author: BURGESS, J.

text:
    THE STATE v. EDWARD SOPER, Appellant.
    Division Two,
    December 10, 1907.
    1. LARCENY: Identification of Property: Sufficiency of Evidence. The evidence in this case — a prosecution for larceny — is held sufficient to identify the property, charged to have been stolen, as that of the prosecuting witness.
    2. ——: Different Property: Taken at Same Time: Motion to Elect. Where the property charged to have been stolen — in this case a mare and some cows — was all taken at the same time, there was bu.t one offense, and the trial court properly overruled a motion to require the State to elect “upon which property in the information it will proceed to trial.”
    3. -: Intent: Completed Offense: Disposition of Property Thereafter. If the removal of the property by defendant was with the felonious intent of stealing it, the larceny was then complete, and what he fnay thereafter have done with the property was immaterial except in so far as it tended to show his guilt.
    4. -: Incompetent Evidence: Taken Away from Jury. Where, in a prosecution for larceny, a witness was permitted to testify ■to a conversation between defendant and his wife over the telephone in regard to their domestic troubles, and the testimony was objected to by defendant and the objection sustained, and the court instructed the jury not to consider the testimony, “as it was not competent in any way, shape or form,” it cannot be said that the admission of the testimony was prejudicial to the defendant.
    5. -: Purchased by Check: Title to Property: Evidence. Where defendant accepted a check from the prosecuting witness with the understanding and agreement between them that he was to purchase therewith property for her, and he used the check for other purposes, without the consent of the prosecuting witness, and bought the property with other checks or money, and she afterwards, by and with the consent of defendant, had possession of the property thus purchased for her, such property was as much hers as if paid for with her check.
    6. EVIDENCE: Exclusion: No Exception. The action of the trial court in striking out evidence cannot be considered in the appellate court if no exception was saved at the time.
    7. LARCENY: Purchase of Other Property: Immaterial. Evidence as to the purchase by defendant of other property than that charged to have been stolen was immaterial, and was properly excluded.

      8. -: Publicity: Completed Offense. Evidence as to the publicity of defendant’s actions with regard to the property charged to have been stolen is not admissible where such actions take place after the larceny is complete.
    9. -- — : Flight: Evidence: Instruction. Where the evidence shows that immediately after the sale of the property defendant, instead of returning home as he had stated he would, went to another' State, where he remained severhl months, and that when he ¡returned to this State, he did not return to his home, and stated to the officer who arrested him that he “ought to have known better than to come back here,” there is ample evidence on which to base an instruction on flight.
    10. -: Claim of Title: Instructions. An instruction given for the State held not to put on defendant the burden of showing that he took the property under the belief that it was his own, when read in connection with defendant’s instructions 5 and 6, set out in the opinion.
    11. -: Too Many Instructions. The giving of numerous and 'repetitious instructions has always been disapproved by this court. Five or six pointed instructions for the State, in this prosecution for larceny, would have covered the case as well as it was covered by the seventeen instructions given for the State.
    Appeal from Clinton Circuit Court. — #0%. A. D. Burnes, Judge.
    Affirmed.

      B. II. Musser and W. 8. Herndon for appellant.
    (1) The court should have given the peremptory instruction to find defendant not guilty, asked by defendant at the close of the evidence in chief, and also at the close of all the evidence, because the evidence failed to show that the property alleged to have been stolen was the property of the prosecuting witness, and did not show any wrongful tailing, which would support a conviction of larceny. 18 Am. and Eng. Ency. Law (2 Ed.), 469; Hall v. Adkins, 59 Mo. 144; State v. Campbell, 108 Mo. 611; State v. Littrell, 170 Mo. 13; State v. Blair, 71 S. W. 482; State v. Tyler, 70 S. W. 750; State v. Spears, 69 S. W. 533; State v. Francis, 199 Mo. 671; State v. Scott, 177 Mo'. 665; State v. Mooney, 196 Mo. 43; State v. Crabtree, 170 Mo. 642; State v. Mahan, 138 Mo. 112; State v. Marshall, 47 Mo. 378. (2) The court should have sustained defendant’s motion to require the State to elect, asked by him at the close of the State’s evidence in chief. If there was any larceny, then the larceny of the horse occurred at a different time from that of the cows, the horse being .shipped to Illinois Monday, December 4, 1905', and the cows to Kansas City, Tuesday night, December 5, 1905'. State v. Palmberg, 199 Mo. 233; State v. Hillberg, 22 Utah 27; People v. Clark, 33 Mich. 112. (3) The court should have permitted witness Packard to testify as to the disposition of that part of the $763.58 check, given by the prosecuting witness to defendant not ■ deposited by defendant to his credit in the Farmers Bank of Cameron. The court should also have permitted defendant to have testified as to what disposition was made of the balance of said check, deposited to defendant’s credit, in said bank. This testimony would have shown conclusively that not a dollar of said check was expended by defendant in the purchase of the mare or cows alleged to have been stolen. (4) The court should have permitted defendant to testify in regard to the publicity of his action in the shipping of the cows and mare, and as to who was present at said time.

      Herbert 3. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State'.
    (1) No error was committed in overruling defendant’s application for the State to elect whether it would prosecute the defendant for the larceny of the mare or the cows. According to the evidence the mare was shipped out from Cameron on Monday, but the cattle were not shipped out from that station till Tuesday. But the larceny of both mare and cows was committed a.t the time the defendant took them from the farm of Mrs., Croft, which was on Monday, December 4, 1905. (2) The evidence for the State was amply sufficient to justify the jury in convicting defendant. Hinshaw v. State, 147 Ind. 362; Walker v. State, 49 Ala.. 400; People v. Arnold, 43 Mich. 305; 4 Elliott on Evidence, sec. 2723; State v. Bonner, 64 Me. 289; State v. Dickson, 78 Mo. 448; State v. Ferguson, 162 Mo. 678.
   BURGESS, J.

— At the September term, 1906, of the circuit court of Clinton county, under an information filed by the prosecuting attorney charging the defendant with the larceny, on December 4, 1905, of one sorrel mare and three red cows, the property of Mrs. Euphemia Croft, the defendant was convicted, and his punishment assessed at two years in the penitentiary. The court having overruled motions for new trial and in arrest of judgment duly filed by defendant, he appeals.

It appears from the evidence that the defendant, his wife and wife’s grandmother, the latter being Mrs. Euphemia. Croft, the prosecuting witness, lived together on a farm three and one-half miles from Cameron, Missouri, and that they went on this farm in November, 1904; that Mrs. Croft, who was seventy-five years of age, owned the farm, and the defendant was in charge of and operated it, hiring the help, cultivating the crops and paying the expenses in connection therewith, the money therefor being supplied by Mrs. Croft; that in addition to this, the defendant, on his own account, bought and shipped a good deal of cattle and other stock, which stock was kept and fed on the farm before being shipped to market.

In March, 1905, Mrs. Croft received a draft for $951.68, the proceeds of the sale of some lands in Illinois, which draft was deposited for her by the defendant in the Farmers Bank of Cameron, less $70 subtracted therefrom by the defendant, which he testified was used by Mm to pay some bills owing by Mrs. Croft. TMs deposit was afterwards augmented by tbe deposit of the interest on a note owing ber, tbe whole amount to ber credit in tbe bank being $1,031. On April 20, 1905, Mrs. Croft gave a check to tbe defendant for $763.58 on tbe Farmers Rank, which check, according to ber testimony, was given by ber to pay for a young sorrel mare, four milk cows and some calves purchased for ber by tbe defendant about that time, with tbe larceny of which mare and three of tbe said cows tbe defendant is charged in tbe information.

