text:
    The State, Respondent, v. Packwood, Appellant.
    1. A. was indicted for the murder of B. At the trial it appeared in evidence that the homicide took place under the following circumstances: A. went to the house of one of B.’s tenants for the purpose of returning some coffee borrowed by his wife; B. accidentally learning that A. was present at the house of the tenant, went there with the intention of beating him with a stick or club which he had picked up before he started; B. entered the house and ordered A. to leave, which order he immediately set about to obey by starting away through a door opposite to that at which B. stood with his club; B. commanded him to turn and pass through the door at which he stood; he did so and as he passed through the door B. commenced striking him, he moving off rapidly; B. followed and continued beating him severely with the club as he ran; after running from forty to eighty yards, A. turned and inflicted a single blow with a knife which proved fatal; A. continued running and was shot in the back or side by a brother-in-law of B., who, together with his father, had accompanied B. when he started to attack A. There was evidence showing a feeling of hostility existing between the parties and antecedent threats made by A. against B.; certain persons — who were privy to, and participants in, an attempt to get up a mob to lynch and hang A., and who had, in the guise .of friends but in concert with those proposing to lynch him, obtained admittance to his house on the night of the contemplated mob, and whose testimony was otherwise discredited — also testified that A., while confined to his bed in consequence of the wounds and bruises received by him, declared in their presence that when B. ordered him to leave the house, he (A.) intended to kill him on the door-sill, but, seeing others about, he concluded not to kill him until he had drawn him away from the presence of his friends, when he could have some chance of escape. There was no evidence showing or tending to show that A. went to the house of B.’s tenant with the view of provoking a difficulty with B.. The court gave the following instruction to the jury: “If the jury believe from the evidence that the defendant went to the house or mill of deceased and one T. S. Talbot with the intention of provoking a difficulty with the deceased in order that he might take the life of deceased, John T. Dougherty, and that he did provoke a difficulty with the deceased pursuant to such intention, which resulted in the death of Dougherty, they will find him guilty, although they should believe that the deceased, Dougherty, committed the first assault.” The jury found the defendant guilty of murder in the first degree. No exceptions were taken or saved to the rulings of the court by the defendant.

      Held, that the testimony adduced did not warrant the verdict of guilty of murder in the first degree; that the court erred in giving the above instruction inasmuch as there was no evidence to support it.

      Appeal from Caldwell Circuit Court.

    The defendant, Larkin Packwood, was indicted for the murder of John T. Dougherty. The case was removed by change of venue from the circuit court of Davis county to the circuit court of Caldwell county.
    At the trial the following testimony was introduced in behalf of the prosecution:
    Henson Bennett, a witness on the part of the State, states, he knew defendant and John T. Dougherty, the deceased; in December last, about the middle of the month, heard defendant say that Talbot and Dougherty were stealing grain and ought not to live; afterwards heard defendant say that they stole his hogs and corn, and ought not to live ; that, he intended to kill them the first opportunity he could provoke them to a difficulty, so that he could have the law in his favor; soon kill them as a parcel of dogs — alluding to Judge Talbot, Jim Talbot, and John T. Dougherty ; saying at the same time he had what to do it with; the first of the above conversations happened along the road from Gallatin to defendant’s, between where McHenry lived and Thomas Blaks-ley’s, about three miles from defendant’s residence.
    Cross-examined. Witness said he was at Talbot’s mill on the day of the difficulty; saw David Enyart there ; had some conversation with him; asked Enyart whether there was any mob up; he, witness, concluded from circumstances that defendant ought to be mobbed and hung; it was his own notion; heard nobody else say so ; then admitted he did; did [not] ask Mr. Enyart or anybody else to join the mob ; but told Enyart that Packwood ought to be compelled to leave the neighborhood ; stayed at Talbot’s three days after Dougherty was killed; had no business there; no writ out to arrest defendant for three days ; if a mob had existed, the intention to mob the defendant had been abandoned before he was arrested; at the time I met Packwood, between McHenry’s and Blaksley’s, he was riding a bay nag.
    Luther Farrington, another witness on the part of the State, says : had a conversation with the defendant some two weeks before Dougherty was killed ; defendant said he would have satisfaction by fair means or by foul means. Cross-examined. Said: Don’t know what defendant was talking about when he made the above remarks, but understood him to be complaining of the treatment he had received at Dougherty and Talbot’s mill in relation to corn and sacks which he said he had lost at the mill.
