denied having anything to do with the incorporation of plaintiff, or any knowledge of its incorporation, until such time as the deed was made, when the incorporators directed the deed to be made to plaintiff. For them the evidence shows that Newhouse got all the property at St. Joseph and Topeka, and out of it paid Martin, the real estate man at Topeka, $1,250, and Brewster, of St. Joseph, $450. They testify that to the four promoters of plaintiff corporation but one price was ever made by the defendants Newhouse and the Crommers, and that was $37,500. This price was fixed by Newhouse, and the Crommers acquiesced in it, knowing that Newhouse was to get the difference between $21,000 and $37,500. The evidence also shows that the property was in fact worth $40,000 or more when plaintiff acquired it. In fact, Doyle, one of plaintiff's stockholders and its general manager, makes an estimate of the timber on the land, which would show that the property must have been worth $40,000 or more. Such further portions of the evidence as may be necessary will be noted in the course of the opinion.

R. A. Holland and Rusk & Stringfellow, for appellant. Smith & Marbury, O. L. Munger, and W. S. Anthony, for respondents.

GRAVES, J. (after stating the facts). The record discloses many lapses of memory in the witnesses. Nor is this confined to one side of the cause. Again, plaintiff's general manager, Doyle, in effect admitted that he had been promised a consideration by Maxwell to testify as he (Maxwell) did. The testimony of Newhouse and Ewart is by no means clear and satisfactory, but to one used to the many schemes of real estate agents, where they are to get other than a fixed commission, a fair conclusion can be drawn from it. This, however, we will discuss hereafter.

"A

1. First, were Newhouse and the Crommers in any sense promoters of the corporation? Under the evidence, we say: No. The trial court was amply justified in finding that the parties were not promoters. "Whether a person is or is not a promoter is a question of fact, and not of law, and must in each case, be determined with due regard to all the circumstances." 23 Am. & Eng. Ency. of Law, p. 233. The same authority (at page 232) defines "promoter" thus: promoter is a person who takes such preliminary steps in the formation of a corporation as to bring himself into a fiduciary relation thereto, analogous to that of trustee and cestui que trust." Cook on Stock and Stockholders, § 631, gives the following definition: "A promoter is a person who brings about the incorporation and organization of a corporation. He brings together the persons who become interested in the enterprise, aids in procuring subscriptions, and sets in motion the machinery which leads to

the formation of the corporation itself." Our court has adopted practically the same definitions. Exter v. Sawyer, 146 Mo. 302, 47 S. W. 951; Land Co. v. Case, 104 Mo. 572, 16 S. W. 390. There is nothing in this evidence to bring Newhouse or the Crommers within the definition of a promoter; no evidence here that they helped organize plaintiff corporation. Haus, Ewart, Maxwell, and Hartwig had agreed to go into the sawmill business and to organize a corporation before they ever saw either Newhouse or the Crommers. They had also agreed, before they ever saw Newhouse or the Crommers, that Haus and Ewart should put in property, instead of cash, if they could do so. They had agreed upon all the stockholders of the corporation. These agreements and understandings were in St. Joseph, before Haus and Ewart went to Elsinore, the location of the Crommer plant, where they for the first time met the Crommers and Newhouse. Newhouse and the Crommers in no way solicited subscribers to the stock of the contemplated corporation. No court could, under the evidence in this record, say that these parties were promoters; so that it follows that, upon this theory of plaintiff's case, the defendants Newhouse and the Crommers are not liable. This, of course, leaves out of consideration the alleged conspiracy between Ewart, who was a promoter, and Newhouse and the Crommers. This we consider next.

2. Plaintiff next urges that, even if New. house and the Crommers were not technically promoters, yet Ewart was a promoter, and, if Newhouse and the Crommers aided and abetted him in the perpetration of a fraud upon the company, they are liable in a joint action with Ewart. There is no question that Ewart was a promoter. Now, as to the alleged conspiracy between Ewart, Newhouse, and the Crommers. To show this conspiracy to defraud the corporation by raising the price from $21,000 to $37,500, plaintiff showed that Haus put in property not worth more than $4,500 for $8,750; that Ewart claimed to put in the property of his father, not worth more than $4,500, for $7,500, but in fact put in no property at all; that the Haus property was deeded to one Edwards, a friend of Ewart, and Edwards placed a loan thereon for $2,200, and out of the proceeds paid Brewster $450 and turned over the remainder to Ewart; that Edwards afterwards deeded the Haus property to Carrie Thorn, the fiancée, and later the wife, of Newhouse; that Newhouse afterwards sold the property for less than it was worth. They also show by Kirkland, who became the timberman for the company, after the purchase from the Crommers, and who was in the service of the company at the date of the trial, that Wm. Crommer had admitted that Haus and Newhouse raised the price of the property and that he knew it. This is in substance the plaintiff's case upon the alleged conspiracy.

