when, during his wife's last illness, the old barn having burned down, and it became necessary to build a new one, he built it on the 60-acre tract, across the road from the home place, where it would have been more convenient; explaining to witnesses at the time and afterwards that he did so because the 80-acre tract belonged to his wife, and he wanted the barn on his own land. The evidence further tends to prove that the husband was a locomotive engineer; that he was not always a prudent and thrifty man; that he was absent from home a considerable part of his time; that the wife was a thrifty, industrious, and capable woman, who managed well, not only the domestic affairs of the household, but the business of the farm as well, as long as she was physically able, as she had formerly managed her own business in Pennsylvania; that she died in the belief that this 80-acre tract was her own, and would go to her children; that her husband maintained and declared during the whole of her life, and even afterwards, until he got him a new wife, that it was hers, and bought with her money. That fact, while abundantly shown by his own declarations, does not rest upon these declarations alone for support, but is declared by all the facts and circumstances that appear in the evidence of the case, as well as by the character, conduct, and life of both husband and wife during the whole period of their marital relations. therefore satisfactorily appearing from the legitimate evidence in the case that the 80acre tract was purchased with the separate money of Louisa C. Shipley, deceased, and, although the deed was taken by her husband in his own name, that thereafter he himself regarded it as her property, and so treated it as long as she lived, upon well-settled principles of equity, illustrated by many of the cases cited in briefs of counsel, the finding upon the first count in the petition should have been in favor of the plaintiffs, with a decree in their favor as therein prayed for.

It

"2. Louisa C. Shipley, towards the latter part of her life, became afflicted with a malignant cancer of the womb, and conscious of its character, and of its probable fatal termination, she executed a deed, in proper form, conveying the 60-acre tract, the deed to which had been taken in her name, but which had, in all probability, been paid for by her husband, to a mutual friend, in order that it might by him be transferred to her husband. This act of hers, characteristic of her sense of justice and equity, and illustrative of her confidence in her own title to the 80 acres, is challenged by the plaintiffs upon grounds heretofore set out, in answer to which it is only necessary to say that the deed by which the title to this tract was vested in the husband rested upon the same character of consideration as that upon which will rest the decree in favor of her heirs as to the 80-acre tract. The husband having paid the purchase

money for the 60-acre tract, her sense of equity was that he ought to have the title to it. That was a true sense of equity, and her deed rested upon an adequate consideration. There was not a particle of evidence tending to prove that the title thus vested in the husband was to be held by him in trust for their children, nor that she was induced to make the deed by any undue influence exercised over her for that or any purpose. And while it appears that she was in feeble health at the time the deeds were executed, and at times took injections of morphine to relieve her from intense pain, it also appears very satisfactorily from the evidence that the deed was voluntarily executed by her of her own free will, at a time when she was in possession of all her faculties, and fully capable of understanding and transacting the business, concerning which she took care to be legally advised. The finding and judgment on the second count ought to have been for the defendants.

"It follows that the finding of the circuit court for defendants on the first count of the petition will be reversed. The action of the court in setting aside the finding and judgment for the plaintiffs on the second count will be affirmed, and the cause will be remanded to the circuit court, with directions to enter up a decree and judgment in favor of plaintiffs as to the 80-acre tract, as prayed for in the first count of the petition, and a judgment in favor of the defendants on the second count as to the 60-acre tract. All concur."

R. T. Railey and T. N. Haynes, for appellents. Noah M. Givan and Burney & Burney, for respondents.

1. Where a defendant indicted for murder saves no exception to testimony given on his motion for change of venue, made on the ground that he cannot have a fair trial in the county in which the action is pending, he cannot have such testimony reviewed on an appeal.

2. A motion in a criminal case for change of venue on the ground that defendant cannot have a fair trial in the county in which the action is pending is addressed to the discretion of the court, and its action thereon will not be

disturbed on appeal from the judgment unless abuse of discretion is shown.

3. Where the defendant was indicted for murder, and over his objections counsel were required to proceed with voir dire examination of the persons summoned as jurors prior to the time at which he was required to announce whether or not he was ready for trial, the judgment will not be reversed on that ground, in the absence of any showing that he was prejudiced thereby.

4. Where it was not stated in the motion for a continuance for absence of two witnesses that defendant could not safely proceed to trial without them, or that a subpoena had been issued for them, or that it was probable that their evidence could be procured at the next term, and the testimony of another absent witness would have been cumulative, merely, or irrelevant, the motion was properly denied.

