¶1I. The first point requiring attention is whether the prosecuting attorney was properly allowed to exercise the right of election to prosecute the defendant for murder in the second degree, and this prior to the selection of the traverse jury. This point was thus ruled in State v. Talmage, 107 Mo. 549, but it must be confessed that there is no express authority in the statute for it. But it is said by an eminent text-writer that the legal representative of the government may declare that he will no further prosecute the particular indictment or some designated part thereof; and this nolle prosequi may well go to the whole of an indictment, to one or more of its counts, or even to a separable part of any one count. 1 Bishop on Criminal Procedure, secs. 1387, 1391; Com. v. Tuck, 20 Pick. 356, and other cases.
¶2In an indictment for murder in the first degree under our statute every grade and every degree of criminal homicide, from the highest to the lowest, is embraced; it is, in short, in legal effect an aggregation of separate and distinct counts; so that the virtual action of the prosecuting attorney in the present instance was simply to enter a nolle as to separable parts of each of the counts of the indictments, thereby eliminating therefrom the counts charging murder in the first degree. That this could be done after the impaneling of the jury is not questioned, nor could it be. No substantial difference is perceived between entering a partial nolle before trial begun and after-wards ; indeed the former course is to be commended as a saving of both time and costs. These remarks dispose of the action taken by the prosecuting officer, *652as well as of the refusal of the court to give the eleventh instruction asked on behalf of the defendant.
¶3II. The other instructions given as heretofore set forth are in full conformity with our views and suggestions made when this cause was here before and leaving nothing to be desired.
¶4III. It only remains to speak of the testimony. It is claimed to be wholly insufficient to support the verdict. This contention was urged on the former appeal, but we refused to recognize it as possessing any merit. We refer to our previous opinion for comments upon this head.
¶5■ There are several circumstances in this record strongly indicative of innocence; but on the other hand there are others which indicate guilt. The evidence is wholly circumstantial, and taken all in all is far from being entirely satisfactory; but we cannot say that there is no evidence, which, if believed by the jury, is not sufficient to show the guilt of the defendant beyond a reasonable doubt.
¶6There are no indicia of prejudice or passion contributing to produce the verdict;' three juries of his own countrymen have pronounced the defendant guilty, and it is neither our duty nor our. province to interfere. Had we sat on the jury, it may be that we would have favored the conclusion reached by those physicians who were of opinion that the death of Mrs. Moxley in all probability resulted from natural causes, rather than the opinion of those who seem to be less skilled in their profession, and who took the opposite view, that she died at the hand of violence; but this circumstance cannot alter our duty in the premises, nor induce us to usurp the province of the triers of the facts.
¶7Therefore, judgment affirmed.