Where all the evidence in a murder trial was direct, it was not error to refuse to instruct on circumstantial evidence.

[Ed. Note.-For_cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1883, 1979, 1980.]

Appeal from Circuit Court, De Kalb County; A. D. Burnes, Judge.

Martin Paulsgrove was convicted of murder in the first degree, and appeals. Affirmed.

J. A. Sanders and Kipp D. Cross, for appellant. The Attorney General and John Kennish, for the State.

GANTT, J. From a conviction and sentence for murder in the first degree by the circuit court of De Kalb county, the defendant has appealed to this court.

On

This prosecution was commenced on the 20th of January, 1905, by the filing of an information by the prosecuting attorney of Andrew county in the office of the clerk of the circuit court of said county in vacation, charging the defendant with murder in the first degree of Mary Newman. At the May term, 1905, the cause was set down specially for trial on the 29th of August, 1905. the last-mentioned date, the defendant was duly arraigned, and a plea of not guilty entered. On a proper application, a change of venue was granted to De Kalb county. At the October term, 1905, of the De Kalb court, the defendant was tried and convicted of murder in the first degree. Motions for new trial and in arrest of judgment were filed and overruled, and the defendant duly sentenced by the court. The defendant is not represented in this court by counsel, and this has necessitated an examination of the whole record by this court. The testimony discloses that, at the time of the homicide, the 18th of February, 1905, the defendant was an unmarried man about 24 years of age, and resided in Andrew county. He had served as a soldier in the army of the United States in the Philippine Islands for probably two years, and, after the return of his regiment to the United States, he was discharged and returned to Andrew county in the early part of 1904. The father of the defendant resided on a farm in Andrew county seven

miles east of Savannah. The defendant worked as a farm hand in the neighborhood, and stayed at the home of his father part of the time. The deceased, Miss Mary Newman, lived with her parents some three or four miles distant from the Paulsgrove home. At the time of the homicide, she was teaching school in the Paulsgrove neighborhood and boarding with that family. The defendant had been a suitor of Miss Newman for nearly a year after his return from the army to Andrew county, and had frequently called upon her at her own home and at his father's. He visited her at the latter place the night before the homicide. On Wednesday evening, about 3 o'clock, January 18, 1905, the defendant came to his father's house and remained there conversing with the members of the family until about 4:30 p. m., when Miss Newman and three of the smaller Paulsgrove children returned from school. In a few minutes after her arrival, the defendant told Miss Newman that he wanted to see her, and they went into the parlor, which seems to have been the east room on the ground floor of the building, and closed the door. After they had been in the parlor a short time, the family heard Miss Newman scream: "O, Martin, don't!" Mrs. Paulsgrove ran to the parlor door, opened it, and saw the defendant had hold of Miss Newman. Mrs. Paulsgrove seized him, and he then turned upon her. She jumped behind the stove, and he shot at her twice with a pistol. He then forcibly took Miss Newman from the parlor into the adjoining sitting room, the latter struggling and resisting until she fainted. He then pulled her up on the bed in the sitting room, and shot her twice through the head, each of which wounds were mortal. The defendant, prior to the homicide, had tried to buy a revolver at different places, saying he wanted to shoot rabbits. About two hours before the homicide, he bought a revolver at a little village called Kodiac, about two miles from the Paulsgrove residence. For some time before the homicide, the defendant had told a number of people in the neighborhood of his affection for Miss Newman, and to several had stated that he intended to be married to her. On one occasion, when he was told not to be too sure of it, that she might go back on him, he replied with an oath that, if she did, he would shoot her. Just after the shooting of the deceased by the defendant, he went out of the house on the north side and said: "I loved her, and she threw me away. I could not stand it, and I killed her." He remained at his father's house about half an hour after the shooting. During that time he cut the telephone wire, and said to his half-brother: "Do not speak a word. You have done me enough dirt, but I will let you go this time." He then left his home and went to Savannah, where he was arrested about 10 o'clock that night. The defensewas insanity. The depositions of five sol

