupant of the Buick. One of the witnesses said that three men were in the front seat of the Buick, and that defendant sat next to the right-hand door, with a revolver in his hand, shooting. At Tenth and Walnut police officer Capshaw, in uniform, was shot in the leg.

On June 15, 1928, the day succeeding the holdup, city detective Browning searched a vacant bungalow in southeast Kansas City, near the Municipal Farm. He there discovered a machine gun, a shotgun, revolvers, ammunition, material for masks and burned and charred coupons. The charred coupons were identified as taken from the trust company in the robbery of June 14, 1928. There was also found a Smith Wesson revolver bearing number 552981. It was shown that on December 26, 1927, this revolver passed from the possession of the assistant manager of the Main Street Theatre to the possession of defendant.

Defendant's evidence tends to show that he did not participate in the robbery of the trust company, and that he was not an occupant of the Buick in which the robbers made their getaway. It tends to show an alibi. On the morning of the robbery it warrants the finding that he ate breakfast with his family, at eight-thirty, in the presence of his brother, sister and her two children. Defendant and his brother about eight-fifty A.M. left his sister's home and met their father at Fifth and Troost Avenues. The three of them then walked to Fifth and Walnut, where defendant left his father and brother and went into a barber shop, and was given a haircut, shave and shine. The barbers, three or four in number, and the negro bootblack testified that he arrived there about nine-thirty A.M., or shortly before or shortly after, but their testimony estimated the time rather than fixed it definitely. Other facts, if any, germane to the issues raised, will be adverted to in the opinion.

I. Section 3230, Revised Statutes 1919, defines a killing that occurs during the perpetration of a robbery murder in the first degree. Proof that the killing so occurred is admissible under an indictment or information in the usual and Information: common form. [State v. Meyers, 99 Mo. 107, 12 Murder in Robbery: S.W. 516; State v. Brown, 119 Mo. 527, 24 Conspiracy: Proof. S.W. 1027, 25 S.W. 200; State v. Foster, 136 Mo. 653, 38 S.W. 721; State v. Peak, 292 Mo. 249, 237 S.W. 466; State v. Adams, 316 Mo. 157, 289 S.W. 948.] Proof that defendant and others conspired together to commit an unlawful act and that the killing occurred while carrying out the conspiracy may also be shown under such an indictment or information. [State v. Carroll, 288 Mo. 392, 232 S.W. 699; State v. Parr, 296 Mo. 406, 246 S.W. 903.]

II. It is said that defendant was entitled, under the evidence, to a directed verdict of acquittal, because the State's evidence establishes, first, that defendant did not shoot and kill Smith; second, that no conspiracy between defendant and Killing after others to kill Smith was shown. According to the Robbery. instructions, the trial theory of the State was that, succeeding the bank robbery, defendant and others executed an understanding or common design to shoot and kill anyone appearing to be a menace to their escape. The evidence adduced adequately sustains the trial theory of the prosecution. The evidence developed an unlawful conspiracy to rob the trust company, which included the common design to escape with the loot and to shoot and kill any person appearing to interfere with their escape. Thus the homicide of Smith occurred while the conspirators were participating in the robbery of the bank (State v. Turco, 99 N.J.L. 96, 122 A. 844; Francis v. State, 175 N.W. 675; State v. McMahon, 145 Wn. 672, 261 P. 639), resulting that the instructions defendant submitted for acquittal were properly overruled. In this connection, in State v. Lewis, 273 Mo. 518, l.c. 531, 201 S.W. 80, the court say: "We hold that all the evidence in the case, including the circumstances of the killing of Dillon, shows clearly a conspiracy to murder whenever necessary in the course of defendants' business of stealing."