    Jacob Snyder, on the part of State, says : He was a little acquainted with defendant; knew him for about five years ; was present at the difficulty in which Dougherty was killed ; it happened in March last, about the 9th of the month, at or near Talbot’s mill, in Davis county, Missouri; he, witness, lives at the mill; is hired to Talbot & Dougherty ; lives in one of their houses, but pays no rent; has a family who reside with him in said house; the house is under their control ; defendant came to his house that morning; defendant was in the house when Dougherty came to it; Dougherty went into the house where defendant was; saw defendant come out of the house, and as he came out Dougherty commenced striking him with a stick or club; defendant commenced running, and Dougherty pursued him, hitting him with his club as he ran ; after running some distance, about fifty yards, defendant turned round and struck Dougherty with his knife; Dougherty died of the wound in about one hour; when defendant came out of the house Dougherty commenced striking him ; .the stick with which he struck was about one inch in diameter and three feet long; at the time of the difficulty witness was standing between house and mill; the house and mill are about one hundred yards apart; defendant had got to or near the timber or brush when he turned round and struck deceased ; Judge Talbot was there; Richard Hale and Arnold were there also about the mill; witness heard Dougherty warn defendant not to come upon the premises.
    Cross-examined. Witness said: John T. Dougherty, the deceased, lived about one and a half miles from the mill, and Talbot about the same distance; Dougherty and Talbot and witness were at the mill when they heard defendant was at the house where witness lives; Judge Talbot went with Dougherty from the mill to the house where defendant was ; Dougherty took a stick and Talbot had a double-barreled shot-gun; witness preceded Dougherty, at the request of Dougherty, to the house, and called his wife to the door and told her to come out as Dougherty was going to make defendant leave; this instruction and information was not heard by defendant who was in the inside of the house ; witness did not know what was going to be done ; Judge Talbot accompanied Dougherty from the mill to the house, and Jim Talbot was some little distance from the house; Dougherty struck defendant as he ran a good many times, defendant running all the time, and halloed, as he [was] stabbed, “ oh! Lord,” or something of that sort; after defendant struck Dougherty with the knife, he kept on running and did not repeat or offer to repeat the stroke ; when Dougherty was struck with the knife he stopped the pursuit and threw his club after defendant; soon after that time heard the crack of two or three guns, fired as he supposes at defendant; saw Jim Talbot with the gun about that time; there had prior to this time been acts of neighborhood kindness between defendant and witness and their families; on that morning defendant came to his house to return some coffee his wife had borrowed of witness’s wife ; don’t know any thing about the mob ; heard some talk of it; did not intend to join it, but was solicited to do so ; defendant lives about one mile from the mill; shortly before that, Talbot and Dougherty got two lin logs from defendant, and Talbot, as witness understood, also sent to defendant and got a load of straw to put up ice in ; this was some time in February last.
    Nathan Snyder, on part of the State, says : That he heard a conversation between defendant and Dougherty last February, at the time when the witness and defendant had a quarrel abotrt a piece of paper stuck up on a tree affecting witness; witness had been told defendant had set up said writing, and had called on defendant to know if he did. Defendant denied having done so, and said there were others about there more apt to do such a thing than him. Dough-erty in some way heard or understood that defendant had charged or insinuated that he or the Talbots had set up said writing, and called defendant to account about it. Defendant denied having made any such charge or insinuation. Dougherty appeared angry and a good deal excited about it; and forbid defendant to come about the mill, saying if he did it would be at his own risk.
    Cynthia Snyder, on the part of the State, says : That she is the wife of Jacob Snyder, and lives at the house near Talbot’s mill; on the morning Dougherty was killed, defendant came to her house to return some coffee defendant’s wife had borrowed of her; shortly after defendant came to her house, and while he was sitting in the room, Mr. Dougherty came in and ordered him out, and, just after defendant got out, Dough-erty struck him with his stick, and defendant went off in a sort of trot, Dougherty striking him with the stick as he went; the stick was about the size of a chair post; so soon as defendant was ordered to leave by Dougherty, he got up out of the chair where he was sitting and started out, and Dougherty followed him out of the house ; about the time of the difficulty between Nathan Snyder and defendant, defendant was at my house, and, speaking of said difficulty, he exhibited a knife which he held in his hand, and said that he did not carry that knife for Nathan Snyder or any body else in particular, but when he drew it, he would draw it to kill; when defendant got up to leave the house, he told Dough-erty not to strike him with that stick, as he had done or said nothing to justify it; defendant had not been there more than a quarter of an hour before Dougherty came and ordered him out; I got the message from my husband to come out; that Dougherty was coming to flog defendant, and make him leave; but did not warn him or communicate the message to defendant. On that morning, defendant was talking about some hogs he had in the bottom near the mill, and also some pigs he had given witness, saying they had returned to his house, and she had better send and get them; defendant was also talking about Dougherty; did not hear him threaten Dougherty, but he was inquiring of witness what she had heard Dougherty say about him; there were two doors in the house when defendant was there ; deceased came in and ordered him out; defendant attempted to go out at one door, 'but was commanded by deceased to turn and go out at the door where deceased was standing with his club.
