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of the former crime was not confined to her facts at bar and a common design as conalleged statement. Confined to Dumas, its stituting an essential of such conspiracy. credibility might be open to serious question, The law as therein announced does not viobut not its admissibility. Dumas' testimony, late the rule as to the admission of evidence however, is corroborated by that of the of this character, and the instruction is doctor who stated that he had treated the therefore not subject to valid criticism. deceased for strychnine poisoning at about State v. Roberts, 201 Mo. 702, 728, 100 S. W. the time the appellant stated she had made 484; State v. Gatlin, 170 Mo. 354, 70 S. W. the attempt. The character of this testi- 885; State v. Walker, supra. mony, therefore, as tending to show an in Instruction 4c defined the competency of tent to commit the crime for which she was the witness Jones, who was serving a life on trial, is sufficiently established to author- sentence in the penitentiary, and stated that ize its admission.

his conviction could be shown to affect his IV. The giving of instruction numbered 4 credibility. This was in accordance with is alleged to have been error. This instruc- section 6383, supra, the application of which tion defined the criminal liability of each we have discussed. The conclusion reached of several persons who form a common de- in regard thereto disposes of the objection sign to effect a criminal purpose, and one of to this instruction. same in furtherance of such design alone [5] V. It is contended that the jury was commits the crime. This general instruction improperly instructed in regard to the punis followed by a concrete application of the ishment. Three forms of verdict were givrule to the facts in evidence. We have re-en; one for a finding of not guilty, and two cently had occasion in an opinion by Wil- for guilty. In one of the latter the death liams, J. (State v. Othick, 184 S. W. 107), penalty was authorized, and in the other to discuss and define in accordance with life imprisonment. The ground of appelcommon-law principles and our own rulings lant's contention is not given, and must the doctrine of criminal liability of persons therefore be inferred. The record discloses guilty of a conspiracy to commit crime and that the trial and conviction was had in the consequent equal guilt of all upon a show- May, 1917. This was subsequent to the ening that the crime conspired was committed actment of the statute abolishing capital by one of them in consummation of the com- punishment which was approved April 13, mon purpose. We have also had occasion to 1917, which, however, on account of the abfully discuss this subject, in State v. Darling, sence therefrom of an emergency clause, did 216 Mo. 450, 459, 115 S. W. 1002, 23 L. R. A. not become operative until June 18, 1917. (N. S.) 272, 129 Am. St. Rep. 526, and in this statute, therefore, could in no wise afwhat are termed in our criminal annals the fect the procedure in this case. Bald Knob Cases. State v. Walkers, 98 Mo. 95, 119, 125, 9 S. W. 646, 11 s. W. 1133; Id., tive, it would afford no basis for complaint

[6] However, if the act had been opera98 Mo. 135, 11 S. W. 727; State v. Mathews, 98 Mo. 119, 10 S. W. 30, 11 S. W. 1136; 1d. The instructions correctly defined the crime, 98 Mo. 125, 10 S. W. 144, 11 S. W. 1135. The and the forms of the verdict only had referinstruction here under review clearly con

ence to the character of the punishment. forms to the rule announced in these cases, The appellant's punishment was fixed at life and its correctness is therefore too well es

imprisonment; she cannot complain, theretablished to be the subject of further con

fore, of the form of the verdict which pretroversy.

scribed the death penalty. The test of error Instruction 4a defines the technical words is the presence of prejudice which did not

exist. necessary to constitute murder in forms too frequently approved to waste words in dis

VI. It is finally contended that there was cussing them.

no proof of a conspiracy, and that the tes[4] Instruction 4b told the jury in sub- timony of the declarations of the so-called stance that if they believed from the evi

conspirators and the instructions based dence that a conspiracy existed between the

