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60 S. W. 1077, 54 L. R. A. 950, 83 Am. St. Rep. 468. Usually they are designated as administrative or judicial functions "conferred upon" such bodies or powers with which they are "intrusted." McGhee v. Walsh, 249 Mo. loc. cit. 283, 155 S. W. 445; State v. Vickens, 186 Mo. 103, loc. cit. 106, 84 S. W. 908, 2 Ann. Cas. 779; State ex rel. Maggard v. Pond, 93 Mo. 606, loc. cit. 621, 6 S. W. 469; State ex rel. v. Fort, 210 Mo. loc. cit. 557, 109 S. W. 737; State ex rel. v. Glaves, 268 Mo. loc. cit. 104, 105, 186 S. W. 685; Meier v. St. Louis, 180 Mo. loc. cit. 409, 79 S. W. 955.

The law relating to the incorporation of drainage districts in some of its general features is like the statute under consideration here, and drainage district cases are cited by respondents in support of their position. But in those very cases it is held the organization of such districts involves the "right of the Legislature to clothe the constituted courts with jurisdiction to inquire of and determine such judicial questions as may arise in the course of the proceedings." Elsberry Drainage District v. Harris, 267 Mo. loc. cit. 150, 184 S. W. 91. This court said in Re Birmingham Drainage District v. Railroad, 202 S. W. 404, No. 20386, decided at the present term and not yet reported:

"To accomplish the single purpose of putting in action a drainage district required not only the enactment of a statute fixing the extent, purpose and general powers of the district, which is a purely legislative function, but the appropriation of private property for such purpose and determining the damage therefor by jury trial, which are distinctly judicial functions. Between these lies no man's land,' a region of action unclassified by the terms of the Constitution."

French v. Barber Asphalt Paving Co., 181 U. S. 324, loc. cit. 341, 21 Sup. Ct. 625, 45 L. Ed. 879; Norwood v. Baker, 172 U. S. 269, 19 Sup. Ct. 187, 43 L. Ed. 443. "Unless the Legislature decide the question of benefits itself, the landowner has the right to be heard upon that question before his property can be taken" (included in the district). Fallbrook Irrigation District v. Bradley, 164 U. S. 112, loc. cit. 175, 17 Sup. Ct. 56, 69 (41 L. Ed. 369).

From the earliest time it has been held that the act of the county court incorporating a municipal corporation is a judicial act. Kayser v. Trustees of Bremen, 16 Mo. S8; State ex rel. v. Mining Co., 262 Mo. loc. cit. 502, 171 S. W. 356; State ex inf. v. Fleming, 158 Mo. loc. cit. 563, 59 S. W. 118. In organizing road districts the county court doubtless exercises certain ministerial functions, but necessarily “judicial questions arise in the course of the proceeding" when the county court passes upon the facts which would give it jurisdiction, when it determines whether or not the petition is properly signed and the notice is duly served. It is a judicial function which the county court must exercise when it determines whether or not the lands included in a district will be benefited by the contemplated improvements. Fallbrook Irrigation District v. Bradley, 164 U. S. loc. cit. 169, 17 Sup. Ct. 56, 41 L. Ed. 369.

