HIGBEE, C.
The defendant was found guilty of murder in the second degree in the circuit court of Ozark county, and sentenced to imprisonment in the penitentiary for a term of 12 years in accordance with the verdict of the jury, and appealed.
She was charged by information in the circuit court of Taney county with murder in the first degree, in that, on the 12th day of August, 1924, she shot and killed N. D. Boles, who was at that time the sheriff of Taney county. A change of venue was awarded to Ozark county, where there were two trials. At the second trial, in May, 1925, she was found guilty as above stated. The facts are fairly and impartially stated by the Attorney General as follows:
"The evidence on the part of the state tended to show that the sheriff of Taney county, N. D. Boles, and his deputy, Ben Layton, were searching for one Robert Ramsey, who was wanted in connection with the robbery of the Bank of Protem. The sheriff and his deputy met at Branson on the 11th day of August, 1924, and from there went in a car to Kirbyville. Here they left the car, and went ,to the residence of Mrs. Smith, the defendant. Arriving there at `dusky dark,' they went up the back way, and at a distance saw defendant and Robert Ramsey. The officers were slipping up towards the house when the dogs began to bark, which fact seems to' have prevented them going up and arresting the fugitive, Ramsey. They watched the house until about 11 o'clock, when Mrs. Walton drove up in a car and went into the house. The officers then went to one of the neighbors, by the name of Christian, and Mr. Christian and his two sons went back with them to the Smith house, arriving there at about midnight.
"The lights were still burning, and the officers waited until the occupants of the building had extinguished the lights and gone to bed, which was about 3 o'clock in the morning, and then they surrounded the house. The sheriff, Mr. Boles, went to the front door, and Layton, with the aid of a flashlight, looked in at a window.
"Looking through the window, he saw the young son of the defendant in bed, but saw no one else.
"The sheriff knocked at the door several times, and finally the defendant answered him, and the sheriff informed her he was looking for Robert Ramsey, but was informed by the defendant he was not there; for the sheriff to go look in the barn; he might be there.
"The sheriff, however, went in the house; and brought the fugitive, Ramsey, down from upstairs. Ramsey was undressed save for a unsuit, his other clothes being on the bed, and the sheriff searched these clothes before he handed them to Ramsey, who put them on. Ramsey was then taken out of doors and handcuffed. All this time the defendant was abusing Layton and making threats toward him, and telling him that the crows would pick his bones before morning, or, as some witnesses said, `before this is over.'
"It appears that Ramsey had sore feet, and was not able to walk to Kirbyville, some two miles distant, where the car had been left, so the sheriff sent Layton for the car, with instructions to meet him and Ramsey at the Gobbler Knob schoolhouse, which was about a guarter or a half a mile away, and to which Ramsey agreed to walk.
"When Layton last saw the sheriff, Ramsey was sitting down, Mr. Boles was leaning against the' fence, and Mrs. Smith was on the inside of the fence. This was about 4 o'clock.
"Layton went to Kirbyville to get the car, and shortly before daylight. He failed to meet Mr. Boles at the Gobbler Knob schoolhouse, and he drove on down to the Smith home, but the lights were out, and he failed to see any one. Later he met Mrs. Smith going home.
"Layton then went on to Kirbyville, and got his brother, and while on this trip he learned that Mr. Boles had been hurt. He again met Mrs. Smith, and asked her if she knew where was, and she said that she did not; that she had gotten her car out and picked up Boles and Ramsey and hauled them down the road about a mile, and let them out at the mouth of the lane.
The evidence showed that when Ramsey started away from the Smith house (he was) without a coat, and that the defendant got his coat, and gave it to Mr. Boles, who searched it, and then Ramsey put it on.
"The sheriff also asked Ramsey where his gun was, and he said it was upstairs. This statement was made in the presence of Mrs. Smith. However, no one went' to get the gun. The mouth of the lane where the sheriff and left the car of Mrs. Smith was on the road over which Layton would return from Kirbyville. The mouth of the lane is also referred to in the evidence as the `mail boxes.'
