She

court. There is a line of cases holding to the rooms of the Tollas, where the Tollas, that, when permitted by a statute, a court husband and wife, were. He sat down in a has the power to change the name of the rocking-chair. After a little while the wife person upon whom injury has been inflicted left the room and went over to the house or the name of the owner of property which of Sonta, where she saw Mrs. Sonta and has been the subject of larceny or other her daughter Annie. After conversing with criminal act. State v. Hanks, 39 La. Ann. them a short time, she returned to her 234, 1 So. 458; People v. Herman, 45 Hun, rooms and found Joseph Sonta still sitting 175; Garvin v. State, 52 Miss. 207; Miller in the rocking-chair smoking a pipe. v. State, 68 Miss. 221, 8 So. 273; State v. approached Sonta and shot him, killing him Craighead, 32 Mo. 561; State v. Casavant, almost instantly. On her trial her defense 64 Vt. 405, 23 Atl. 636; Rough v. Com. 78 was that she killed Sonta in defense of her Pa. 495. There was no error in directing honor and her life. She asserted that the the amendment. reason she shot him was that he wanted to take her honor away from her, and that he wanted to kill her. For the purpose of showing the probality that she could have reasonably thought her honor or her life was in peril at the time she fired, testimony was tendered to show previous talks and conduct by Joseph Sonta, exhibiting a desire to dishonor her. The assignments from the sixth to the sixteenth inclusive, are directed to the exclusion by the trial justice of questions to the defendant inquiring if Sonta and she had had trouble, and what happened, and whether Sonta had asked her 436; State v. Hays, 23 Mo. 287; State v. Jackson, 17 Mo. 544, 59 Am. Dec. 281; State v. Smith, 164 Mo. 567, 65 S. W. 270; Binfield v. State, 15 Neb. 484, 19 N. W. 607; State v. Stewart, 9 Nev. 120; State v. Ferguson, 9 Nev. 106; State v. Hall, 9 Nev. 58; Stokes v. People, 53 N. Y. 164, 13 Am. Rep. 492; State v. Turpin, supra; State v. Hensley, 94 N. C. 1021; Little v. State, 6 Baxt. 491; West v. State, 18 Tex. App. 640; Allen v. State, 17 Tex. App. 637.

The remaining assignments of error are directed to the alleged erroneous exclusion of proffered testimony, to the reception of incompetent testimony, and to alleged errors in the charge of the trial justice. A proper appreciation of these assignments requires a brief statement of the homicidal occurrence. Joseph Sonta was a married man living near the family of John and Antoinette Tolla. The latter lived in two rooms over a store. They were all Italians, and were intimate. About 1 o'clock in the afternoon of March 4th, Joseph Sonta went

Or the disposition of the deceased toward the accused. Wiggins v. Utah, 93 U. S. 467, 23 L. ed. 942; State v. Sullivan, 51 Iowa, 142, 50 N. W. 572; Dupree v. State, 33 Ala. 380, 73 Am. Dec. 422; Davidson v. People, 4 Colo. 145; Keener v. State, Sinclair v. State, and People v. Rodawald, supra; State v. Cushing, 14 Wash. 527, 53 Am. St. Rep. 883, 45 Pac. 145; State v. Abbott, 8 W. Va. 741.