III. The only place in the instructions that a robbery is mentioned is in Instruction 1, defining first degree murder. It reads: "Murder in the first degree is the wilful, felonious, deliberate, premeditated killing of a human being and with malice aforethought, or any homicide in the Instruction for perpetration or attempt to perpetrate any Murder in Second robbery." However, Instruction 2 shows the Degree. cause was not tried on the theory that the killing of Smith occurred during the robbery. The trial theory of the State was that defendant and others deliberately conspired together to kill Smith as a menace to their escape. On this state of the record defendant submits that he was entitled to a second-degree-murder instruction on two grounds: first, Section 3232, Revised Statutes 1919, requires it; second, unless the cause was tried on the theory that the killing occurred in the perpetration of one of the crimes stated in Section 3230, the presumption obtains that any homicide is murder in the second degree.

(a) Section 3232, in part, reads: "Upon the trial of an indictment for murder in the first degree, the jury must inquire, and by their verdict ascertain, under the instructions of the court, whether the defendant be guilty of murder in the first or second degree." We have ruled for a period of fifty years that the preceding section may not be construed to require a second-degree-murder instruction, when the whole evidence tends to establish nothing except murder in the first degree or innocence. [State v. Hopper, 71 Mo. 425, l.c. 430-431; State v. Merrell, 263 S.W. 118; State v. Yeager, 12 S.W.2d 30; State v. Lewis, 273 Mo. 518, 201 S.W. 80.]

(b) It depends upon the circumstances attending the homicide whether the crime is shown to be murder in the first or second degree (State v. Hayes, 262 S.W. 1034, l.c. 1037). In State v. Lewis, 273 Mo. 518, 201 S.W. 80, the trial court ruled that the facts limited the instructions to murder in the first degree, and this court affirmed the ruling. The attending circumstances show nothing less than that defendant and others, to escape with their loot, deliberately conspired to shoot and kill any person appearing to hinder them in their escape. The facts show that they deliberately and in a cool state of blood planned the killing and carried it into execution. The evidence did not justify an instruction involving murder in the second degree.

IV. In State v. Williams, 274 S.W. 427, l.c. 434, may be found, with some immaterial changes, a reproduction of the State's Instruction 2. It reads in part: "In this connection, you are instructed that if you believe and find from the Other evidence in this case there existed an agreement or Crimes. understanding between defendants, Carl Nasello, John Messino, Tony Mangercino, and others, or any of them, to aid and assist each other in the commission of the crime mentioned in the information and in the evidence. . . ." The instruction is said to be vicious for a number of reasons, which we proceed to determine.

(a) State v. Williams, 274 S.W. 427, disposes of the contention, adverse to defendant, that the instruction is erroneous because it is a mere abstract proposition of law. We need not further consider the question.

(b) It is said that, because the evidence shows the commission of other crimes by defendant and his confederates, such as a killing, a robbery, the carrying of concealed weapons, and the firing of firearms in the street, the instruction confused the jury and permitted them to speculate as to the crime mentioned in the information and the evidence. We do not think so. The instruction directed the attention of the jury to the only crime mentioned both in the information and the evidence, the killing of Smith. A conspiracy to kill any person unlawfully, if deemed necessary or convenient, coupled with the killing, even though the particular person was unknown or unheard of, is deliberate murder. The instruction did not confuse the jury or permit it to speculate, as to the crime intended. It directly referred to the killing of Smith.

(c) The instruction is said to be erroneous because it referred the jury to the information to determine the crime committed. Instructions that have referred juries to the indictment or information to ascertain the facts and issues Referring Jury have been condemned. [State v. McCaskey, 104 Mo. to Information. 644, 16 S.W. 511; State v. Constitino, 181 S.W. 1155; 16 C.J. 968.] However, as the jury must have understood that the crime mentioned in the information referred to the killing of Smith, we do not think the jury were confused or misled or permitted to speculate. We think the matter falls within the scope of the rulings found in State v. Murray, 91 Mo. 95, 3 S.W. 397, and State v. Nevitt, 270 S.W. 337.