On April 21, 1905', tbe check for $763.58 was deposited by defendant in tbe Farmers Bank, and out of which was deducted tbe sum- of $179.70 to cancel notes for which be was indebted to tbe bank, tbe residue of $583.88 being placed to bis credit in tbe bank. He bad nothing more to bis credit at tbe bank at tbe time, and tbe testimony showed that this balance was withdrawn by various checks of defendant prior to May 13, 1905. On trial tbe defendant offered an explanation of tbe disposition of tbe check in question, and to prove that of tbe money so deposited none was used to pay for the cows and horse in controversy, but bis offers were refused by tbe court.

Tbe defendant, on May 13, 1905, purchased from one Lee Hainline the sorrel mare in question, for which he gave a check for $85 on tbe Farmers Bank, by reason of which check and others previously drawn bis account with tbe bank was overdrawn to tbe extent of $187.07, which overdraft was, on May 25', 1905', balanced by a note.

Tbe mare purchased from Hainline was but three years old, and unbroken at tbe time for driving purposes. She was used principally by tbe defendant as a saddle horse, and only on one or two occasions was she used by Mrs. Croft, tbe animal on each occasion being driven by tbe defendant.

On December 4, 1905, the date of tbe alleged larceny, the defendant used this horse in driving forty-four head of cattle to Cameron, he being accompanied by Roy Smith, a young man who worked on the farm at that time. Among the herd were seven red cows and two bulls. At noon that day the defendant shipped the horse from Cameron to Putnam, Illinois, the cattle remaining at Cameron until the night of the next day, when they were shipped by defendant to Kansas City. It appears that the Farmers Bank had a mortgage on all of these cattle to secure notes for money borrowed by the defendant to pay for some of them, and that the shipment was made in the name of the bank. The defendant did not return after making these shipments, but went to his father’s home at Putnam, Illinois, and this information against him was filed December 22,1905. He was arrested the following spring at Altamont, Missouri, a town some miles distant from Cameron, the marshal of Cameron having overheard the defendant talking over a telephone line between Cameron and Altamont, and the marshal of the latter town, being notified of defendant’s presence there, arrested him. The marshal who made the arrest stated in his testimony that when he made the arrest he informed the defendant that he was charged with grand larceny, and that defendant remarked he “ought to have known better than to come back here;” that defendant also said that he and his wife had had frequent quarrels, that he left her on that account and that his object in coming there was to talk to her over the telephone and try to fix the matter up*.

' Mrs. Croft testified positively that she gave defendant the check for $763.58 for the- purpose of purchasing a horse and some cows for her, and that defendant did purchase them for her. She was an old woman and seldom went out, and she was unable to remember from whom the animals were purchased or to describe the cows accurately, but she knew ‘ there was one red cow and one spotted cow.” She stated that on the morning the defendant drove away the cattle she asked him what he was going to do with the mare, and that he said he was going to take her to town and would ride her back; that she did not know at that time that the cows in controversy were among the cattle which defendant drove away, but that Roy Smith told her about it next morning.

Roy Smith, testifying for the State, said that he worked on Mrs. Croft’s farm from October 1st to December 8, 1906’, that he assisted the defendant in driving forty-four head of cattle from the farm to Cameron on December 4,1905, and that among the cattle were several cows, “red cows, spotted cows and roan cows.” Witness said that after arriving at Cameron the defendant told him that he had sold the mare to one Howard Loomis, and requested him not to say anything about it. The mare, witness said, was shipped to 111-. inois by defendant about 1 o’clock on Monday, December 4th, and the cattle were shipped to Kansas City the following Tuesday night. Witness further said that defendant sold a lot of cattle in November, and that some of the cattle shipped in December were bought by the defendant before he, witness, began to- work on the farm, and some afterwards. Some time in October witness bad a conversation with the defendant, and the latter said that he purchased twenty-eight of the cattle on the farm from one McLaughlin, and that “Mrs. Croft furnished the money to buy the mare and stock.” Witness milked the cows on the farm, and said there was one red cow, one spotted and one roan cow.

Defendant testified in his own behalf, and stated that in the shipment of forty-four cattle on December 4, 1905, were seven red cows,, and were purchased by him as follows: One of John Myers on January 21, 1905; two of John Gorrel in November, 1906; one of Everett Hester in November, 1904; one of Ei. M. Charlton on November 25, 1904; one of Dr. Franklin, at a sale in November, 1905, and one procured by a trade with William Hauger. The defendant, in support of his testimony, introduced in evidence the can-celled checks paid for these cows, and his testimony was in no way disputed. The court refused to' permit the defendant to show from whence the funds were derived for the purchase of the cattle, but the cheeks and bank books in evidence showed that none of the cows were pnchased with the check for $763.58 given him by Mrs. Croft on April 20, 1905. The testimony further showed that the sorrel mare which the prosecuting witness claimed as hers was not purchased until twenty-two days after the giving of this check, and was not paid for out of said check, but by an overdraft on the Farmers Bank, May 14, 1905, which overdraft was balanced by a note and mortgage given the bank by defendant, May 25,1905. The testimony of John Hainline, from whom the animal was purchased, was the same as that of the defendant regarding the date of the sale and the manner of payment, and it was further shown that defendant did not see the animal until a few days before the purchase. Defendant claimed all the animals shipped by him in December, 1905, as his own, and that not one of them was purchased with the proceeds of the check given him by the prosecuting witness, nor at the time stated by her in her testimony.

The defendant offered to show that on the 8th day of February, 1905, he bought from one Henry Ziegenbein a certain sorrel mare, seven years old, that he paid Ziegenhein for that mare by executing to the Farmers Bank of Cameron a chattel mortgage on the mare and other animals, and that thereafter, about the 21st day of April, 1905, with the knowledge and consent of Mrs. Croft, the prosecuting witness, and by her direction, he took from the check given him by her a sum sufficient to pay off. the note given for the purchase price of that horse. The court, however, sustained an objection to such testimony on the ground that this was not the mare in controversy.

J. Lake Jones, a witness for defendant, testified that he was a farmer, living near. Cameron, and that shortly after the defendant shipped the cattle away he saw Mrs. Croft and presented her with a bill for $81 for com which he had sold defendant, and that she. said “she wasn’t going to pay it, because it had been fed to his cattle and he shipped them away. ’ ’

Wm. Hauger testified for the defendant as follows: “I know Mrs. Croft, who just left the stand, and was at her place, as near as I can recollect, about two weeks after Ed. Soper left. Mr. Jones presented her a bill at that time for com which she claimed was fed to cattle Mr. Soper took to Kansas City, and she said she was not liable for it because the cattle belonged to Ed. Soper, and she said he fed the corn to his cattle.”

Three witnesses for the State testified that the defendant’s reputation for truth and morality was bad; and one of said witnesses, on cross-examination, said that he had heard one or two people say that the prosecuting witness told entirely different stories about the matters in controversy.

At the close of the State’s case the defendant asked the court for an instruction in the nature of a demurrer to the evidence, and a like request was made at the close of all the testimony, both of which were refused by the court and defendant excepted.

The first contention is that there is no evidence to show that the property alleged to have been stolen was the property of the prosecuting witness, Mrs. Croft, or that there was any wrongful taking which would support a conviction of larceny, and that, therefore, the peremptory instruction to find the defendant not guilty, asked by the defendant at the close of the evidence on the part of the State, and again at the close of all the evidence, should have been given.