Respondents contend, further, that the county court may incorporate the district without making any such inquiry as to benefits. They quote the language of section 10611 that the court may organize a district "of any dimensions that may be deemed This "legislative function" is exercised by * * advisable," and the language of secthe Legislature when it enacts the law. The tion 10612, relating to making such changes "appropriate agencies" spoken of further on as the public good may require, and argue in that opinion, by which such public cor- that the statutes under consideration proporations are "put into effect," are invested vide for a determination of that matter later, with administrative and judicial functions. when the question of specific improvement The sections of the statute under consid- comes up, and therefore it need not be coneration were held constitutional by this sidered at the formation of the district. court, because the assessments contemplated The Embree Case, 240 U. S. 242, 36 Sup. Ct. were "not public taxes within the meaning 317, 60 L. Ed. 624, got into the United States of the Constitution authorizing the levy and Supreme Court on a writ of error because collection of taxes for public and govern- on that very point the constitutionality of mental purposes, but are special taxes as- the law, under the Fourteenth Amendment to sessed against the property for the payment the federal Constitution, was involved. It of the improvements which in le- was there held that the act was constitutiongal contemplation adds to the value of the al because it afforded the landowners an property as much or more than the amount "opportunity to be heard upon the question of taxes imposed." Embree v. Road District, whether their lands would be thus bene257 Mo. loc. cit. 610, 166 S. W. 286. While fited." This hearing was to be had when authority merely to lay off special taxing the formation of the district was under condistricts may be granted by the Legislature sideration, for the court (240 U. S. 246, 36 to certain boards, or councils, or other ad- Sup. Ct. 319, 60 L. Ed. 624) calls attention ministrative bodies, yet before the land in- to the notice which the clerk is required to cluded can be burdened with a special as- give in order that the landowners might "apsessment for benefits, a nofice and opportu- pear, either collectively or separately, and nity to be heard must be accorded the land- oppose its formation." Then the court owners, in order that the Constitution's "due quotes a part of the order in that case showprocess of law" may be satisfied. McGhee v. ing a hearing and the formation of the disWalsh, 249 Mo. 289-294, 155 S. W. 445;trict "with boundaries as stated in said pe

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tition," and says (240 U. S. 247, 36 Sup. Ct. | good required the formation of the district? 319, 60 L. Ed. 624): The road district law shows the legislative intention to have this inquiry before the district shall be organized. It provides for notice and hearing at that time. There would be "no necessity" for such notice, as suggested in the Embree opinion, and the hearing would be an inconsequential formality, if the determination of that matter were not had at that time.

"As the district was not established by the Legislature, but by an exercise of delegated authority, there was no legislative decision that its location, boundaries and needs were such that the lands therein would be benefited by its creation and what it was intended to accomplish, and, this being so, it was essential to due process of law that the landowners be accorded an opportunity to be heard upon the question whether their lands would be thus benefited."

We conclude that the county court in such proceeding acts judicially in determining whether the land in question in a proposed district is to be benefited, which involves an inquiry as to the propriety of any change of boundaries from those described in the original petition; that this determination must be had before the district is incorporated, and the record must affirmatively show juris

The opinion points out (240 U. S. 249, 36 Sup. Ct. 317, 60 L. Ed. 624) that this court (Embree v. Road District, 257 Mo. 593, 166 S. W. 282) did not definitely decide just when the inquiry should be had. The United States court then was considering only the formation of the district and the prerequisite notice; that was the matter before it. That no doubt might arise as to when the consid-diction according to the statute to do whateration of benefits must be had the court, said (240 U. S. 248, 36 Sup. Ct. 319, 60 L. Ed. 624):

"That a hearing of some kind was contemplated is obvious, and is conceded. But it is insisted that it was not to be directed to the question whether the lands included would be benefited by the creation of the district and what it was intended to accomplish. If that were so, there would be little purpose in the hearing and no real necessity for it."

And (240 U. S. 249, 36 Sup. Ct. 320, 60 L. Ed. 624):

"We conclude, therefore, that the statute did provide for according the landowners an opportunity to be heard, when the district was created, upon the question whether their lands would be benefited, and also that the order establishing the district shows that the statute was complied with in that regard."

ever is done. In this case, in the formation of a district different from the one of which the landowners had notice, the record shows that the statute was not complied with, and shows no opportunity for an actual hearing was accorded to the landowners upon such proposed change. There can be no presumption of such hearing, as there might be if the description in the order coincided with that in the petition.

[9] 1V. This interpretation of section 10612 does not render it inconsistent with the terms of section 10611, as respondents vigorously assert. The general power granted the county court in section 10611 to organize districts "of any dimensions that may be deemed necessary or advisable" within certain limits must be interpreted in connection with the following section 10612, which prescribes the method whereby those general powers may be carried into effect, and the procedure by which the court may acquire and exercise jurisdiction to make orders affecting specific property.