5. A family consisted of the mother and four children. Their house burned, and after the fire the remains of five bodies, almost unrecog nizable, were found in the ruins. None of the family were seen alive afterwards. Defendant was indicted for murder of the largest of the children. Held, that evidence of a physician as to the condition of the several bodies found in the ruins was not objectionable because the body of the one that defendant was accused of having murdered was not identified, and that the testimony tended to prove the commission of other crimes by him, since the evidence was proper as tending to identify the body, and to show that the death was produced by foul means.

6. Where defendant, indicted for murder, was found near the place of the crime with wounds on his head, which the state claimed were self-inflicted, and physicians shaved his head to dress the wounds, their evidence as to the condition of the wounds as they existed after his head was shaved was not objectionable on the ground that having his head shaved was involuntary, and that he was thereby compelled to give evidence against himself; the shaving of the head being necessary to dress the wounds.

7. A mother and her four children were murdered, and their house, containing their bodies, was burned. At the trial of the defendant for the murder of the eldest child, a witness was permitted to testify that the next day after the homicide defendant said that the mother did not feel kindly towards him, on account of some matters growing out of his father's estate. Held that, if defendant had been on trial for the murder of the mother, the evidence would have been admitted as tending to show the existence of unfriendly relations between them, and a motive for the killing, and as the homicide of the mother and children was a part of the same tragedy, and for the same purpose, there was no reversible error in admitting the evidence.

8. Where defendant was on trial for a murder alleged to have been committed by him by shooting the deceased with a revolver, and immediately after the homicide the house containing the body of deceased was burned, and iron parts of a revolver containing no cartridges were found in the ruins, it was not error to admit evidence that empty cartridges were found about the burned building a week or more after the homicide, over the objection that the finding was too remote from the date of the homicide, as the evidence was competent to sustain the charge that the killing was done with a pistol.

9. A widow and her four children were murdered, and the house containing their bodies was burned. The son by a former marriage of her deceased husband, who was administrator of his estate, was indicted for the murder of the eldest of the children. The widow had sued defendant, and the petition and summons were read to the jury at the trial under the indict

ment. She had also filed a petition that her homestead be set off in the lands of her deceased husband, and this petition was read at the trial. Held, that the evidence was competent, as tending to show motive, to prevent the admeasurement of the homestead, as on the death of the widow and her children he would immediately come into possession of his father's estate.

10. Where on a trial for murder there was no evidence of provocation or heat of passion, and the only question was as to the identity of the murderer, it was not error to charge that "deliberately" means in a cool state of blood; that is, not in a heat of passion caused by some just provocation to passion.

11. On a trial for murder an instruction that the jury were charged with no responsibility with respect to the punishment was not error, as it simply told the jury what the law was, and nothing more.

12. On a trial for murder the court charged that if the jury found beyond a reasonable doubt that the defendant shot and wounded the deceased with a bullet fired from a pistol which defendant held, and that such shot was fired by him, and that such shooting was done willfully, deliberately, premeditately, and with malice aforethought, and that on the same day deceased died in consequence of such shooting and wounding, they should find the defendant guilty of murder in the first degree. Held, that such instruction was justified by the evidence, which showed that there was a wound in the head of deceased, which was made from a missile discharged from a firearm, and that such wound was sufficient to produce death, and was not erroneous, as assuming that deceased was killed by a bullet.

13. On a trial for murder, defendant requested the court to charge that if the jury believed from the evidence, beyond a reasonable doubt, all the facts necessary to prove that the defendant did kill the deceased, yet if the state had failed to establish the mode and manner of the killing, beyond the fact that he was killed with a deadly weapon, the law presumed the death to have been caused by a wound intentionally inflicted with a deadly weapon, and, nothing further appearing, that the offense in such case was murder in the second degree. The whole family, consisting of the mother and four children, including the deceased, were killed, and the house containing their bodies burned. There was no evidence of heat of passion, or of provocation of passion, on the part of defendant. Held, that the court did not err in refusing the request, as the killing was either murder in the first degree or nothing, and it would have been error for the court to have instructed on any other degree of homicide.

14. On a trial for murder, where there was no eyewitness of the homicide, and the evidence was circumstantial, defendant requested the court to charge that, if not satisfied of defendant's guilt beyond a reasonable doubt, the jury ought to acquit, "although you may believe the probabilities of his guilt to be greater than the probabilities of his innocence," and "if any one of the jury, after having consulted with his fellow jurymen, should entertain a reasonable doubt, the jury cannot in such case find the defendant guilty," and that if, after hearing all the testimony, they could infer any reasonable theory or hypothesis of the defendant's innocence, they should acquit him, "although there may be stronger probabilities of his guilt than of his innocence, the policy of the law being that it is better that ninety and nine men escape punishment than that one innocent man be punished"; also that they must be satisfied beyond a reasonable doubt that the body found was the body of the one that defendant was accused of having killed, "and, in this connection, that mere opinions of witnesses are not sufficient to establish such fact." Held, that it

was not error for the court to strike out of the instructions the words quoted, as tending to confuse the jury.

