June 11, 1945.
1. CRIMINAL LAW: Trial: Objection to Opening Statement Reconsidered. There was no error when the court sustained an objection to an opening statement with the understanding that the question would be reconsidered when the evidence was offered, and later admitted the evidence.
2. CRIMINAL LAW: Evidence: Dying Declaration. The statement of the deceased was admissible as a dying declaration.
3. CRIMINAL LAW: Evidence: Dying Declaration: Sense of Impending Death: Estoppel of Defendant. Defendant may not object to the failure of the trial court to submit the question of whether there was a sense of impending death on the part of the declarant at the time of his dying declaration when defendant successfully prevented introduction of evidence on the question.
4. CRIMINAL LAW: Homicide: Evidence: Exhibit Properly Introduced. A hat of the deceased found in the vicinity of the shooting was properly introduced as an exhibit.
5. CRIMINAL LAW: Homicide: Evidence: Justice of Peace Record Properly Rejected. A record of a justice of the peace showing a withdrawn charge against the deceased was properly rejected.
6. CRIMINAL LAW: Homicide: Manslaughter Instruction Proper. Even though the State's evidence showed that the defendant was guilty of a higher degree of homicide than manslaughter it was not error to give a manslaughter instruction.
7. CRIMINAL LAW: Trial: Jury Attending Fox Hunt: Lack of Prejudicial Error Shown. The State sustained its burden of showing that no prejudicial error resulted from the jury attending a fox hunt.
Appeal from Bollinger Circuit Court. — Hon. Norwin D. Houser, Judge.
Homer F. Williams and Rush H. Limbaugh for appellant.
(1) Where self-defense is relied on by the defendant, evidence that the defendant knew that the deceased was in the habit of carrying concealed weapons is admissible, and it was error for the court to exclude from the consideration of the jury the statement by the defendant's counsel as to what the evidence would be in that respect, even though the evidence on the point was subsequently admitted. 2 Wigmore on Evidence (3 Ed.), sec. 246 (f), p. 53. (2) In admitting, over objections of the defendant, evidence of the so-called dying declaration of the deceased the court erred for the reasons that such evidence did not conform to the following rules: The declaration was not restricted to the identification of the accused and the deceased and to the act of killing and the circumstances immediately attending such act and forming a part of the res gestae. State v. Hughes, 125 S.W.2d 66; State v. Strawther, 116 S.W.2d 133; State v. Matthews, 111 S.W.2d 62; State v. Peak, 292 Mo. 249, 237 S.W. 466; State v. Wilkes, 278 Mo. 481, 213 S.W. 118; State v. Colvin, 226 Mo. 446, 126 S.W. 448. (3) A part of the declaration referred to a period prior to the homicide. State v. Kunkel, 289 S.W. 865; State v. Clift, 285 S.W. 706; State v. Wilkes, 278 Mo. 481, 213 S.W. 118; State v. Parker, 172 Mo. 191, 72 S.W. 650. (4) There was no showing by the witness who testified as to the dying declaration that deceased was conscious of approaching death. 5 Wigmore on Evidence (3 Ed.), secs. 1439, 1442, pp. 232-240; State v. Hughes, 125 S.W.2d 66; State v. Strawther, 116 S.W.2d 133; State v. Clift, 285 S.W. 706; State v. Colvin, 226 Mo. 446, 126 S.W. 448. (5) Nor was there evidence that at the time this declaration was made hope of recovery had been abandoned. Wigmore on Evidence (3 Ed.), secs. 1439, 1442, pp. 232-240; State v. Custer, 80 S.W.2d 176; State v. Simon, 50 Mo. 370. (6) There was no showing that when the declaration was made every motive to falsehood was silenced and the mind was induced by the most powerful consideration to speak the truth. 5 Wigmore on Evidence (3 Ed.), sec. 1443, pp. 241-242; State v. Custer, 80 S.W.2d 176; State v. Simon, 50 Mo. 370. (7) The declaration was rendered incompetent because it was shown that it was not a relation of facts connected with the shooting but it was an expression of strong feelings of hatred and revenge and was irrelevant and prejudicial. 