
    The State v. Soper, Appellant.
    Division Two,
    February 21, 1899.
    1. Indictment: Returned on legad holiday. An indictment returned on a legal holiday is valid.
    2. Juror: CHALLENGED FOR oause. A challenge for cause must specify the ground therefor.
    
      3. Evidence: letters: in defendant’s handwriting, when admissible. Letters confessing the perpetration of the murder of defendant’s wife and children, found on a stand in his house, near their bodies, after the homicide, and dated on the day of the homicide, where written on defendant's letter heads, and signed with Ms name, and spattered with blood, and where defendant immediately fed from the State, are admissible, without proof of defendant’s handwriting.
    4. Insanity: evidence of. Evidence of a witness who had seen defendant only three times before the homicide, and who had no acquaintance with him, as to his conduct a short time before the homicide, was properly excluded, especially where his testimony, as elicited, showed no relevancy as to defendant’s insanity.
    5. -: -: hereditary. Defendant’s insanity can not be shown by evidence of insanity in his collateral kindred, from whom he is not descended.
    6. -: PHYSICIAN: OPINION BASED ON DEFENDANT’S STATEMENTS. A physician can not give his opinion of defendant’s sanity, based on previous statements made to him by defendant concerning his previous personal history.
    7. Witness: may be recalled for oross-examination. Permission to recall and further cross-examine expert witnesses is within the discretion of the trial court.
    8. -: extent of cross-examination. A witness examined in chief, though only on trival matters, may be cross-examined as to the whole cause.
    9. Insanity: opinion of witness. A witness may testify that a person is sane, without giving his reasons for his opinion.
    10. Practice: reading scientific books to jury. It is within the court’s discretion to refuse to permit counsel to read to the jury the writings of eminent physicians on insanity.
    11. Insane Impulse. The doctrine of "insane or uncontrollable impulse” is not indorsed in Missouri.
    .12. Murder: husband of wife: no double presumption of innocence. There is no additional presumption of innocence in the case of a husband charged with the murder of his wife, because of the marital relations.
    13. .-: insanity: instructions. In a prosecution for murder, where defendant’s insanity was the only issue, it was proper to refuse to charge that, if there was a single fact constituting an element of defendant’s guilt which the State has failed to prove beyond areason■able doubt, it is sufficient to raise a reasonable doubt.
    
      14. -: -: -: circumstantial evidence. A charge on circumstantial evidence is properly refused, where the only issue is as to defendant’s insanity, and the evidence in regard thereto is open, direct and oral.
    15. Juror: expressing opinion: affidavit. A decision of the trial court, that a juror had not expressed an opinion before he was impaneled, will not be disturbed, where based on the juror’s affidavit as against the affidavit of one other person.
    16. New Trial: cumulative evidence no ground. Newly discovered evidence which is cumulative is no ground for a new trial.
    17. -: affidavit. A motion for a new trial must be accompanied by defendant’s affidavit, unless a valid excuse is given.
    18. -: -: by attorney. An affidavit of defendant’s counsel, that they had not relied on defendant to furnish the facts or to show the condition of his mind, in reliance on the opinion of medical experts as to his mental condition, is insufficient to excuse the filing of an affidavit by defendant on a motion ■ for a new trial, where it is not further alleged that defendant was insane, or that the medical experts believed him to be insane, or that the affiants believed him. insane.
    