While it is true the .evidence on the part of the State as to the ownership and identification of the cows is not as strong and convincing as it should be, we are not prepared to say that there was no substantial evidence that the cows were the property of Mrs. Croft, as alleged in the information. If her evidence is to be believed, the property all belonged to her. On the other hand, if defendant testified truthfully, it all belonged to him, and he was not guilty of either larceny or embezzlement of the mare or cows. The evidence as to the identification and ownership of the property was for the consideration of the jury, and there was, therefore, no error in refusing the peremptory instruction. Neither did the court err in overruling the defendant’s motion to require the State to elect, at the close of the State’s evidence in chief, “upon which property in the information it will proceed to trial,” ■ as the mare and cows were taken from the farm at the same time, and the taking constituted but one offense. If the removal of the property from the farm by defendant was with the felonious intent of stealing the same, the larceny was then complete, and what he may thereafter have done with the property was immaterial except in so far as it tended to show his guilt.

It appears from the record that in February, 1906, defendant was in Altamont, Missouri, and his wife was ' living on the farm, and that one Mrs. McCune, a witness for the State, was permitted to testify, over the objection of defendant, to a conversation between defendant and his wife over the telephone with respect to their domestic troubles, and which witness overheard. After this testimony was admitted it was objected to by the defendant on the ground that it was. incompetent and immaterial and did not tend to prove or disprove any issue in the case. The objection was sustained by the court and the jury instructed not to consider the testimony, as “it was not competent in any way, shape or form.” But defendant now insists that the evidence was prejudicial to the defendant, and, although stricken out, the poison it engendered in the minds of the jury was not removed. It is very clear that this testimony had no bearing whatever upon the issues in the case, and was inadmissible; but as the court, immediately after its admission, directed the jury not to consider it, we are unable to see how defendant could have been prejudiced by its admission, and do not think the judgment should be reversed upon that ground.

It is next contended that the court erred in not permitting O. E. Packard, cashier of the Farmers Bank of Cameron, to testify as to the disposition of that part of the $763.58 check given by Mrs. Croft to defendant not deposited by defendant to his credit in said bank, and that the court further erred in refusing to permit the defendant to show what disposition was made by him of the balance of the check deposited by him in the bank. Defendant claims that this testimony, had it been admitted, would have shown that no part of said check was expended by him in the purchase of the mare or cows in controversy.

It seems that at the time defendant received the check for $763.58 from Mrs. Croft he owed the bank, in notes, $179.70', and that this amount was deducted from the check, and the balance, $583.88, placed to his credit in the bank. There is no contention that this balance was insufficient to pay for the mare and cows in question. In order to vest in Mrs. Croft the title to the property in controversy it was not necessary that it should have been purchased for her with this identical check or its proceeds; but if defendant accepted the check with the understanding and agreement between himself and Mrs. Croft that he was to purchase therewith for her the mare and cows in question, and he used the check for other purposes, without the consent of Mrs. Croft, and bought the mare and cows, or any of them, with other moneys or checks, and she after-wards, by and with the consent of defendant, had possession of the property thus purchased for her, such property was just as much hers as if paid for with the identical check in question. The law will not permit a person to accept with one hand a check for the specific purpose of purchasing property therewith for the giver, and with the other hand to apply money which he then has to accomplish the same purpose, and then, when the property thus' purchased is claimed by the person who gave the check therefor, to claim that it belongs to him because he purchased it with morley of his own and not with the check or its proceeds. Such double-dealing should not for one moment be countenanced.

Complaint is made of the action of the court in striking out part of the evidence of A. J. Althouse, a witness for the defendant, but as the action’ of the court was not excepted to at the time, the question cannot now be considered.

The court refused to permit the defendant to testify that on February 8, 1905, he purchased a sorrél mare from one Henry Ziegenbien, and executed a chattel mortgage to the Farmers Bank of Cameron on said mare and other stock, and afterwards, with the knowledge and consent of Mrs. Croft, paid off said mortgage out of the check given by her. It was conceded by defendant that this was not the mare in question, and it is difficult to see how such evidence could have thrown any light upon any issue in the case, nor do we think it would have done so.

It is also contended that the court should have permitted the defendant to testify in regard to the publicity of Ms action in the shipping of the cows and mare, and as to the persons who were present at the time of shipment. The argument is that evidence of such character was admissible as tending to show good faith upon the part of' the defendant with respect to his claim of ownership. When “the evidence leaves it in doubt whether or not the property taken was the defendant’s or whether the defendant honestly believed either that he was the owner or that he had a right to the possession, publicity of taking is regarded as very strong evidence of the good faith of the defendant’s claim.” [18 Am. and Eng. Ency. Law (2 Ed.), 525; Causey v. State, 79 Ga. 564; State v. Homes, 17 Mo. 379.] No such evidence, however, is admissible after the completion of the offense and which, in the case at bar, if committed at all, was committed and completed at the time defendant took the property from the farm of Mrs. Croft; and it was upon this theory the case was tried. No- act or declaration of defendant, in his favor, as explanatory of the taking, was permissible unless it was done or made at the time of the taking or when he was first charged with the- offense. The declarations and statements, if any, made at the time as explanatory of his possession of the property in question, were admissible. It is not recorded, however, that defendant made any such statement at the time of the taking.

Defendant asked six instructions which were refused, and this is assigned for error. But there was no error in this, for the- court, at the instance of the defendant, gave seven other instructions which were exceedingly fair to him, and covered every point presented by the refused instructions.

The seventeen instructions given at the instance of the- State are challenged upon various grounds, but upon a careful reading we find them free from substantial objection, especially so those upon grand larceny. As to the instructions upon embezzlement, the defendant has no right to complain, as he was not convicted of that offense. We do not, however, intend to be understood as holding that they, or either of them, are erroneous.

The defendant contends that there was no evidence upon which to predicate the sixth instruction for the State in regard to the flight of defendant, after the commission of the alleged offense, for the purpose of avoiding arrest. But this we cannot admit. Immediately after the sale of the cattle in Kansas City, the defendant, instead of returning home as he had stated he would, went to Illinois, where he remained several months, or until the following spring, when he returned to this State, but not to his home or to Cameron, and was arrested at Altamont, Missouri. He stated to the officer who arrested him that he “ought to have known better than to come back here.” There was, therefore, ample evidence upon which to bottom said instruction.

The further contention is made that the burden of showing to the satisfaction of the jury that, at the time defendant carried away the property in question* “he did so under the honest belief that it was his own under a fair color of right and title, ’ ’ was erroneously placed upon the defendant by the State’s seventeenth instruction. Upon this same question the court, at the instance of the defendant, instructed the jury as follows:

‘ ‘ 5. The jury are instructed that, even though they may believe from the evidence, beyond a reasonable doubt, that the defendant took and carried away the property in question, yet, if they further believe from the evidence that the defendant took the property under claim of title, honestly entertained, then he is not guilty of larceny, and, in such case, he should be acquitted.
“6. The court further instructs the jury that where property is taken under a claim of right, and there be any fair claim of right to the property, and the jury believe from the evidence that snch claim is made in good faith, then it is the duty of the jury to find the defendant not guilty.”

We do not think the instruction, objected to is susceptible of the construction placed upon it by the defendant, but that it fairly submitted the question upon all the evidence: Certainly, when said instruction is

taken in connection with defendant’s above-quoted instructions, upon the same proposition, there can be no question that this feature of the case was fairly presented to the jury.