1 Wharton's Criminal Evidence (11 Ed.), sec. 226, p. 269; 5 Wigmore on Evidence (3 Ed.), sec. 1443, p. 241. (8) The declaration was made by deceased when removed from the scene of the incident which is supposed to have produced it and after a long interval had elapsed. State v. Reeves, 195 S.W. 1027; State v. McKenzie, 228 Mo. 385, 128 S.W. 948; State v. Kelleher, 201 Mo. 614, 100 S.W. 470. (9) The court erroneously admitted the declarations without submitting to the jury by proper instruction the question as to whether the declaration was in fact made. State v. Hendricks, 172 Mo. 654, 63 S.W. 194. (10) The court erroneously decided as a matter of law that the evidence was admissible as a dying declaration, and did not leave to the jury by proper instruction the question as to whether there was a sense of impending death on the part of the deceased at the time the declaration was made. State v. Custer, 80 S.W.2d 176; State v. Vansant, 80 Mo. 67; State v. Hughes, 125 S.W.2d 66. (11) The court erred in admitting in evidence the hat of the deceased. The hat offered in evidence was not identified as the hat that was worn by the deceased at the time of the shooting. It was merely shown to be the deceased's hat. (12) Even if it had been shown to be the hat worn by the deceased at the time of the homicide it would not have been admissible because it would have served no useful purpose in proving or disproving any fact in the case. State v. Hughes, 125 S.W.2d 66; State v. Sterling, 72 S.W.2d 70; State v. Clough, 38 S.W.2d 36; State v. Rennison, 306 Mo. 473, 267 S.W. 850; State v. Creed, 299 Mo. 307, 252 S.W. 678. (13) The criminal docket of justice of the peace Rader showing prior criminal offenses of the deceased was improperly excluded because it was in contradiction of the testimony that the deceased had a good reputation and it was in support of the good faith of the defendant in undertaking to have the deceased taken into custody before he made his threatened attack on the defendant. 2 Wigmore on Evidence (3 Ed.), secs. 244-248, pp. 41-65. (14) The action of the court in giving an instruction on manslaughter was reversible error. Although it is the duty of the court to instruct upon every phase of the case warranted by the evidence, it is error for the court to instruct upon any grade of offense not authorized by the evidence. State v. Punshan, 124 Mo. 448, 27 S.W. 1111; State v. Herrell, 97 Mo. 105, 10 S.W. 387. (15) Under this general rule this court has held that a charge on the law of manslaughter is erroneous in the absence of evidence warranting it. State v. Brown, 145 Mo. 680, 47 S.W. 789; State v. Lewis, 118 Mo. 79, 23 S.W. 1082. (16) There was no evidence of personal violence or a direct and actual battery by the deceased upon the defendant, and in the absence of such evidence the defendant could not have been guilty of manslaughter, and it was error to instruct on manslaughter. State v. Bongard, 51 S.W.2d 84; State v. Perno, 23 S.W.2d 87; State v. Stewart, 278 Mo. 177, 212 S.W. 853; State v. Barrett, 240 Mo. 161, 144 S.W. 485; State v. Sharp, 233 Mo. 269, 135 S.W. 488; State v. McKenzie, 228 Mo. 385, 128 S.W. 948; State v. Gordon, 191 Mo. 114, 89 S.W. 1025; State v. Starr, 38 Mo. 270. (17) The fact that the instruction for manslaughter authorized a conviction for a lesser offense than that which the evidence showed defendant may have been guilty of, if guilty at all, was not harmless error inasmuch as the jury may not have been able under the evidence to find the defendant guilty at all of the higher grade of offense, and the instruction given was so confusing as to leave the jury in doubt as to what it could do. State v. Davis, 12 S.W.2d 426. (18) The case should be reversed because of misconduct on the part of the jury and the sheriff during the trial. The general rule is that separation of a jury during the progress of a trial and before the jury retires to deliberate requires a new trial unless the State affirmatively shows that the jurors were not subject to improper influence. State v. Dodson, 338 Mo. 846, 92 S.W.2d 614; State v. McGee, 336 Mo. 1082, 83 S.W.2d 98. (19) Although the evidence by the State on the motion for a new trial was offered for the purpose of showing that the jurors were not improperly influenced when they were on the fox hunt, that evidence does show that they were subject to improper influence in that they went on a mission for their amusement, entertainment and enjoyment in company with the sheriff who was active in selecting the jury, who directed their movements while on the hunt and brought them into the presence of others, thus placing them in a position where they were subject to improper influences whether such influences were exercised over them or not. It is contrary to the whole spirit of the law for the determination of the question of the guilt or innocence of any defendant to be entrusted to those who would thus hazard it. State v. McGee, 336 Mo. 1082, 83 S.W.2d 98; State v. Schaeffer, 172 Mo. 335, 72 S.W. 518.
J.E. Taylor, Attorney General, and W. Brady Duncan, Assistant Attorney General, for respondent.