    W. E. Hale, a witness on the part of the State, says: That he was at the house of the defendant on the night after Dougherty was killed, and stayed all night; when there on that occasion had a conversation with defendant about the difficulty; defendant said he had gone to Snyder’s that morning to carry some coffee home his wife had borrowed of Mrs. Snider, and while there, Dougherty came in and ordered him out; when he got up to leave he intended to kill Dougherty on the door-steps, but seeing some persons about the door he concluded if he did they would kill him, and he concluded not to kill him till he got him out from the presence of his friends, when he could have some chance of escape ; that he had done what he intended to do, and that was but a beginning ; that he would serve Judge Talbot and Jim Talbot the same way, if they interrupted him, and showed the knife to witness; it was a long knife — the blade being about six inches long, and edged on each side, with a ridge in the middle — and was carried in a scabbard and had a guard.
    Cross-examined. Witness said: There had been hard feeling between witness and defendant; on Tuesday night after the difficulty went to the defendant’s house in company with Levi Murray, between ten o’clock and next morning; defendant said, in the conversation above alluded to, that when Dough-erty ordered him out he told Dougherty not to strike him, as lie bad done nothing to justify it; that as soon as he got out of the door Dougherty commenced beating him with a club, and he commenced running off, and that Dougherty pursued him, and continued to strike with his stick all the way ; that he examined the wounds of defendant and found his shoulders were bruised smartly, and a knot on his head; shoulders were considerably black and blood-shot; defendant said all these wounds and bruises about the back and shoulders and head were inflicted by Dougherty before he struck him with the knife; heard the mob talked of; did not agree to it, but encouraged it; its object and purpose was to hang defendant; witness refused to join the mob ; stayed all night with defendant on Monday night and Tuesday night; went there to minister to defendant from friendship and sympathy ; understood that night (Wednesday night) had been fixed upon to hang defendant, and on that night, about ten o’clock, went to defendant’s house in company with Levi Murray; when we got to defendant’s house that night we found the doors barred up ; Murray got in at the window and so did he ; he told him of the mob ; he was going there that night; after getting there Murray went home after his gun and returned; defendant’s family refused to let us in at first for fear we were part of the mob which they had heard was coming that night to hang the old man (the defendant), but upon learning who we were, they let us in at the window; expected the mob there that night, and went there to keep anybody from being killed, the defendant excepted; did not know till next day that the mob had been abandoned ; when defendant said he had determined to kill Dougherty, he understood him to refer to the intention formed at the time Dougherty ordered him out and Dougherty was standing on the door-steps ; Levi Murray was present at this conversation and is the same conversation testified to by Murray before the examining court; witness states that witness testified before the examining court that his testimony was the same as Levi Murray’s, and he was not examined.
    Levi Murray, a witness on the part of the State, says: That about the 1st of February, in a conversation with defendant about the difficulty with Nath. Snyder about the notice set up on a tree in reference to said Snyder, defendant remarked that he had met Nath. Snyder at the mill to clear up that matter about the notice, and that they had threatened to take his blood, but if they did’nt mind he would get theirs first. He also said he had met Dougherty in Gallatin afterwards and invited him to step up at Wirt’s store and he could clear up that report about the notice about Snyder, but that Dougherty turned off and refused to go and hear an explanation. On Monday night after Dougherty was killed, heard defendant say at his house that he had gone to Snyder’s to carry some coffee home his' wife had borrowed of Mrs. Snyder, and when he was there Dougherty came in and ordered him out; that he started out; that as he went out it was his intention to cut his heart out of him before he got off the door-sill, but seeing Talbot and others there he was afraid, if he did, the Talbots would instantly kill him, and he concluded to toll him off and then kill him and make his escape. Defendant asked witness if he was not surprised when he heard of his killing Dougherty ; witness told him he was ; and defendant told witness that he was not surprised ; that he had not done any thing more than he had intended to do for some time. Defendant also said he thanked God he had got home with some of Dougherty’s blood and fat and flesh upon his knife, and pointed to the knife hanging upon the wall.