diers, a lieutenant of the company in which he served in the Philippine Islands, and four other members of the company, were read in evidence and tended strongly to prove that the defendant was insane during the time of his service in the Philippines. There were other witnesses also, who had known the defendant in the neighborhood in which he lived and had been reared, whose testimony tended to prove that the defendant was not of sound mind. On the other hand, the state introduced a large number of witnesses, including the neighbors and farmers for whom the defendant had worked, and other testimony covering the defendant's life from his boyhood until the date of the homicide, which tended to prove that he was not insane; that, while he was not of a very bright mind, he was reasonably intelligent and of sound mind; and that he was an exceedingly trustworthy and industrious boy and man in the performance of his work as a farm laborer and an employé of the dairy company.

The information is in all respects sufficient and according to the often-approved precedents, and it is therefore unnecessary to set it forth at length. It was duly verified by the prosecuting attorney. The court submitted the case to the jury upon an issue of murder in the first degree, and upon a plea of not guilty and a plea of insanity. The court defined the words "willfully," "feloniously," "deliberately," "premeditatedly," "malice," and "malice aforethought" as those words have often been defined in instructions which have met the approval of this court; and also gave the usual instructions on the presumption of innocence, reasonable doubt, the credibility of the witnesses, and good character, and then the court instructed the jury as follows:

"Insanity is a physical disease located in the brain, which disease so perverts and deranges one or more of the mental and moral faculties as to render the person suffering from this affliction incapable of distinguishing right from wrong, in reference to the particular act charged against him, and incapable of understanding that the particular act in question was a violation of the laws of God and society. Wherefore, the court instructs the jury that if they believe and find from the evidence that the defendant, at the time he did the killing alleged in the information, was so perverted and deranged in one or more of his mental and moral faculties as to be incapable of understanding at the time he killed Mary Newman that such killing was wrong, and that he (the defendant) at the time was incapable of understanding that this act of killing was a violation of the laws of God and society, they should find him not guilty. Insanity is either partial or general. Total insanity always excuses. Partial insanity does not excuse. One may be partially insane, and yet be responsible for his criminal acts. The law does not excuse

unless the derangement is so great that it actually renders the person incapable at the time of its commission of distinguishing between right and wrong, in reference to the particular act charged and proven against him. The law presumes every person who has reached the years of discretion to be of sound mind, and this presumption continues until the contrary is shown. So that when, as in this case, insanity is pleaded as a defense to a criminal charge, the fact of the existence of such insanity at the time of the commission of the act complained of must, before you can acquit on that ground, be established by the evidence to your reasonable satisfaction, and the burden of proving this fact is upon the defendant."

"No. 6. The law presumes every man is sane until the contrary is established by the evidence to the satisfaction of the jury, and, when insanity in any form is set up as a defense, it is a fact which may not be proven like any other fact. The burden of proving such insanity is on the defendant, and he is not entitled to the benefit of a mere doubt whether he was or was not insane.

"No. 7. The jury are further instructed that excitement, passion, and angered feelings or revenge, produced by motives of anger, hatred, or revenge, is not insanity, and that the law holds the wrongdoer of an act under such conditions responsible for his acts, and the jury have no right to excuse or in any wise justify or mitigate defendant's act in the taking of Mary Newman's life, except they can do so under and according to law as declared in these instructions.

"No. 8. The court instructs the jury that mere weakness of intellect will not shield one who commits a crime, and in this case, although you may believe from the evidence that the defendant is mentally deficient in some degree, yet, unless you are reasonably satisfied by the evidence that, at the time the alleged crime is charged to have been committed by the defendant, his mental faculties were so weak and his mind so deficient that he was unconscious at the time of committing the act that it was wrong, and that he ought not do it, and that he had not the ability or mental capacity to choose between right and wrong, you will find the defendant guilty as charged in the information."

