¶1— The indictment is in usual form and no exceptions were saved by defendant to the admission or exclusion of testimony.
¶2The trial court instructed the jury on the law of the ease and embodied its views in but one instruction, which, taken in its entirety, correctly states the law of the case, and which will accompany this opinion.
¶3Complaint is made that the court did not instruct on murder in the second degree. . There was nothing *325in the evidence to warrant such an instruction. It was either a case of murder in the first degree, or else defendant was entirely innocent in consequence of there being sufficient testimony to raise a reasonable doubt in the minds of the jury as to whether defendant was present at the scene and time of the crime’s perpetra-. tion, and on this point the jury received proper instruction.
¶4Besides, even if a failure to instruct on murder in the second degree had improperly occurred, still such failure would have formed no ground for reversal unless the matter were opportunely brought to the attention of the trial court, and exception saved, as pointed out in State v. Cantlin, 118 Mo. 111; State v. Paxton, 126 Mo. 500; State v. Goforth, 136 Mo. loc. cit. 115; State v. Foster, 136 Mo. loc. cit. 655.
¶5The same line of remark applies to the complaint made that the jury was not instructed on the theory of self-defense; there was none in the case and no exception was saved, as above pointed out.
¶6And as to the newly discovered evidence claimed in the motion for a new trial, in what that newly discovered evidence consisted we are not informed, nor are there any fortifying affidavits filed as required in the following eases: State v. Campbell, 115 Mo. loc. cit. 393; State v. Welsor, 117 Mo. 582; State v. McLaughlin, 27 Mo. 111; State v. Nagel, 136 Mo. loc. cit. 50.
¶7In conclusion, we find nothing in this record to mitigate or extenuate the crime with which defendant stands charged, and the evidence amply supports that charge. Moved by these considerations, we affirm the judgment and direct the sentence pronounced by the law to be executed.