་ 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 intent to commit the crime for which she was on trial, is sufficiently established to authorize its admission. Instruction 4c defined the competency of the witness Jones, who was serving a life sentence in the penitentiary, and stated that 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 commits the crime. This general instruction is followed by a concrete application of the rule to the facts in evidence. We have recently had occasion in an opinion by Williams, J. (State v. Othick, 184 S. W. 107), to discuss and define in accordance with common-law principles and our own rulings the doctrine of criminal liability of persons guilty of a conspiracy to commit crime and the consequent equal guilt of all upon a showing that the crime conspired was committed by one of them in consummation of the common purpose. We have also had occasion to fully discuss this subject, in State v. Darling, 216 Mo. 450, 459, 115 S. W. 1002, 23 L. R. A. (N. S.) 272, 129 Am. St. Rep. 526, and in what are termed in our criminal annals the Bald Knob Cases. State v. Walkers, 98 Mo. 95, 119, 125, 9 S. W. 646, 11 S. W. 1133; Id., 98 Mo. 135, 11 S. W. 727; State v. Mathews, 98 Mo. 119, 10 S. W. 30, 11 S. W. 1136; Id., 98 Mo. 125, 10 S. W. 144, 11 S. W. 1135. The instruction here under review clearly conforms to the rule announced in these cases, and its correctness is therefore too well es tablished to be the subject of further controversy. Instruction 4a defines the technical words necessary to constitute murder in forms too frequently approved to waste words in discussing them. [4] Instruction 4b told the jury in substance that if they believed from the evidence that a conspiracy existed between the appellant and Alonzo Jones to commit the crime in question, that they might take into consideration any acts shown to have been done or declarations made by either during such conspiracy in furtherance of the common design, but that such acts or declarations not shown to have been thus done or made or the acts or declarations of said Jones after the death of the deceased were not to be taken into consideration; or, put more concretely, that such acts and declarations were not admissible against the appellant after the consummation of the common enterprise. This instruction also cor [5] V. It is contended that the jury was improperly instructed in regard to the punishment. Three forms of verdict were given; one for a finding of not guilty, and two for guilty. In one of the latter the death penalty was authorized, and in the other life imprisonment. The ground of appellant's contention is not given, and must therefore be inferred. The record discloses that the trial and conviction was had in May, 1917. This was subsequent to the enactment of the statute abolishing capital punishment which was approved April 13, 1917, which, however. on account of the absence therefrom of an emergency clause, did not become operative until June 18, 1917. This statute, therefore, could in no wise affect the procedure in this case. [6] However, if the act had been opera tive, it would afford no basis for complaint The instructions correctly defined the crime, and the forms of the verdict only had reference to the character of the punishment. The appellant's punishment was fixed at life imprisonment; she cannot complain, therefore, of the form of the verdict which prescribed the death penalty. The test of error is the presence of prejudice which did not exist. VI. It is finally contended that there was no proof of a conspiracy, and that the testimony of the declarations of the so-called conspirators and thereon were without authority. A review of the record does not sustain this contention. Not only by direct testimony, but by relevant collateral facts and circumstances, was it shown that an express understanding had been entered into by the appellant and Alonzo Jones to commit this crime. In view of our rulings on this subject, the existence of the conspiracy was therefore sufficiently established. Not only have we held that a common purpose to commit a crime may be proved by circumstantial evidence, but that all the acts and circumstances indicative of this purpose between the accused and a third person may be shown to establish the the instructions based 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. At about 9:30 o'clock on the night of December 31, 1916, after the family had retired, Mrs. Barnes was awakened by the barking 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 saw the appellant also passing on horseback (Supreme Court of Missouri, Division No. 2. going in the same direction, but somewhat Feb. 16, 1918.) 1. HOMICIDE 86-ASSAULT WITH INTENT TO KILL ELEMENTS. of such offense. 