(d) It is urged that that part of the instruction which authorized the jury to find that "there existed an agreement or understanding between defendants, Nasello, Messino, Mangercino, and others, or any one of them, to aid," etc., permitted a finding of guilt without requiring a finding that Including defendant was one of the conspirators. The phrase, Defendant. "or any one of them," was meaningless, unless it qualified the words, "and others," immediately preceding it. That it did so we think is evident. By the instruction the jury were compelled to find that Nasello, Messino, Mangercino and any one of others conspired to kill Smith. The instruction placed a greater burden on the State than was necessary, for it required a finding that Nasello, Messino and Mangercino were members of the conspiracy in addition to others, when it might properly have required a finding that Nasello, on the one hand, and Messino or Mangercino, or both, on the other hand, conspired together. Another instruction properly permitted the jury to find defendant guilty if, either alone or acting in concert with another, Smith was killed. While the instructions in that regard seem in conflict, yet as Instruction 2 placed a greater burden on the State than it was required to bear, the conflict becomes immaterial. In any event we think the jury understood that before they could convict defendant, they were compelled to find beyond a reasonable doubt that he was one of the conspirators.

(e) Defendant contends that the instruction contains error because the evidence unequivocally shows that the robbery had come to an end, and because the evidence does not justify a finding that the conspirators agreed to aid each other to escape. We have heretofore held that the escape was Escape: Continuation a continuation of and within the res gestae of Crime. of the robbery of the trust company. We have further held that a conspiracy existed to shoot and kill any one appearing to interfere with their escape, and thus to aid each other to escape. We need not discuss the assignment further than to say that it is immaterial and of no moment that prior to the act of escape the asportation of property of the trust company was sufficient to bring the offense of robbery into existence.

(f) Defendant avers that the evidence fails to show that he fired the fatal shot, but that it was fired by Messino, and, consequently, evidence is lacking that a conspiracy existed between defendant and others to kill Officer Smith, or that defendant had knowledge that it was intended or Crime of necessary to shoot Smith, or that the robbery Coconspirator. plans contemplated such shooting, or that Smith was feloniously, unlawfully, deliberately, premeditatedly, or with malice aforethought shot. The brandishing of firearms and the promiscuous shooting by defendant and other occupants of the Buick coach were evidence of a conspiracy to shoot and kill any person appearing to interfere with their escape. It was not necessary that defendant fired the fatal shot to render him guilty, for, if defendant was a member of the conspiracy, he was responsible for any act by any of the conspirators done in furtherance of the conspiracy, whether or not the particular act was in contemplation of the defendant. [State v. Parr, 296 Mo. 406, 246 S.W. 903.] The evidence tends to show that defendant was a member of the conspiracy and that Smith was deliberately shot and killed. The guilt of defendant did not depend upon his firing the fatal shot.

(g) Defendant finally criticizes the instruction because, in authorizing a verdict of guilty, it ignores the defense of alibi. In a separate instruction the court directed an acquittal if the defense of alibi was sustained by the evidence. On this Omitting subject in State v. Glass, 300 S.W. 691, l.c. 694, we Defense. say: "The rule in civil cases ought to apply: That an instruction covering the whole case, and authorizing a verdict without reference to a defense which there is evidence to support, is error, but it is cured, if another instruction be given embodying that defense." The jury fully understood that if they believed the evidence sustained the alibi of defendant, they must acquit him.

V. It is argued that Instruction 3, by the phrase, "in the manner and by some of the means mentioned in the information," permitted the jury to determine the issues and find the essential facts from the facts stated in the In Manner and by information. We think the instruction was Means Mentioned in favorable to defendant, for it told the jury Information. that they must find beyond a reasonable doubt that defendant, either alone, or knowingly acting in concert with another or others, deliberately, etc., killed Smith. Moreover, the information was read to the jury. It charged, in the usual and common form, defendant with first degree murder for the killing of Smith. The manner and means of the killing as alleged in the information was with firearms charged with gunpowder and leaden bullets. The instruction did not confuse or mislead the jury. Analogous cases support our ruling. [State v. Murray, 91 Mo. 95, 3 S.W. 397; State v. Nevitt, 270 S.W. 337.]