      Appeal from Cass Circuit Court. — HoN. W. W. Wood, Judge.
    AeBIKMED.
    Chas. W. Sloan, James T. Bubney and T. N. Haynes for appellant.
    (1) Tbe indictment having been returned by tbe .grand jury on a legal holiday was not sufficient to base a charge on against the defendant. (2) More than half of the panel of forty jurors had formed and expressed opinions as to defendant’s guilt, and so stated on their examination. The jury was not fair and impartial. (3) The court erred in admitting the letters in evidence. These letters were not properly identified and proven to have been written by the defendant. 1 G-reenl. on Ev., sec. 576; State v. Brown, 70 Am. Dec. 168; State v. Clinton, 67 Mo. 380. (4) The court erred in rejecting tbe testimony of McDonald in regard to defendant’s conduct a short time prior to tbe homicide. Clark y. Sawyer, 3 Sandf. Cb. 351; Burkhart v. Gladish, 123 Ind. 338; State v. "Williamson, 106 Mo. 162. (5) It was error to reject the evidence of witnesses in regard to the insanity of their relatives. It is proper to- prove insanity of deceased relatives from reputation in the family. 1 Nice on Ev., p. 415; 1 Greenl. on Ev., sec. 102; 2 Bishop on Grim. Proc., sec. 686; Gaines v. New Orleans, 6 Wall. 642; Need v. State, 16 Ark. 499. (6) It was error to refuse to allow physicians to testify in regard to their examinations of defendant. Physicians, giving their opinions as to the sanity or insanity of defendant based on their personal examination of him, have the same right to give the grounds of their belief, including the patient’s acts, conversation and conduct, as other witnesses have. Nailroad v. Ealvey, 104 Ind. 409; Nailroad v. Newell, 54 Am. Nep. 312; Barber v. Merriam, 11 Allen, 322; Brown v.Nailroad, 32 N. T. 591; Quaife v. Nailroad, 48 Wis. 513; Eckles v. Bates, 26 Ala. 655; State v. Gedicke, 43 N. J. L. 86; Nailroad v. Sutton, 42 Ill. 438. (7) It was error for the State to recall witnesses for defendant for cross-examination, upon the question of insanity, who had not been examined by defendant on that subject. Nheinfeldt v. Dahlman, 19 N. T. 162; State v. Thalheim, 38 Ela. 169; Houghton v. Jones, 68 U. S. 702; Donnelly v. State, 26 N. J. L. 463; Nice on Grim. Ev., p. 332. (8) (a) The court erred in permitting witnesses to give their opinions of the sanity of defendant without stating any facts upon which to base their opinions. State v. Klinger, 46 Mo. 224; State v. Erb, 74 Mo.x 199; State v. Crisp, 126 Mo. 609; State v. Shaefer, 56 Mo. App. 501; Buswell on Insanity, secs. 240-243; 2 Bish, Grim. Proc., secs. 678-680. (b) Nonexpert witnesses for the State, as well as for the defendant must first testify to the facts upon which they base an opinion as to defendant’s sanity before giving the opinion. Williams v. State, 39 S. W.Eep. 6 87; Hurst v. State^ 40 S. W. Eep. 264. (9) It was error for tbe court to refuse counsel tbe right to read as a part of tbe argument to tbe jury tbe writings of eminent physicians on tbe subject of insanity. Tbe writers were proven to be standard authority on tbe subject under discussion. Ins. Oo. v. Cheever, 36 Ohio St. 201; 24 Albany Law Journal, p. 266; MerMe v. State, 37 Ala. 139. (10) (a) Tbe court committed error in refusing instruction numbered 18, aslced by defendant. State v. Baldwin, 12 Mo. 223; State v. Lowe, 93 Mo. 547; State v. Duestrow, 137 Mo. 44; Dacy v. People, 116 Ill. 555; Bishop, Crim. Law, secs. 383b and 387. (b) Defendant, being charged with tbe murder of bis wife, was entitled to bis instruction numbered 19 asked, embodying tbe additional presumption of innocence by reason of such marital relations. State v. Mosley, 102 Mo. 374; State v. Leabo, 84 Mo. 168; State v. Watkins, 9 Conn. 47; State v. Green, 35 Conn. 205. (c) Instruction numbered 23 was erroneously refused by tbe court, and no instruction covering tbe law therein declared was given by tbe court. State v. Moxley, 102 Mo. 388. (d) Tbe court committed error in refusing instruction numbered 20, asked by defendant. Spies v. People, 12 N. E. Eep. 865. (11) (a) Tbe motion for new trial should have been sustained on tbe ground of newly discovered evidence. Tbe affidavits disclose newly discovered evidence which is not cumulative. State v. Murray, 91 Mo. 103; State v. Bailey, 94 Mo. 315; State v. Moberly, 121 Mo. 604; Longdon v. Kelly, 51 Mo. App. 572; 16 Am. and Eng. Ency. of Law, 575; State v. Bailey, 94 Mo; 315; Howland v. Eeeves, 25 Mo. App. 466. .(b) The newly discovered evidence, being a new kind of evidence tending to prove tbe insanity of tbe defendant at tbe time of tbe killing is material and relevant. Howland v. Eeeves,. 25 Mo. App. 466. (c) A sufficient reason appears why defendant did not and could not make affidavit in support of new trial and that Ms attorneys might make suck affidavit. State v. McLangMin, 27 Mo. Ill; State v. Nagel, 136 Mo. 50. (d) If it be doubtful kow tke newly discovered evidence would affect tke result, tke motion for new trial should be sustained. State v. Bailey, 94 Mo. 316.
    Edward 0. Crow, Attorney-General, and Sam B. Jef-fries, Assistant Attorney-General, for tke State.
    (1) Defendant, in kis motion for arrest of judgment leveled an objection against tke legality of tke indictment on tke ground that it was returned by a grand jury that was organized and impaneled on a day designated by law as a legal holiday. Tke objection is of no force. Tke law creating public holidays does not prohibit courts from transacting judicial business on suck days, as suck statutes and' proclamations are considered as mere recommendations that no labor be done or business transacted thereon. Pierson v. Bich-. ardson, 1 Cliff. 386. (2) Defendant in tke motion for a new trial alleges that error was committed by tke trial court in overruling kis challenges for cause of .certain jurors. Tke record fails to disclose an objection to tke competency of these men, or any oné of them as jurors in tke case. Suck objection must be made before trial commences, else defendant’s lips will be closed to any error that may be committed. C3) , Tke mere fact that jurors have read newspaper accounts of tke commission of a crime and have formed opinions from suck reading, which readily yield to tke evidence in tke ease, does not disqualify them as jurors. State v. Hunt, 141 Mo. 630; State v. Duffy, 124 Mo. 1; State v. Williamson, 106 Mo. 162; State v. Bryant, 93 Mo. 273. (4) No error was committed by admitting in evidence tke letters written' by defendant. Tke evidence was not only sufficient to show that they were written by him, but shows an admission upon kis part that he did write them. There was also evidence introduced to tke effect that tke letters were written on ‘ffiill-heads” belonging to defendant, and they were found in bis dwelling-house; in other words, practically in bis possession, all of wbicb are circumstances which point to the fact and tend to prove that they were instruments of bis own writing. This evidence was certainly sufficient to create the presumption that they were the act of the defendant and in fhe absence of proof to the contrary the presumption becomes conclusive against him. And the evidence of "VV. M. Hodges is, we think, sufficient to justify their admission. No objection was made by defendant’s attorneys upon their introduction, and without having made such objection his right to object will be considered as waived. Ivloes v. Wurmser, 34 Mb. App. 453; Publishing Go. v. Emerson, 64 Mo. App. 662. (5) While a non-expert may relate facts indicating insanity without giving an opinion himself as to defendant’s mental condition, yet such facts must be of such character as tend to show either sanity or insanity, as the case may be, and before a witness will be permitted to give opinion as to whether or not the defendant was sane or insane he must qualify himself by stating to the jury such facts as will enable the jury to know or to determine whether or not he had sufficient acquaintance with the defendant and was in such position as would enable him to properly judge from the actions, conduct and general demeanor of the defendant as to whether he was sane or insane. In the case of the testimony of the witness McDonald, it was shown that he was not acquainted with defendant, having never seen him before. He was in no condition to state sufficient facts upon which to base a finding or opinion of any kind, and the facts stated by him were of the ordinary kind pertaining to single transactions between strangers. If the witness, by reason of his testimony, disqualifies himself by stating that he was not well acquainted with the defendant, and by showing that he was not in a position to give facts that would warrant an opinion from him, no error can be committed by or imputed to the trial court in excluding his testimony. State v. Nlinger, 46 Mo. 224; Appleby y. Brock, 76 Mo. 314; Moore v. Moore, 67 Mo. 192. (6) An attempt Avas made by defendant to show by his mother, Mrs. Sarah Soper, that one Mrs. Nannie Messick, a cousin to defendant’s father, who formerly lived at Liberty, Missouri, and who at the time of this trial lived in Kentucky, and with whom the Avitness was acquainted, Avas at one time an inmate of an insane asylum. This question was objected to by the State and sustained and her answer stricken out. Such testimony is restricted to the declarations of deceased persons who were related by blood or marriage and who are knoAvn to be dead. "We submit that so long as the person charged with being an inmate of an asylum at some previous time, is living, hearsay evidence and general belief, in fact, the rumors among her relatives, is not admissible in support of proof thereof.. Doe v. Griffin, 15 East. 293. It has been said upon good authority that the general reputation of being insane is not admissible. 2 Bishop’s Orina. Proc., sec. 687; State v. Brinldy, 58 Ga. 296; State v. Choice, 31 Ga. 424. (7) Error is charged upon the part of the trial court in refusing to allow physicians Abraham, "Warden and Triplett to give an opinion on defendant’s sanity based upon or taking into consideration the statement made by him concerning his previous history. Upon the hypothetical question propounded to the physicians they were asked in addition to the facts testified to by other witnesses in the case, to include in their opinions upon the question of defendant’s sanity, the examination that they made of him outside of the courtroom, including the previous history of his life, as narrated to them by defendant himself. We submit this proposition to the court that an expert witness testifying to the sanity or insanity of the defendant can do so only upon such testimony as may be deemed to have been proved by evidence before the jury, or upon a physical examination made by bim of defendant outside of tbe courtroom. He will not be allowed to give an opinion as to bis sanity or insanity based upon and having for its foundation facts told to bim by persons outside of tbe courtroom. ' Then, clearly be could not base bis opinion upon tbe past bistory and conduct of tbe defendant as told bim by defendant bimself. Kailroad v. Ealvey, 104 Mo. 409. Tbe opinion of an expert must be based upon facts and not upon information, and unless tbe facts are shown or deemed to be proved, an opinion will not be allowed to be expressed. A physician can not be permitted to decide upon tbe credibility of witnesses, nor to take into consideration facts known to bim and not communicated to tbe jury. Koenig v. Globe Mutual Ass’n, 10 Hun. 558; Hunt v. Lowell Gas Light Co., 8 Allen, 169; Yan Zandt v. Ins. Co., 55 N. Y. 169; Bush v. Jackson, 24 Ala. 273; Bennett v. Eail, 26 Ala. 605; Burns v. Barren-field, 84 Ind. 43; Kailroad v. Ealvey, 104 Ind. 409; Yan Deusen v. Newcomer, 40 Micb. 120; Rogers on Expert Test., sec. 36; Wetherby v. Wetherby, 38 Yt. 454; Hudd v. Thing, 45 Me. 392. (8) Error is imputed to tbe action of tbe trial court in permitting tbe State to recall defendant’s witnesses for further cross-examination on tbe question of insanity when they bad not been examined by defendant on that subject. Tbe court acted within tbe scope of its authority and acted wisely in its ruling so as to get all tbe facts properly before the jury. Tbe State is not bound in the first instance to introduce evidence to prove tbe sanity of tbe accused. State v. Crawford, 11 Kan. 42. Whenever a witness is introduced and examined in a case be may be cross-examined as to all matters in tbe case, no matter bow formal and unimportant tbe examination in chief may have been. State v. Brady, 87 Mo. 142; State v. Sayers, 58 Mo. 585; 1 Groenl. on Ev., sec. 447; State v. Jones, 64 Mo. 397. It has been accepted as tbe rule to be followed in this State that the manner of tbe examination and tlie order of the witnesses is a matter resting within the discretion of the trial judge, and his actions will never be criticised or held erroneous, unless it appears that the discretion has been grossly abused. (9) It is insisted upon by defendant that the trial court erred in permitting certain witnesses to give their opinions as to the sanity of the defendant without stating facts upon which to base their opinions. They had properly qualified themselves to express an opinion. Sanity or insanity, from the nature of the case, must be shown by other than direct evidence, and therefore, it is only necessary to show that the witness had an opportunity to observe as to defendant’s demeanor, or manner of living in order to enable him to venture an opinion. State v. Baldwin, 12 Mo. 223. The evidence here' shows that the several witnesses were qualified to express an opinion; their statements of facts were sufficient to give the jury an understanding of that, upon which the opinions were based. This evidence is admissible. State v. Choice, 31 G-a. 424; Wood v. State, 58 Miss. 141. (10) In his argument to the jury the defendant’s attorney asked leave of the court to read from the works of an eminent physician upon the subject of insanity. This the trial court refused to do, and defendant alleges the action of the trial court to be error. Jurors are to be guided as to the law applicable to the case on trial, by what the trial judge presents them in the instructions, and not by what an attorney may read to- them from some law book or work upon the subject being considered. The law makes it the duty of the judge to fully instruct the jury upon all questions of law applicable to the evidence in the case and when such instructions are given, all the law that is necessary for the guidance and direction óf the jury is before them, and to permit attorneys to. read the law from books, would, in result, be nothing more than presenting a series of instructions which become both voluminous and burdensome, and which have been frequently condemned and criticized. Scott v. Scott, 124 Ind. 66; State v. Oline, 51 Ark. 140; Óood v. Mylin, 13 Pa. St. 538. It is true that the right of an attorney to read from books is an unsettled proposition in criminal cases as decided by the Supreme Courts of most of the states of this country, yet, in Missouri it has been held to be a matter of discretion with the trial judge. State v. Klinger, 46 Mo. 224; State v. Mahly, 68 Mo. 315. (11) Exceptions are taken to the instructions given by the court and also to the refusal of the court to give instructions asked by the defendant. A reading of the instructions found in another part of this brief will show that they are such as have been time and again approved by the court and such as meet the evidence in this case in all its phases. In fact, they are exceedingly fair and partial toward the defendant. • In support of the instructions given and of the action of the court in refusing those offered by defendant, we cite the following authorities. State v. Hating, 21 Mo. 464; State v. McCoy, 34 Mo. 531; State v. Smith, 53 Mo. 267; State v. Hundley, 46 Mo. 414; State v. Simms, 68 Mo. 305; State v. Eedemeier, 71 Mo. 173; State v. Hunt, 141 Mo. 627. The fact that defendant obeyed an uncontrollable impulse is not sufficient excuse to justify the commission of the act under the plea of insanity. State v. Pagels, 92 Mo. 300. (12) It will be observed that the affidavits of witnesses, upon whose testimony the new trial is ask,ed, disclose the fact that the evidence there sought is of a cumulative character only and that it would in no wise change the result of the case. In such cases the trial court commits no error in overruling the motion. State v. Woodward, 95 Mo. 129; State v. Murray, 91 Mo. 95; State v. Nagel, 136 Mo. 50; State v. Campbell, 115 Mo. 393; State v. Potter, 108 Mo. 424. Not only does it appear that this evidence would be cumulative, but that it was at all times of easy access and could have been, by diligent inquiry, readily' obtained.
   SHEEWOOD, J.

