Undеr an indictment charging him with murder in the first degree, defendant was tried in the circuit court of Mississippi County, found guilty of murder in the second dеgree, and his punishment assessed at forty years’ imprisonment in the penitentiary. Defendant duly appealed to this court.
The evidence tends to show that about 9:30 p. m., November 20, 1914, at the town of Anniston, Mississippi County, Missouri, defendant shot one Roy Jеnkins, who, two days later, in a hospital at Cario, Illinois, died from the effects of said shooting. At the time of the shooting the appellant was about seventy-six years of age and was the marshal of the town of Anniston. The deceased, a short timе prior to the shooting, had become somewhat intoxicated and was complaining about some one having turned his horse loose and was threatening to paint the town “red” and “stand it on end” if he didn’t find his horse. In company with another he went out on the streets to look for the horse. He met the defendant, who told the deceased to go home and, upon his refusal, told the deceased “to consider himself under arrest.” The deceased refused to consider himself under arrest and walked away. A short time later deceased and his companion were standing near the telephone office, when the report of a gun was heard. Deceased and his companion turned and walked away and after going some distance deceased
Extra-judicial statements of the defendant were given in evidence, to thе effect that defendant had said that he went over to quiet the deceased and that deceased told him that hе could not arrest him and walked away; that the defendant followed him for the purpose of quieting him, and the deceased started toward the defendant and defendant jerked out his revolver and shot him. One other witness testified that defendant tоld him that he heard deceased say, “I am going to kill the old s— of a b— before daylight,” and that he thereupon “leveled dоwn and took a shot at him;” and he further stated, “I was sorry in a minute after I did it that I did so.” Defendant told another witness that, “If Boone Melton had stuck to me it would never have gotten out on me. ’ ’
There was evidence tending to show that the deceased was quarrelsome when drinking, and that defendant’s reputation for being quarrelsome was bad.
The defendant, in his own behalf, testified that he first saw the deceased early in the evening, on the street, produce a bottle of whiskey and pass it arоund among a crowd. Later defendant told deceased to go home. The deceased complained аbout someone having turned loose his horse. Deceased thereupon invited defendant to take another drink, defendant accepting the invitation to the extent of about one “spoonful.”
Later in the evening, defendant again came upon deceased who was using very profane language. The deceased then said to defendаnt, “You can shoot me but you can’t arrest me.” After this conversation the defendant started home and a little later heard loud talking near the telephone office and walked down in that direction and recognized the deceаsed and one Bryant Nunn standing some distance away, in the dark, and he heard deceased say, “I am going to kill the d— old gray-headed s— of a b— before I leave town.” Defendant testified that the threat frightened him very much. He further testified, “I just pulled out my gun аnd shot; I didn’t know whether I shot him or not. ’ ’ He thought the deceased was getting
Witnesses on behalf of the defendant testified that his reрutation for being a peaceful, law-abiding citizen was good.
In rebuttal, witnesses testified that they did not hear the decеased make the threat to kill the defendant and they also denied that deceased was advancing at the time thе shot was fired. One of the witnesses for the State testified that he was in a store when he heard the shot fired, and that about thirty minutes thereafter defendant came into the store and purchased a sack of tobacco. Someone inquired as to the occasion of the shooting, and defendant said, “It was somebody shooting at a dog, I guess. I wouldn’t let a rabhit run over me. I do not carry a gun, I keep it at home. ’ ’
The defendant was ably represented upon the trial of the сase, and his learned counsel now urge but two errors seeking a reversal of the case. These errors will be discussed in the opinion following.
I. In the indictment the word evidently intended for “premeditatedly” is spelled “premediatedly .” In other wоrds the first letter “t” is omitted from the word. Otherwise the indictment is in proper form, charging murder in the first degree, which also includes the elements of murder in the second degree.
It is quite apparent that the foregoing error is a clerical one and did not in any manner “tend to the prejudice of the substantial rights of the defendant upon the merits. ’ ’ This being true the above errоr did not render the indictment invalid. [Section 5115, R. S. 1909; State
II. It is further contended that the court erred in giving an instruction on murder in the first degreе.
The appellant was convicted of murder in the second degree. It is well settled in this State that the conviction of a crime lower than that charged renders harmless the error, if any, in the giving of an instruction concerning the higher degree. [State v. Wilson,
The judgment is affirmed.