VI. (a) The theory of Instruction 6 is not that of a killing occurring during the perpetration of a robbery, which Section 3230 defines as first degree murder, but the theory is that of a deliberate killing. Defendant not only denies that Deliberation. the evidence shows deliberation, but denies that it shows that defendant was connected with the killing of Smith. In view of these premises, he contends that the instruction constituted error. We have determined in preceding paragraphs of this opinion that the evidence establishes that defendant was connected with the killing of Smith through the conspiracy of which he was a member to shoot and kill any person appearing to menace their escape, and that the conspiracy to shoot and kill shows calculation and deliberation. We need not discuss the questions further.

(b) The concluding portion of the instruction reads: "And while it devolves upon the State to prove the wilfulness, deliberation, premeditation and malice aforethought, all of which are necessary to constitute murder in the first degree, yet Circumstances: these need not be proven by direct evidence, but Definition. may be deduced from all the facts and circumstances attending the killing, and if the jury can satisfactorily and reasonably infer their existence from all the evidence, they will be warranted in finding the defendant guilty of murder in the first degree."

We have consistently ruled that an instruction on circumstantial evidence is not warranted if the proof develops direct evidence of the offense charged, as it does in the instant case. [State v. Steinkraus, 244 Mo. 152, 148 S.W. 877; State v. Crone, 209 Mo. 316, 108 S.W. 555; State v. Lowry, 12 S.W.2d 469.] Notwithstanding, defendant contends that the instruction is erroneous because it did not correctly define circumstantial evidence. A reading of the instruction establishes that it was not intended as a circumstantial-evidence instruction; consequently a definition of such evidence was not necessary or warranted. Wilfulness, deliberation, premeditation and malice aforethought are concepts of the mind, which are ordinarily shown only by deductions from the facts and circumstances. The instruction did not purport to cover the facts and circumstances attending the conspiracy and the killing, but merely told the jury that wilfulness, etc., a state of the mind to be deduced from acts, may be deduced from the facts and circumstances in evidence. As the instruction did not purport to cover the field of circumstantial evidence, the defining of it was not required. It fairly advised the jury and they fully understood its purport and meaning, we think.

(c) Defendant argues that the instruction did not require the jury to find wilfulness, etc., beyond a reasonable doubt, but that it permitted the jury to find them from merely satisfactory and reasonable evidence. It is impossible Wilfulness: Beyond seemingly to cover every phase of the case in Reasonable Doubt. one instruction, and, reading the instructions as a whole, which must be done, we think the jury fully understood that, before they were authorized to convict defendant, they must find that he was guilty beyond a reasonable doubt. [State v. Ross, 300 S.W. 785.] In this regard Instruction 3 informed the jury unequivocally that before they could find defendant guilty of murder as charged in the information, they must find from all the evidence produced to it, and that beyond a reasonable doubt, that defendant, either alone, or knowingly acting in concert with another or others, wilfully, intentionally, deliberately, premeditatedly, on purpose and with malice aforethought killed Smith.

VII. Instruction 8 is assailed. It is an instruction hypothesizing defendant's defense of alibi. After informing the jury that defendant was not guilty if he was in another and different place than that at which the alleged crime was committed at the time the said crime was committed, if it was, it then tells them that "in this connection you are instructed that if you have a reasonable doubt of the presence of the defendant at the time and place where said crime was committed, if you believe it was, you will acquit him."

The criticism of this instruction is that it places the burden on defendant to prove beyond a reasonable doubt that he was not present at the time and place where the crime was committed. Defendant cites State v. Hayes, 256 S.W. 747, in sustention of his position. A reading of the files in that case shows that the instructions there condemned are not at all similar. The instruction here criticised directs that if the jury have any reasonable doubt as to defendant's presence on the occasion in question, they must acquit him. The instruction was not only proper, but fully protected defendant in that regard.

Defendant also says that his Instruction "D" should have gone to the jury. The instruction involved a Refusal of presumption of innocence and reasonable doubt. As Instructions. the court fully instructed the jury on these subjects, it was not error to refuse the instruction offered.