Defendant was indicted and convicted of murder in the first-degree for hilling his wife, Delia Soper, on the night of the twenty-first day of April, 1891. He lived in the village of Archie, Oass county, Missouri, with his wife and two children, where he was engaged in the business of a “butcher,” modernly designated as a “meat market.” He sold out his business a few days before the tragedy, and had arranged to move his family to Adrian, where he intended to engage in the dairy business. His family relations had always been pleasant and agreeable, in fact, he had the reputation of always being exceedingly kind and affectionate to his wife and two children, a boy and girl, aged three and six, respectively, being looked upon by all who knew him as a model husband. He was frequently seen with his family, and was apparently devoted to them. While not a member of any church, he was a regular attendant at the Christian church with his wife, of which she was a member. After he had disposed of his business at Archie he made trips to different places, and made numerous inquiries with a view of finding a good location to engage in some business. On the evening of the tragedy he went home, but did not retire. About 11 o’clock, after his family had gone to sleep, he procured an ax, went to the bedside of his wife and little son and killed them by striking them on the head; he struck his wife three blows and the little boy- one lick. After he had made sure of his deadly work at this bedside, he passed into an adjoining room, where the little six-year-old daughter was sleeping, and dealt her two death blows in the same manner and by the same means. After having murdered his family he stood the ax against the wall in the room and near the bed of his dead wife and son. He then went to the kitchen and washed his hands in a pan of water, wbicb be left sitting on tbe stove. Erom there be returned to tbe room where be bad billed bis wife, drew a stand table on wbicb was found a Bible, lamp and some writing material, near tbe bedside of bis dead wife, and wrote two letters, one to tbe editor of tbe Kansas City Times and one to M. ~W. Hodges, a resident of Archie, wbicb be sealed and left on tbe stand. Tbe letters were as follows:

“Archie, Mo., 4 — 21—’91.
“M. IV. Hodges. You will find inclosed with this a letter for tbe K. C. Times. Please send it to them, as I wish it published.
“My family relations have always been of tbe most pleasant kind. Give my wife and babies a decent burial, and sell what I have to pay tbe expenses.
“Yours truly,
“E. B. SOPEE.”
“P .S. You will find tbe key to this bouse above tbe door, outside. Also, collect what is due me from parties here. You will find it all on my book here.
“E. B. S.”
“Archie, Mo., 4 — 21—’91.
“Editor K. 0. Times:
“Is life worth living?
“Eight years ago I was released from tbe penitentiary. Since then my life has been a failure. ' Eor four years I tried to live in my native county, but continually met with reminders of my disgrace, sometimes one way and then another. I went to Arkansas, hoping to feel better, but tbe trouble of my disgrace followed me and has been a burden to me all tbe time. No matter bow well any one tries to live after being in tbe pen, if be has a sensible nature, there is always someone or something to remind him of bis disgrace and make life miserable. But I might have borne this, if' it bad not been for another trouble. Since I came to Arcbie I have attended church some, and have been studying about my spiritual welfare.
“There is a time, we know not when;
A place we know not where;
That marks the destiny of man To glory or dispair.”
“In other words, man reaches a point beyond which there is no redemption. He can not repent if he would. This is my condition. Tell me then, is life worth living? It was only a question of time when I should leave my family forever and ever. I do not care to live any longer, and rather than leave them in this sinful world, I’d rather take their lives. I believe I am merciful, for I don’t want them to suffer as I have.
“I am going from here to Olay county to kill a devil that has been mainly the cause of all my trouble. Then I shall end my miserable existence, Before this reaches you my spirit will be wandering beyond the shores of time, across the dark Jordan of death; and now with a bruised and bleeding heart I bid farewell to all that is near and dear. My friends, weep not* for me. Endeavor to so live that you may escape the punishment that has been my lot. Eare-well.
E. B. SOPER.”