(1) Assignments general in character will not be considered on review by appellate court. Sec. 4125, R.S. 1939; State v. Kennon, 123 S.W.2d 46; State v. Brown, 165 S.W.2d 420; State v. Kelly, 107 S.W.2d 19. (2) The court did not err in giving instruction on manslaughter, Secs. 3952, 4844, R.S. 1939; State v. Kimbrough, 350 Mo. 609, 166 S.W.2d 1077; State v. Reagan, 108 S.W.2d 391; State v. Gadwood, 342 Mo. 466, 116 S.W.2d 42; State v. Huett, 340 Mo. 934, 104 S.W.2d 252; State v. Bird, 286 Mo. 593, 228 S.W. 751. (3) Assignments of error not raised in defendant's motion for new trial will not be considered on appeal. Sec. 4125, R.S. 1939; State v. Kenyon, 343 Mo. 1168, 126 S.W.2d 245; State v. Mason, 339 Mo. 874, 98 S.W.2d 574. (4) The court did not commit reversible error in sustaining objection to defendant's opening statement concerning allegation deceased carried knucks. State v. Stogsdill, 324 Mo. 105, 23 S.W.2d 22; State v. Buckner, 80 S.W.2d 167; State v. Davis, 267 S.W. 838; State v. Curtner, 262 Mo. 214, 170 S.W. 1141. (5) The court did not err in permitting witness to testify as to dying declaration of deceased, because the proper foundation for its admission had been established. State v. Flinn, 96 S.W.2d 506; State v. Davis, 337 Mo. 411, 84 S.W.2d 930; State v. Logan, 344 Mo. 351, 126 S.W.2d 256; 122 A.L.R. 417; State v. Strawther, 342 Mo. 618, 116 S.W.2d 133; State v. Hughes, 344 Mo. 116, 125 S.W.2d 66. (6) The court did not commit error in connection with testimony of witness Henry Holweg ("Don't let him get by with this.") State v. Perriman, 180 S.W.2d 668; State v. Varnon, 174 S.W.2d 146; State v. King, 342 Mo. 975, 119 S.W.2d 277; State v. Sherry, 64 S.W.2d 238. (7) The court did not err in admitting in evidence the hat belonging to deceased, found on premises of defendant. State v. Lewis, 137 S.W.2d 465; State v. Shawley, 334 Mo. 352, 67 S.W.2d 74; State v. Hamilton, 340 Mo. 768, 102 S.W.2d 642; State v. Evans, 334 Mo. 914, 68 S.W.2d 705; State v. Bird, 286 Mo. 593, 228 S.W. 751. (8) The court did not err in refusing to permit in evidence the record or criminal docket of the justice of the peace. State v. Naylor, 328 Mo. 335, 40 S.W.2d 1079; State v. Roberts, 294 Mo. 284, 242 S.W. 669, 121 A.L.R. 383-389; State v. Woods, 274 Mo. 610, 204 S.W. 21; State v. Jones, 134 Mo. 254, 35 S.W. 607. (9) The court did not err in refusing new trial on account of conduct of sheriff and jury. Sec. 4123, R.S. 1939; State v. Flinn, 96 S.W.2d 506; State v. Schlie, 350 Mo. 924, 169 S.W.2d 348; State v. Arnett, 338 Mo. 907, 92 S.W.2d 897; State v. Howard, 118 Mo. 127, 24 S.W. 41; State v. Trainer, 336 Mo. 620, 80 S.W.2d 131; State v. Hunt, 141 Mo. 626, 43 S.W. 389; State v. Robinson, 117 Mo. 649, 23 S.W. 1066.
Appellant was convicted at the March term of the circuit court of Bollinger county, Missouri, of manslaughter and sentenced to imprisonment in the penitentiary for a term of five years. He appealed.