VIII. Instruction 10 is assailed. Practically all of the objections urged to this instruction were determined against the contentions of defendant in our examination of Instruction 2, and we need not again settle them. But the Fatal Shot Fired by concept in it, that defendant alone killed Coconspirator. Smith, is attacked on the ground that the record contains neither direct nor circumstantial evidence that defendant personally fired the shot that killed Smith. The evidence does not show with certainty the particular occupant of the Buick coach that shot Smith, but it does show with certainty that some one of the occupants shot and killed him. Smith was to the right of the coach as it traveled northwardly. The coach had one door only on the right-hand side and defendant sat next to it. The evidence tends to show that the man that shot Smith had one foot outside the door on the right-hand running board. This evidence was sufficient to justify the jury finding that defendant shot and killed Smith, even though he was not so identified with certainty. Be that as it may, Smith was killed in pursuance of an understanding or common design to shoot and kill any person appearing to menace the conspirators' escape. Taking either horn of the dilemma, defendant was guilty of first degree murder according to the State's evidence.

It is asserted that if another of the conspirators shot Smith from spite or ill-will, and not for the purpose of effectuating their escape, the others cannot be held responsible for the act. The evidence does not warrant the premise. It tends to show nothing else than that Smith was shot in furtherance of the conspiracy to effectuate the conspirators' escape.

IX. Defendant called to the witness stand his father, Joe Nasello. His testimony, on direct examination, was favorable to defendant, and tended to show an alibi, to the effect that defendant could not have been an occupant of the Buick coach at the time Smith was shot. On cross-examination he Discrediting denied living at 1105 East Tenth Street as Joe Witness. Nelson, or paying rent thereon, but admitted that he often visited the place. He denied keeping a woman there under the name of Mrs. Nelson. The question was repeated, whereupon, to an adverse ruling, defendant objected and excepted, but the question was not answered. He also denied eating and sleeping there, but admitting going there often to see Mrs. A.J. Nelson (his wife was deceased), because she was ill and needed assistance. There was no objection to the latter questions. On being recalled for cross-examination, he stated that he and Mrs. Nelson occasionally dined together at a specified cafe, but denied that the employees knew them as Mr. and Mrs. Nelson.

If not too remote in time, the admissibility of specific acts tending to impeach or disparage the testimony of a witness is largely within the discretion of the trial court. The rule is stated in Muller v. St. Louis Hospital Assn., 5 Mo. App. 390, l.c. 401 (affirmed in 73 Mo. 242), reading: "When a witness is cross-examined, he may, in addition to the questions hereinbefore referred to, be asked any questions which tend to test his accuracy, veracity, or credibility, or to shake his credit by injuring his character. He may be compelled to answer any such question, however irrelevant it may be to the facts in issue, and however disgraceful the answer may be to himself, except where the answer might expose him to a criminal charge." [State v. Smith, 250 Mo. 350, 157 S.W. 319; State v. Long, 201 Mo. 664, 100 S.W. 587.] Moreover, the witness did not claim exemption on the ground that his answer might tend to incriminate him. [State v. Long, supra.]

X. Subsequent to the testimony of Joe Nasello, as detailed in the preceding paragraph, the court permitted three State witnesses to testify in rebuttal, over the objections and exceptions of defendant, that Nasello and Mrs. Nelson occasionally dined together at the College Cafe; that Rebuttal. they supposed he was her husband; that they called him Mr. Nelson; that he did not deny his name was Nelson, although they did not know whether he understood the name, as he said nothing; and that they were in the restaurant infrequently.

As Nasello's testimony on direct examination as to his relations with Mrs. Nelson was a collateral matter, the State was bound by the answer of the witness. The court should not have permitted the introduction of such testimony in rebuttal. [State ex rel. Horton v. Clark, 9 S.W.2d 635; State v. Cox, 263 S.W. 215.] However, Nasello admitted on cross-examination, in effect at least, all matters elicited from the witnesses in rebuttal, except that they were known in the cafe as Mr. and Mrs. Nelson. The record contains no proof that defendant told anyone that his name was Nelson, or that he understood or recognized that the cafe employees called him Mr. Nelson instead of Mr. Nasello. The rebuttal testimony did not in fact impeach or discredit the evidence of the witness. We are unable to surmise that the jury were influenced by the rebuttal evidence in reaching their conclusion. The influence actuating them was the strong and cogent evidence as to the identification of defendant in the bank during the robbery and in the Buick coach subsequently. The rebuttal evidence, while erroneous, was not prejudicial.