    Cross-examined. Witness said, that defendant also said that he saw from the way Dougherty came at him and his continued infliction of blows with the club, he would have to kill him or be killed; he showed some wounds, and back and shoulders bruised up smartly. He was a friend to defendant, and went there as his friend to help him; it was a friendly feeling he had for defendant that took him to the house of defendant; in the morning went back to Talbot’s and ate breakfast there ; went to town after socks for deceased; got back from town after night, and went to defendant’s in company with W. E. Hale; defendant asked him to come back on Monday night. Dr. Dewy asked me to stay and wait on defendant and lay him out if he died; was at Talbot’s on Monday; good many people there on Wednesday night; Wednesday night went back to defendant’s, at his request and on that account; found the doors barred up and got in at • the window; went back home for his gun to defend himself from defendant; they (the defendant’s family) said they had heard a mob was coming that night to hang the defendant; witness had also heard this at the mill; was asked to join the mob ; thought it was right to hang him; did not solicit any body to join the mob ; saw Mr. Payne at the mill; Payne said if it had been in Clay or Platte defendant would have been hung that day; that he ought to be hung right off; Morrow was by and heard what was said; he did not know, for certain, that the mob would come that night, but he rather expected it; it was his intention to see that nobody got hurt except the defendant; went back after his gun to defend himself from defendant; was one of the mob ; consulted with them about it, and talked to them about the danger of going to defendant’s; when he went after his gun he went by Talbot’s, and saw there the Doughertys, brothers of the de-. ceased, and a stranger, and told them that the Packwoods had the doors barred up, and that the family were armed with corn knives, scythe blades, axes and guns, and that it would be dangerous to go there or attack them. It was his purpose to disarm the family, if he could, in. case the mob came.
    Sarah Osborne, on the part of the State, says, that [she was] at Snyder’s house before the fracas ; heard defendant say nothing about Dougherty.
    Dr. Hogan, on part of the State, says: He was called to examine the wound of Dougherty; found him dead with a stab on the left side, about the tenth rib, one inch wide, and five deep ; one rib cut in two ; and belidves said wound was mortal and caused his death.
    Alphonso Martin, on part of State, says : That a few days before Dougherty was killed, defendant came to Dougherty in Gallatin, and wanted to say something to him ; but Dough-erty told him not to talk to him, and go away, which defendant did.
    -Minor, on part of State, exhibits a knife, which he found with the defendant when he was arrested ; defendant told him he had carried that knife about ten years.
    Thornton S. Talbot, a witness on the part of State, says: That there was not much sociability between defendant and Dougherty, the deceased; the deceased was his son-in-law; that defendant was indolent and meddlesome with their hands about the mill; that witness and Dougherty had both ordered defendant not to come about their premises. On the day Dougherty was killed, Dougherty went to the house where Snider lived, and in which defendant was at the time, and prdered defendant to leave ; witness went in at the door of an adjoining room, about the time Dougherty went in at the other, to see that no more than one should jump on Dough-erty, as Dave was there. Witness was about the door when defendant came out. Dougherty, before leaving the mill for the house where defendant was, told him he was going there to thrash defendant, and he went on with him. Dougherty took a stick with him, and I had my gun in my hands, which I usually carried to shoot partridges — a double-barreled shotgun. After Dougherty was stabbed, my son James wrested the gun out of my hands; soon after that time heard two guns ; when Dougherty was stabbed he turned back; said he was killed; we went to meet him ; Dougherty said to my son James, “ Jim, avenge my deathJim replied, “ I will do it or diehe and Dougherty were partners in the mill, but not in the soil or land; says there was no agreement or concert between him and Dougherty about attacking defendant; there was no mob organized to hang defendant to my knowledge ; was consulted about it; asked how I felt about it; said he thought defendant ought to be hung, and would go into a mob of that sort for that purpose ; sent note to Mr. Payne to know if he was still in the same mind in reference to mobbing defendant, and if so his presence was required at my house ; I told Hale and Jim Murray to examine the condition of defendant for fear he might escape, and to report his condition to witness, as to the extent of his injuries, &c. The neighbors were all in the mob ; witness said some difficulty or misunderstanding had arisen between witness and defendant about an open line between witness and defendant; they owned each one-half of a quarter section of land, and the line between them was unascertained ; witness cleared off a piece of ground, as he supposed, on his own part of the tract, but near the line ; witness had some hands at work clearing up ground and building some houses. Defendant came there, and ordered them to stop, saying we were on his land. I told him if I was it was an innocent mistake, and that defendant should have informed him sooner ; defendant showed witness where he supposed the dividing line between them was, and that he commenced his improvements accordingly ; defendant afterwards came and said I must quit trespassing and building on his land; told defendant he had built according to the line as he showed him; defendant replied he had been mistaken as to where the line was ; that they were still on him. Witness states that he and Dough-erty frequently wanied defendant not to come upon their premises.