The only criticism which we have to make upon the instructions is their number. Five or six pointed instructions upon the part of the State would have covered the entire case, and the issues been more easily comprehended by the jury than by the entire seventeen given. The giving of numerous and repetitious instructions has always been disapproved by this court.

Finding no error in the record prejudicial to the defendant, we affirm the judgment.

All concur.


source: Caselaw Access Project

author: BURGESS, J.—

license: Public Domain

text:
    THE STATE v. WILLIAM KLUG, Appellant.
    Division Two,
    December 10, 1907.
    APPEAL: No Bill of Exceptions. Where no bill of exceptions was filed the judgment, the information being in proper form and tbe record proper free from error, will be affirmed.
    Appeal from Miller Circuit Court. — Wo». Jno. W. Moore, Judge.
    Affirmed.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    Where there is no hill of exceptions and no error appearing in the record proper, the judgment will be affirmed. State v. Nicholas, 193 Mo. 214; State v. Sparks, 191 Mo. 162; State v. Kearney, 199 Mo. 167.
   BURGESS, J.—

At the March term, 1906, of the circuit court of Miller county, the defendant, under an information duly filed by the prosecuting attorney of said county, charging him with assault with intent to kill one Marion F. Capps, was convicted of said offense, and his punishment fixed at two years in the penitentiary. He appeals.

No hill of exceptions was 'filed in this case. The information is in proper form, and the record in other respects free from error. The judgment is, therefore, affirmed.

All concur.


author: FOX, P. J.

text:
    THE STATE v. GEORGE G. HODGES, Appellant.
    Division Two,
    December 10, 1907.
    APPEAL: No Final Judgment. An appeal before final judgment is premature; and where tbe record discloses no final judgment rendered, a submission of the cause on appeal will be set aside, and the cause remanded with directions to render judgment upon the verdict.
    Appeal from Shannon Circuit Court. — Hon. Wm. N. Evans, Judge.
    Remanded (ivith directions).

      E. J. Shuck and Clark & Yount for appellant.

      Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
   FOX, P. J.

— The defendant in this cause was charged in the circuit court of Shannon county with throwing dynamite in certain waters of this State, whereby the fish in said waters might have been killed, injured or destroyed, and whereby a large quantity of fish in said waters were killed, caught and taken from said waters, in violation of section 7456, Revised Statutes 1899. The defendant was convicted of said offense and fined in the sum of $100, and the cause is pending in this court upon appeal from the verdict of the jury returned in said cause.

The index to the record in this cause designates that the judgment may be found on page 3 thereof. Doubtless this erroneous index occasioned the misapprehension by the Attorney-General as well as counsel for appellant as to what the record really disclosed. Counsel on both sides submitted this case upon the idea that a final judgment had been rendered. We considered the questions presented to our consideration by the briefs of the Attorney-General and counsel for appellant and banded down, at our last sitting, the conclusions reached upon those questions. The clerk of this court, since the last sitting of this division, has called our attention to the fact that the record fails to disclose any final judgment rendered in this cause. Upon this state of the record it is apparent that this appeal was prematurely taken. Appeals in' cases of this character are only provided for from final judgments. Adopting the course of procedure which is fully recognized in State v. Holland, 160 Mo. 667; State v. McClain, 137 Mo. l. c. 317; State v. Shea, 95 Mo. l. c. 95; State v. Gullic, 170 Mo. 334; State v. Hesterly, 178 Mo. l. c. 48; State v. Clapper, 196 Mo. 42; State v. George, 207 Mo. 16; and State v. Smith, 207 Mo. 24, it is ordered that the opinion filed in this cause "be withdrawn and the submission of this appeal be and is hereby set aside and the cause remanded to the circuit court with directions that the defendant be brought into court and that the court enter up judgment against him upon the verdict as returned by the jury in this cause.

All concur.


text:
    THE STATE v. JOHN L. McCORD, Appellant.
    Division Two,
    December 10, 1907.
    1. LOCAL OPTION LAW: Qualified Voters: Petition. The petition is as much a part of the record as the order of the county-court submitting the question of local option to the voters; and, therefore, in determining whether the petitioners were qualified voters, the petition, together with all other parts of the record, should he considered.
    2. -: -: Question for County Court. The county court, upon the presentation of a petition praying that the proposition for the adoption of the Local Option Law be submitted to the qualified voters of the coúnty, has jurisdiction of the matter, and has the right to determine whether or not the petitioners are legal voters. But it is not essential that the court’s jurisdiction be made to appear from any particular part of the record.
    3. --: And Taxpayers. The statute says that “upon application by petition, signed by one-tenth of the qualified voters,” etc., the county court shall order an election to be held on the adoption of the Local Option Law. The petition recited, “We, the undersigned legal voters in said Christian county,” etc. And the county court found such petition to have been signed by “one-tenth of the qualified voters and taxpayers of Christian county,” and that it appeared to the court “from the sworn testimony produced in open court .... that the required number of petitioners have signed and presented said petition for their consideration,” etc. Held, that, the petition showing on its face that it was signed by legal voters and there being no showing to the contrary, the petitioners weire qualified voters and the judgment and order of the county court, ordering the election, was predicated upon a legal petition; nor did the mere fact that the words “and taxpayers” were made to follow the words “one-tenth of the qualified voters” in the order of submission, deprive the county court of its jurisdiction, for that jurisdiction had already attached, nor did it render that order void.
    4. -: -: Order Refers to Petition. Where the order of the county court submitting the question of local option to the voters recites that the requisite number of petitioners have signed and presented said petition for the consideration of the court, said order has reference to the petition signed and presented by the persons who represented themselves therein as “legal voters,” and none others.
    5. -: -: Jurisdiction: Collateral Attack. Where a petition signed by the requisite number of legal voters is presented to the county court, praying for the submission of local option to the voters, the court acquires jurisdiction of the subject-matter, whether or not said petitioners are legal voters, and its proceedings thereafter with respect to the same question are not subject to collateral attack — such as an attack on the qualification of the petitioners by one who is charged with selling liquors in violation of the Local Option Law.
    6. -: Petition: In Words of Statute. It is not essential that the petition for a local option election be couched in the exact language of the statute; a substantial compliance there*, with is sufficient. And, although the statute provides that the county court, afteir the reception of a petition, shall order an election to be held “to determine whether or not spirituous and intoxicating liquors, including wine and beer, shall be sold,” a petition “to submit to the voters of said county the proposition to vote on the question whether dramshop license shall not be granted in said county, commonly called local option, according to section 3027, Revised Statutes 1899, of the State of Missouri,” is well enough, since no one signing it or voting at the election could have been misled by its infirmity.
    Transferred from St. Louis Court of Appeals.
    Affirmed.

      Harrington & Long and G. A. Watson for appellant.
    (1) The petition filed with, the county court was not sufficient to confer jurisdiction on said court to make any order under section 3027, Revised Statutes 1899, as the prayer is to submit to the voters the question as to whether dramshop' license shall be issued. This question cannot be voted on. (2) The finding of the court in its order for the election is fatally defective in that it finds that the signers of the petition constitute one-tenth of the voters and taxpayers of Christian county; section 3027 requires such petitions to be signed by one-tenth of the qualified voters of the county. For aught that appears from the finding of the court, many or all the signers are non-voting taxpayers, and may constitute one-tenth of both classes when combined, but 'the number of voters signing may fall far short of the required number. State ex rel. v. Bird, 108 Mo. App. 167. The said order is fatally defective as to the means by which the sufficiency of the petition was tested. The second proviso of section 3027 is as follows: “Provided, that the county court shall determine the sufficiency of the petition presented by the poll books of the last previous general election.” The sufficiency of this petition was, according to the order of the court, determined by the oral testimony of four witnesses. In the nunc pro time entry, the reference to the poll books is expressly excluded. “There should have been, at least, a substantial compliance with the statute, as the adoption of the Local Option Law involved one of the most vexatious and grave questions of the times.” State v. Baldwin, 109 Mo. App. 579.