XI. (a) On cross-examination, defendant was asked if he owned an automobile, and he answered, "No." The State inquired whether he now owned a Buick coupe, and he replied, "No, sir; it belongs to my father." He stated that his father would not Immaterial let him drive it, but said that he may have driven it Rebuttal. once or twice. He denied driving the day Smith was killed, or the day before or the day before that. In rebuttal successive witnesses testified that a Buick was sold to Victor Maddi, and that defendant and others were with him when he purchased it. Later Maddi traded the Buick for a Hupmobile, and still later traded the Hupmobile for a Buick coach. One witness said he had never seen defendant driving a Buick, although he had seen him driving a Hupmobile sedan. The rebuttal proof tended to show that Maddi failed to make payments, that the Buick was repossessed, and that Joe Nasello came into the transaction and obtained title to the Hupmobile, which he traded for a Buick coupe. While the rebuttal evidence was immaterial, it was so foreign to any issue in the case or to any connection of the defendant with the offense on trial as to be non-prejudicial. Certainly the jury could not have been influenced by it in determining defendant's guilt.

(b) In rebuttal Officer Higgins, over defendant's objection that it was immaterial, testified that he had seen defendant several times driving a Hupmobile car. Certainly this evidence was immaterial, but, as it did not tend to impeach defendant, it cannot be held, for the reasons stated in subdivision Discharge (a) of this paragraph, prejudicial. Later Higgins was of Jury. asked the question, "Did you talk with him at either time?" and he replied, "Yes, sir, I arrested him in this car." On motion the evidence was stricken out and the jury instructed to disregard it, but the discharge of the jury was denied. The statement that the officer arrested him did not establish that defendant was arrested for an offense of moral turpitude. It may have been for a traffic violation of a city ordinance. Be that as it may, we cannot speculate that the jury disregarded the court's instruction.

XII. The State's witness Lacey testified that he recognized defendant during the escape as an occupant of the Buick coach. On cross-examination, objections were sustained to defendant's inquiries with respect to a divorce obtained by Impeachment: Lacey's wife on the ground that he associated Best Evidence. with lewd women, and with respect to his association with lewd women prior to the divorce action. The court stated that he would permit the witness to answer with respect to his association with lewd women prior to the divorce action, but defendant did not take advantage of it. As to the substance of the divorce petition and the decree, the court seemingly sustained an objection as to parole evidence of what they showed, on the ground that it was not the best evidence, and gave defendant time to produce the records. The record fails to show that defendant offered records of any kind regarding the petition and decree. Under the circumstances, error as to these assignments was not sustained.

XIII. Error is assigned because the trial court failed to give converse instructions to the jury, but as defendant offered none, the court did not err in that regard. Moreover, a converse instruction was given in effect, for Instruction 2 Converse concludes, "and unless you so find, you will acquit Instruction. the defendant." [State v. Dougherty, 287 Mo. 82, 228 S.W. 786; State v. Cardwell, 312 Mo. 140, 279 S.W. 99.]

XIV. In his opening statement to the jury the prosecuting attorney said: "They are all charged with the murder of `Happy' Smith. A severance was taken. Two of them have been tried and this defendant, Carl Nasello, is the third Opening Statement: one of that gang of bandits that held up . . Bandit. ." The trial court sustained defendant's objection to the statement, but refused to discharge the jury. It was then asked that the prosecuting attorney be reprimanded, and he inquired, "What have I done?" Defendant's counsel answered, "Referring to him as a bandit. I ask that he be reprimanded and admonished not to use the word `bandit' again in that manner." The prosecuting attorney replied: "I certainly will use the word `bandit' in the trial of the case — there is no way it can be tried without using it." The court overruled an objection to the statement and a request to discharge the jury. Defendant asserts that the preceding occurrence constitutes prejudicial error.