After writing these letters he opened the Bible and read until five o’clock the next morning, when he shut up the house, locked it, went to the railroad depot, bought a ticket to Kansas City, and left on the early morning train that passed through Archie about that time. He was seen on the train, and said he was going to Kansas Oity to attend to some business. He remained in Kansas City about thirty minutes, when he boarded another train, and went to Portland, Oregon. The dead bodies of defendant’s wife and children were not discovered until three days after the commission of the crime. Defendant remained in Oregon from the time he went there in April, 1891, until June, 1891, when arrested and brought back to this State. He had assumed the name of Homer Lee and had become the owner of a fruit farm near Ashland. - M. W. Hodges, to whom he had written the letter already quoted, went to see him after he had been brought back and of that -visit Hodges gives this account: “I saw Mr. Soper sometime after he was brought back from Oregon; I asked him. what time the trouble happened down there; I didn’t ask him if he killed his folks; he said about 11 o’clock. I asked him, I says, you never went to bed that night; he says, no I didn’t; I says, the letters you wrote to me and the Kansas City Times, you wrote them after the trouble, didn’t you? he says, yes six; I says, I thought you did, I saw some blood stains on them. I asked him, I says, you didn’t'go to bed? He says, no I sat up and read; I asked him what was the reason he didn’t go and kill that devil up in Olay county that had caused all that trouble, that he mentioned in the letter; he said he was afraid he wouldn’t have time; he says, I only stopped half hour at Kansas City, about a half hour; says, I went from there to Omaha and from Omaha — I don’t know whether he said he went to Tacoma or not; anyhow he went from here to Portland; at Portland, I think, he said he stayed four days; then he hired out on a ranch at Portland; said he worked on that ranch pretty near two years, then he went back to Portland, and stayed in Portland four years, then he went down, I believe he said to Ashland, and was there nearly two months.”

It was also in evidence that defendant told witness H. N. Love, that he never formed the intention of murdering his family until the evening of its occurrence; that he took off his wife’s ring after he had killed her, found it too large for his little finger and so he took it out to Oregon with him and had it so altered that he could wear it (giving the jeweler’s name who altered it) and that he afterwards wore that ring.

