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60 S. W. 1077, 54 L. R. A. 930, 83 Am. St. French v. Barber Asphalt Paving Co., 181 Rep. 468. Usually they are designated as L, S. 324, loc. cit. 341, 21 Sup. Ct. 625, 45 administrative or judicial functions “confer- I. Ed. 879; Norwood v. Baker, 172 U. S. red upon” such bodies or powers with which 269, 19 Sup. Ct. 187, 43 L. Ed. 443. "Unless they are “intrusted." McGhee v. Walsh, 249 the Legislature decide the question of beneMo. loc. cit. 283, 155 S. W. 445; State v. fits itself, the landowner has the right to be Vickens, 186 Mo. 103, loc. cit. 106, 84 S. W. heard upon that question before his property 908, 2 Ann. Cas. 779; State ex rel. Maggard can be taken” (included in the district). Fallv. Pond, 93 Mo. 606, loc. cit. 621, 6 S. w. brook Irrigation District v. Bradley, 164 U. 469; State ex rel. v. Fort, 210 Mo. loc. cit. S. 112, loc. cit. 175, 17 Sup. Ct. 56, 69 (41 557, 109 S. W. 737; State ex rel. v. Glaves, L. Ed. 369). 268 Mo. loc. cit. 104, 105, 186 S. W. 685; From the earliest time it has been held Meier v. St. Louis, 180 Mo. loc. cit. 409, 79 that the act of the county court incorporatS. W. 955.

ing a municipal corporation is a judicial act. The law relating to the incorporation of Kayser v. Trustees of Bremen, 16 Mo. 88; drainage districts in some of its general fea- State ex rel. v. Mining Co., 262 Mo. loc. cit. tures is like the statute under consideration 502, 171 S. W. 356 ; State ex inf. v. Fleming, here, and drainage district cases are cited 158 Mo. loc. cit. 563, 59 S. W. 118. In orby respondents in support of their position. ganizing road districts the county court But in those very cases it is held the or- doubtless exercises certain ministerial funcganization of such districts involves the tions, but necessarily "judicial questions arise "right of the Legislature to clothe the con- in the course of the proceeding” when the stituted courts with jurisdiction to inquire county court passes upon the facts which of and determine such judicial questions as would give it jurisdiction, when it determines may arise in the course of the proceedings." whether or not the petition is properly signElsberry Drainage District v. Harris, 267 ed and the notice is duly served. It is a juMo. loc. cit. 150, 184 S. W. 91. This court dicial function which the county court must said in Re Birmingham Drainage District v. exercise when it determines whether or not Railroad, 202 S. W. 404, No. 20386, decided the lands included in a district will be beneat the present term and not yet reported : fited by the contemplated improvements.

"To accomplish the single purpose of putting Fallbrook Irrigation District v. Bradley, 164 in action a drainage district required not only U. S. loc. cit. 169, 17 Sup. Ct. 56, 41 L. Ed. the enactment of a statute fixing, the extent, 369. purpose and general powers of the district, which is a purely legislative function, but the Respondents contend, further, that the appropriation of private property for such pur- county court may incorporate the district pose and determining the damage therefor by without making any such inquiry as to benejury trial, which are distinctly judicial func

fits. tions. Between these lies 'no man's land,' a

They quote the language of section region of action unclassified by the terms of the 10611 that the court may organize a district Constitution."

“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 neeu not be coneration were held constitutional by this sidered at the formation of the district. court, because the assessments contemplated The Embree Case, 240 l'. 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; strict "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 "As the district was not established by the intention to have this inquiry before the Legislature, but by an exercise of delegated au- district shall be organized. It provides for thority, there was no legislative decision that

There its location, boundaries and needs were such notice and hearing at that time. that the lands therein would be benefited by would be “no necessity” for such notice, as its creation and what it was intended to ac- suggested in the Embree opinion, and the complish, and, this being so, it was essential to hearing would be an inconsequential formaldue process of law that the landowners be accorded an opportunity to be heard upon the ity, if the determination of that matter were question whether their lands would be thus not had at that time. benefited."

We conclude that the county court in such The opinion points out (240 U. S. 249, 36 proceeding acts judicially in determining Sup. Ct. 317, 60 L. Ed. 624) that this court whether the land in question in a proposed (Embree v. Road District, 257 Mo, 593, 166 S. district is to be benefited, which involves an W. 282) did not definitely decide just when inquiry as to the propriety of any change of the inquiry should be had. The United boundaries from those described in the origiStates court then was considering only the nal petition; that this determination must formation of the district and the prerequisite be had before the district is incorporated, notice; that was the matter before it. That and the record must affirmatively show jurisno doubt might arise as to when the consid- diction according to the statute to do whateration of benefits must be had the court, ever is done. In this case, in the formation said (240 V. S. 248, 36 Sup. Ct. 319, 60 L. of a digtrict different from the one of Ed. 624):

which the landowners had notice, the record “That a hearing of some kind was contem- shows that the statute was not complied plated is obvious, and is conceded. But it is insisted that it was not to be directed to the with, and shows no opportunity for an actual question whether the lands included would be hearing was accorded to the landowners benefited by the creation of the district and upon such proposed change. There can be what it was intended to accomplish. If that were so, there would be little purpose in the no presumption of such hearing, as there hearing and no real necessity for it."