On the record before us the only alleged errors to be reviewed are the use of the word "bandit" by the prosecuting attorney and the refusal of the court to discharge the jury. The prosecuting attorney should not refer to the defendant as a "bandit" or its equivalent, a "robber." It was said by HENWOOD, C., in State v. Harmon, 317 Mo. 354, 296 S.W. 397, in forceful language that: "Applying unbecoming names or epithets to a man or woman on trial is never excusable. This court has always looked with disfavor on this kind of conduct on the part of a prosecutor and in many instances held such conduct sufficiently prejudicial to constitute reversible error. However, this is a question which must, in each instance, be considered in connection with the nature of the case, all the facts and circumstances in evidence and all of the incidents of the trial." A defendant on trial should be referred to as defendant, man, person or by name. We understand that in English trials a reference to defendant is usually by name preceded by the appellation "Mister." However, the context shows that the prosecutor merely referred to defendant descriptively and with decorum. The proof tended to show cogently that defendant was a bandit. Consequently we cannot believe that the jury was influenced by the statement to convict defendant, but considered only the evidence in that regard. Thus, in our opinion, the statement was neither harmful nor prejudicial.

XV. The State's witness Meyers deponed that a certain Smith Wesson revolver, introduced in evidence, passed from his possession to that of defendant on December 26, 1927. In addition, the evidence tended to show that Revolver: Connected the revolver was discovered in a cache with with Offense. loot taken from the bank in the robbery. Meyers' testimony was admissible, in connection with defendant's presence in the bank and the Buick coach, as tending to show that defendant was a participant in the conspiracy to kill Smith. Competent, relevant and material evidence, correlated to the offense on trial, cannot be held inadmissible, because it tends to show defendant guilty of another and different crime. [State v. Sherman, 264 Mo. 374, 175 S.W. 73.]

XVI. "Happy" Smith's wife was permitted to testify as to his age, place of birth, the number of years he resided in Kansas City, and the length of his employment on the Deceased's Wife police force. The record does not tend to show As Witness. that, by her presence on the witness stand or by her testimony, the jury were inflamed or prejudiced in this case.

XVII. On direct examination, a brother of defendant testified that defendant had lost weight. On cross-examination this question was asked: "Q. You say your brother has lost weight — how much of the time in the last year has he Loss of Weight: been in jail?" On defendant's objection the In Jail. question was withdrawn and the jury instructed not to consider the question. It is a matter of common knowledge that persons charged with offenses are confined in jails. The occurrence fails to show that error obtained.

XVIII. On cross-examination defendant was asked the question, "Isn't it your car?" The question related to a Buick coupe purchased by Victor Maddi, which was repossessed by the vendor and later purchased by defendant's father. It Failure to Prove was not shown that the Buick coupe was used in Promised Fact. the robbery of the bank or the escape. The defendant objected and the prosecuting attorney in arguing the objection said: "Alibi is the essential point in this case, for him; he wants us to think he walked on crutches on that morning, and to account for the time; we will show, as to the Buick coupe, that he was driving it, driving it that day, and was seen in it that day and the day before, and that he owns it, and nobody owns it but him, and we have the right to lay the foundation first, by asking him, and let him talk, and bring witnesses before the jury to prove it to him." In our opinion the State failed to produce any evidence tending to show that defendant owned the Buick coupe or that he was ever seen driving it. The statement of the prosecuting attorney, if of any effect, tended to react against the State because it failed to show prima-facie that which was said would be established. The statement was nothing more than a statement of what the State expected to prove, which the State failed to sustain, and which cannot be held to be prejudicial. [State v. Rowe, 24 S.W.2d 1032, l.c. 1037.]

XIX. On the cross-examination the following occurred: "Q. Do you know Victor Maddi? A. Yes, sir. Q. He is a fugitive from justice, isn't he?" The defendant objected, and the court said: "Unless the matter that he is a fugitive from No Objection justice can be connected up in some way, that part or Exception. is entirely immaterial. You can ask him if he knew the man." The prosecuting attorney said: "It will be connected up; it will show why we cannot produce him as a witness, because he is a fugitive from justice." The defendant objected to the statement, and the court ruled: "That is stricken out for the present time and withdrawn from the jury's consideration." We need not consider the question further than to say that the court not only did all that defendant asked, but that defendant failed to save an exception to the ruling of the court.