The plea of insanity was interposed as a defense; evidence was introduced for tire purpose of showing that defendant’s grandmother, on his mother’s side, was of unsound mind during the last four years of her life and tried on several occasions to kill herself, etc., etc. Physicians J. L. Warden, J. S. Triplett and I. M. Abraham were introduced to prove that defendant, by reason of his family connections and previous life, was predisposed to insanity, and, at the time of the act was insane. They testified from their examination of defendant and the hypothetical questions put to them while on the witness stand that defendant was affected with that form of insanity known as paranoia, complicated with religious delusions, or delusions of a religious character. There was also much more testimony both expert and otherwise, of a contrary effect to that intrduced on behalf of defendant, showing that the latter was as sane as any one, and supporting the testimony of Hodges and others as to incriminatory admissions of defendant as to the perpetration of the crime, and referring to, and thus identifying, the letters he had written and left on the stand.

If the defendant was sane when the homicide occurred/ he was guilty of a crime startling in its atrocity. The wife of his bosom, the mother of his little children and soon to become the mother of another, was, while sleeping in her bed, cruelly slain with an ax; then in quick succession his murderous blows fell on his little boy as he lay sleeping beside his mother, and then on his little daughter asleep also in her bed in an adjoining room. After this was done defendant went into the kitchen, washed his bloody hands, and then calmly sat down to write the letters heretofore set forth in evidence; and sat up and read till early train time, locked the door and departed with all expedition and without delay for Oregon, where he changed his name, acquired property, and successfully eluded pursuit for over six years.

Tbe jury have found tbe issue joined between tbe State and defendant, adversely to tbe latter. Tbe counsel appointed by tbe court to conduct tbe defense, bave with commendable zeal suggested many errors as sufficient to authorize a reversal of tbe judgment.

1. Tbe indictment was not invalidated by reason of having been returned on a legal holiday. [1 Bishop, New Grim. Proc., sec. 1001, and cases cited.] This is tbe invariable rule unless tbe statute in terms forbids. [Ib.]

2. Counsel assert that “more than half tbe panel of jurors bad formed and expressed an opinion as to defendant’s guilt, and so stated in their examination.” And their first ground in tbe motion for a new trial states that “tbe court committed error in overruling defendant’s challenge for cause of jurors J. H. Moffat, J. L. Prigmore, S. C. Hiñóte and W. W.' Morían.” These assertions thus made have compelled an examination of tbe record covering many pages, with tbe result that it does not disclose a single challenge made nor a single exception saved as to any juror. It really seems that counsel who tried this cause in tbe court below, and now represent defendant here, might bave spared this court such wholly unnecessary and useless labor. And if challenges “for cause,” bad been made as to any jurors, such challenges would bave amounted to nothing, because of not specifying tbe cause. [State v. Taylor, 134 Mo. loc. cit. 142, and cases cited.]

3. There was no error in admitting tbe letters already referred to as letters of defendant. Circumstances heretofore detailed leave no doubt on tbe mind that defendant was conversant with tbe contents of those letters, and those letters are a virtual admission, indeed, almost an admission in terms, that defendant slew bis wife and children on tbe night those letters bore date. In addition to that, they were signed with bis name, written on bis letter beads, and were found at tbe scene of tbe tragedy, spattered with tbe blood of tlie innocent victims. In such circumstances, to require proof of defendant’s handwriting before reading the letters in evidence would be to disregard and fly in the face of the most obvious and reasonable inferences drawn from closely surrounding facts.

4. The refusal to admit the testimony of McDonald touching the conduct of defendant a short time before the homicide, was entirely proper. He had only seen defendant three times, and had no acquaintance with him, and the testimony of McDonald as elicited showed no relevancy to the subject under discussion, to wit, the insanity of defendant, and therefore further testimony of like sort could serve no useful purpose.

5. A portion of Mrs. Soper’s testimony was admitted and a portion rejected. That thus rejected was inadmissible because it related to the collateral kindred of defendant, and did not show that defendant was descended from that blood which bore the taint of insanity; and consequently such testimony was, of course, irrelevant to the issue joined, to wit, insanus vel non. [State v. Pagels, 92 Mo. loc. cit. 301, 308.] This view of the subject renders unnecessary any investigation into questions of pedigree, declarations of relatives, reputation in the family, etc.

6. Counsel charge that error occurred in the court’s refusal to admit Abraham, Warden and Triplett, physicians, to give opinions touching defendant’s sanity based on statements made by him concerning his previous personal history. His statements in such case are hearsay and furnish no ground whereon to build an expert opinion in regard to his sanity. This point needs no further discussion as it is abundantly settled by authority. An expert can not be allowed to give an opinion based upon statements made to him by parties out of court and not under oath. [Van Deusen v. Newcomer, 40 Mich. 90; 2 Bishop, New Crim. Proc., sec. 683, and cases cited; 1 lb., sec. 1119, and cases cited; Whart. Grim. Ev. (9 Ed.), sec. 418, and cases cited; Hurst v. Railroad, 49 Iowa 76.]