"The evidence showed that the sheriff carried a .38 special Smith Wesson revolver, and the deputy carried the same size revolver, but an earlier model. When defendant was arrested Hollister, there were some old coats lying in back seat of her car, and the cushion wet. After Ramsey had put on his coat, furnished by defendant at the Smith house, he and Mrs. Smith had a conversation behind the door, but what was said could not be heard by the state's witnesses.
"It was also shown in the evidence that the defendant offered to take Boles and Ramsey to Forsyth, but refused to take any one else, and that she also knew that the sheriff and Ramsey were going down to the Gobbler Knob school-house and wait for the return of Layton with the car.
"The morning following the arrest of Ramsey, one Frank Riley went to a watering trough on his farm, about 5 o'clock. This watering trough was located about 100 yards from the lane, or mail boxes, where the sheriff and Ramsey left the car of the defendant. Riley had gone down there to prepare some feed for his cows, and found a hat in the trough. It was later identified as the hat of Sheriff Boles, and which had been pierced by a bullet from the rear. A flashlight was also in the trough, and the holster of a revolver was lying east of the trough. It was a foggy morning, and Riley did not find the body of the sheriff.
"Riley's wife took the hat, flashlight, and holster over to a neighbor by the name of Wheeler. Wheeler and another man went in search of the body, and about 40 or 60 feet from the watering trough they found the body of the deceased. The tracks and blood stains indicated that he had been shot at the watering trough and had walked to the place where he was found.
"At the time ,Boles was found he was still breathing, but died shortly afterwards. The autopsy was held at Branson, and it was discovered that Boles came to his death from the effects of a bullet which entered the back part of his head, ranging downward and to the left, hitting the inside front part of his skull. The nose of the deceased was also broken. The bullet was a steel jacket .32 caliber, and the impact of hitting the skull had split it.
"On the 14th of August Ramsey was arrested where he was hiding in a box car at Branson, and on his person was found two revolvers, a .38 Smith and Wesson special and a .32 automatic, which was identified as one owned by him. The Smith and Wesson was identified as the revolver of the sheriff.
"At the time of defendant's trial, Ramsey already had been tried and sentenced to the penitentiary for life.
"Evidence was also introduced to show that Mrs. Smith possessed a revolver which was seen in her home a short time prior to the killing. Mrs. Smith was arrested the morning after the homicide, as was also her daughter, Mrs. Walton, sometimes referred to as `Blondie.' Mrs. Walton operated a restaurant at Branson. Defendant and her daughter were placed in the jail at Forsyth, and, when news came of the arrest of Ramsey at Branson, she was heard to ask `Blondie' if she thought Bob (Ramsey) would give it away on her, or would give her away, and that `Blondie' told the defendant she did not believe he would.
"The evidence on the part of the defendant was practically the same as that introduced on the part of the state, varying only in minor tails, except that the defendant positively declared she had nothing to do with, and knew nothing about, the killing of Newt Boles, the sheriff.
"Defendant's evidence shows that, after the arrest of Ramsey, she and her small son got their car and went to Branson, where they stayed until the following morning. When they left her house, they overtook the sheriff and his prisoner, and hauled them down to the forks of the road, referred to as the lane, or the mail boxes, and there left them, and that she knew nothing about their movements after that time. That it was a very foggy morning.
"Her evidence showed also that she did not have a revolver, and that there had been none
at her place, except that of Ramsey, so far as she knew, for more than a year, when her husband had taken his revolver back to Clinton with him. The gun taken from Robert Ramsey at the time of his arrest was shown to have been his individual property and in his possession some time before the homicide. The defendant positively denied making the statement testified to relative to her conversations with `Blondie' in the jail; that she did not know Ramsey had a gun on the night of the homicide; and that she did not give him one. Defendant offered a demurrer at the close of the state's evidence, and renewed it at the close of all the evidence."
The defendant filed an application for a change of venue, supported by the affidavits of five citizens of Taney county, alleging that the minds of the inhabitants of all the counties of the Thirty-First judicial circuit, consisting of Taney, Ozark, Christian, Douglas, and Stone counties, were...