      Herbert 8. Hadley, Attorney-General, N. T. Gentry, Assistant Attorney-General, G. Purd Hays and Leonard Walker for the State.
    (1) The petition filed with the county court is sufficient to confer jurisdiction on the court. The question of dramshop license was not before the court that day, but the petitioners asked the court to allow the qualified voters to vote on the question “commonly called Local Option according to section 3027 of the Revised Statutes of 1899 of the State of Missouri.'” That was the only question submitted to the voters at the election held on the 10th day of June, 1905'. This court will take judicial notice that there is only one Local Option Law in this State. State v. Munch, 57 Mo. App. 207; State ex rel. v. St. Louis, 174 Mo. 125; City of Louisiana v. Anderson, 100 Mo. App. 341;' State ex rel. v. Railroad, 105 Mo. App. 207; State ex rel. v. Huff, 105 Mo. App. 362; State ex rel. v. Weeks, 38 Mo. App: 566. (2) The findings of the county court cannot be attacked in a collateral proceeding, and the finding of the county court that one-tenth of the qualified voters had signed the petition is res adjudicaba as far as the legal status of this defendant is concerned, and the mere silence of its record is not sufficient to overthrow its jurisdiction, but the presumption of right acting must be indulged until the contrary is shown in a direct proceeding brought to annul the judgment of the county court. State v. Searcy, 39 Mo. App. 393; State v. Dugan, 110 Mo. 145; State ex rel. v. Huff, 105' Mo. App. 361; State ex rel. v. Railroad, 105 Mo. App. 207; State v. Hutton, 39 Mo. App. 413; Hadley v. Bernero, 103. Mo. App. 549; State v. Evans, 83 Mo. 322; Macey v. Stark, 116 Mo. 494; Leonard v. Sparks, 117 Mo. 108; State v. Houts, 36 Mo. App: 271; Breman v. Maute, 108 Mo. App. 339; Hathaway v. Railroad, 94 Mo. App. 343. Whether the petition filed with the county court contained the one-tenth. of the qualified voters of the county or not, is conclusive against this defendant, as it is a judicial finding, and is the record of a fact judicially determined. State v. Searcy, 39 Mo. App. 408; State v. Evans, 83 Mo. 322; State ex rel. v. Weatherby, 45- Mo. 17; Jefferies v. Wright, 51 Mo. 220; Johnson v. Beazley, 65'Mo. 250; Sims v. Gray, 66 Mo. 614; Fulkerson v. Davenport, 70 Mo. 546; Scott v. Crews, 72 Mo. 263; Gray v. Boles, 74 Mo. 423; Henry v. McKerlie, 78 Mo. 416; Mechen on Pub. Officers, sec. 219'; In re Rothwell, 44 Mo. App. 215; State v. Prather, 41 Mo. App. 451. The sufficiency of the petition was not determined from oral testimony, but testimony was taken in open court as to the genuineness of signatures of the petitioners, and the presumption is the court did its duty in deciding that the petition was sufficient. State v. Searcy, 39 Mo. App. 393; State ex rel. v. Weeks, 38 Mo. App. 566; State v. Evans, 83 Mo. 322; Macey v. Stark, 116 Mo. 494; State ex rel. v. Huff, 105 Mo. App. 362.
   BURGESS, J.

— This case was certified to this court from the St. Louis Court of Appeals, upon a division of opinion in that court, a majority of the members thereof concurring in an opinion reversing the judgment of the circuit court, the other member dissenting. There is no controversy as to the facts, which are stated by Judge Nortoni substantially as follows:

The defendant was convicted on a charge of selling intoxicating liquors in violation of the Local Option Law, and, after unsuccessful motions for new trial and in arrest of judgment, appealed to the St. Louis Court of Appeals. The main question raised was as to the adoption of the Local Option Law in Christian county, the defendant maintaining that the Local Option Law is not in force in said county, in support of which contention he points to what he terms irregularities in the proceedings antecedent and leading up to the publication of notice declaring the same to have been adopted.

It appears that on the 4th day of May, 1905, a petition was presented to the county court of Christian county, praying that the proposition of adopting the. Local Option Law be submitted to the voters of that county. The county court found such petition to have been signed by “one-tenth of the qualified voters and taxpayers of Christian county, Missouri,” and upon such finding ordered an election for July 10th, “to determine the proposition whether or not spirituous and intoxicating liquors, including wine and beer, should be sold” in that county. The election was held, a majority of the votes cast were found to be in favor of the adoption of the Local Option Law, and in due time the county court published the result, in compliance with section 3031, Revised Statutes 1899', thereby putting the provisions of the law in force.

The defendant contends that the judgment and order of the county court, of date May 4th, by which it submitted the proposition to adopt the law, is void for the reason that it is not predicated upon the petition of one-tenth of the qualified voters of such county, as required by .section 3027, Revised Statutes 1899, which provides:

“Upon application by petition, signed by one-tenth of the qualified voters of any county who shall reside outside of the corporate limits of any city or town having, at the time of such petition, a population of twenty-five hundred inhabitants or more, who are qualified to vote for members of the Legislature, in any county in this State, the county court of such county shall order an election to be held in such county at the usual voting precincts for holding any general election for State officers, to take place within forty days after the reception of such petition, to determine whether or not spirituous and intoxicating liquors, including wine and beer, shall be sold within the limits of such county lying outside of such corporate limits of such-city or town.”

The petition to the county court for the submission of the question of local option to the qualified voters of the county is in substantial compliance with the requirements of the statute. It recites: “We, the undersigned legal voters in said Christian county, do hereby petition your- honorable body to submit to the voters of said Christian county the proposition to vote on the question whether dramshop license shall not be granted in said county, commonly called local option, according to section 3027, Revised Statutes 1899', of the State of Missouri. ’ ’

Upon the presentation of this petition, as stated before, the county court found that it was signed by “one-tenth of the qualified voters and taxpayers of Christian county;” but the order of the court further recited that it appeared to the court “from the sworn testimony produced in open court by Rev. W. H. Son, J. A. Wasson and S. D. Wells and William McVeigh that the required number of petitioners have signed and presented said petition for their consideration,” etc,;

• The question, then, is, were the petitioners qualified voters of the county? In determining this question we must not ignore the petition, nor any part of the record, but consider all together. The petition is as much a part of the record as the order submitting the question of local option to the voters, and is an indispensable prerequisite to the making of the order. It says, “We, the undersigned legal voters,” etc:, and the order of submission recites that the petition prayed the court to make an order submitting to the qualified voters of said county an election to determine whether or not spirituous liquors should be sold, and, further, that the requisite number of petitioners had signed and presented said petition.