Appellant, at the time of the homicide, was operating a tavern and dance hall located at a crossroad near Lutesville, Bollinger county, Missouri. On Saturday night, April 18, 1943, the victim of the homicide, Elmer Holweg, was present at appellant's tavern where a dance was in progress. He created a little disturbance by throwing matches on the floor and by kicking a beer bottle across the room, all of which interfered with the dancing. Appellant informed Holweg that he would have to stop his misconduct or go home. He remained until about 10:00 P.M. There is evidence in the record that he was guilty of a few other small misdeeds which need not be mentioned. The evidence tended to show that there was bad feeling between appellant and Holweg. Witnesses testified of threats having been made by Holweg against appellant and by appellant against Holweg. The following day, Sunday, appellant went to the county seat and attempted to have Holweg arrested, but we learn from the record that he was informed by the prosecutor that there was not sufficient evidence to warrant an arrest. A witness testified that later on Sunday appellant made a statement to the effect that he failed in his attempt to have Holweg arrested, and that coupled with this statement was a threat that he would take care of the situation. On Monday following, April 20, Elmer Holweg and his brother intended to get a load of hay from a nearby farm. As they drove along the roadway Elmer informed his brother that he was going to appellant's store, which was about a quarter of a mile distant, to get some tobacco. Appellant testified that Elmer came to his place of business on Monday morning and purchased some tobacco; that he noticed Elmer was not in a good mood; that after he sold him the tobacco he, appellant, went to the rear of the store intending to lie down because he was not feeling well. Appellant's living quarters were to the rear of the tavern. He testified that as he walked back Elmer said to him in substance, I came to settle our trouble; that he told Elmer to go on out that he did not want any trouble; that deceased replied, "I'll show you" and advanced toward him; that he was afraid Elmer would beat him to death because he had heard he carried "knucks"; that Elmer was a strong boy and he was no match for him in a physical combat; that as Elmer neared he, appellant, picked up a revolver and when Elmer was about four feet from him he began to shoot and did not quit shooting until Elmer retreated and ran out of the building. Appellant then went to the county seat and informed the officers that he had shot Holweg. Holweg died at a hospital on the following Thursday at about 6:30 P.M. There were no eyewitnesses to the shooting.
Appellant briefed a number of points seeking a reversal of the judgment of conviction. At the trial self-defense was interposed as a justification for the  shooting. When defense counsel made his opening statement to the jury outlining the evidence intended to be introduced he stated that there would be evidence that deceased carried "knucks" of which fact the defendant had knowledge. The trial court sustained the state's objection to this statement but added that the question would be reconsidered when the evidence was offered. The defense was permitted to introduce the evidence and appellant was permitted to testify he had heard that Elmer Holweg carried "knucks". The evidence being introduced, we hold appellant was not prejudiced. The ruling of the court sustaining the objection to the statement was qualified, therefore the jurors could readily understand that the evidence introduced was to be considered by them. After all, a jury is instructed to be guided by the evidence. Appellant received full benefit of this evidence and we must rule the point against him. State v. Curtner, 262 Mo. 214, 170 S.W. 1141, l.c. 1143 (3).
Next appellant assigned error to the action of the trial court in permitting a witness to testify that Holweg made a statement shortly before he died with reference to the homicide. The alleged statement was, "Don't let him get by with this, because he shot me through the back." The trial court on objection struck out the first part of the above statement and instructed the jury to disregard it. Appellant briefed this point under nine subdivisions. We can confine our discussion to a determination of whether the statement was admissible as a dying declaration. If so, then the court's ruling must be sustained and the question of whether it was admissible under the res gestae rule becomes immaterial. The statement was made about 3:00 P.M. on Thursday and death occurred about 6:30 P.M. of that day. The evidence revealed that Holweg, before the statement was made, was restless and in great agony; that he made a statement to the effect that he was going to die and a nurse replied, "You are a long ways from dead", whereupon the deceased replied, "No. I will be dead by four o'clock." The attending physician testified that deceased was doing very well until the morning of the date of death when there was a decided turn for the worse. The evidence of the doctor revealed that the bullet wound which produced death was located a little to the back and above the right hip joint and that this bullet lodged near a vertebra; that there was a wound on his head above the right ear about three inches in length, a bullet wound in his right arm just above the elbow and another across the back of his right hand in front of the knuckles. The doctor also stated that there was evidence of powder burns on deceased's hand and head. We think it is obvious that the statement made by Holweg was admissible as a dying declaration. See State v. Hughes, 344 Mo. 116, 125 S.W.2d 66, l.c. 68 (1), where the question of admissibility of dying declarations is discussed.
Appellant next urges that the trial court erred in not submitting the question of whether there was a sense of impending death on part of Holweg at the time the alleged declaration was made. In this appellant is correct. See State v. Custer, 336 Mo. 514, 80 S.W.2d 176, l.c. 178-181 (4-6). However, appellant is estopped from urging this point. In the trial of the case the court heard the evidence on this question out of the presence of the jury and held it admissible. The jury was then called and the state attempted to introduce the evidence as to Holweg's condition at and prior to the time the alleged dying declaration was made. Appellant then made the following objection:
"Your Honor, we desire to object to the offer of this evidence to the jury for the reason that, first, that it is the province of the Court to determine the admissibility of a declaration outside the presence of the jury;"
The court sustained the objection. How could a jury pass on the question of whether the declarant thought he was in a dying condition unless the evidence was introduced? A party to a lawsuit will not be permitted to take advantage of error of his own making. Again, we find that appellant briefed this point vigorously but we are unable to find any such assignment of error in his motion for new trial. A number of other points were briefed which we cannot consider because not mentioned directly or indirectly in the motion for new trial.