15. A family consisting of deceased, his mother, brother, and two sisters were killed, and the house containing the bodies burned. Defendant was a half-brother of deceased, and administrator of their father's estate. There were trouble and litigation between defendant and his stepmother, and on the evening of the homicide he went to her house to pay the balance of a judgment she had recovered against him. While the house was burning he was found near the yard, pretending to be unconscious from wounds on his head which he claimed were inflicted by two masked robbers who came to the house and struck him with their pistols; but there was evidence that the wounds were cuts made by himself, and his bloody knife was found near where he lay. The iron parts of his revolver were found in the ruins of the house, and empty cartridges were found near a few days after. The body of deceased was identified by the family physician, and had a gunshot wound in the head, which caused his death. Held, that a verdict of murder in the first degree was justified.

Appeal from circuit court, Dunklin county; J. L. Fort, Judge.

James H. Tettaton was convicted of murder, and he appeals. Affirmed.

J. P. Tribble and T. R. R. Ely, for appellant. Edward C. Crow, Atty. Gen., and Sam B. Jeffries, Asst. Atty. Gen., for the State.

BURGESS, J. The defendant was indicted at the May adjourned term, 1899, of the circuit court of Dunklin county, for the murder of George Tettaton on the night of the 26th of April, 1899. At the October term following he was tried, and convicted of murder in the first degree and sentenced to be executed. Defendant appeals.

Mrs. Mary J. Tettaton, the stepmother of the defendant, lived, with her four children, George, Ben, Ada, and Ida Tettaton, on a farm about one mile and a quarter north of the city of Malden, in Dunklin county, Mo. The husband of Mrs. Tettaton died a few years since, and the defendant was administrator of his estate. Defendant is a halfbrother to the four children named, and the stepson of Mary J. Tettaton. Defendant lived at Bernie, in Stoddard county, a distance of about eight miles from the home of his deceased father, where his stepmother and her children were living. Prior to the commission of the crime charged in the indictment there had been some litigation between the defendant and his stepmother, growing out of the affairs of the estate; she obtaining judgment for the sum of $550 in satisfaction of her demand. She had also made application to have a homestead for herself and family set apart out of the real estate owned by her deceased husband at the time of his death, a petition therefor being filed in the probate court of Dunklin county. While the relations existing between the defendant and his stepmother were not altogether friendly, yet he continued as administrator of the estate, and visited her home on frequent occasions for the purpose of making payments on

At

That

the judgment which she had obtained. about 9 o'clock p. m. on the 26th of April, 1899, Mrs. Tettaton's house was discovered by her neighbors to be on fire, and had gained such headway that no entrance thereto was possible. The defendant was found lying outside of the yard, wounded and bleeding. He was taken to the home of a farmer near by, by the name of J. L. Watts, where physicians were called, and his wound treated. As soon as he was able, he stated: he had gone to the home of his stepmother that evening for the purpose of paying her $350, the balance due on the judgment above referred to. That he had made the payment, and intended to remain with the family that night. That about 9 o'clock his half-brother George was playing the organ, while his stepmother was preparing the bed in which he was to sleep. At this point two men wearing masks entered the room, raised their guns, and demanded that they give them their money or throw up their hands. His stepmother attempted to jump out of the south window of the room, and one of the robbers fired, and she fell backwards at the defendant's feet. Defendant jumped through the west window of the room in the attempt to get in the south room, where he had left his pistol, when he was struck over the head by one of the robbers with a gun. He staggered to the east side of the house and fell. While lying there he heard the shooting in the house. He got up and attempted to leave the premises and call for help. He passed around the north side of the house, and while attempting to go through the west gate he was struck again by some sort of a weapon, and became unconscious. It was shown at the trial that the wounds upon his head were made with some sharp instrument, and were not sufficient, according to the opinion of the examining physician, to have rendered him unconscious, although he endeavored to make it appear that he was unconscious when the neighbors who discovered the fire came upon the premises. Defendant's knife was found lying near him after he had been dragged away from proximity to the fire. It was very bloody. A bloody receipt, dated in March, and signed by Mrs. Mary J. Tettaton, was also found near him. Two weeks later a receipt was found in the inner compartment of the pocketbook, which defendant claimed to have received that night from his stepmother. This receipt was covered with blood. The evidence of the physicians disclosed the fact that it would have been impossible for the defendant to have been cut in the head by any other person than himself, as the strokes had the appearance of commencing at the back part and running over to the top and near the forehead. The knife evidently entered the back part first, as the wounds were deeper there than towards the front. Empty cartridge shells were found among the débris of the burned building. The iron framework of a pistol was also