A review

thereon were without authority. appellant and Alonzo Jones to commit the of the record does not sustain this contencrime in question, that they might take into tion. Not only by direct testimony, but by consideration any acts shown to have been relevant collateral facts and circumstances, done or declarations made by either during was it shown that an express understanding such conspiracy in furtherance of the com- had been entered into by the appellant and mon design, but that such acts or declara- Alonzo Jones to commit this crime. In view tions not shown to have been thus done or of our rulings on this subject, the existence made or the acts or declarations of said of the conspiracy was therefore sufficiently Jones after the death of the deceased were established. Not only have we held that a not to be taken into consideration; or, put common purpose to commit a crime may be more concretely, that such acts and declara- proved by circumstantial evidence, but that tions were not admissible against the ap- all the acts and circumstances indicative of pellant after the consummation of the com- this purpose between the accused and a mon enterprise. This instruction also cor- third person may be shown to establish the rectly defines a conspiracy as applied to the relation. State v. Shout, 263 Mo. 360, 172

S. W. 607; State v. Harrison, 263 Mo. 642, , small children in a house 50 feet or more 174 S. W. 57.

from a public highway in Douglas county. There was no reversible error, and the At about 9:30 o'clock on the night of Decemjudgment should be affirmed. It is so or- ber 31, 1916, after the family had retired, dered. All concur: FARIS, J., in result, Mrs. Barnes was awakened by the barking and in all except paragraph 3.

of their dogs. Arising, she went to the window and knelt by it to look out. She saw two men passing on horseback, and, arising

from the window to return to her bed, she STATE y. KESTER. (No. 20435.)

saw the appellant also passing on horseback (Supreme Court of Missouri, Division No. 2. going in the same direction, but somewhat Feb. 16, 1918.)

in the rear of the other two. When he was 1. HOMICIDE 86-ASSAULT WITH INTENT TO opposite the house he turned in his saddle KILI-ELEMENTS.

and fired a shot which penetrated the lower Under Rev. St. 1909, S. 4481, defining as- part of the window where she had been sault with intent to kill

, the intent must appear: kneeling, the ball striking and severely and the mere fact that accused shot in the direction of a dwelling house, and chanced to wound wounding her. There is no evidence that a woman in a window, whom he did not see, and she could have been seen from the highway. could not have seen, did not warrant conviction The testimony is conflicting as to whether it of such offense. 2. HOMICIDE (ww310(2)—ASSAULT TO Kill, was a dark or a light night. Her husband, ELEMENTS OF OFFENSE.

aroused by the report of the pistol, arose In prosecution under Rev. St. 1909, § 4481, and reached her just as she was falling to for assault with intent to kill, where no in- the floor. He asked her what was the matter, structions were asked or given relating to lessor included offenses, conviction cannot be sustained and she said that Elmer Kester, who was in the absence of showing intent to kill, though passing along the road, had shot her. A sections 4903 and 4904 provide for conviction of few days prior thereto appellant had been lesser included offenses.

reprimanded by Barnes, the husband, for 3. HOMICIDE 158(1)-ASSAULT TO KILLEVIDENCE-ADMISSIBILITY.

boisterously cursing as he passed the house, In prosecution for assault with intent to whereupon he rode up to the gate, alighted kill by shooting at a dwelling house, evidence from his horse, and dared Barnes to have him that on the preceding day accused had threat-arrested, saying, among other things, “G— ened the occupant, and said he would kill him,

Barnes was admissible to show the animus of accused! | Dm you; I will kill you !" 4. CRIMINAL LAW Om72142(2)--TRIAL-ARGU- thereupon went into his house, and the apMENT OF COUNSEL.

pellant mounted his horse and left. Mrs. Where one accused of felonious assault had Barnes was present during this transaction, testified to the fact that he was accompanied by three others, and only two of the others, who but did not participate in the same, except were his brothers, testified, it was not error for to attempt to induce her husband to go into the prosecuting attorney to comment on the fail- the house. The sheriff of the county was ure to produce the third man to testify that no unable to find the appellant in the neighborshot was fired. 5. CRIMINAL LAW CW366(1)-EVIDENCE-AD-hood the day succeeding the shooting. The MISSIBILITY-RES GESTÆ.

evidence disclosed that the night the offense In prosecution for assault with intent to was committed appellant left, and was arkill, declarations made by the wounded party at rested the next day in Springfield. When the time she was shot of a spontaneous character relating to the offense were admissible. apprehended he denied his identity and place

of residence. Later he admitted he had been Appeal from Circuit Court, Douglas Coun- in trouble, and on the way to the police ty; Fred Stewart, Judge.

station gave the officer his name.