[10] V. It is claimed also that the county court, having jurisdiction, merely acted irregularly in excluding part of the land described in the petition; that the error was merely one of granting relief not warranted by law, and would not involve the jurisdiction. The case is not like one where a court renders judgment for more than the pleadings would warrant; for instance, not like the judgment of the circuit court enforcing

Language could not plainer state that in organizing the district the court must determine, after notice and opportunity to landowners to be heard, whether or not lands located within its proposed boundaries would be benefited. See, also, French v. Barber Asphalt Paving Co., 181 U. S. loc. cit. 341, 21 Sup. Ct. 625, 45 L. Ed. 879. Of course, it is not meant by this that the county court would definitely assess the benefits which would accrue to the several tracts of land for a road which would be built-that was left for consideration in subsequent proceedings. But it must be decided by the county court that all the land in the district would be benefited by the formation of a district in an amount approximating the probable burdens. Of course, the mere laying a specific lien against property not included out of the district, without more, would not benefit anybody's lands. It is not likely that the county court would ever find the "public good" required such purposeless action. In the very nature of a case, when a district is formed it is formed for the purpose of constructing some contemplated road or roads, and in such case the county court probably has information as to the location and extent of the road or roads in contemplation when the petition is presented, other

in the petition as well as that mentioned in the petition. The judgment would be a nullity as to property not described in the petition, but would be effective as to that described. In that case nobody is hurt. But here the judgment and order cannot be separated in that manner because all the propperty in the district is affected by the variance in the order from the petition. The order could not be valid in part if void in part.

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the order would not be a nullity, but the
district formed would be the one described
in the petition; that the law would presume
that the order conformed to the petition, and
the proper proceeding was to compel the
court by a mandamus to enter the judgment
in conformity to that presumption. That
position ignores the actual finding of the
court that a change was necessary and was
made, and ignores the judicial character of
the act performed. It assumes that the
function of the county court in the matter
is merely ministerial. The circuit court
could not by mandamus compel the county
court to exercise its discretion in any par-
ticular way. It was confined to the record
made, and the record shows on its face that
the county court did not make the order
which respondents claim must be presumed | F. P. Divilbiss, Judge.
to have been made. It would be just as
appropriate to indulge the presumption con-
tended for if the record were entirely silent,
or if it showed the petition dismissed.

community of intention between two or
persons to do an unlawful act.
and Phrases, First and Second Series, Conspi-
[Ed. Note.-For other definitions, see Words
racy; Second Series, Common Design.]
5. CRIMINAL LAW 1207-STATUTE—ABOLI-
TION OF CAPITAL PUNISHMENT-PRior Of-
FENSES.

Conviction in May, 1917, after Act April 13, 1917 (Laws 1917, p. 246), abolishing capital punishment, which became operative June 18th, is not affected by said act.

6. CRIMINAL LAW 1172(9) - APPEAL HARMLESS ERROR.

The judgment is reversed and the cause remanded with directions to the circuit court to enter judgment declaring the action of the county court incorporating the Silex and Louisville road district of Lincoln county entirely void, and ousting the respondents as commissioners of such road district.

ROY, C., concurs.

PER CURIAM. The foregoing modified opinion by WHITE, C., is adopted as the opinion of the court. All the Judges con

cur.

STATE v. HILL. (No. 20661.)

One convicted of murder and sentenced under verdict to life imprisonment was not prejudiced by instruction authorizing death penalty, even if the statute abolishing capital punishment had been then in force.

Faris, J., dissenting in part.

Appeal from Circuit Court, Ray County;

Iza Hill was convicted of murder in the first degree, and she appeals. Affirmed.

Instruction 4b, referred to in the opinion,

was:

The court instructs the jury that if you believe from the evidence that a conspiracy existed between defendant and Alonzo Jones to kill Lonnie Hill, then you may take into consideration in this case any acts or declarations you may find from the evidence to have been done or made by any coconspirator in furtherance of the common purpose during the existence of such conspiracy, but you should not take into consideration in this case acts or declarations of said Jones not done or made during the existence of such conspiracy, nor can you take into consideration the acts or declarations of said Alonzo Jones made or done after the death

of said Lonnie Hill.