    Upon cross-examination, witness said : Don’t know how the news of defendant’s being at the Snyder house came up to the mill; that morning, before he got to the mill or heard of defendant’s being at Snyder’s, had a conversation with Dough-erty about defendant; Dougherty said he had heard the evening before that defendant had been slandering him, and that he (Dougherty) meant to thrash him; Dougherty appeared excited about it; shortly after we got to the mill the news came that defendant was at Snyder’s; Dougherty told the men at and about the mill, as he stated, that he was going to thrash defendant. I went up to the house, where defendant was, with Dougherty ; Dougherty went to whip him and make him leave because he heard that defendant had slandered him; when defendant came out of the house Dough-erty followed him out and commenced hitting him with his stick; defendant commenced running and Dougherty pursuing him, and striking him with his stick as he ran; defendant ran from forty to sixty yards ; had been struck as many as five or eight times at least; defendant was still fleeing, and being pursued and being struck by Dougherty, when he turned upon him and stabbed him once, and then immediately continued his flight and commenced hallooing; soon after that time heard guns shot; Snyder was tenant at will in that house ; he thought defendant ought to be hung and acquiesced-in the proposition to mob him; the whole.community were in it; the reason why defendant was hot arrested until after three or four days was because it was thought to be au act of inhumanity to have him arrested in his crippled condition ; yet he assented to the proposition to hang him by a mob ; W. E. Hale, Bennet and Murray were in the consultations about mobbing the defendant, and assented to it; witness and others gave different opinions at different times in regard to the propriety of mobbing defendant, but witness and others finally concluded that it was best to let the law take its course.
    Clark, for the State, says: He was going to Talbot’s mill, and defendant told him they were stealing corn, &c., and not to go ; he accordingly turned and went to Farrington’s mill.
    The following testimony was introduced in behalf of defendant :
    William Wickiser, for the defendant, says: On Tuesday, before Dougherty was killed, in a conversation with Dough-erty about the difficulty of Nath. Snyder with defendant, he inquired of Dougherty if defendant had been back to the mill since the difficulty with Nath., and he replied that defendant knew better than to come back, for if he did he would take his damned old life, or infernal old life — don’t know which; witness was at the mill the day of the difficulty with Nath. Snyder; just before the quarrel between Nath, and defendant commenced, Dougherty got a bowie knife of one Rader at the mill and went in the direction of Nath, and the defendant at the time of the quarrel; did not see the affray; after the difficulty with Nath. Snyder and defendant, saw Dougherty return the knife to Rader; this was about the 2d of February last. Witness did not know of any difficulty between defendant and deceased before the time he asked deceased if defendant had been back to the mill as above stated.
    Dr. Dewey, a witness for defendant, says: That he saw the defendant on the evening he was wounded (the day Dougherty was killed) ; found defendant bleeding freely ; breathed hard, and spitting blood ; examined his wounds; found his back and shoulders badly bruised by severe blows ; counted eleven severe bruises on back and shoulders, as if done with a club or stick; from shoulders to point of his ribs all bruised up; spit up in a short time while I was there a pint or more of blood ; at first thought he would die ; did not invite or desire Murray to stay there that night to wait on him or lay him out; defendant was also wounded with a gun-shot in the side. It was about six inches from where it went in to where it came out; it did not enter the hollow or cavity.
    Charlotte Packwood, a witness for defendant, says : That from 3d of December last to about the 6th or 10th of January last, defendant did not go to Gallatin, or elsewhere off the place; that we [he] was there about the 1st of December last; that defendant (her father) was sick and confined mostly to the place or home from the 3d of December, and was not out from home far till some time about the 10th of January, when he last went to Gallatin aforesaid; rode a gray horse and not the bay ; on the morning Dougherty was killed, her father went over to Mr. Snyder’s to carry some coffee home her mother had borrowed of Mrs. Snyder ; and also took some ears of corn along with him to hunt some of his hogs that ran about the mill; her brother, Daniel Packwood, accompanied her father to help toll up the hogs if they found them, carrying the corn for that purpose. After a while her father returned badly hurt and beat up, and said he was killed and was very sick ; he was badly bruised about the back and shoulders, and had a gun-shot wound in the side ; heard the conversation between Murray and defendant ; her father did not tell Murray he had brought home on his knife some of Dougherty’s blood, fat and flesh; heard a conversation between her brother Dan and Murray on that occasion, in which Murray asked Dan if there was any of Dougherty’s blood on the knife, or any of his fat, or any of his meat, to which inquiry Dan told him to look and see for himself, there was the knife; is satisfied no such conversation took place between her father and Murray as referred to by Murray and Hale; was by all the time and heard all that was said. On Wednesday night Murray and Hale came to their house (defendant’s) about ten o’clock ; the doors were barred up to keep out the mob, which they had just heard was coming that night to hang her pa; upon hearing that the mob was coming that night they had barred up the door the best they could, and brought into the house every weapon of defence they could find — a corn knife, a scythe blade, an axe, and some guns, which they intended to use if the mob made an attack upon them; she intended to defend her pa to the last or die. Murray and Hale got there that night about ten o’clock, and professed to be their friends, and told them there was no mob coming; as the doors were all barred up, they crept in at the window ; they assured us they were friends, and that there was no danger. Murray insisted on unbarring the door.