2. HOMICIDE 310(2)—ASSAULT TO KILL ELEMENTS OF OFFENSE. In prosecution under Rev. St. 1909, § 4481, for assault with intent to kill, where no instructions were asked or given relating to lessor included offenses, conviction cannot be sustained in the absence of showing intent to kill, though sections 4903 and 4904 provide for conviction of lesser included offenses. A in the rear of the other two. When he was opposite the house he turned in his saddle and fired a shot which penetrated the lower Under Rev. St. 1909, § 4481, defining as part of the window where she had been sault with intent to kill, the intent must appear, and the mere fact that accused shot in the direc-kneeling, the ball striking and severely tion 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 was a dark or a light night. Her husband, aroused by the report of the pistol, arose and reached her just as she was falling to the floor. He asked her what was the matter, and she said that Elmer Kester, who was passing along the road, had shot her. few days prior thereto appellant had been reprimanded by Barnes, the husband, for boisterously cursing as he passed the house, whereupon he rode up to the gate, alighted from his horse, and dared Barnes to have him arrested, saying, among other things, “G——d Barnes Dm you; I will kill you!" thereupon went into his house, and the appellant mounted his horse and left. Mrs. Barnes was present during this transaction, but did not participate in the same, except to attempt to induce her husband to go into the house. The sheriff of the county was unable to find the appellant in the neighbor 3. HOMICIDE 158(1)-ASSAULT TO KILL EVIDENCE-ADMISSIBILITY. In prosecution for assault with intent to kill by shooting at a dwelling house, evidence that on the preceding day accused had threatened the occupant, and said he would kill him, was admissible to show the animus of accused. 4. CRIMINAL LAW 7212 (2)-TRIAL-ARGUMENT OF COUNSEL. Where one accused of felonious assault had testified to the fact that he was accompanied by three others, and only two of the others, who were his brothers, testified, it was not error for the prosecuting attorney to comment on.the failure to produce the third man to testify that no shot was fired. 5. CRIMINAL LAW 366(1)-EVIDENCE-AD-hood the day succeeding the shooting. The MISSIBILITY-RES GESTÆ. In prosecution for assault with intent to kill, declarations made by the wounded party at the time she was shot of a spontaneous character relating to the offense were admissible. Appeal from Circuit Court, Douglas County; Fred Stewart, Judge. Elmer Kester was convicted of felonious assault, and he appeals. Reversed and remanded. Moore, Barrett & Moore, of Ozark, for appellant. Frank W. McAllister, Atty. Gen., and Geo. V. Berry, Asst. Atty. Gen., for the State. evidence disclosed that the night the offense was committed appellant left, and was arrested the next day in Springfield. When apprehended he denied his identity and place of residence. Later he admitted he had been in trouble, and on the way to the police station gave the officer his name. On some points there was a sharp conflict in the testimony. The errors assigned are that a demurrer should have been sustained to the state's evidence; that the testimony regarding the previous difficulty should have been excluded; that counsel for the state erred in his argument to the jury in asking why a certain ant; and in admitting statements made by Mrs. Barnes to her husband after being WALKER, P. J. The appellant was charg-witness named did not testify for the defended with Earnest Kester, his brother, in an information filed by the prosecuting attorney 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 found guilty, and his punishment assessed at five years' imprisonment in the penitentiary. From this judgment he appeals. Rebecca Barnes, charged to have been assaulted, lived with her husband and three lows with proper formality the phraseology of the statute (section 4481, R. S. 1909), which defines an assault with intent to kill. Appellant does not find fault with the information in this respect. His serious contention is that there was no evidence to sustain the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes application of the rule must of necessity be dependent upon the facts in each particular case. Here the former act was directed, if not towards the party injured, at least towards her husband and in her presence. It was of sufficiently recent occurrence before the shooting to show the animus of appellant at that time, and hence tend to show his intent in committing the act charged. Moreover, the nature of the former act was akin to that with which the appellant is charged in that each manifested a malign purpose, if not towards Mrs. Barnes, then towards her husband. charge as made, and that the verdict was with which it was committed. The proper therefore unauthorized. This contention is not without substance. The gravamen of an offense of the character here under review is dependent upon the intent with which the assault was committed. Under this statute to constitute the crime denounced there must be some facts in evidence from which such an intent can be reasonably deduced. It is not necessary for us to discuss whether or not the crime charged must be limited in its intent to the person alleged to have been injured, as in State v. Mulhall, 199 Mo. 209, 97 S. W. 583, 7 L. R. A. (N. S.) 630, 8 Ann. Cas. 781, and State v. Williamson, 203 Mo. 591, 102 S. W. 519, 120 Am. St. Rep. 678, because there are no facts here similar to those in the Mulhall and Williamson Cases, and hence the conclusions there reached are not pertinent. Even broader than the rule in the Hill Case is that announced in relation to the admission of this character of evidence in State v. Spaugh, 200 