On some Elmer Kester was convicted of felonious points there was a sharp conflict in the assault, and he appeals. Reversed and re

testimony. manded.

The errors assigned are that a demurrer Moore, Barrett & Moore, of Ozark, for ap- should have been sustained to the state's evipellant. Frank W. McAllister, Atty. Gen., dence; that the testimony regarding the preand Geo. V. Berry, Asst. Atty. Gen., for the vious difficulty should have been excluded ; State.

that counsel for the state erred in his argu

ment to the jury in asking why a certain WALKER, P. J. The appellant was charg- witness named did not testify for the defended with Earnest Kester, his brother, in an in- ant; and in admitting statements made by formation filed by the prosecuting attorney Mrs. Barnes to her husband after being of Douglas county, with a felonious assault. wounded. The parties were jointly tried. Earnest [1] I. The information filed herein folKester was acquitted, and the appellant was lows with proper formality the phraseology found guilty, and his punishment assessed at of the statute (section 4481, R. S. 1909), which five years' imprisonment in the penitentiary. defines an assault with intent to kill. AppelFrom this judgment he appeals.

lant does not find fault with the information Rebecca Barnes, charged to have been as in this respect. His serious contention is saulted, lived with her husband and three that there was no evidence to sustain the

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

charge as made, and that the verdict was, with which it was committed. The proper therefore unauthorized. This contention is application of the rule must of necessity be not without substance. The gravamen of an dependent upon the facts in each particular offense of the character here under review case. Here the former act was directed, if is dependent upon the intent with which the not towards the party injured, at least toassault was committed. Under this statute wards her husband and in her presence. It to constitute the crime denounced there must was of sufficiently recent occurrence before be some facts in evidence from which such the shooting to show the animus of appellant an intent can be reasonably deduced. It is at that time, and hence tend to show his innot necessary for us to discuss whether or tent in committing the act charged. Morenot the crime charged must be limited in its over, the nature of the former act was akin intent to the person alleged to have been in to that with which the appellant is charged jured, as in State v. Mulhall, 199 Mo. 209, in that each manifested a malign purpose, 97 S. W. 583, 7 L. R. A. (N. S.) 630, 8 Ann. if not towards Mrs. Barnes, then towards Cas. 781, and State v. Williamson, 203 Mo. her husband. 591, 102 S. W. 519, 120 Am. St. Rep. 678, be Even broader than the rule in the Hill Case cause there are no facts here similar to those is that announced in relation to the admisin the Mulhall and Williamson Cases, and sion of this character of evidence in State v. hence the conclusions there reached are not Spaugh, 200 Mo. loc. cit. 591, 98 S. W. 55, pertinent.

where Gantt, J., speaking for the court, reThe only affirmative testimony here as to views the cases here and in other jurisdicthe intent other than that to be deduced from tions and holds that proof of another offense proof of prior conduct is that the appellant than that of which an accused is on trial is shot in the direction of the house; there is proper when it tends to establish, not only nothing to show that he saw or could have the intent, but also the absence of mistake seen Mrs. Barnes therein. Firing in the di- or accident on the part of a person charged rection of the house, therefore, although the with the commission of the offense for which presumption may reasonably be made that he is on trial. In the Swearengin Case, 269 appellant knew there were human beings Mo. 177, 190 S. W. 268, cited by appellant in therein, will not suffice to establish such an support of his contention, the testimony held intent as is required to render him guilty as to have been improperly admitted was in recharged. At the worst the act was char- lation to a difficulty of the defendant with anacterized by a spirit of ruffianism and in- other and a different person than the comdifference to results which richly merit pun- plainant at a different time, and none of ishment under a proper proceeding. Section the facts in the one instance had any relation 4183, R. S. 1909.