His opinion to be admissible must be founded either on bis own personal knowledge of the facts, upon facts testified to in court, or else upon a hypothetical question. [Rogers Exp. Test., secs. 86 and 46; Railroad v. Huntley, 38 Mich. 537.] This point, therefore, must be ruled against defendant.

7. It was entirely within the discretion of the trial court whether to grant or refuse permission to the State to recall and further cross-examine certain witnesses of defendant who had testified on the subject of insanity. [State v. Smith, 80 Mo. 516; St. Louis v. Foster, 52 Mo. loc. cit. 517.] And whenever a witness who has been introduced and is examined in chief in a cause, even on the most trivial and unimportant matters, he may be cross-examined upon the whole cause. [State v. Brady, 87 Mo. 142; State v. Sayers, 58 Mo. 585; 1 Greenl., Ev., sec. 447.] This rule is .well established in this State.

8. It is urged on behalf of defendant that in permitting witnesses Maude.Hewitt and others to give their opinions respecting the sanity of defendant without stating the facts upon which they based their opinions, the trial court erred. Ordinarily, a lay witness is required, when giving an opinion that, such a person is of unsound mind, to give the facts on which he founds that opinion. Not so, however, when he gives expression to an opinion that such person is sane, for in that case the subject of the testimony would not give manifestations of certain eccentricities which usually mark the conduct of mind diseased. [Ford v. State, 71 Ala. 385; 3 Rice, Ev., sec. 21.]

9. It belongs to the court to give the law applicable to the jury, whether that bears on the science of medical jurisprudence or not. Therefore the court was entirely right in refusing to let counsel for defendant read as a part of their argument to the jury the writings of eminent physicians. The court bad it within its-discretion to grant such permission; it could not be demanded as a matter of right. [State v. Klinger, 46 Mo. 224; State v. Mahly, 68 Mo. 315.] And in concluding this paragraph, I can not refrain from saying, what many others in similar positions have said, that courts, as the years go by, place a lessening reliance on the value of expert testimony in relation to the subject of insanity. Indeed, on this bench for a long period of years we have had murder cases coming up from the largest city of this State, and wherever and whenever a distinguished expert and author on insanity was called on the witness stand, he invariably made out the defendant to be insané.

10. Error is charged to have occurred in the refusal of the trial court to give instruction 18 asked on the part of defendant. It is the following: “On the question of sanity or insanity of the defendant, you will consider all the evidence offered in the case; the life, habits and conduct of the defendant from his infancy to the present time, so far as the same are shown in evidence; the habits, conduct and mental condition of his ancestors; the homicide itself and the circumstances attending it; the absence or presence of any motive for the conduct of defendant as shown by the evidence and all the testimony bearing upon the question of his sanity. And if you find that the defendant was at the time of the homicide insane and irresponsible from any disorder or disease of the brain, resulting in such a derangement of the mental faculties that he had no capacity to distinguish right from wrong as to the act with which he is charged [or that he was impelled by an insane impulse and his powers were so impaired by disease that he could not restrain himself from doing the act], then the defendant is not responsible in law, and you ought to find him not guilty.”

There exists this reason why error can not be successfully imputed to the court below on account of this refusal: In the first place, the instruction asked was substantially similar to instruction 13 already given except that portion of 18 embraced by the brackets, and besides this court does not indorse the doctrine of “insane or uncontrollable impulse,” under the influence of which a homicide may be sane just the instant before he strikes the fatal blow, and sane just the instant afterwards, but entirely non compos during the instantaneous interval. [State v. Pagels, 92 Mo. loc. cit. 317; State v. Levelle, 34 So. Ca. loc. cit. 131.]

11. Instruction 19 counsel next insist the court should have given is as follows: “19. The court instructs the jury that the law presumes the defendant innocent of the crime charged against him, and this presumption abides and remains with him throughout the trial, unless it is overcome by evidence which establishes his guilt beyond a reasonable doubt. A juror is understood to entertain a reasonable doubt when he has not an abiding conviction to a moral certainty that the party accused is guilty as charged. Tou should acquit the defendant if you entertain a reasonable doubt as to his guilt; and you should also acquit him if it is not as reasonable, considering all the facts and circumstances proven, to- conclude that he is innocent, as to conclude that he is guilty, or if all the facts and circumstances can be reasonably reconciled with any theory other than that of guilt. And you are further instructed that in addition to the legal presumption of innocence specified above in this instruction, there is the further presumption of innocence of the defendant, E. B. Soper, in this case by reason of the marital relations between him and the deceased, Delia Soper. The law presumes that the defendant would not criminally take the life of his wife. Both of these presumptions the State, by the evidence, must overcome beyond a reasonable doubt, before you can convict the defendant.”