"Common design" means community of intention between two or more persons to do an unlawful act, and it may be established by circumstances or by direct evidence of an express agreement, but before the conspiracy can be established by circumstances, the facts and cir

(Supreme Court of Missouri, Division No. 2. cumstances tending to show such common de

Feb. 16, 1918.)

1. INDICTMENT AND INFORMATION 119SUFFICIENCY.

Tiresome iteration did not vitiate an information charging all essentials of the crime of murder.

2. WITNESSES 48(5) - COMPETENCY-CON

VICTS.

Rev. St. 1909, § 2891, providing that one sentenced to the penitentiary for life shall be deemed civilly dead; section 4504, attaching certain disqualifications to conviction for murder; section 4631, forfeiting citizenship of persons convicted of certain offenses; section 4673, attaching disqualifications to conviction of other offenses; and section 4875, disfranchising certain convicts-do not render such person incompetent to testify, in view of section 6383, making a convict a competent witness.

sign, conspiracy and the connection of the defendant therewith, must be established beyond a reasonable doubt by the evidence in the case, and when so established, such facts and circumstances must not only be consistent with each other and with the defendant's guilty connection therewith, but also absolutely inconsistent with any other reasonable theory.

"Conspiracy," as used in these instructions, is a combination of two or more persons by concerted action to accomplish some criminal or unlawful purpose.

You are also further instructed that in de

termining whether there was or was not a conspiracy, agreement or common design between the defendant and Alonzo Jones to kill Lonnie Hill, you have no right to consider any declarations or acts made or done by said Alonzo Jones in the absence of the defendant, but can only consider such declarations or acts as were made or done in the presence or hearing of this defendant. The jury cannot consider such declarations or acts of said Jones made and done in the absence of this defendant in order to determine whether said conspiracy or common design existed. If you shall be satisfied beyond a reasonable doubt from the other evi800(4)-INSTRUCTIONS-dence in the case that such conspiracy or com

3. CRIMINAL LAW 371(4) EVIDENCE OTHER OFFENSES-ADMISSIBILITY.

In prosecution of a woman for her husband's murder, testimony that a few months prior thereto she tried to poison him was admissible to show intent. 4. CRIMINAL LAW

"CONSPIRACY"-"COMMON DESIGN.'

In prosecution for murder, "conspiracy" was correctly defined as a combination of two or more persons by concerted action to accomplish a criminal purpose, and "common design" as

mon design existed. If you shall be satisfied beyond a reasonable doubt from the other evidence in the case that such conspiracy or common design did exist between defendant and Alonzo Jones before the death, then and not

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

until then do the acts or declarations of said therefor $125 when she secured the money Alonzo Jones become evidence against the de- on the insurance policy; that in consummafendant in this case, and then only such acts and declarations of said Jones, as you may find and believe from the evidence, were done and made during the pendency of such conspiracy and in furtherance thereof.

J. E. Black, E. A. Farris, and A. P. Hamilton, all of Richmond, for appellant. Frank W. McAllister, Atty. Gen., and George V. Berry, Asst. Atty. Gen., for the State.

tion of this conspiracy, he went to Richmond and killed the deceased and returned to Kansas City. The appellant testified that she had known Jones slightly for two or three years, but had never entered into a contract with him or anybody else to kill her husband; that she knew nothing of the latter's death until early one morning when Jones came to the house where she was liv

ing with her coindictee, and, before they were out of bed, sought admittance; that he was admitted by her coindictee, Dumas, who remarked to him when he entered, “Did you do that?' and she says, 'Do what?' Jones said, 'Yes,' and she again said, 'Do what? and Jones said, 'Kill Lonnie Hill; that's what!" and then he said, "Don't you open your mouth or I will kill you," and jumped at her with a knife. There was also testimony that appellant had attempted to

WALKER, P. J. The appellant and one Marshall Dumas were charged in an information filed by the prosecuting attorney of Ray county with murder in the first degree. A severance was granted, and at the February term, 1917, of the circuit court of said county, appellant was tried, and, the jury failing to agree, the case was continued until the May term, 1917. Upon a trial at this term appellant was convicted as charged, and her punishment assessed at life imprisonment in the penitentiary. From this judg-poison the deceased with strychnine tablets ment she appeals.

dissolved in alcohol several months before his death. This she denied.