found, which the defendant identified as his. Defendant claimed that before supper he had placed his revolver on the bed in one of the rooms near the kitchen, but before doing so had removed all the cartridges and placed them in his vest pocket, for fear some of the children might get hold of them and injure themselves. Upon examination, however, it was found that the vest pocket contained no cartridges. Five bodies were taken from the fire, which were burned beyond recognition, except by persons who were well acquainted with the family, and who knew the exact number as well as the sex and age of each. The indictment charges the defendant with the murder of George Tettaton, and the evidence shows beyond question that George came to his death by reason of a bullet from a firearm passing through his skull and into the brain, as will be observed by an examination of the testimony of Dr. Nix, the family physician. Evidence was introduced showing defendant to be a man of good moral character, with unquestioned reputation for honesty, peace, and sobriety.

In behalf of the state the court instructed the jury as follows: "(1) The court instructs the jury that if they believe and find from the evidence, beyond a reasonable doubt, as hereinafter defined, that at the county of Dunklin and state of Missouri on the 25th day of April, 1899, the defendant, James H. Tettaton, shot and wounded the deceased, George Tettaton, with a bullet then and there fired from a pistol which he, the said James H. Tettaton, then and there held and had, and shall further find and believe that said shot was so fired by the said James H. Tettaton, and shall further find and believe that such shooting was done willfully, deliberately, premeditately, and with malice aforethought, and if the jury shall further find and believe from the evidence that on the same day, at the county and state aforesaid, the said George Tettaton died in consequence of such shooting and wounding done by the defendant, you will find the defendant guilty of murder in the first degree. As used in the above instruction, 'willfully' means intentionally, as distinguished from accidentally. 'Deliberately' means, in the above instruction, in a cool state of blood; that is, not in a heat of passion caused by some just provocation to passion. 'Premeditately' means thought of beforehand any length of time, however short. 'Malice' does not mean spite or ill will, but signifies an unlawful state of mind,-such a state of mind as one is in when he intentionally does an unlawful act. 'Malice aforethought' means malice with premeditation; that is, that the unlawful act intentionally done was determined upon before it was executed. If you find the defendant guilty of murder in the first degree, you will simply so state in your verdict. You are charged with no responsibility with respect to the punishment for murder in the first degree. (2) The court in

structs the jury that the evidence is of two kinds,--direct and circumstantial. Direct evidence is when a witness testifies directly of his own knowledge of the main fact or facts to be proven, to wit, that the defendant shot and killed the said George Tettaton as charged in the indictment. There is no direct evidence of the defendant's guilt. Circumstantial evidence is proof of certain facts and circumstances in a certain case, from which the jury may infer other and connected facts which usually and reasonably follow, according to the common experience of mankind. Crime may be proven by circumstantial evidence, as well as by direct testimony of eyewitnesses; but the facts and circumstances in evidence, in order to justify a conviction, should be consistent with each other and with the guilt of the defendant, and inconsistent with any reasonable theory of the defendant's innocence. If, therefore, the jury believe from the evidence in this case that such facts and circumstances have been proven as to satisfy you beyond a reasonable doubt that the defendant did willfully, deliberately, premeditately, and of his malice aforethought kill George Tettaton, as defined in the first instruction given herein, the jury are warranted in finding the defendant guilty as charged, though no witness has testified of his own knowledge as to the actual fact of such killing. (3) If the jury believe from the evidence that the defendant, James H. Tettaton, made any statement or statements on the night of April 25, 1899, or on the following day, in relation as to what occurred at the time and place of the burning of the dwelling of Mrs. M. J. Tettaton, and the fate of her and her family, and of the cause of the injuries received by himself, and the manner of the infliction of said injuries, the jury must consider all he said together; and what he said against himself the law presumes to be true, because against himself. What he said for himself the jury are not bound to believe because said in a conversation proved by the state, but they may believe or disbelieve it as shown to be true or false from all the evidence in the case. (4) You are further instructed that the burden of proving the defendant guilty beyond a reasonable doubt rests upon the state, and if, upon the evidence, considered as a whole, the jury entertain a reasonable doubt as to the defendant's guilt, you should give him the benefit of such doubt, and find him not guilty; but a doubt, to authorize an acquittal on that ground alone, should, as stated, be a reasonable doubt, and one fairly arising from the evidence as a whole. The mere possibility that the defendant may be Innocent will not warrant you in acquitting him on the ground of reasonable doubt. (5) Under the law the defendant is a competent witness in his own behalf, and you should take his testimony into account, and give it such weight as you deem it entitled to receive in passing upon his guilt or innocence.