Among other instructions, the court gave the following at the request of the defendant:

"No. 1. The information in this case is a mere formal charge against the defendant, and of itself is no evidence whatever of his guilt, and no juror should permit himself to be in any degree or to any extent influenced by it.

"No. 2. The court instructs the jury that, on the question of sanity or insanity of the defendant, you will consider all of the evidence offered in the case the life, habits, conduct, and mental condition of the defend

the instructions in this case, is meant the greater weight of the testimony in the case.

"No. 10. The jury are instructed that the plea of insanity or imbecility of mind is a lawful one in this case, and, to establish the insanity or imbecility of the defendant, positive and direct proof of it is not required by law, and, to entitle him to an acquittal by reason of his mental insanity or imbecility of any character, circumstantial evidence, which reasonably satisfied your minds of its existence, is sufficient."

"No. 3. The court instructs the jury that if they believe from the evidence that the defendant was insane or of unsound mind at any time or times prior to the shooting charged in the information, with lucid intervals, or partially lucid intervals or periods in which the defendant knew right from wrong, then and in that case it devolves upon the state to prove by a preponderance of the evidence given in the case that, at the time the fatal shot was fired that took the life of the deceased, the defendant was at the time in one of his lucid or partially lucid intervals or periods."

"No. 5. You are further instructed that the law presumes the defendant innocent of the offense charged against him, and the burden of the proof rests on the state to show to the jury from the evidence in the case his guilt beyond a reasonable doubt. If you have a reasonable doubt of defendant's guilt, you should acquit him; but a doubt to authorize an acquittal on that ground ought to be a substantial doubt touching defendant's guilt, and not a mere possibility of his innocence.

"No. 6. The jury are instructed that, when the evidence fails to show any motive on the part of the defendant to commit a crime❘ charged, this is a circumstance in favor of his innocence, and in this case, if the jury find, upon a careful examination of all the evidence, that it fails to show any motive on the part of the defendant, Paulsgrove, to commit the crime charged against him, then this is a circumstance which the jury ought to consider, in connection with all the evidence in the case, in making up their verdict. In order to ascertain whether or not a motive existed on the part of said defendant to commit the crime charged against him, they will take into consideration all the evidence in the case."

"No. 8. If, after fully and deliberately weighing and considering all the evidence before them in this case, the jury entertain any reasonable doubt of the defendant's guilt, they must give him the benefit of such doubt and acquit him. A juror is understood to entertain a reasonable doubt when he has an abiding conviction of mind founded on the evidence to a moral certainty that the defendant is not guilty as charged.

"No. 9. By the terms 'preponderance of the

The defendant prayed other instructions, which were refused, and they will be noted in the course of the opinion.

1. It is insisted by the Attorney General that the court should only examine the record proper on this appeal on account of the manner in which the transcript has been certified to us. There is much force in the contention. It is greatly to be regretted that counsel in these criminal causes, especially where a charge is so grave as in this case, do not superintend the making up of the transcript. After a consideration, however, of all the matter certified by the clerk, and inartistically as the record is made up, in view of the gravity of the charge, we have felt it our duty to consider the whole record, matters of exception as well as the record proper.

2. The issue was simple and single, and the controlling question submitted to the jury was whether the defendant was sane or insane when he shot and killed Miss Newman. The evidence left not a shadow of a doubt that the defendant shot and killed Miss Newman, and, upon the conclusion of the evidence and the instructions of the court, there was no middle ground left for the jury to occupy under the evidence and the law. They were bound either to find the defendant guilty of murder in the first degree, or acquit him on the ground that by reason of his insanity he was not responsible for his act in killing the deceased; and this was the view taken by the learned circuit court, as indicated by his instructions to the jury. The reading of the instructions on the subject of insanity will show that they are in harmony with the law of this state on that subject since the case of Baldwin v. State, 12 Mo. 223. There is, it is true, the omission of one word in the fifth instruction given for the state, wherein the court says: "Partial insanity does not excuse." The word "always," by an oversight, is left out; but, when the whole instruction on that subject is read together, it seems to us impossible that the jury should have been misled by this inadvertent omission of the word "always." The court properly declared the law to be that one may be partially insane, and yet responsible for his criminal acts. The law does not excuse, unless the derangement is so great that it actually renders the person incapable at the time of its commission