Mo. loc. cit. 594, 98 S. W. 55, 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 indifference to results which richly merit punishment under a proper proceeding. Section 4483, R. S. 1909. [2] We are not unmindful of the fact that a charge of felonious assault under section 4481 may, under proper instructions (State v. Groves, 194 Mo. 452, 92 S. W. 631), sustain a finding of guilt for a lesser offense than that charged as expressly provided in sections 4903 and 4904, R. S. 1909, upon the theory that the inflicting of great bodily harm, upon Mrs. Barnes by the appellant as denounced in section 4483, supra, constitutes a lesser offense of a kindred nature than that charged in section 4481, and hence is punishable under this information. No instructions were, however, asked or given in relation to the character of the crime other than those defining an assault with intent to kill, and the verdict, as a consequence, cannot be upheld. [3] II. Appellant also complains of the admission of testimony as to the boisterous, profane, and threatening attitude of the ap pellant towards the husband of Mrs. Barnes in her presence and at their residence a short time before the shooting. We have recently, in State v. Hill, 201 S. W. 58, not yet officially reported, had occasion to discuss this question. In that case we reaffirmed the general doctrine that evidence of this character was admissible when the act charged did not speak for itself and different other and a different person than the complainant at a different time, and none of the facts in the one instance had any relation to the other. The ruling in that case cannot, therefore, be said to be an authority against the admission of the evidence complained of here. Consequently, we are of the opinion that the testimony was not improperly admitted. III. Appellant urges that error was committed in permitting counsel for the state in his closing argument to make the following remarks: that four were riding along the road that passes "The defendant and his brothers have told you the home of Barnes and his wife who has been seriously injured, the defendant and his two brothers and Jimmie Johnson. If Jimmie Johnson was riding with these parties at that time, and no shot was fired, why don't the defendant bring Jimmie Johnson here to "rove that no shot was fired by him? Where is Jimmie Johnson? I never heard of him until during the trial of this case. Ask yourselves that question. Where is Jimmie Johnson? Why didn't the defense have him here to testify before you that no shot was fired?" [4] In view of appellant's testimony it was a legitimate inference to call the jury's attention to the failure of the defense to produce Johnson, a disinterested witness, to corroborate testimony material to the defense which otherwise had only found utterance in the statements of the appellant and his brothers. If there is any phase of the criminal practice to which the rule of reason or common sense should be applied, it is to the nu urged to remarks of counsel for the state. On account of the frequency and many times the futility of these objections, the line has been somewhat definitely drawn between the permitted and the proscribed classes of such remarks. In regard to the character of those here complained of, we have expressly held in State v. Parker, 172 Mo. loc. cit. 204, 72 S. W. 650, that it is permissible for a prosecuting attorney in his argument to make inquiry as to where a son of the defendant was, and why he was not called to testify, since the defendant's testimony showed that he was an eyewitness to the crime with which defendant was charged, and had testified at a former trial. A remark of this character, while based upon the evident inference that if an absent witness' testimony would corroborate the defendant, he would have called him, otherwise not, is nevertheless free from prejudice because its extent is simply to inquire why a witness was not produced, and is held, here and elsewhere, to constitute a legitimate conclusion which may be made in argument to the jury. State v. Emory, 79 Mo. loc. cit. hall, 199 Mo. 202, 97 S. W. 583, 7 L. R. A. (N. S.) 630, S Ann. Cas. 781, and State v. Williamson, 203 Mo. 591, 102 S. W. 519, 120 Am. St. Rep. 678, because I deem it opposed to good reasoning; to the weight of authority in other jurisdictions, and to the analogous rule in murder cases wherein the death alleged resulted from shooting at A., and striking and killing B., and wherein we say in effect that the intent follows the bullet. It is difficult, if not impossible, to differentiate between the species of intent required to be proven in such a trial for murder and the similarly named element in a trial upon the charge of assault with intent to kill. However, since there are, ordinarily, at least two other sections under which prosecutions may be had upon the same facts (sections 4483 and 4498, R. S. 1909), I hesitate to insist upon overruling the above cases and concur upon this point with reluctance and misgiving. NOVINGER v. SHOOP. (No. 18748.) 