    John Green, for defendant, says: I saw Packwood, the defendant, in Gallatin about the first of December last; came up to sell some pork and was there a day or two and then went home.
    Richard Hale, for defendant, says: He was at the mill the day Dougherty was killed; heard Dougherty and some of them about the mill talking about flogging defendant, and driving him off the place ; witness advised Dougherty not to make the attack; there was vinegar in him; that he was a dangerous man; Dougherty replied he would give him a chance for his vinegar; and on he went towards Snyder’s, where defendant was; Dougherty took with him a stick, such as was commonly used in a windlass in drawing up dirt out of the well or cistern ; Jim Talbot invited witness to go along and see the fun of flogging Packwood and driving him off; witness saw defendant running and Dougherty after him beating him with a stick ; defendant must have run from forty to eighty yards or more, while Dougherty was striking him all the way, before he turned and stabbed deceased.
    Andrew Arnold, for defendant, says: That he was at the mill on the day of the difficulty ; heard Dougherty and Talbot talking about defendant being at the mill; Dougherty said he meant to make him leave, that he had charged him time and again not to come there; Dougherty took a stick and Dougherty and Talbot went to the house where defendant was; saw Dougherty striking defendant with a stick, and defendant running from him ; after the fight was over, as I was going to town after the doctor, overtook and passed Jim Talbot, on horseback, in pursuit of defendant, up at the lake ; defendant was dodging behind a tree and Jim Talbot near by with his gun, and being after a doctor, rode on, and as I went, heard a gun fire.
    Henry R. Payne, a witness for defendant, says : He lives near the mill; on the day of the killing went to Gallatin; while there heard of it, and returned, and went to the mill where deceased was killed ; was on the inquest; discharged about midnight, and went by to see defendant on my way home; he seemed to be in much agony; was bruised on back and shoulders and shot in the side ; Murray was there ; Murray followed me out and asked me what ought to be done with defendant; I replied by asking him-some questions ; he replied defendant ought to be hung; I told him there was a law to try him; was at mill next day ; talked to Talbot, but did not see or converse with Murray that day ; nothing said to me on Tuesday about mobbing defendant; on Wednesday evening, Mr. Emery came to my house and said something that induced me to believe there was a mob ; after that I immediately started to Packwood’s ; on the way was overtaken by Charley Poole, who handed me a letter soliciting me to come to Talbot’s that night to join a mob to hang defendant; I refused to have any thing to do with it, and told defendant what I had learned about the mob, and that they were coming that night to hang him, as I had heard; the old man’s daughter went out and got a corn knife and some other weapons of defence; I left soon and went home ; never advised the mob with anybody; did not see or converse with Morrow on Tuesday at the mill; there was a notice stuck up lately threatening witness about testifying in this cause ; says that Thomas Blakely was at defendant’s, covered up in the bed, on Monday night.
    David Enyart, for defendant, says : That he heard Henson Bennet say (on Monday of Dougherty’s death) something ought to be done; he was speaking about the killing of Dougherty by defendant; said that I was the kind of a man to take hold of the matter — alluding, as I supposed, to the mob ; Bennet made two or three efforts to approach witness on subject of mob ; understanding what he was after, I avoided him and only listened to him, not giving an opinion myself; after he had approached me and being repulsed, I saw him go and converse with two or three other men ; and then he returned and tried to approach me again, but I repulsed him ; Bennet was intoxicated at the time he talked to him in reference to mobbing defendant.
    Dr. Estis, for defendant: Saw defendant some eight or ten days after the difficulty; examined bruises on his back; considered them severe bruises, but not dangerous ; they extended from the neck to middle of back; back appeared generally bruised';. think it likely the flow of blood from the mouth was produced by the gun-shot wound rather than the beating, as it was the greater shock; gun-shot wound did not enter the cavity and injure the ribs.
    Dr. Kelly, for defendant, says : That from the evidence in the case, and from what he had seen in person of defendant, it is his opinion the hemorrhage was from the lungs, and attributable to the beating and not from the gun-shot; there is alsQ a shrinking of the muscles on the shoulders of defendant, which he thinks is also attributable to the beating.
    Nathan Snyder, a witness for the defendant, being re-introduced, says: That he told Wickiser if Packwood did not take back or disavow the scurrilous notice about him, he would kill him or be killed.
    Hobbs, a witness for State, says: That Rader had about him at the time of the difficulty with Nath. Snyder, a scabbard knife, some four or five inches long, which he generally kept at witness’ house.