might be if the description in the order coAnd (240 U. S. 249, 36 Sup. Ct. 320, 60 L. | incided with that in the petition. Ed. 624):

[9] 1V. This interpretation of section 10612 “We conclude, therefore, that the statute dia does not render it inconsistent with the provide for according the landowners an oppor- terms of section 10611, as respondents vigortunity to be heard, when the district was cre- ously assert. The general power granted the ated, upon the question whether their lands would be benefited, and also that the order es- county court in section 10611 to organize tablishing the district shows that the statute districts “of any dimensions that may be was complied with in that regard."

deemed necessary or advisable" within cerLanguage could not plainer state that in tain limits must be interpreted in connection organizing the district the court must de- with the following section 10612, which pretermine, after notice and opportunity to scribes the method whereby those general landowners to be heard, whether or not powers may be carried into effect, and the lands located within its proposed boundaries procedure by which the court may acquire would be benefited. See, also, French v. and exercise jurisdiction to make orders Barber Asphalt Paving Co., 181 U. S. loc. affecting specific property. cit. 311, 21 Sup. Ct. 625, 45 L. Ed. 879. Of [10] V. It is claimed also that the county course, it is not meant by this that the coun- court, having jurisdiction, merely acted irty court would definitely assess the benefits regularly in excluding part of the land dewhich would accrue to the several tracts of scribed in the petition; that the error was land for a road which would be built-that merely one of granting relief not warranted was left for consideration in subsequent pro- by law, and would not involve the jurisdicceedings. But it must be decided by the tion. The case is not like one where a court county court that all the land in the district renders judgment for more than the pleadwould be benefited by the formation of a dis- ings would warrant; for instance, not like trict in an amount approximating the proba- | the judgment of the circuit court enforcing ble burdens. Of course, the mere laying a specific lien against property not included out of the district, without more, would in the petition as well as that mentioned in not benefit anybody's lands. It is not likely the petition. The judgment would be a that the county court would ever find the nullity as to property not described in the "public good" required such purposeless ac- petition, but would be effective as to that tion. In the very nature of a case, when a described. In that case nobody is hurt. But district is formed it is formed for the pur- here the judgment and order cannot be seppose of constructing some contemplated road arated in that manner because all the propor roads, and in such case the county court perty in the district is affected by the variprobably has information as to the location ance in the order from the petition. The and extent of the road or roads in contem- order could not be valid in part if void in plation when the petition is presented, other part. wise how could it determine that the public [11] In this connection it is argued that

FENSES.

the order would not be a nullity, but the community of intention between two or more
district formed would be the one described persons to do an unlawful act.
in the petition; that the law would presume and Phrases, First and Second Series, Conspi-

[Ed. Note.--For other definitions, see Words
that the order conformed to the petition, and racy; Second Series, Common Design.]
the proper proceeding was to compel the 5. CRIMINAL LAW 1207-STATUTE-ABOLI-
court by a mandamus to enter the judgment TION OF CAPITAL PUNISHMENT-PRIOR OF-
in conformity to that presumption. That
position ignores the actual finding of the

Conviction in May, 1917, after Act April

13, 1917 (Laws 1917, p. 246), abolishing capital court that a change was necessary and was punishment, which became operative June 18th, made, and ignores the judicial character of is not affected by said act. the act performed. It assumes that the 6. CRIMINAL LAW C1172(9) APPEAL function of the county court in the matter

HARMLESS ERROR. is merely ministerial. The circuit court

One convicted of murder and sentenced un

der verdict to life imprisonment was not prejucould not by mandamus compel the county diced by instruction authorizing death penalty, court to exercise its discretion in any par- even if the statute abolishing capital punishticular way. It was confined to the record ment had been then in force. made, and the record shows on its face that

Faris, J., dissenting in part. the county court did not make the order Appeal from Circuit Court, Ray County; which respondents claim, must be presumed F. P. Divilbiss, Judge. to have been made. It would be just as Iza Hill was convicted of murder in the appropriate to indulge the presumption con- first degree, and she appeals. Affirmed. tended for if the record were entirely silent,

Instruction 4b, referred to in the opinion, or if it showed the petition dismissed.