The motion for a new trial preserves these alleged errors for consideration: Permitting Alonzo Jones, who was in the penitentiary under a life sentence for the murder of the

Lonnie Hill, the party charged to have been murdered, was the husband of the ap pellant. At the time of his death he was in the employ of a citizen of Richmond. The last time he was seen alive was on the evening of September 18, 1916. The next morning, not having attended to his usual duties, his employer went to his room to ascertain the cause of his neglect. He found the deas to an attempted poisoning of the deceased ceased lying across the foot of his bed on his face. Calling to him, and receiving no reply, the employer caught hold of him, and found

not only that he was dead, but that rigor mortis had set in. Upon the body being turned over, the face of the deceased and the adjacent wall, not before noticed, were found covered with blood. After the removal of the body to an undertaker's several wounds, which appeared to have been inflicted with a sharp instrument, were found on the head and neck of the deceased. The wound on the neck had severed the jugular vein. This, as well as the wound in the head, which pierced the skull, was sufficient to produce death. Circumstances indicative of a guilty connection with the crime led soon thereafter to the arrest of appellant, her coindictee, and one Alonzo Jones; the latter being separately charged with complicity in the crime. Upon the information being filed against him, he entered a plea of guilty, and was sentenced to a life term in the penitentiary. It is principally upon his testimony that the jury found the appellant guilty. The parties are all negroes. The animus for the crime, as stated by Jones, was to procure $371 from an industrial insurance company in which the deceased held a policy payable to his wife, the appellant. Jones, while serving his sentence in the penitentiary, was taken therefrom and testified at the trial. He stated that he was hired by appellant to go from Kansas City to Richmond to kill the deceas

deceased, to testify against the appellant; admitting illegal and incompetent testimony

by appellant without showing any connection between that offense and the one with instructions numbered 4, 4a, and 4b, on the part of the state; in giving instruction 4c; improperly instructing the jury as to punishment; the sufficiency of the information to charge any offense; variance between the offense charged and the proof of same; and because there was no adequate proof of any conspiracy.

which the appellant was charged; in giving

[1] I. The contention as to the sufficiency of the information is not well founded. In charging the crime of murder all of the required essentials are employed. That the information abounds in tiresome iteration it is true, but in its employment the pleader but followed time-worn precedents, always the safest course so long as a simpler and less prolix system of criminal pleading is not expressly authorized.

Under the

[2] II. It is urged that error was committed in permitting Alonzo Jones to testify on behalf of the state while undergoing a life sentence in the penitentiary. common law he would have been incompetent. This rule of exclusion, so far as it affects the right of one convicted of crime to testify, has long since been abolished not only in England, but in the greater number of our states. 1 Wigmore, Ev. §§ 519 to 524, and notes; 5 Chamb. Mod. Ev. § 3663 and notes; 11 Am. Jurist, p. 362; 15 Colum L Rev. 467.

From the foregoing it will be seen that a conviction of any offense, denounced by our law, will not render the convict incompetent to testify in a court of justice. Appellant's contention must therefore be overruled.

mon-law punishment for crime is as evident | conviction may be proved to affect his crediin regard to the admission of testimony as bility, etc. it is in other phases of the history of jurisprudence. Statutes liberal in their latitude in this regard have been enacted not only on account of a more humane disposition to abate somewhat the severity of punishment, but from necessity; it being found that the admission of this character of testimony was of more practical value in the administration of justice than the addition of infamy with its consequent deprivation of civil rights. Bentham's Rationale of Ev. book 9, pt. 3, c. 3, quoted at some length in 1 Wigmore, § 519, p. 649, and lucidly epitomized in 1 App. Ev. c. 3.