    W. A. Morrow, a witness for State, says: That he was at Talbot’s the day after Dougherty was killed; heard old man Payne in a conversation with Murray, and remark it was well for defendant that the killing had not taken place in Clay, or Platte, or Boone, but said nothing about hanging ; did not hear [what] old man Payne said, but heard him say that it (whether the killing or mobbing witness can not state) was a disgrace to the neighborhood, which had always heretofore been a good neighborhood.
    This was all the evidence given in the cause.
    The court, at the instance of the prosecution, instructed the jury as follows: “ 1. If the jury believe from the evidence that the defendant, Larkin Packwood, wilfully, deliberately, premeditatedly and of his malice aforethought killed John T. Dougherty, as charged in the indictment, they will find him guilty of murder in the first degree. 2. The declaration and premeditation necessary to constitute murder in the first degree only requires that the killing should have been determined upon before the fatal blow was given, and that the intention to kill existed in the mind prior to striking the fatal blow. 3. That if the jury believe from the evidence that the defendant went to the house or mill of deceased and one T. S. Talbot with the intention of provoking a difficulty with the deceased in order that he might take the life of deceased, John T. Dougherty, and that he did provoke a difficulty with the deceased pursuant to such intention, which resulted in the death of Dougherty, they will find him guilty although they should believe that the deceased, Dougherty, committed the first assault. 4. That the jury may find the defendant guilty of murder in the first or second degrees, or any of the degrees of manslaughter, if the evidence justifies or requires such finding.”
    The court, at the instance of defendant, instructed the jury as follows : “ 1. If the jury believe from the evidence that defendant killed deceased in the defence of himself, when he had reasonable cause to apprehend a design on the part of deceased to kill him or do him some great personal injury, and there was reasonable cause on his part to apprehend immediate danger of such design being accomplished, then the killing was justifiable and they will find defendant not guilty, and that in that event they will so find, notwithstanding defendant may have, prior to that time, made threats against deceased. 2. That if there had been an old grudge on part of defendant towards deceased, yet if he did this killing in defence of himself and in resisting an attempt on part of deceased to kill him or do him great bodily harm, or where there was reasonable cause on part of defendant to apprehend a design on the part of deceased to kill him or do him some great .personal injury, and there was reasonable cause to apprehend immediate danger of such design being accomplished, then the law presumes said killing to have been in consequence of the recent attempt or design on part of deceased and not on account of the old grudge, in absence of proof to the contrary, and it devolves upon the State in such case to prove the killing to have been in pursuance of the old grudge and not on account of the recent attempt, or design. 3. That it is the province of the jury to determine the weight and credit to be given to the testimony of any witness, and that they may reject and discard from their consideration the testimony or any part thereof of any witness, if > they believe such witness is not worthy of belief or has not told the truth. 4. If the jury find from the evidence that the house near the mill was in the possession and under the control of Jacob Snyder, then the defendant had a right to enter such house in a peaceable manner, with the permission of Snyder; and if Snyder made no objection to his entering it, the law will presume his permission to enter it. If, however, the said house was in the possession and under the control of the deceased and Thornton S. Talbot, then the defendant had no right to enter the said house against the objection of deceased and Talbot. But if the said house was in the possession of deceased and Talbot, and the defendant entered the said house against the objection of deceased, the deceased had no right to use- force to expel him without first requesting him to leave, and giving reasonable time for the defendant to leave. 5. That, in this case, the law presumes the defendant to be innocent, and it devolves on the State to prove him guilty, and that beyond a reasonable doubt.”
    The jury, by their verdict, found the defendant guilty of murder in the first degree. The defendant moved the court for a new trial and also in arrest of judgment. Both motions were overruled. Defendant duly excepted to the ruling of these motions. No exceptions were saved to rulings of the court during the trial.

      Gardenhire and King, for appellant.
    I. The court below erred in giving the third instruction asked for the State. There was no evidence whatever tending to show that the prisoner went to the mill or to Snyder’s with the intent to provoke a difficulty, or that he did provoke it. On the contraiy the whole evidence of the State absolutely excludes any such idea. This was the fatal instruction upon which the prisoner was convicted, and manifestly misled the jury.
    II. In criminal cases — especially in a case affecting human life, where the verdict is manifestly against the evidence, or where it preponderates so strongly as to strike the mind at once as a conclusion contrary to the truth, or as originating in a popular prejudice against which the best ordered communities are not always secure — the obligation to order a new trial is imperative. (State v. Sims, 2 Bailey, 29; McClure v. Cain, 2 Robinson, 790 ; Copeland v. Tlie State, 7 Hump. 479 ; State v. Cruise, 16 Mo. 393, 394.)