was: The judgment is reversed and the cause

The court instructs the jury that if you remanded with directions to the circuit court believe from the evidence that a conspiracy exto enter judgment declaring the action of isted between defendant and Alonzo Jones to the county court incorporating the Silex kill Lonnie Hill, then you may take into consid

eration in this case any acts or declarations you and Louisville road district of Lincoln coun

may find from the evidence to have been done ty entirely void, and ousting the respondents or made by any coconspirator in furtherance as commissioners of such road district. of the common purpose during the existence of

such conspiracy, but you should not take into

consideration in this case acts or declarations ROY, C., concurs.

of said Jones not done or made during the ex

istence of such conspiracy, nor can you take PER CURIAM. The foregoing modified into consideration the acts or declarations of opinion by WHITE, C., is adopted as the said Alonzo Jones made or dono after the death

of said Lonnie Hill. opinion of the court. All the Judges con- "Common design” means community of intencur.

tion 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 STATE V. HILL, (No. 20661.)

established by circumstances, the facts and cir(Supreme Court of Missouri, Division No. 2. cumstances, tending to show such common deFeb. 16, 1918.)

sign, conspiracy and the connection of the de.

fendant therewith, must be established beyond 1. INDICTMENT AND INFORMATION 119 – a reasonable doubt by the evidence in the case, SUFFICIENCY.

and when so established, such facts and cirTiresome iteration did not vitiate an infor- cumstances must not only be consistent with mation charging all essentials of the crime of each other and with the defendant's guilty conmurder.

nection therewith, but also absolutely inconsist2. WITNESSES Cw48(5) - COMPETENCY-CON- ent with any other reasonable theory.

"Conspiracy,” as used in these instructions, Rev. St. 1909, § 2891, providing that one is a combination of two or more persons by consentenced to the penitentiary for life shall be certed action to accomplish some criminal or deemed civilly, dead; section 4504, attaching unlawful purpose: certain disqualifications to conviction for mur

You are also further instructed that in deder; section 4631, forfeiting citizenship of termining whether there was or was not a conpersons convicted of certain Offenses; section spiracy, agreement or common design between 4673, attaching disqualifications to conviction of the defendant and Alonzo Jones to kill Lonnie other offenses; and section 4875, disfranchising Hill, you have no right to consider any deccertain convicts--do not render such person in- larations or acts made or done by said Alonzo competent to testify, in view of section 6383, Jones in the absence of tho defendant, but can making a convict a competent witness.

only consider such declarations or acts as were 3. CRIMINAL LAW 371(4) EVIDENCE

made or done in the presence or hearing of OTHER OFFENSES-ADMISSIBILITY.

this defendant. The jury cannot consider such In prosecution of a woman for her husband's done in the absence of this defendant in order

declarations or acts of said Jones made and murder, testimony that a few months prior to determine whether said conspiracy or comthereto she tried to poison him was admissible

If you shall be satisfied to show intent.

mon design existed. 4. CRIMINAL LAW Ow800(4)-INSTRUCTIONS- dence in the case that such conspiracy or com

beyond a reasonable doubt from the other evi"CONSPIRACY"'_"COMMON DESIGN."

mon design existed, If you shall be satisfied In prosecution for murder, “conspiracy” was beyond reasonable doubt from the other evicorrectly defined as a combination of two ordence in the case that such conspiracy or commore persons by concerted action to accomplishmon design did exist between defendant and a criminal purpose, and “common design" as Alonzo Jones before the death, then and not

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

VICTS.

1

1

1 1 1 1 1

1 1

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 tion of this conspiracy, he went to Richmond and believe from the evidence, were done and and killed the deceased and returned to made during the pendency of such conspiracy Kansas City. The appellant testified that and in furtherance thereof.

she had known Jones slightly for two or J. E. Black, E. A. Farris, and A. P. Ham- three years, but had never entered into a ilton, all of Richmond, for appellant. Frank contract with him or anybody else to kill her W. McAllister, Atty. Gen., and George V. husband; that she knew nothing of the latBerry, Asst. Atty. Gen., for the State.

ter's death until early one morning when

Jones came to the house where she was liv. WALKER, P. J. The appellant and one Marshall Dumas were charged in an infor- ing with her coindictee, and, before they mation filed by the prosecuting attorney of he was admitted by her coindictee, Dumas,

were out of bed, sought admittance; that Ray county with murder in the first degree. who remarked to him when he entered, “ 'Did A severance was granted, and at the February term, 1917, of the circuit court of said Jones said, 'Yes,' and she again said, 'Do

you do that?' and she says, 'Do what?' county, appellant was tried, and, the jury what? and Jones said, 'Kill Lonnie Hill; failing to agree, the case was continued until the May term, 1917. Upon a trial at this that's what!'” and then he said, "Don't you term appellant was convicted as charged, and open your mouth or I will kill you,” and her punishment assessed at life imprison- jumped at her with a knife. There was also ment in the penitentiary. From this judg- poison the deceased with strychnine tablets

testimony that appellant had attempted to ment she appeals.