But, in determining what weight you will attach to his testimony, you may take into consideration the fact that he is the defendant in the cause, testifying in his own behalf, and his interest in the result of the trial. (6) You are the sole judges of the credibility of the witnesses and the weight of their testimony, and, if you believe that any witness in the cause has willfully sworn falsely as to any material fact or matter testified to by such witness, you are at liberty to disregard or treat as untrue the whole or any part of the testimony of such witness. (8) The court instructs the jury that circumstantial evidence should always be cautiously considered, and, to warrant a conviction, it must be such as to produce in the minds of the jury that certainty of guilt that a discreet man would be willing to act upon in his own grave and important concerns. Such evidence is not suflicient for conviction unless it excludes every reasonable theory consistent with the defendant's innocence. If the jury are not satisfied of the guilt of the defendant beyond a reasonable doubt, the defendant ought to be acquitted, although the unfavorable circumstances, if any, have not been disproven or explained. (7) The court instructs the jury that the guilt of the defendant cannot be presumed, but must be proven either by direct or circumstantial evidence, and the court instructs you that there is no direct evidence of the guilt of the defendant in this case. Before you can convict the defendant on circumstantial evidence alone, the facts and circumstances must all form a complete chain, and all point to his guilt, and must be irreconcilable with any reasonable theory of his innocence; and, before the jury can convict the defendant on circumstantial evidence alone, the circumstances must not only be consistent with his guilt, and point directly thereto, but must be absolutely inconsistent with any reasonable theory of his innocence. (10) The court instructs the jury that, if they find from the evidence that the state has shown no motive on the part of the defendant to commit the crime charged in the indictment, then the absence of such motive is a circumstance which the jury ought to consider in arriving at their verdict, but that if they believe from all the evidence, beyond a reasonable doubt, that the defendant committed the crime charged, they will not be justified in acquitting simply because the state has failed to show a motive for the crime charged against him." To the giving of each and every one of the said instructions, the defendant, by his counsel, then and there excepted.

At the request of the defendant the court gave the following instructions, to wit: “(1) The court instructs the jury that the indictment in this case is a mere formal charge, and is not of itself any evidence of the defendant's guilt, and no juror should permit himself to be influenced to any extent be

cause of said indictment having been returned by the grand jury. (2) The court instructs the jury that, in considering the question as to whether or not the defendant is guilty or innocent of the crime imputed to him, the jury should take into consideration and duly weigh, along with the other evidence in the case, the evidence offered by the defendant as to his previous good character as a law-abiding and peaceable person, as well as his previous good character for honesty and fair dealing, if such character has been proven."

Defendant then offered and asked for instructions Nos. 3, 4, 5, 6, 7, and 9, as follows, to wit: "(3) You are further instructed that where the state seeks, as in this case, to convict upon circumstantial evidence only, the inculpatory or criminating facts must, in order to justify a conviction, be not only consistent with his guilt, but must be inconsistent with any reasonable hypothesis or theory of his innocence. And, before the jury should convict, they ought to be satisfied from the evidence and facts proven, beyond a reasonable doubt, that his guilt has been so established; and, if not so established, you ought to acquit, although you may believe the proba bilities of his guilt to be greater than the probabilities of his innocence. (4) You are further instructed that the defendant is, in law, presumed to be innocent until his guilt is established by such evidence as will exclude every reasonable doubt. It is not enough, in a criminal trial, to justify a verdict of guilty, that there may be strong suspicion or even a strong probability of thre guilt of the defendant; but the law requires proof by legal and credible evidence of such nature as that, when all considered, it produces a clear conviction of the defendant's guilt beyond a reasonable doubt. So, in this case, if the jury entertain any reasonable doubt of the defendant's guilt, they should acquit him, or, if any one of the jury, after having considered all the evidence, and after having consulted with his fellow jurymen, should entertain such a reasonable doubt, the jury cannot in such case find the defendant guilty. (5) You are instructed that, in passing upon the weight of evidence which is wholly circumstantial, the facts sought to be established by said testimony must flow naturally from the proven or admitted facts; and such evidence should be considered by you with great caution, because of the fact that the human mind in applying such testimony and drawing inferences therefrom may judge incorrectly. You should act upon circumstantial evidence with the same caution which ordinarily prudent men would use in their own grave and important concerns. And if, after hearing all the testimony, both for the state and the defense, you can infer any reasonable theory of hypothesis of the defendant's innocence, you should acquit him, although