XX. The defendant objected to certain portions of the argument of the prosecuting attorney. The portions complained of are too lengthy to recite in haec verba. However, we will Argument recite the gist of it sufficiently to be intelligible to Jury. to the reader.

(a) In asking the death penalty he said that he would be as guilty of murder as any man that fired the fatal shot if he did not believe in his own heart and in his own mind, if he did not know beyond a reasonable doubt, that defendant is guilty; that this gang of bandits cannot be broken up, or highway robbery or murder stopped by being easy with them; that with the aid and help of juries, banditry in Jackson County would be broken up in a very short time. To this portion of the argument the defendant made no objection nor saved an exception, and therefore the matter is not open to consideration.

(b) Thereafter the prosecuting attorney argued to the jury that when they left, it was up to them to face their families; that if they believed him innocent, it was their duty to acquit him, but if they believed him guilty, then it was for their Explanation conscience to make the explanation to their wives, to Families. their families, their neighborhood and the citizenship of the county. This argument goes no further in our opinion than telling the jury that if they believe the defendant is guilty, then it is their duty to convict him. Moreover, if there was any error in the argument, it was cured by the ruling of the court: "The jury will discharge their duty, and do not have to explain to anybody."

(c) Over the objection and exception of defendant, the argument was resumed: "All right, gentlemen, if you believe this man is guilty and you do not assess the death penalty I won't have to explain that to anybody on the face of the earth. I will not have to explain it to the people of Jackson County; I will not have to explain it to my God; I will not have to explain it to my wife; I won't have to explain it to anybody in this court room, because I have done everything in my power to mete out the punishment to this defendant that ought to be meted out to him, not only on his account alone, but on the account of others. I am doing all in my power, these detectives that have been in here have done all in their power — somebody pointed out the chief sitting here a while ago — I don't see him now — he has done all in his power, to stop murder and banditry in Kansas City, and if it is not stopped — and I weigh my words well when I say it — if it is not stopped, you twelve men are responsible for it not being done. (The defendant objected as an attempt to intimidate the jury and asked that it be withdrawn, which the court overruled.) You go out and do your duty as you see it. I am telling you about this thing as I see it, as I look at it, and I say again, if he is not guilty, turn him loose; if he is, bring in the kind of a verdict that red-blooded American citizens of the Heart of America ought to bring in."

One phase of the argument of the prosecutor, provided they believed the defendant guilty, urged that the death penalty was warranted by the evidence as he viewed it. Moreover, he not only informed them that the responsibility rested on them, but advised them to do their duty as they saw it. If the jury believed the defendant was guilty, it was their duty to return such verdict, and that was all the prosecutor asked, except that he urged, if they so found, the death penalty. We are unable to see any vice in the argument, for he was warranted in urging it.

The other phase of the argument assailed relates to the suppressing of murder and banditry in Kansas City, and the responsibility of the jury relative thereto. The effect of the argument was to advise the jury the prosecutor believed the evidence warranted the conviction of defendant, and Suppression that the responsibility of suppressing murder and of Banditry. banditry rested upon juries, when cogent evidence of guilt was produced to them. It was said, on this subject, in State v. Lynn, 23 S.W.2d 139, l.c. 141, "The prosecutor has the right to urge the jury to uphold the law, and to draw proper inferences as to the effect of the failure of the jury to uphold the law. [State v. Marshall, 317 Mo. 413, 297 S.W. 63.]" No error appears with respect to the argument of the prosecutor.

XXI. The preceding paragraphs cover the errors assigned in the brief of defendant. In addition, we have examined the record proper, and the assignments of error in the motion Conclusion. for a new trial, and, after due consideration, we are unable to discover any error therein.

The judgment must be affirmed. It is so ordered. Henwood and Cooley, CC., concur.

PER CURIAM:

The foregoing opinion by DAVIS, C., is adopted as the opinion of the court. All of the judges concur and date of execution ordered on and for July 25, 1930.