to the other. The ruling in that case cannot, [2] We are not unmindful of the fact that therefore, be said to be an authority against a charge of felonious assault under section the admission of the evidence complained 4481 may, under proper instructions (State of here. Consequently, we are of the opinv. Groves, 194 Mo. 452, 92 S. W. 631), sustain ion that the testimony was not impropera finding of guilt for a lesser offense than

ly admitted. that charged as expressly provided in sec

III. Appellant urges that error was comtions 4903 and 4904, R. S. 1909, upon the mitted in permitting counsel for the state in theory that the inflicting of great bodily his closing argument to make the following

remarks: harm. upon Mrs. Barnes by the appellant as denounced in section 4483, supra, constitutes that four were riding along the road that passes

"The defendant and his brothers have told you a lesser offense of a kindred nature than the home of Barnes and his wife who has been that charged in section 4481, and hence is seriously injured, the defendant and his two punishable under this information. No in- brothers and Jimmie Johnson. If Jimmie John

son was riding with these parties at that time, structions were, however, asked or given in and no shot was fired, why don't the defendant relation to the character of the crime other bring Jimmie Johnson here to nrove that no shot than those defining an assault with intent to was fired by him? Where is Jimmie Johnson? I kill, and the verdict, as a consequence, can

never heard of him until during the trial of this

Ask yourselves that question. Where is not be upheld.

Jimmie Johnson? Why didn't the defense have [3] II. Appellant also complains of the ad- him here to testify before you that no shot was mission of testimony as to the boisterous,

fired?" profane, and threatening attitude of the ap [4] In view of appellant's testimony it was pellant towards the husband of Mrs. Barnes a legitimate inference to call the jury's atin her presence and at their residence a tention to the failure of the defense to proshort time before the shooting. We have duce Johnson, a disinterested witness, to correcently, in State v. Hill, 201 S. W. 58, not roborate testimony material to the defense yet officially reported, had occasion to discuss which otherwise had only found utterance in this question. In that case we reaffirmed the statements of the appellant and his broththe general doctrine that evidence of this ers. If there is any phase of the criminal character admissible when the act practice to which the rule of reason or comcharged did not speak for itself and different mon sense should be applied, it is to the nuinferences might be drawn as to the intent merous and oftentimes frivolous objections



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urged to remarks of counsel for the state. , hall, 199 Mo. 202, 97 S. W. 583, 7 L. R. A. (N.
On account of the frequency and many times S.) 630, 8 Ann. Cas. 781, and State v. William-
the futility of these objections, the line has son, 203 Mo. 591, 102 S. W. 519, 120 Am. St.
been somewhat definitely drawn between the Rep. 678, because I deem it opposed to good
permitted and the proscribed classes of such reasoning; to the weight of authority in other
remarks. In regard to the character of those jurisdictions, and to the analogous rule in
here complained of, we have expressly held murder cases wherein the death alleged re-
in State v. Parker, 172 Mo. loc. cit. 204, 72 s. sulted from shooting at A., and striking and
W. 650, that it is permissible for a prosecut- kiliing B., and wherein we say in effect that
ing attorney in his argument to make inquiry the intent follows the bullet. It is difficult,
as to where a son of the defendant was, and if not impossible, to differentiate between the
why he was not called to testify, since the de- species of intent required to be proven in such
fendant's testimony showed that he was an a trial for murder and the similarly named
eyewitness to the crime with which defend- element in a trial upon the charge of assault
ant was charged, and had testified at a for- with intent to kill.
mer trial. A remark of this character, while However, since there are, ordinarily, at
based upon the evident inference that if an least two other sections under which prosecu-
absent witness' testimony would corroborate tions may be had upon the same facts (sec-
the defendant, he would have called him, tions 4483 and 4498, R. S. 1909), I hesitate to
otherwise not, is nevertheless free from preju- insist upon overruling the above cases and
dice because its extent is simply to inquire concur upon this point with reluctance and
why a witness was not produced, and is held, misgiving.
here and elsewhere, to constitute a legitimate
conclusion which may be made in argument
to the jury. State v. Emory, 79 Mo. loc. cit. NOVINGER v. SHOOP. (No. 187-48.)
463; State v. Upton, 130 Mo. App. 316, 109 S.
W. 821; People v. Ruef, 14 Cal. App. 574, 114 (Supreme Court of Missouri, Division No. 2.