It will be observed that the only petition presented to the court shows upon its face that ■ it was signed by legal voters, and there is no showing to the contrary. It was only upon a petition signed by one-tenth of the legal voters of the county that the court was authorized to submit the question of local option to the qualified voters of the county, and the court having jurisdiction of the matter had the right to determine whether the petitioners were legal voters or not. Having so decided, its judgment cannot he attacked collaterally.' The mere fact that the words “and taxpayers” follow the words “one-tenth of the qualified voters” in the order of submission, did not deprive the court of its jurisdiction, it having already attached, and did not, in our opinion, render the order void. Besides, where the order of submission recites that the requisite number of petitioners had signed and presented said petition for the consideration of the court, it has reference to the petition signed and presented by the persons who represented themselves therein as legal voters, and none others. It is not essential that such jurisdiction should appear from any particular part of the record. [State v. Schneider, 47 Mo. App. 669.] In determining this question in the case in hand, the petition and order should be taken together, because they constitute but one record, and it is sufficient if jurisdiction appears from the entire record. [Sappington v. Lenz, 53 Mo. App. 44; Adams v. Cowles, 95 Mo. 501; Sutton v. Cole, 155 Mo. 206.] To our minds, it is clear that the question was fairly submitted to the legal voters in the county; that ‘ taxpayers” not legal voters did not, so far as the record discloses, sign the petition or vote at the election, and that the words “and taxpayers” were inadvertently, and without authority, inserted in said order of submission.

When the petition was presented to the county court by the requisite number of legal voters of the county, asking said court to submit to the voters of said county the proposition to vote on the question whether or not spirituous and intoxicating liquors should he sold in the county, it acquired jurisdiction of the subject-matter of controversy and of the petitioners, and the validity of its proceedings thereafter with respect to the same matter is not subject to collateral attack, as is sought to be done in this case.

As the petition presented to the county court on which the order for the local option election was based petitioned the court “to submit to the voters of said county the proposition to vote on the question whether dramshop license shall not be granted in said county, commonly called local option, according to section 3027, Revised Statutes 1899', of the State of Missouri,” while said section provides that the county court, after the reception of the petition, shall order an election to be held “to determine whether or not spirituous and intoxicating liquors, including win© and beer, shall be sold,” it is claimed by defendant that the petition in question was insufficient to authorize the court to take jurisdiction of the matter, and make the order for election. "While the petition is not couched in the exact language of the statute, we think it a substantial compliance therewith, and when considered in connection with the words “commonly called local option, according to section 3027, Revised Statutes 1899, of the State' of Missouri,” which words form part of the petition, it seems well enough. Certainly, no one signing the petition or voting at the election could have been misled by its informality. As was said by Smith, P. J., speaking for the court, in State ex rel. Church v. Weeks, 38 Mo. App. l. c. 573, “If it appeared by the petition of the requisite number of the qualified voters that such was their will, that fact would authorize the exercise of the jurisdiction, no difference what the form of the petition may be. . . . When proceedings under the Local Option statute are drawn in question as for sufficiency, we. are not disposed to invoke the application of the strict rules of construction by which are usually tested proceedings for the condemnation of private property for public use. ’’ [State v. Smith, 38 Mo. App. 618.]

Our conclusion is that the petition was a sufficient compliance with the requirements of the statute to justify the making of the order for the election. ■

For these considerations the judgment of the cir-court is affirmed.

All concur.


author: GANTT, J.

text:
    THE STATE v. DAVID KENNEDY, Appellant.
    Division Two,
    December 10, 1907.
    1. MOTIONS: Not Preserved for Review. Dilatory pleas filed and overruled, but not preserved in the motion for new trial, are not reviewable on appeal.
    2.. COMMON LAW MARRIAGE: How Established: Manslaughter. In order to establish a valid common law marriage there must be, not only reputation and cohabitation as a sequence thereof, but a present contract through words by which the man agrees to take the woman as his wife and the woman agrees to take the man as her husband. And the evidence in this case not only fails to establish such an agreement between defendant and a woman, but does establish a case of open, notorious and lascivious conduct on their part. Therefore, the contention that the woman, for insulting whom defendant claims he shot deceased, was the defendant’s wife, and that defendant was therefore guilty of no higher grade of crime than manslaughter in the fourth degree, is without foundation.
    3. HOMICIDE: Manslaughter: No Provocation. Where there was no personal violence hy the deceased towards defendant, and no other provocation than contemptuous and insulting remarks and epithets, there is nothing upon which to base an instruction for manslaughter in the fourth degree.
    t. WITNESS: Impeachment: By Former Conviction. It is competent for the State to impeach a witness for ■ defendant, on cross-examination, to the effect that she had pleaded guilty to and been convicted of-the charge of adultery with defendant, and by the record of the justice of the peace showing she had been adjudged guilty of that criminal offense.

      5. THREATS. In the absence of evidence that deceased was attempting to carry prior threats into execution, evidence of such threats is not admissible. Evidence of such threats is not admissible to 'explain the possession of a pistol by defendant, where all the evidence shows that deceased was walking away from defendant when he was shot and that his conduct in no manner threatened any violence towards defendant.
    6. HEARSAY: Explanatory: Res Gestae. It was competent to show, by a third party, that a man came to the tent where the deceased was eating his dinner and told him that defendant wanted him to come to his tent after he had eaten, whether the information was true or false, as explanatory of why deceased went to defendant’s tent where the shooting occurred, and to that extent it was competent as a part of the res gestae.

    7. HOMICIDE: Assault on Mistress. Instructions based on the supposed right of defendant to kill deceased on account of an alleged assault upon a woman with whom for a year defendant had maintained lascivious and notorious adultery, should be refused.
    Appeal from Greene Criminal Court. — Row. John T. Moore, Special Judge.
    Affirmed.

      Gorman, Sherwood & Delaney for appellant.
    (1) The theory of the defense in this case was that the killing of the deceased was of no graver grade of crime than manslaughter in the fourth degree. The testimony tended to show that the woman, Eva Parks, was the common law. wife of the defendant Dave-Kennedy; that there had been an agreement between them to live together as man and wife, followed by cohabitation and a holding out to the community that they were man and wife, and that both parties, being unmarried and of age, were capable of thus contracting a marriage. A marriage at common law requires no particular form or ceremony to make it valid. State v. Cooper, 103 Mo. 266. It is valid though not in accordanee with statute. State v. Bittick, 103 Mo. 183; State v. Ilainsbrough, 181 Mo. 348; State v. St. John, 94 Mo. App. 229. It is presumed from acknowledgment, cohabitation and reputation. Oargile v. Wood, 63 Mo. 501; Dyer v. Brannock, 66 Mo. 391; White v. Maxey, 63 Mo. 552; Imboden v. Trust Co., Ill Mo. App. 220'. (2) The admission of the plea of adultery by Eva Parks with defendant in rebuttal of the theory of a common law. marriage between Eva Parks and defendant is incompetent, irrelevant and immaterial and should not have been allowed for such purpose. It is only admissible for the purpose of affecting her credibility as a witness and should be properly instructed upon. R. S. 1899', sec. 4680; State v. Matthews, 20 Mo. 55; State v. Nelson, 118 Mo. 124. The plea itself was improper and should not have been admitted. It was impossible for Eva Parks to commit adultery with defendant as neither had been married to another person. And in addition said Eva Parks was ignorant of the offense she plead guilty to and the punishment assessed by the justice of $1 is one not to be found in the statutes. R. S. 1899', see. 2175'; State v. Crowner, 56 Mó. 147; State v. Coffey, 39 Mo. App. 56; State v. Bell, 194 Mo. 359. (3) The testimony showed further that on the evening prior to the killing the deceased had gone to defendant’s tent home in the absence of defendant and forcibly had intercourse with the woman. That he had threatened her if she informed on him and threatened to kill defendant if he dared' to resent the- injury. That the following morning, on being accosted by defendant in regard to the outrage, deceased admitted the fact and was in the act of flaunting it in defendant’s face at the time of the killing. These facts entitled him to an instruction on manslaughter in the fourth degree; State v. Gruge-n, 147 Mp. 39; State v. Calloway, 154 Mo. 92; State v. Privitt, 175 Mo. 207; State v. Gartrell, 171 Mo. 522. Where the evidence shows that the killing was done in hot blood, aroused by the adultery or rape of a wife, without sufficient time having intervened between the discovery of the outrage and the killing for reason to have become cooled, a homicide under such circumstances is only manslaughter in the fourth degree. (4) The exclusion of the testimony of Eva Parks, offered by the defense, of the threat of deceased against defendant to explain the possession of the pistol, was error. It gave the appearance of preparation for the commission of a crime, and unexplained was highly prejudicial to defendant’s case. Proof of a threat against a defendant is always admissible. State v. Elkins, 63 Mo. 159; State v. Evans, 50 Mo. 574; State v. Keene, 50 Mo. 357; State v. Adams, 76 Mo. 355'. The case of State v. Clum, 90 Mo. 482, and others following. it are not applicable to the one at bar. And even in the light of their holding, in this case there was a demonstration as well as a challenge to fight preceding the shooting. Proof of the possession by defendant of a pistol and of putting it in shooting condition followed by a refusal to allow defendant to show his reason (a threat communicated) is most prejudicial and it is error to exclude such threat after proof of possession of pistol.' B.. S. 1899, sec. 1863'. (5) The admission of statements of a third party made in the absence of defendant and not a part of the res gestae is hearsay testimony and fatally erroneous. Chouteau v. Searcy, 8 Mo. 733; Coble v. McDaniel, 33 Mo. 363; State v. McGuire, 113 Mo. 679; State v. Foley, 130' Mo. 484; State v. Grote, 109 Mo. 345. Such testimony is no part of the res gestae. Ladd V. Couzins, 35 Mo. 513; State v. Eider, 95 Mo. 474; State v. Beard, 126 Mo. 548; State v. Brown, 64 Mo. 367.

