*4151. Indictment for murder: conviction of manslaughter assisting suicide.*414In the circuit court of Jackson county, an indictment was preferred against defendant for the murder *415of his wife, Lizzie Ludwig, and charged that defendant, with a hempen rope which he tied around her neck and throat, choaked and strangled her to death. The evidence for the State tended to prove that defendant was guilty as charged, but was of such a character as also to warrant the jury in finding that the deceased hanged herself, and that defendant was present and aided and assisted her in the act of self-murder. Evidence for defendant tended to exonerate him. His counsel contend that he could not, under the indictment, which was for murder of the first degree, be convicted of manslaughter of the first degree, of which the jury found him guilty. By section 1289, Revised Statutes 1879, page 219, every person who deliberately assists another in the commission of self-murder, is declared guilty of manslaughter in the first degree; and it has so long been held, in this State, that under an indictment for murder, the defendant may be convicted of manslaughter, that it must be regarded as finally settled. Watson v. State, 5 Mo. 497; Plummer v. State, 6 Mo. 281; State v. Lane, 64 Mo. 319 In this indictment the defendant was charged with having murdered his wife by hanging her. The jury found that he did not hang her, but only assisted her to hang herself. If in any case, one indicted for murder may be convicted of manslaughter, this strikes us as peculiarly one in which it would be proper. Defendant only escaped a conviction for hanging his wife, by showing that he only assisted her in hanging herself.
2. practice. The court, in the momentary absence of the prosecuting attorney, examined some of the panel on the voir dire, touching their competency as jurors, and this is alleged as error. Such examinations are made for the information of the court to enable it to pass upon the competency of persons selected as jurors, and whether the proper questions are asked by the court, the prosecuting attorney or counsel for defendant is of no consequence.
*4163.-: evidence.*415Emily Overbeck, a witness for the defense, was asked *416“ if she had uot heard Mrs. Ludwig threaten to hang herself?” The court sustained an objection to the evidence, and of this defendant complains. If admitted, it would have tended to prove no more than that she hanged herself, and this the jury found without the evidence of Mrs. Overbeck. If defendant had been found guilty of murder, the exclusion of that evidence would have been an error fatal to the judgment, but as the jury to the facts which the evidence excluded tended to prove, and as this evidence would not in the least have conduced to show that defendant did not assist his wife to commit self-murder, its exclusion could not possibly have prejudiced him.
4. Assisting suicide. The objection to the third instruction for the State presents a grammatical rather than a legal question. The instruction is as follows : “ The court farther instructs the jury that if they believe from the evidence that the deceased, Lizzie Ludwig, came to her death by suicide or self-murder, and that the defendant, Jacob Ludwig, was deliberately present aiding and abetting, counseling, advising and assisting in the commission of self-murder, they will find the defendant guilty of manslaughter in the first degree, and assess his punishment at imprisonment in the penitentiary for a term not less than five years.” The statute declares that if one deliberately assist another in the commission of self-murder, &c., while the instruction declares that one is guilty “ if deliberately present and assisting.” The word “deliberately” qualifies both the words “present” and “assisting,” as much so as if, after the words “present and,” it had been reneated.