[3] III. The admission of testimony tending to show an attempted poisoning of the deceased by appellant several months before the homicide is urged as error. The burden of this objection is that no connection was shown between this attempt and the crime for which appellant was being tried. This complaint falls short of raising a tenable objection to the admission of the testimony. There was no pretense on the part of the state that the attempted crime was a part of the one committed. It was in no sense the purpose of the introduction of this testimony to establish the crime, but to show the intent with which it was committed. On this ground testimony of this will character, with the modification we hereafter refer to, is held to be admissible.

on

The common-law doctrine of infamy attendant upon a conviction for crime has never been recognized in its fullness in this jurisdiction. We have since the organization of the state had statutes defining the extent to which one convicted of crime was thereby stripped of civil rights. These were by specific provisions made applicable to the different classes of offenses in our Criminal Code. They differed only in minor particu- White, Commissioner, in State v. Patterlars, and usually embraced within their son, 271 Mo. 99, 109, 196 S. W. 3, has reterms a deprivation of the right to hold of- cently, with painstaking care, reviewed and fice, to vote at an election, to sit on a jury, compiled the numerous Missouri cases and to testify as a witness. In addition, a this subject, beginning with a learned opingeneral statute provided that a sentence of ion by Philips, Commissioner (State v. Myers, imprisonment in the penitentiary for a term 82 Mo. 558, 52 Am. Rep 389), which for many less than life, suspended all civil rights of years has been the leading case on the subthe persons so sentenced, during the term ject. The rule deduced from these cases is thereof, and forfeited all public offices and that where the act constituting the crime trusts, authority, and power; and the per- speaks for itself as showing the intent, or sons sentenced to such imprisonment were where the criminal intent is presumed from thereafter to be deemed civilly dead. This the act itself, such evidence is not admissistatute, unchanged in its terms, is now sec- ble; but where different inferences may be tion 2891 in the revision of 1909. The stat- drawn regarding the intent with which the utes limiting the rights of citizenship upon criminal act was done, and the circumstancconviction for crime remained practically es of the act may be susceptible of an inwithout change until 1879, when the clause terpretation indicating innocence, then such in each prohibiting convicted persons from evidence is admissible. Here the appellant testifying was eliminated; otherwise the was absent at the time of the homicide. Its limitation upon the rights of those convicted actual commission was admitted by the withas remained as it now appears in the presness Alonzo Jones. He and the appellant's ent statutes. See sections 4504, 4631, 4673, paramour, Dumas, alone testify to her hav4875, R. S. 1909. In Ex parte Marmaduke ing provoked the crime by offering an inwe held, in construing one of these disquali-centive for its commission. She assails the fying statutes, that all persons convicted aft- truth of this testimony. Clothed as she is er the going into effect of the Revised Stat- with a presumption of innocence, different utes of 1879 became competent witnesses by inferences may be drawn as to the intent virtue of said revision. The correctness of with which the crime was committed. If this ruling has not been questioned. The in- evidence existed susceptible of an interprecompetency, therefore, of this class of wit- tation indicative of her innocence, she would nesses has not existed since the revision of have been entitled to its admission; on the 1879, unless it can be said that section 2891, other hand, if facts existed of the attempted supra, is to be construed to preclude persons commission by her of a former act against within its provisions from testifying. What- the deceased of a kindred nature to the one ever force section 2891 may heretofore have with which she was charged, taken in conhad in this regard has been removed by legis- nection with the facts and circumstances of lation. In 1895 (Laws 1895, p. 284) a stat- her life and that of the deceased, all of ute, now section 6383, R. S. 1909, was enact- which were in evidence, then the testimony It is true that this ed which provided that any person who has was properly admitted. been convicted of a criminal offense is, not- evidence is based primarily upon the testiwithstanding, a competent witness; but the mony of the witness Dumas, but the evidence

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