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State v. Dipley.

duties. While it must be said that it was a most indiscreet act in the sheriff to accept such an invitation under the circumstances disclosed, yet we cannot overlook the fact that the incumbent of that office may be and frequently is a man who has not the highest sense of propriety in such matters. And it does not follow that because of such conduct, public and unconcealed as it was, there was official wrongdoing, or that an inference should be drawn that the sheriff was prejudiced against the defendants and unfit to discharge the duties of his office in their case. The rule is well settled in this State that an appellate court will not reverse the ruling of the trial court in such a matter, unless the action reviewed amounted to an abuse of discretion, and clearly such a showing was not made in this case. [State v. Leabo, 89 Mo. 1. c. 252; State v. Mathews, 98 Mo. 1. c. 121; State v. Hultz, 106 Mo. 1. c. 51; State v. Lanham, 144 Mo. 1. c. 38; State v. Hunter, 181 Mo. 1. c. 333.]

III. Complaint is made that the court refused defendants' request to disqualify jurors Heggan and Brown upon their voir dire examination. No reason was given for the challenge as to said jurors except the general request that they "be excused and discharged from the panel." Such a challenge does not direct the court's attention to the specific ground of disqualification and, under the repeated rulings of this court, is no challenge at all. [State v. Fields, 234 Mo. 1. c. 622; State v. Wooley, 215 Mo. 620; State v. Bobbitt, 215 Mo. 10.]

IV. It is claimed that the court erred in permitting the examination of certain talesmen before two others whose names appeared earlier on the list. Also that the court erred in not allowing each of the defendants twenty peremptory challenges. As to the former complaint it is sufficient to say that no objection was made to the order of examination until after the

State v. Dipley.

juror had been examined, and that no possible prejudice could have resulted from the action of the court complained of; and as to the latter, that the statute, section 5224, Revised Statutes 1909, expressly denies the right asserted.

V. A number of errors are assigned to the rulings of the court in the exclusion and admission of testimony over the defendants' objections. We have carefully examined such rulings and have concluded that they are free from prejudicial error. Space forbids that we should take up each of these complaints, and we shall therefore notice only those of most merit.

A witness for the State had been cross-examined by defendants' counsel upon the subject of the deceased carrying a revolver upon his person, and an unfavorable inference was sought to be created by such fact. The prosecuting attorney, on redirect examination, asked the witness if he knew why the deceased carried a gun. No objection was made to this question, but when the witness answered that the deceased said he carried it to practice target shooting and that he was ambitious to become a good shot, the defendants then objected to the testimony and asked that it be stricken out for the reason that it was incompetent, irrelevant and immaterial. The court refused to strike out the answer, and appellants assign error in such ruling.

It is competent for the accused, in a homicide case, to prove why he was carrying a weapon at the time of the encounter, in order to negative a criminal purpose. [State v. Kretschmar, 232 Mo. 29.] But it would not be competent to prove such fact by statements made by the defendant when he was not under oath, and we have been unable to find any exception to the rule against hearsay which would make Ketchel's statements competent as to why he carried a

State v. Dipley.

weapon. However, the ruling of the court cannot be held prejudicial error, for two reasons:

First: The defendants did not object to the evidence for the reason that it was hearsay, and a general objection was not sufficient to direct the attention of the court to such ground of incompetency. [State v. Pyles, 206 Mo. 1. c. 632.]

Second: The fact had been brought out by the defendants, on the cross-examination of the State's witnesses, that the deceased had been carrying the same revolver around there and shooting with it before the difficulty with the defendants. Therefore the answer asked to be stricken out was merely a restatement of the same matter brought out by defendants, and we are unable to see how they could have been prejudiced by such testimony.

The defendants offered in evidence a certified copy of a judgment of conviction rendered by a police court in the State of Montana, against Ketchel, for the offense of cruelty to animals, which, upon objection by the State, the court excluded. The State offered evidence tending to prove Ketchel's good character for morality at Springfield, where he had resided for about two months, which evidence the court admitted over defendants' objection, and appellants now complain of both of said rulings.

When a dying declaration is admitted in evidence, the credibility of the declarant may be attacked and sustained as in the case of a living witness. Under this rule it was competent for the defendants to attack Ketchel's reputation and for the State in turn to sustain it. A witness may be impeached by proving that he was convicted of a criminal offense. The purported transcript of the judgment offered in evidence was certified under the hand and seal of the police judge. There was no showing that the police judge was ex-officio clerk of his court, nor was there other authentication of the judgment. The transcript of the

State v. Dipley.

judgment was not authenticated in accordance with the requirements of the State or Federal statutes, and the court did not err in excluding it. [Section 6331, Revised Statutes 1909; Section 905, vol. 3, p. 3711; Revised Statutes of Missouri 1909 (Sec. 905, U. S. Compiled Statutes 1901); Stevens v. Oliver, 200 Mo. 492; State v. Foreman, 121 Mo. App. 502; Crone v. Dawson, 19 Mo. App. 214.]

The defendants' testimony tending to prove that Ketchel was a prize fighter and the assault upon Goldie Smith, was such an attack upon his character as authorized the State to introduce testimony of his good moral character in support of his credibility. [State v. Lovitt, 243 Mo. 510; State v. Speritus, 191 Mo. 24; State v. Jones, 191 Mo. 653; Underhill on Criminal Evidence (2 Ed.), sec. 418.]

VI. It is contended that the court erred in admitting the alleged dying declaration in evidence, for the reason that it was not shown by the testimony that the declaration was made under the belief of impending death.

It was in evidence that the deceased was shot through the lung and that the blood commenced flowing into the pleural cavity immediately, thereby making his breathing difficult. That when wounded, deceased did not go outside of the house to give the alarm, but ran to his bed and did not leave it until removed by others. That his condition continually grew worse and he was suffering great pain and was groaning. That he said he could tell from his breathing that he was shot through the lung, and repeatedly stated, "I guess they have got me." These facts and others detailed by the witnesses proved that the declarant believed he was fatally wounded and that he was conscious of the near approach of death. All the requirements of the law as to the admissibility of a dying declaration were met by the facts and circum

State v. Dipley.

stances in evidence, and we hold the court did not err in admitting it. [State v. Lovell, 235 Mo. 343; State v. Gow, 235 Mo. 307; State v. Kelleher, 201 Mo. 614.]

VII. Defendants requested the court to instruct the jury upon certain questions of law, including the law upon dying declarations, and they now complain that the court failed to instruct upon the subject of such testimony.

This court has held it error to instruct that a dying declaration is entitled to the same credibility as if the declarant had been examined under oath as a witness and testified in court to the same facts. [State v. McCanon, 51 Mo. 160; State v. Vansant, 80 Mo. 67.] On the other hand, it was held in the case of State v. Reed, 137 Mo. 125, that the court did not err in refusing an instruction asked by the defendant telling the jury that such declarations were not entitled to the same weight as the testimony of the declarant, were he a witness testifying in court. It was further held in the Reed case that such an instruction would have been objectionable as a comment upon the evidence. Under these authorities the court properly refused to give the instruction requested.

VIII. Many errors are assigned to the giving of instructions for the State. The main complaints are lodged against instructions numbered 2, 6, 7, 14 and 15.

Number 2 is attacked upon the ground that it does not define the adverbial terms "feloniously," "wilfully," "deliberately," etc., and because it does not submit to the jury the question whether or not the defendant Dipley "feloniously, wilfully," etc., shot the deceased.

The words referred to were properly defined in instruction numbered 5, and it was not necessary to

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