And to corroborate evidence of communiIcated threats. Roberts v. State, Davidson v. People, and Holler v. State, supra; Cornelius v. Com. 15 B. Mon. 539; State v. Williams, 40 La. Ann. 168, 3 So. 629; State v. Turpin and Levy v. State, supra. The rule has been asserted, however, that uncommunicated threats are admissible only where the evidence leaves a doubt as to whether the slayer or the deceased was the aggressor at the time of the homicide. Wiggins v. Utah, 93 U. S. 465, 23 L. ed. 941; Roberts v. State, supra; Carroll v. State, 23 Ala. 28, 58 Am. Dec. 282; Cleve land v. State, 86 Ala. 1, 5 So. 426; Harris v. State, 34 Ark. 469; Palmore v. State, 29 Ark. 248; People v. Travis, supra; People v. Scoggins, 37 Cal. 676; People v. Iams, 57 Cal. 115; Lingo v. State, 29 Ga. 470; Peterson v. State, 50 Ga. 142; Keener v. State, supra; Carr v. State, 14 Ga. 358; State v. Lyons, 7 Idaho, 530, 64 Pac. 236; Ellis v. State, 152 Ind. 326, 52 N. E. 82; State v. Maloy, 44 Iowa, 104; State v. Elliott, 45 Iowa, 486; State v. Brown, 22 Kan. 222; State v. Janvier, 37 La. Ann. 645 State v. Labuzan, 37 La. Ann. 489; State v. Chevallier, 36 La. Ann. 81; Turpin v. State, 55 Md. 462: Newcomb v. State, 37 Miss. 383; Kendrick v. State, 55 Miss.

Or where they constitute a part of the res gesta. Carroll v. State, supra.

Vague, indefinite threats of the person killed, not mentioning the accused, or shown to have reference to him, are inadmissible. Henson v. State, 120 Ala. 316, 25 So. 23; Talbert v. State, 8 Tex. App. 316; Godwin v. State, 38 Tex. Crim. Rep. 466, 43 S. W. 336.

But threats by the person killed are admissible where, though not directed against the slayer in terms, they plainly relate to

him.

Sparks v. Com. 89 Ky. 644, 20 S. W. 167; Godwin v. State, supra.

And the fact that threats made by the were to deceased against the defendant some extent conditional does not render them inadmissible. State v. Hollingsworth, 156 Mo. 178, 56 S. W. 1087.

And the length of time between a threat and the killing of a person uttering it does not destroy its competency as evidence, Babcock though it may weaken its effect. v. People, 13 Colo. 515, 22 Pac. 817; Keener v. State, 18 Ga. 194, 63 Am. Dec. 269; State v. Glahn, 97 Mo. 679, 11 S. W. 260; State v. Ford, 3 Strobh. L. 517, note.

could not operate to reduce the grade of crime to manslaughter. Nothing occurred at the time, even in the light of any previous words or conduct of the deceased, which would operate to so modify the degree of criminality. Neither words nor indecent actions, unless accompanied by actual or threatened assault, afford provocation sufficient to reduce an intentional killing to manslaughter. Nor would such proffered evidence be evidential in respect to the defendant's premeditation. The ground of the offer was to show that she bought the pistol to use in self-defense only; but, as already remarked, she did not use it in self-defense. She had just previously to the homicide armed herself with it, admittedly to use upon Sonta. She went to Sonta's house, remained there for some time, and then returned to her own house, and, without justification, shot him. Neither the previous conduct of Sonta, nor the fact that such conduct caused her to purchase the pistol, could in the least modify the significance of her conduct at the time.

and found Sonta sitting down alongside of fed entirely to the proof of self-defense. It a closet with his shoulder towards the bedroom door, smoking. She says that her husband was asleep, and little Rocco was playing with her children. She said that when she got to the table she stopped, and Sonta turned towards her, and "he was all of a color, and he put his hands to his prick, and he says, 'Look what I got to suffer! Look what I got to suffer!' His eyes were al! mixed up, looked at one time he was red, and another time he was pale." Then she shot him, because if she did not do what she did he would have shot her and her husband. She said that he said one word after she shot him: "You done me before I done you." Immediately after the shots were fired, Sonta was found sitting in the rocking-chair with his legs crossed, with a briar pipe in his right hand, and with his head upon his breast. The autopsy showed four superficial wounds, two where a bullet had entered the temple, gone through the brain, and out under the left jaw. No pistol seems to have been found other than the one used by the defendant. Her account of Sonta's exhibiting a pistol, as well as her statement of his remark after he was shot through the brain, is manifestly fanciful. But, taking her story as she told it, it appears that, after Sonta's exhibition of the pistol, she procured her own pistol and went over to Sonta's house, where she re