dissolved in alcohol several months before Lonnie Hill, the party charged to have

his death. This she denied. been murdered, was the husband of the ap

The motion for a new trial preserves these pellant. At the time of his death he was in the employ of a citizen of Richmond. The alleged errors for consideration: Permitting last time he was seen alive was on the even- under a life sentence for the murder of the

Alonzo Jones, who was in the penitentiary ing of September 18, 1916. The next morn- deceased, to testify against the appellant; ing, not having attended to his usual duties,

admitting illegal and incompetent testimony his employer went to his room to ascertain the cause of his neglect. He found the de as to an attempted poisoning of the deceased ceased lying across the foot of his bed on his tion between that offense and the one with

by appellant without showing any connecface. Calling to him, and receiving no reply, which the appellant was charged; in giving the employer caught hold of him, and found instructions numbered 4, 4a, and 4b, on the not only that he was dead, but that rigor mortis had set in. Upon the body being turn- part of the state; in giving instruction 4c; ed over, the face of the deceased and the ad- improperly instructing the jury as to punishjacent wall, not before noticed, were found ment; the sufficiency of the information to covered with blood. After the removal of charge any offense; variance between the the body to an undertaker's several wounds, offense charged and the proof of same; and which appeared to have been inflicted with because there was no adequate proof of any a sharp instrument, were found on the head conspiracy. and neck of the deceased. The wound on the

he [1] 1. The contention as to the sufficiency neck had severed the jugular vein. This, as of the information is not well founded. In well as the wound in the head, which pierced charging the crime of murder all of the rethe skull, was sufficient to produce death. quired essentials are employed. That the inCircumstances indicative of a guilty connec- formation abounds in tiresome iteration it is tion with the crime led soon thereafter to true, but in its employment the pleader but the arrest of appellant, her coindictee, and followed time-worn precedents, always the one Alonzo Jones; the latter being separate safest course so long as a simpler and less ly charged with complicity in the crime. prolix system of criminal pleading is not exUpon the information being filed against him, pressly authorized. he entered a plea of guilty, and was sentenced

[2] II. It is urged that error was committo a life term in the penitentiary.

It is ted in permitting Alonzo Jones to testify on principally upon his testimony that the jury behalf of the state while undergoing a life found the appellant guilty. The parties are sentence in the penitentiary. Under the all negroes. The animus for the crime, as

common law he would have been incompestated by Jones, was to procure $371 from tent. This rule of exclusion, so far as it afan industrial insurance company in which fects the right of one convicted of crime to the deceased held a policy payable to his testify, has long since been abolished not wife, the appellant. Jones, while serving his only in England, but in the greater number sentence in the penitentiary, was taken there- of our states. 1 Wigmore, Ev. $S 519 to 524, from and testified at the trial. He stated and notes; 5 Chamb. Mod. Ev. § 3663 and that he was hired by appellant to go from notes; 11 Am. Jurist, p. 362; 15 Colum in Kansas City to Richmond to kill the deceas- Rev. 467. ed upon the promise that she would pay him The amelioration of the rigors of the com

on

mon-law punishment for crime is as evident conviction may be proved to affect his credi. in regard to the admission of testimony as bility, etc. it is in other phases of the history of juris From the foregoing it will be seen that a prudence. Statutes liberal in their latitude conviction of any offense, denounced by our in this regard have been enacted not only on law, will not render the convict incompetent account of a more humane disposition to to testify in a court of justice. Appellant's abate somewhat the severity of punishment, contention must therefore be overruled. but from necessity; it being found that the [3] III. The admission of testimony tendadmission of this character of testimony was ing to show an attempted poisoning of the of more practical value in the administra- deceased by appellant several months betion of justice than the addition of infamy fore the homicide is urged as error. The with its consequent deprivation of civil burden of this objection is that no connecrights. Bentham's Rationale of Ev. book 9, tion was shown between this attempt and pt. 3, c. 3, quoted at some length in 1 Wig- the crime for which appellant was being more, $ 519, p. 649, and lucidly epitomized in tried. This complaint falls short of raising 1 App. Ev. c. 3.

a tenable objection to the admission of the The common-law doctrine of infamy at- testimony. There was no pretense on the tendant upon a conviction for crime has part of the state that the attempted crime never been recognized in its fullness in this was a part of the one committed. It was jurisdiction. We have since the organiza- in no sense the purpose of the introduction tion of the state had statutes 'defining the of this testimony to establish the crime, but extent to which one convicted of crime was to show the intent with which it was comthereby stripped of civil rights. These were mitted. On this ground testimony of this by specific provisions made applicable to the character, with the modification we will different classes of offenses in our Criminal hereafter refer to, is held to be admissible. 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 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 pres-ness 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 ed which provided that any person who has was properly admitted. It is true that this 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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