A hat, identified as that of deceased, was found near the defendant's building and was introduced as an exhibit. Appellant urges this was error. Appellant testified that he shot Holweg while he was in the building and that four or five shots were fired. The sheriff testified that he made a close examination and failed to find any bullet marks inside the building. The introduction of the hat in evidence was not  error. It was a proper circumstance to be considered by the jury. A jury may have found that the shooting did not occur in the building. There is no merit in this contention.
It is urged that a docket of the Justice of the Peace, showing convictions of criminal offenses on part of Holweg, was erroneously excluded as evidence. The trouble with this assignment is that the docket of the Justice offered disclosed that the charge against Holweg in that case had been withdrawn. There was a reference in the order indicating that Holweg had been convicted on some other occasion, the nature of which charge was not disclosed. The offer was properly rejected. No judgment of conviction against Holweg was offered.
Appellant insists that it was error for the trial court to instruct on manslaughter. It is urged that the evidence justified a finding of murder or justifiable homicide on the ground of self-defense. Therefore the giving of a manslaughter instruction was prejudicially erroneous. This on the theory that appellant would have been acquitted except for the giving of this instruction. We do not agree. The jury by its verdict of guilty found that the shooting was not justifiable. Sec. 4844, R.S. Mo., 1939, Mo. R.S.A., reads in part as follows:
". . . and any person found guilty of murder in the second degree, or of any degree of manslaughter, shall be punished according to the verdict of the jury, although the evidence in the case shows him to be guilty of a higher degree of homicide."
That is the declared policy of this state. It has been followed in numerous cases. The question was considered at length in State v. Murphy, 341 Mo. 1229, 111 S.W.2d 132, l.c. 137 (18-19). See also State v. Huett, 340 Mo. 934, 104 S.W.2d 252, l.c. 262 (16).
The last point briefed is, that the sheriff in charge of the jury and members of the jury were guilty of such misconduct as to require a reversal of the conviction. The charge is that the jury separated and the sheriff and the jury, on the night of the first day of the trial, before all the evidence had been introduced, went about five miles from the county seat and participated in a fox chase. The trial court deemed the charge serious and rightly so. Evidence was heard at length and the jurors were called as witnesses. The following is, we think, a fair statement of what occurred. Court adjourned for the day. The trial was being held at Marble Hill, Missouri. After the jurors had eaten their evening meal, at about 7:00 o'clock, several persons met near the courthouse for the purpose of going fox hunting. A number of dogs were placed in cars. The sheriff engaged in a conversation with the men intending to go fox hunting and the sheriff's dog was also placed in a car. Thereafter the sheriff asked several of the jurors if they desired to go out to the fox hunt. Being in the mood, they assented and two cars were procured. The sheriff drove one car and one of the jurors the other. All of the jurors and the sheriff, but no one else, went in these two cars. When they arrived at the scene of the hunt the jurors and the sheriff left the cars and went into a field or woods where a fire had been built. There they listened to the dogs. Only one person outside of the sheriff and the jurors was at the fire. The jurors testified that at no time was the case on trial referred to, or any fact in connection therewith mentioned, not even among themselves. The sheriff and jurors returned to the county seat in the cars at about 10:00 o'clock. While on their way to the fox hunt and while returning the occupants of the cars were in sight of each other except perhaps at a number of sharp curves in the roadway. That is the entire story.
It is the settled law in this state that separation of a jury before the case has been submitted is not ground for new trial if the state affirmatively shows that the jury was not subjected to any improper influence. State v. McGee, 336 Mo. 1082, 83 S.W.2d 98, l.c. 103 (1-3); State v. Schaeffer, 172 Mo. 335, 72 S.W. 518; State v. Schlie, 350 Mo. 924, 169 S.W.2d 348, l.c. 350 (2-4); State v. Shawley, 334 Mo. 352, 67 S.W.2d 74, l.c. 88 (29-31); State v. Arnett, 338 Mo. 907, 92 S.W.2d 897, l.c. 903 (24-25). It must be kept in mind that the evidence showed the jurors were separated only in so far as some of them rode in one car closely followed by another car in which the others were riding. We are of the opinion that the state in this case affirmatively showed that the jurors were not subjected to improper influence. There was no direct evidence to the contrary. The trial court was fully justified in ruling that no prejudice resulted from the indiscreet action of the sheriff.
 Finding no prejudicial error in the record the judgment is affirmed. Bobling and Barrett, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court. All the judges concur.