Feb. 16, 1918.)
Pac, 48, loc. cit. 54; McGuire v. State, 2 0. C.
D. 318; Davis v. Commonwealth (Ky.) 121 s. 1. EASEMENTS Ow7(6) CONTINUOUS USE

W. 429; State v. Sanderson, 83 Vt. 351, 75
Atl. 961; Lamm Yee v. State, 132 Wis. 527, an alleged private way, sometimes put wires

That tenants of plaintiff's grantor, who used 112 N. W. 425; Eggleston v. State, 59 Tex. across each end of the road for the purpose of Cr. R. 542, 128 S. W. 1105; State v. Costner, pasturing their own stock on the grass in the 127 N. C. 566, 37 S. E. 326, 80 Am. St. Rep. tinuous user so as to prevent the establishment

road does not show an interruption of the con809.

of a prescriptive right; it appearing that the [5] IV. The objection urged to the admis- wires were only temporary, and that they were sion of testimony as to the declarations made placed there by the tenants for their own use, by Mrs. Barnes when she was shot is not el along the road.

and did not interfere with the passage of travtenable. The declaration was contemporane- 2. EASEMENTS C 25–CONTRACTS-CONSTRUCous with the commission of the crime; it had immediate relation thereto, and was sponta- An agreement by defendant's grantors that neous in its character. Possessing these ele- so long as they owned the servient estate, the ments, it was admissible as a part of the res way should remain open, which agreement was

not signed by plaintiff's grantor, did not limit gestæ. State v. Hudspeth, 159 Mo. 178, 204, the existence of the right of way to a period 60 S. W. 136.

during which defendant's grantors owned the For the error noted, this case will have to servient estate, and plaintiff, having acquired be reversed, and it is remanded that such ac- prescriptive one, assert his easement.

the dominant tenement, may, the way being a tion may be taken therein as to the state may 3. EASEMENTS Om36(1) — "LICENSE” — “PERbe found proper in the premises. It is so or

MISSIVE USE." dered. All concur. FARIS, J., in separate Where there has been an actual and continopinion.

uous use of a way for the prescribed period with knowledge of the owner, the law raises a pre

sumption of a grant, unless the owner can show FARIS, J. (concurring). I concur in the that the use was merely permissive, the term result reached in this case. I am of the opin- "permissive use," which is used interchangeably ion that upon the facts here the proof of a way with the consent of the landowner, which

with the word "license," meaning the use of a former difficulty between the defendant and is terminable at the will of the landowner, or the husband of the woman charged to have on completion of the specific acts or acts contembeen assaulted was admissible for the pur- plated in the permission. pose of showing a motive on the part of de- and Phrases, First and Second Series, License;

[Ed. Note.-For other definitions, see Words fendant. I also am of the opinion that the Second Series, Permissive Use.] defendant could have been prosecuted, and 4. EASEMENTS 9(1) ACQUISITION-PREperhaps ought to have been prosecuted, under

SCRIPTIVE RIGHT. the provisions of section 4498, R. S. 1909,

Cser of a private right of way for the rewhich makes it a felony to shoot into a dwel- quired statutory period, which was adverse and ling house. I have long doubted the correct the owner, will result in a prescriptive ease

under a claim of right, and with knowledge of ness of the rule announced in State v. Mul- ment without evidence of any grant.