      Herbert 8. Hadley, Attorney-General, and John Kennish, Assistant Attorney-General, for the State.
    (1) The contention of the defendant at the trial and now is that he was entitled to prove a common law marriage between himself and the Parks woman, for the purpose of showing provocation by the deceased and thus reducing the grade of the homicide, and that the error of the court, in excluding evidence and failing to instruct as to such marriage, was confined solely to the effect of such ruling upon the degree of the defendant’s guilt. Upon this point defendant places much reliance on the case of State v. Grugen, 147 Mo. 39'. This case, so far as it has been understood as announcing the doctrine that words alone, without personal violence, might be of sufficient provocation to reduce the homicide from murder to manslaughter, is no longer followed in this State. State v. Gordon, 191 Mo. 125; 1 East’s Pleas of the Crown, 233; 4 Blackstone, Com., 201; State v. Wieners, 66 Mo. 13. And the common law rule in this respect is firmly established in this State by a long line of decisions. State v. Starr, 38 Mo. 271; State v. Branstetter, 65 Mo. 149; State v. Hill, 69 Mo. 451; State v. Elliott, 98 Mo, 150; State v. Gartrell, 171 Mo. 516-519'. As there was no evidence, even by the defendant himself, tending to prove personal violence by the deceased toward defendant, it follows that there was no basis for an instruction on manslaughter in the fourth degree. (2) The court did not err in admitting in evidence the record showing that witness Eva Parks had entered a plea of guilty to a charge of adultery. She was a witness for the defense, and it was therefore competent for the State to impeach her by the record showing that she had pleaded guilty to a criminal offense. R. S. 1899, sec. 4689; State-v. Barrington, 198 Mo. 23; State v. Blitz, 171 Mo. 530; State v. Thornhill, 174 Mo. 364. Besides, no objection was made at the time to the introduction of. such, record in evidence, and therefore it is too late now to complain. (3) The court did not err in excluding evidence tending to prove threats made by deceased against defendant and communicated to defendant before the homicide. There is no evidence in the record tending to prove that deceased was the aggressor, or that he made any attempt to carry out prior threats, if such threats were made, and the law is well settled that evidence of threats by the deceased against the defendant are inadmissible for any purpose, unless the deceased was attempting to put them into execution at the time of the homicide. State v. Smith, 164 Mo. 687; State v. Clum, 90 Mo. 482; State v. Need, 137 Mo. 125; State v. Privitt, 175 Mo. 207.
   GANTT, J.

— At the July term, 1906, of the criminal court of Greene county, the prosecuting attorney of said county filed an information in open court charging the defendant, David Kennedy, with murder in the first degree of Walter Williams at said county, August 2,1905. The- defendant being without means to employ counsel to conduct his defense, such counsel was assigned him by the court. Several dilatory pleas were filed by the defendant and overruled by the court, of which ruling but one, namely, the action of the court in overruling his motion to quash the panel of the petit jury, was preserved in the motion for a new trial, and therefore is now before this court for review. A change of venue from the regular judge on the ground of the prejudice of the judge was granted, and Judge Moore of the Thirty-first Judicial Circuit was requested to and did preside at the trial of the cause. The defendant was duly arraigned, tried and convicted of murder in the second degree, and his punishment assessed at fifty years imprisonment in the state penitentiary. A motion for new trial was filed in due time and being overruled and exceptions saved sentence was pronouneed in accordance with the verdict. After judgment had been rendered and sentence passed, a motion in arrest of judgment was filed, overruled by the court, and exceptions saved to such ruling. The defendant has appealed to this court.

On the part of the State the evidence tended to prove that the defendant, David Kennedy, commonly known as “Yank,” was an unmarried negro laborer, and at the time of the homicide, was working at Root Brothers’ camp, about four miles southwest of the city of Springfield, in Greene county. Root Brothers’ camp was a railroad construction camp at which the laborers lived in tents. The defendant had worked at said camp a greater part of the year, and' for some time before the homicide had occupied a tent with an unmarried negro woman named Eva Parks. "Walter Williams, the deceased, lived at the Root Brothers’’ camp and had been employed there as a teamster, and had known the defendant for several months before the date of the homicide. In the forenoon of the day of the homicide, the defendant did not work and was ■heard in his tent engaged in an altercation with the Parks woman. The witness Ray Williams went to the tent and saw the defendant oiling a revolver. The defendant stated to the witness that he did not feel well. While the deceased was at his dinner, he was informed that the defendant desired to see him at his, defendant’s, tent, and after eating his dinner, the deceased went to defendant’s tent and sat down on the outside. The testimony for the State does not show that any conversation occurred between Williams and the defendant, but that they were seen together after Williams went to the defendant’s tent. Just after the gong had sounded, summoning the men to work after dinner, the deceased got up and started in the direction of the corral to get his team to go to work. When he had walked a distance of about seventy-five feet from the tent, the defendant appeared outside of the tent and fired a pistol shot at the deceased. The latter stopped and looked back over his shoulder, then walked on towards the corral. A second shot was then fired by the defendant at the deceased, at which the deceased flinched and started in a run through the corral and to the blacksmith shop beyond. Upon examination, it was found that the deceased had received a bullet wound, the bullet entering at the back part of the right hip, passing through the large intestine and lodging in the front part of the left groin. The wound, was fatal, and from its effects the deceased died about six o’clock on the evening of the next day.