mained for some time, and after she returned she shot Sonta as he was sitting cross legged in the rocking-chair with his pipe in his right hand; her husband being present. The only act or word of Sonta's at that time was his placing his hand upon his person, coupled with the remark, "See what I got to suffer." From this account, nothing that he did at the time could afford a justification for her act; and it is impossible for me to conceive how any previous conduct could change the significance of what he did so as to afford such a justifica

tion.

It is insisted by counsel for the plaintiff in error that she should have been permitted to show that she bought the pistol for the purpose of defending herself against Sonta; and that the previous acts and words of Sonta were relevant to show that she had ground for believing her person was in danger. It seems sufficient to say that, it appearing that she did not employ the pistol in her self-defense, her motive in buying it became immaterial. As a support to the plea of self-defense, the offers were rightly excluded. Nor do I perceive that the offers were admissible to show the degree of her criminality. The offers excluded were direct

It is also assigned for error that the trial justice improperly permitted a boy six years old to testify for the state. The boy appears to have been unusually precocious and to have been qualified by intelligence and by a knowledge of the sanction requisite to equip him with eligibility as a witness. The question whether he should be permitted to testify was within the discretion of the trial justice, and that discretion was not abused. The law fixes no precise age within which children are absolutely excluded from giving evidence. Taylor, Ev. p. 1377; Roscoe, Crim. Ev. p. 106; Wheeler v. United States, 159 U. S. 523, 40 L. ed. 244, 16 Sup. Ct. Rep. 93.

In respect to the assignments directed to alleged errors in the charge, it is sufficient to say that the law was accurately and carefully charged. There is no assignment respecting it which is of sufficient importance to require an extended consideration. The judgment should be affirmed.

Dixon, Bogert, Vredenburgh, and Vroom, JJ., dissent.

Garrison, J., dissenting:

I think that the excluded testimony (1) as to antecedent sexual assaults and indignities, and (2) as to the purpose for which the defendant bought the pistol, should have been admitted, not as tending to justify the homicidal act, but because of the obvious bearing of such testimony upon the degree of the defendant's crime. The defendant was properly convicted of the crime of mur

MISSOURI SUPREME COURT.

RE EDWARD BERGER.
(Mo., 90 S. W. 759.)

1. Making the taking of more than 2 per cent interest a month for the loan or forbearance of money a crime is not beyond the legitimate powers of the legislature. Same-class legislation.

der; whether she was guilty in the first degree depended upon her state of mind when she shot Sonta. The testimony that was permitted to go to the jury was entirely consistent with the conclusion reached by it, viz., that her state of mind on that Usury-crime-legislative power. occasion was one evincing deliberation and premeditation; but, had the excluded testimony been admitted, the verdict upon this vital point might have been different. What effect a prolonged and persistent course of efforts to debauch a woman will have upon her state of mind is one question; but to say that it is the same result that would follow from a single solicitation appears to me to be entirely unsupportable. fense to receive more than 2 per cent a 3. A statute making it a criminal ofEspecially is this so if, in the course of month interest, directly or indirectly, “by such persecution, the woman, having armed means of commissions or brokerage charherself, shoots her persecutor apparently up-ges, or otherwise," is not limited to the reon such single solicitation.

As this case was tried, one strong element of premeditation, perhaps the strongest, was the purchase of the pistol; but I cannot agree that because the pistol was not used

2. Making it a crime to take usurious interest only when it is above a certain amount is not unconstitutional class legislation. Same-commissions.

ceiving of interest by means of commissions exactions, whether by such means or otheror brokerage charges, but extends to all

wise.