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


1 1 1 1 1 1 1 1 1 1 1 1 1






SEC 29









E 2

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Appeal from Adair County Circuit Court;sa, was kept open. It was defined by fences Charles D. Stewart, Judge.

which were maintained on both sides durSuit by William H. Novinger against Dan- ing all the time mentioned down to 1912. iel R. Shoop. From a judgment for plaintiff, Although there is some evidence tending to defendant appealed to the Court of Appeals, show that the fences along this line inclosing and that court (185 Mo. App. 526, 172 S. W. the road a, a, were shifted somewhat at one 616) transferred the appeal to the Supreme time, at the time of the trouble in question Court. Affirmed.

the entire road was given off the tract on This is a proceeding in equity to enjoin the west of the road for the south half of it, the obstruction of a private way and to com- and the entire road was given off the tract pel the abatement of an obstruction of the on the east of the road for the north half of same, the way in question being an outlet it, the road being 20 feet wide. Formerly, it from plaintiff's tract of land to a public appears, it ran straight through with 10 feet road.

on each side of the quarter section line. The following plat will show the relative

From an early day until 1909, one Col. positions of the tracts owned by the parties, John L. Porter owned the tract of land af. as well as the location of the road ob- fected, when he sold it, and in 1912 it passed structed:

into the plaintiff's hands. He also owned the 34-acre tract on the east side of the road under consideration, at the south end, from an early day, and owned it at the time of the trial.

One Peter Mackey owned the land on the

west side of the road in question from 1880 NESE SEC 30.5

until 1912, when he conveyed it to the deHNWSW

fendant. For about 10 years prior to that

time the defendant had owned the 46-acre DEFENDANTS

tract just east of the road and north of the SEISESEC.30 SWSW

Porter tract. Some time in 1907, while SEC. 29

Mackey owned the tract west of the road, DEFENDANT'S

now owned by defendant, and the defendant owned the 46 acres east of the road and

Porter owned the land now owned by plainSec 31 NW. NW.SEC.32

tiff, Peter Mackey and his son William atDEFT'S JOHNL PORTER'S

tempted to obstruct this road under consideration, and Porter brought a suit against him in that connection. This suit was set

tled by an agreement as follows: Plaintiff owned the 40-acre tract marked on the plat the northeast quarter of the

"This agreement made by and between John

L. Porter of the first part, and Peter Mackey southeast quarter of section 30. The road and William Mackey parties of the second part, marked a, a, is a private road, as will be witnesseth: That in consideration of the disseen, leading from the corner of plaintiff's missal of the case of John L. Porter, plaintiff, land southward one-half mile to a public and said Peter Mackey and William Mackey, road running east and west. The defendant court of Missouri, that the passway now used

defendants, now pending in the Adair circuit owned the land on both sides of the road, as a highway along and over the east half of on the west side throughout its entire length, the northeast quarter of the northeast quarter and on the east side for more than half its of section 31, township 63, range 15, lying and length.

being in Adair county, Missouri, and as is now

fenced shall be and remain a highway thereon At one time, some years before this trou- as long as the parties of the second part shall ble came up, a road also ran along the dotted

own and be in possession of said real estate, and line marked b, b, running from a public road it is further agreed that said second parties

agree to pay all costs of the suit pending herein a quarter of a mile to the west, along the and the first party agrees to dismiss said suit at south and east side of plaintiff's land, and defendants' costs. eastward to a public road. This road b, b,

"Witness our hands and seal this 28th day of May, 1907.

Peter Mackey. was formerly used in connection with the

“William Mackey." road a, a, but about 10 years or more prior to the acquisition of his land by the plaintiff and told him that he was going to put a gate

Some years after that Mackey met Porter it was closed up and abandoned, leaving the

across that road, and Porter told him that he road a, a, as the only outlet from that land. (Porter) would chop it down quicker than

The evidence shows that for many years, Mackey could put it up. The matter went beginning back in 1853, the roads a, a, and b, no further, and there was no further attempt b, were used pretty continuously by people made by Mackey to obstruct the road. going from the southeast to the northwest, so Plaintiff bought his land in February, 1912, as to reach the public road on the east and apparently soon after the defendant bought the schoolhouse marked on the plat. After the Mackey land on the west side of the b, b, was discontinued, the part marked a, l road. The defendant, then, at the time the

201 S.W.-5




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