As to tlie portion of that instruction relating to the ordinary presumption of innocence, reasonable doubt, etc., the ground had been sufficiently and previously covered. As to the residue of that instruction in reference to an added presumption of innocence in favor of a husband charged with murdering his wife, I have this to say, that subsequent reflection has satisfied my mind that this court went too far in Leabo’s Case, 84 Mo. 168, in holding that there existed in the law of evidence, such an added presumption of innocence. The doctrine of that case on that point was incident-ally approved .(not being raised in the court below) in Moxley’s Case, 102 Mo. 314. I think both those cases should be overruled. If they are to stand, it would result and logically- follow, that such doctrine must necessarily be extended to every near blood relation of the immediate family of the person accused; no reason exists why it should not, and every one that it should, be thus extended. There is no more reason why a married man accused of the murder of his wife, should have this two-ply presumption thrown around him, than a single man charged with the murder of his sister or his brother, father or mother. ."Whence I conclude, that an old-fashioned one-ply presumption of innocence is amply sufficient for all practical purposes of the administration of the criminal law.

12. The last instruction, the refusal of which is asserted as error, is numbered 20 in defendant’s series, and reads in this way: “The court instructs the jury that it devolves upon the State to prove the guilt of the defendant beyond a reasonable doubt, as charged; and if there is any one single fact constituting an element of the defendant’s guilt as charged, which the State has failed to prove beyond a reasonable doubt, this alone is sufficient to raise a reasonable doubt and the jury should acquit the defendant. You are further instructed that you must not only be satisfied beyond a reasonable doubt that all the circumstances proved are consistent ivith tbe guilt of tbe defendant, but you must also be satisfied beyond a reasonable doubt tbat tbe facts are sueli as to be inconsistent witb any other rational'conclusion than tbat tbe defendant is guilty of tbe crime as charged.”

Tinder tbe theory upon which this cause was tried, tbe simple and single issue joined between tbe State and tbe defendant was, as above said, inscmus vel non; such a defense, tbe joining of such an issue, is tantamount to a plea of confession and avoidance; tbe homicide is confessed, but tbe guilt, tbe crime of tbat homicide denied, and this is all tbat is denied; for it stands to reason tbat on no other ground would tbe plea of insanity have any pertinence or relevance in it. [State v. Bagels, 92 Mo. 300; State v. Welsor, 117 Mo. 570.]

This being tbe case, it was wholly unnecessary, indeed it would have been misleading, to have instructed tbe jury on tbe subject of circumstantial evidence.' In short, there was no circumstantial evidence about who did tbe homicide, tbat was indisputable, while all tbe evidence as to defendant’s mental condition was open, direct and oral. This is enough on tbe point being discussed; tbe instruction was rightly refused.

13. Tbe motion for new trial alleges among other things tbat "W. W. Morían bad formed and expressed an opinion before be was impaneled. Tbe affidavit to tbat effect filed by Mrs. Florence Kemper, was opposed by tbat of Mr. Morían, and tbe trial court disbelieved tbe former, and believed tbe latter affiant, and no reason is discovered for disagreeing with, or disapproving of tbe action of tbe court. Our invariable rule is tbat we wifi not interfere in cases of this sort where affidavits are pro and con, unless some case far stronger than tbe one presented comes before this court. [State v. Howard, 118 Mo. loc. cit. 136, 137; State v. Taylor, 134 Mo. 109; Morgan v. Ross, 74 Mo. 318; State v. Gonce, 87 Mo. 621; State v. Cook, 84 Mo. 40; State v. Nocton, 121 Mo. 537.]

14. Tbe motion for a new trial in so far as based, on newly discovered evidence is fatally defective in tbis particular, to wit, tbe affidavits filed by different persons, only disclose cumulative evidence, that is evidence of tbe same kind to tbe same point.

15. But an objection equally fatal to tbe motion for a new trial based on evidence newly discovered, consists in tbe fact that there is no affidavit on tbe part of defendant. Such affidavit must be filed or a valid excuse given for such failure. [State v. McLaughlin, 27 Mo. 111; State v. Campbell, 115 Mo. 393; State v. Nagel, 136 Mo. 45; State v. Hunt, 141 Mo. 626.] Tbe affidavit of defendant’s counsel offers tbis as an excuse: That since they were appointed counsel for defendant be has been closely confined in tbe Cass county jail; “that they bad found it necessary to put up tbe plea of insanity for him; that affiants bad said defendant prior to tbe trial of said cause examined by reputable medical experts as to his mental condition and that relying upon tbe opinion of said medical experts as to tbe mental condition of said defendant and on other facts touching tbe mental condition of said defendant which came to affiant’s knowledge, they have not rebed upon defendant before tbe trial of said cause to furnish tbe material facts or names of witnesses by whom facts could be shown or proven, to show tbe condition of tbe mind of tbe defendant at tbe time of tbe alleged murder; that by reason of all tbe facts aforesaid we have not prepared or bad signed any affidavit of said defendant in support of tbe motion for a new trial in tbis cause.”

It is hardly necessary to say that tbis vicarious affidavit affords no semblance of an excuse for tbe omission of tbe principal one, since tbe affidavit commented on, does not allege that defendant was insane or that the medical experts believed him to be insane, or that affiants so believed him.

Having carefully examined the record and finding no error prejudicial to the defendant therein, the judgment will be affirmed and the sentence pronounced by the law is hereby directed to be executed.

All concur.  