463; State v. Upton, 130 Mo. App. 316, 109 S. (Supreme Court of Missouri, Division No. 2. W. 821; People v. Ruef, 14 Cal. App. 574, 114 $09. [5] IV. The objection urged to the admission of testimony as to the declarations made by Mrs. Barnes when she was shot is not tenable. The declaration was contemporaneous with the commission of the crime; it had immediate relation thereto, and was spontaneous in its character. Possessing these elements, it was admissible as a part of the res gestæ. State v. Hudspeth, 159 Mo. 178, 204, 60 S. W. 136. For the error noted, this case will have to be reversed, and it is remanded that such action may be taken therein as to the state may be found proper in the premises. It is so ordered. All concur. FARIS, J., in separate opinion. Feb. 16, 1918.) is terminable at the will of the landowner, or on completion of the specific acts or acts contemplated in the permission. Where there has been an actual and continuous use of a way for the prescribed period with knowledge of the owner, the law raises a presumption 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 with the word "license," meaning the use of a ion that upon the facts here the proof of away with the consent of the landowner, which former difficulty between the defendant and the husband of the woman charged to have been assaulted was admissible for the purpose of showing a motive on the part of defendant. I also am of the opinion that the defendant could have been prosecuted, and perhaps ought to have been prosecuted, under the provisions of section 4498, R. S. 1909, which makes it a felony to shoot into a dwelling house. I have long doubted the correctness of the rule announced in State v. Mul and Phrases, First and Second Series, License; ACQUISITION-PRE User of a private right of way for the required statutory period, which was adverse and under a claim of right, and with knowledge of the owner, will result in a prescriptive easement without evidence of any grant. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Appeal from Adair County Circuit Court; a, was kept open. It was defined by fences Charles D. Stewart, Judge. Suit by William H. Novinger against Daniel R. Shoop. From a judgment for plaintiff, defendant appealed to the Court of Appeals, and that court (185 Mo. App. 526, 172 S. W. 616) transferred the appeal to the Supreme Court. Affirmed. This is a proceeding in equity to enjoin the obstruction of a private way and to compel the abatement of an obstruction of the same, the way in question being an outlet from plaintiff's tract of land to a public road. The following plat will show the relative positions of the tracts owned by the parties, as well as the location of the road obstructed: Plaintiff owned the 40-acre tract marked on the plat the northeast quarter of the southeast quarter of section 30. The road marked a, a, is a private road, as will be seen, leading from the corner of plaintiff's land southward one-half mile to a public road running east and west. The defendant owned the land on both sides of the road, on the west side throughout its entire length, and on the east side for more than half its length. which were maintained on both sides during all the time mentioned down to 1912. Although there is some evidence tending to show that the fences along this line inclosing the road a, a, were shifted somewhat at one time, at the time of the trouble in question the entire road was given off the tract on the west of the road for the south half of it, and the entire road was given off the tract on the east of the road for the north half of it, the road being 20 feet wide. Formerly, it appears, it ran straight through with 10 feet on each side of the quarter section line. From an early day until 1909, one Col. John L. Porter owned the tract of land affected, when he sold it, and in 1912 it passed 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 until 1912, when he conveyed it to the defendant. For about 10 years prior to that time the defendant had owned the 46-acre tract just east of the road and north of the Porter tract. Some time in 1907, while Mackey owned the tract west of the road, now owned by defendant, and the defendant owned the 46 acres east of the road and Porter owned the land now owned by plaintiff, Peter Mackey and his son William attempted to obstruct this road under consideration, and Porter brought a suit against him in that connection. This suit was settled by an agreement as follows: L. Porter of the first part, and Peter Mackey May, 1907. Some years after that Mackey met Porter and told him that he was going to put a gate At one time, some years before this trouble came up, a road also ran along the dotted line marked b, b, running from a public road a quarter of a mile to the west, along the south and east side of plaintiff's land, and eastward to a public road. This road b, b, was formerly used in connection with the road a, a, but about 10 years or more prior to the acquisition of his land by the plaintiff it was closed up and abandoned, leaving the road a, a, as the only outlet from that land. The evidence shows that for many years, beginning back in 1853, the roads a, a, and b, b, were used pretty continuously by people 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, road. The defendant, then, at the time the across that road, and Porter told him that he (Porter) would chop it down quicker than Mackey could put it up. The matter went no further, and there was no further attempt made by Mackey to obstruct the road. |