(December 22, 1905.)

in self-defense it may not have been pur- APPLICATION for a writ of habeas cor

chased with that object, and, if it was, then this strong element of premeditation drops out of the case, or at least is rendered

doubtful.

I think, also, that the defendant should have been allowed to show the persistence of Sonta's antecedent solicitations and accompanying threats and assaults. Whether what occurred just at the time of the shooting was an isolated instance of indignity, or whether it was the climax of a long course of like assaults upon her chastity, to which the woman had been subjected, makes, in my opinion, a world of difference in reaching a correct estimate of the state of mind likely to be induced in her. In the latter case, the persistence of the debaucher, the constant repetition of the insult, the inability of the wife to put an end to the indignity even in her husband's presence, are of the very essence of the question as to the state of mind engendered in her upon that repetition of the offense that proved to be the last.

A judicial ruling that excludes that which is essential to the correct estimate of the woman's mental state, and admits only the culminating act, the last straw, as it were, is based upon a faulty psychology; and, as the distinction between the degrees of murder is at bottom a psychological question, such ruling must likewise be erroneous in point of law.

Upon these considerations I shall vote to

reverse.

pus to procure the release of petitioner from the custody of Fred Lenz, to which he had been committed for alleged violation of a statute against usury. Denied.

The facts are stated in the opinion. Messrs. Kinealy & Kinealy, for petitioner:

There is no iniquity or moral turpitude in usury.

Farmers' & T. Bank v. Harrison, 57 Mo. 503; David Adler & Sons Clothing Co. V. Corl, 155 Mo. 149, 55 S. W. 1017; Webb, Usury, § 488, p. 570.

The legislature cannot arbitrarily declare an act a crime if it really is not such; and such an enactment will be declared unconstitutional by the courts.

Case Note. The power of the legislature to make the taking of usurious interest a crime seems to be questioned for the first time in Re BERGER. Although many of the states have statutes similar to the one involved in that case, their validity seems not to have been expressly passed upon by the courts. But there would seem to be no question of the constitutionality of such statutes. Indeed, Tyler on Usury, page 474, says that the taking of exorbitant, or, as it is called, Jewish, interest, which is interest exceeding 40 per cent, was a misdemeanor at common law in England beand adds that, as late as 1814, very emifore the enactment of prohibitory statutes; nent barristers in England contended that in a clear and palpable case of usury a party might be indicted at common law, though it is now generally conceded that usury is illegal only as made so by statute.

And, while prosecutions for taking usury are rare, there are a number of instances

State v. Layton, 160 Mo. 474, 62 L.R.A. | Mo. 263, 35 S. W. 604; State v. Edwards, 163, 83 Am. St. Rep. 487, 61 S. W. 171; Re 109 Mo. 320, 19 S. W. 91; State v. Gilmore, Flukes, 157 Mo. 125, 51 L.R.A. 176, 80 Am. 98 Mo. 213, 11 S. W. 620. St. Rep. 619, 57 S. W. 545.

And that a statute making the taking of usurious interest by bankers a crime is not unconstitutional class legislation because applying to bankers only, is decided The business of banking in Youngblood v. Birmingham Trust & Sav. is well understood and defined. A chief Co. 95 Ala. 521, 20 L.R.A. 58, 36 Am. St. part of it in most instances consists in Rep. 245, 12 So. 579, where the validity the lending of money, and this is almost of a statute making it a misdemeanor for always done by discounting evidences of any banker to discount commercial paper debt. The opportunities and temptations at more than a certain rate per cent is of persons engaged in it to evade or viosustained. The court, in this case, calls late laws against usury are so much greatattention to the fact that the statute as er and more frequent than those of persons originally enacted, when it was directed not so engaged as to raise up a necessity for against individual bankers only, was held the application of more stringent measures unconstitutional in Carter Bros. v. Cole- of repression than are necessary in respect man, 84 Ala. 256, 4 So. 151. And, though of other business and persons engaged the ground of that decision was not expressly stated, the court said there was