On the part of the defendant the testimony tended ■ to prove that when he returned fróm his work on the ' evening preceding the homicide, he found the Parks woman in a distressed condition of mind, and was informed by her that she had been assaulted by Walter Williams, the'deceased; that when the latter came to defendant’s tent after dinner, the next day, he asked him concerning the treatment of the Parks woman, and said to him,.“Strong, how came you to make Eva have you?” and deceased said, “Who says, só?” and the defendant said, “She did,” and thereupon the deceased got up and the defendant said to him, “You ought to be ashamed,” and the deceased answered, he was not ashamed, and left and went up to another tent, and when the gong rang, he came by the tent and defendant again said to him: “You ought to be ashamed to look at that girl,” and deceased replied, “I ain’t, and if you don’t like it, you black s— of a b — ,- come out here and we will fight,” and then the deceased walked about as far as the stove and defendant shot. They were both walking south when the deceased applied the epithets to him. Defendant further testified, - “When I first shot, he put his hand in his pocket and 'said, ‘Never mind, I will get you.’ ” - Defendant téstified further: “I was never married, I lived with Eva Parks since March 1, have never lived with a woman here. I did down home. I looked on Eva as my wife. I supported her and her child. She did my work.”

Eva Parks testified that she had one child, that she had lived with Dave Kennedy out at the Root Brothers’ camp since March; “I have never been married. Dave cared for me and my little hoy, and I was known in camp as Mrs. Yank. I knew the deceased. He came to our tent the day before he was shot. I told Dave that Strong, meaning deceased, had imposed upon me.” On cross-examination she testified that she had pleaded guilty before C. A. Hubbard, a justice of the peace, of having lived in open and notorious adultery with Dave Kennedy. Two other witnesses testified to the fact that Kennedy, the defendant, and Eva Parks lived together in the defendant’s tent at Root Brothers’ camp. Other facts may be noted in the course of the opinion.

I. It is assigned as error that the criminal court erred in excluding evidence tending to show the existence of a common law marriage between the defendant and Eva Parks, but an examination of the record discloses that the court did not exclude any evidence offered for the purpose of proving a marriage between the defendant and Eva Parks.

II. It is insisted that the testimony tended to show that the woman Eva Parks was the common law wife of the defendant, Dave Kennedy, and that the killing of the deceased was of no higher grade of crime than manslaughter in the fourthdegree. We have in the statement set forth the substance of the testimony of both the defendant and the woman Eva Parks, and in our opinion, it utterly fails to establish a common law marriage between them. In the recent case of Topper v. Perry, 197 Mo. 531, we had occasion to examine the law upon this point and it will be unnecessay to repeat wbat was there said, further than to say that in • order to establish a valid common law marriage there must be, not only reputation and cohabitation as a sequence thereof, but a present contract through words by which the man agrees to take the woman as his wife and the woman agrees to take the man as her husband. The record in this case entirely fails to. establish any such agreement, but in our opinion, simply established a case of open, notorious and lascivious conduct on the part of these two parties. With the question of a marriage relation between the defendant and Eva Parks out of the case, the contention that the killing of the deceased by the defendant was only manslaughter must rest upon the provocation, if any, which the deceased gave the defendant for killing him. As there was no evidence even by the defendant himself tending to prove personal violence by the deceased toward him, whatever provocation there was consisted in the contemptuous and insulting remark and epithet which the defendant testified the deceased applied to him, and it is the settled law of this State that words of reproach, howsoever grievous, are not sufficient provocation to free the party killing from the guilt of murder. [State v. Gordon, 191 Mo. l. c. 125; State v. Gartrell, 171 Mo. 516, 519; State v. Elliott, 98 Mo. 150; State v. Branstetter, 65 Mo. 149; State v. Wieners, 66 Mo. 13; 1 East Pl. of the Cr., 233.] Accordingly, it must be ruled there was no basis in the testimony for an instruction on manslaughter in the fourth degree.

in. Error is assigned on the admission in evidence of the testimony of Eva Parks that she had pleaded guilty and been convicted on a charge of adultery with, the defendant, and also the record of the justice of the peace, before whom the said charge was preferred, establishing that she had been so convicted. There was no error in the admission of this téstimony, for the reason that Eva Parks was a witness for the defense and under the statute, section-4680, Revised Statutes 1899, it was competent for the State to impeach her by her own testimony, on cross-examination, and by the record showing that she had been adjudged guilty of that criminal offense. [State v. Blitz, 171 Mo. 530.] Moreover, no objection was made to the introduction of the record of her guilt in evidence at the time it was offered, and it is too late to complain of the ruling in that respect in this court.

IV. It is next urged that error was committed in the exclusion of the evidence of Eva Parks to prove a threat by the deceased against the defendant in order to explain the possession of the pistol by the defendant. The evidence on behalf of the State, as well as that on behalf of the defendant -himself, established that at the time the defendant shot and killed the deceased he was not only making no attempt whatever to carry out any such threat, but that the conduct of the deceased in no maner threatened any violence toward the defendant, and out-of the mouth of the defendant .himself it appeared that the deceased was walking- away from the defendant with his back towards him, and that the defendant shot at him twice in this position. In State v. Smith, 164 Mo. l. c. 587, this court said: “So with respect to the communicated threats, defendant being the aggressor; in the absence of evidence that, deceased was attempting to carry them into execution, such evidence was inadmissible. Thus in State v. Clum, 90 Mo. 482, it was said: ‘Threats alone, unaccompanied by an overt act or outward demonstration,' will not justify anyone in hostile acts towards those making the threats; the danger must be immediate. [Bishop Crim. Law (5 Ed.), sec. 843; 1 Bishop Crim. Proc., sec. 619.] And if a person thus threatened, with, no excuse in the way of self-defense, because of outward .demonstration being made against him, kills the threatener, the slayer will not be allowed to lay before the ■jury before whom he is tried for the homicide the known threats on which he bases his unlawful action. ’ ’ ’ [State v. Clum, 90 Mo. 482; State v. Reed, 137 Mo. 125; State v. Privitt, 175 Mo. 207.]

Y. Again it is said the court erred in allowing statements of a third party made prior to the homicide to be detailed in evidence. 'While the learned counsel for the defendant does not specify the testimony to which this assignment is directed, we take it from the reading of the record that it refers to the testimony of Ray Williams. This witness when on the .stand was asked to state why the deceased went to the defendant’s tent, if he knew, and he stated that a man came to the deceased and told him that the defendant wanted him to come up after he had eaten his dinner, and that after the deceased had finished his dinner, he went to the defendant’s tent. This was objected to as hearsay and incompetent. Of course it was not competent to prove that the defendant in fact did send for the deceased to come to his tent, but it was competent to show the fact that the deceased received the information whether it was true or not and as explanatory of why he went to the defendant’s tent, and to that ex.tent was properly a part of the res gestae. [2 Bishop’s New Crim. Proc., sec. 625.] But in any event, we think this was clearly not a reversible error for the reason that there is an entire absence of any evidence tending to show that the deceased went to the defendant’s tent for the purpose of having any difficulty. The defendant’s own testimony completely negatives any such criminal or unlawful purpose on the part of the deceased, and his own evidence shows that the deceased was going away from him with his back to the defendant and unconscious of the intention of the defendant to shoot bim when the firing commenced.

We have considered the other assignments of error, especially the refusal of the instructions asked for by the defendant, and in our opinion they constitute no ground for reversing the judgment. Those based upon the supposed right of the defendant to kill the deceased on account of an alleged assault upon Eva Parks, were clearly not the law. She bore no such relation to the defendant as would authorize him to wreak his vengeance upon the deceased for some alleged wrong upon her. The instructions given on behalf of the State by the court fully covered the case and it was not error to refuse others offered by the defendant.

The judgment of the criminal court is affirmed.

Fox, P. J., and Burgess, J., concur.