    III. The record manifestly shows a case of self-defence. It is sufficient to reverse the case that it is not murder. There can be no pretence that it is even manslaughter. The true criterion between chance-medley and manslaughter is said to be this: when both parties are actually combatting at the time the mortal stroke is' given, the slayer is guilty of manslaughter ; but if the slayer has not begun to fight, or (having begun) endeavors to decline any further struggle, and afterwards being closely pressed by his antagonist, kills him to avoid his own destruction, this is homicide excusable by self-defence. (4 Black. Com. 184; 1 Russell on Crimes, 661.) The prisoner not only did not provoke or begin the fight, but fled from forty to eighty yards, as far as he safely might. But the State relies upon some verbal admissions made by the prisoner before and after the homicide. There are several considerations connected with these admissions important to be noticed. If these statements were detailed by unprejudiced witnesses, they would be received with great caution. They consist in the mere repetition of oral statements, subject to much imperfection and mistake ; the party himself, it may be, not having clearly expressed his own meaning, or the witness having misunderstood. It frequently happens also that the witness, by unintentionally altering a few of the expressions really used, gives an effect to the statement completely at variance with what the party actually did say. (1 G-reenl. Ev. sec. 200.) But the statements were not detailed by unprejudiced witnesses. They were forced to swear upon the trial that they were willing to mob and hang the prisoner. This ought greatly to increase the caution with which their statements are received. The caution ought certainly to be very great. These men having been willing to mob and hang the prisoner, would they not be willing to take their places in the witness box and murder him by their oaths ? They were dangerous and most unreliable witnesses, and their statements never ought to be allowed to affect human life, unless corroborated by other testimony. They are not so corroborated. The conduct of the prisoner, at every meeting between him and deceased shown in the record, was utterly inconsistent with the statement of these witnesses. Never by word or deed did he seek a difficulty. On the contrary, he uniformly avoided it, submitting to rude behavior and opprobrious language from the deceased, without the slightest resentment. This was especially so at the time of the fatal conflict. There is no word or act of the prisoner, in the presence of the deceased, which can by any ingenuity be tortured into provocation. The whole conduct of the prisoner, in all his meetings with deceased, flatly contradicts the statements which murderous witnesses state he made before and after the homicide. Now, if the prisoner had, at the time of the fatal meeting, said any thing or did any thing to provoke deceased to assail him, his conduct might have been connected with previous threats and subsequent admissions. But nothing of the kind occurred. There is no room for plausible pretence. It is simply out of the question. But if prisoner’s threats had been sufficiently proved, the prisoner, at the fatal meeting, having said or done nothing to provoke a difficulty, and having fled as far as he safely could, certainly had the right to defend himself. Previous threats could not take away the right of self-defence. They might awaken a closer scrutiny of the prisoner’s conduct, but certainly they could not amount to a forfeiture of his life to the deceased. As to the statements of prisoner subsequent to the homicide, a member of his family says he did not make them. Her devotion to her father will certainly bear contrasting with the wicked and murderous feelings of the State’s witnesses against him. Besides, her statement is fully corroborated by her father’s condition, when it is said he made those statements — a condition proven by other testimony than hers — even by the State’s witnesses themselves. He was expected to die; and his special friends, Hale and Murray, were there to help lay him out if he did. What conversation for such an occasion ! If so plain a case were susceptible of illustration it might be done by supposition. Suppose the deceased had killed the prisoner just before he turned with his knife, what would he have been guilty of? Murder; beyond all question,murder. This simple supposition unanswerably illustrates the character of the prisoner’s act. The truth is, the verdict in this case was manifestly prompted not by the evidence, but by popular prejudice; and every consideration of law, human and divine, of popular government and humanity, requires the absolute and unconditional reversal of the case, and upon the ground that the prisoner acted in self-defence. The wild and reckless prejudices of the populace in this case ought to be promptly, firmly and decisively met by the court, and a human life not allowed to be sacrificed to the unauthorized cry for blood.

      Ewing, (attorney general,) for the State.
    I. No exceptions being taken during the progress of the trial, the only question, if any, which can be considered by this court is, whether there was evidence from which the jury might have found defendant guilty.
    II. The evidence fully sustains the verdict. There is no real conflict in the testimony given on the part of the State as to the confessional statement of defendant. But if there is, it is the peculiar province of the jury to decide, and this is an additional reason why the verdict should not be disturbed. It was the province of the jury in considering the confessional statement of defendant to reject that part most favorable to him, if they believed it was improbable, contradicted by other evidence stronger than itself, or was less consistent with the whole transaction or a material part thereof than the other part, and to credit the part least favorable to his defence. (1 Greenl. Ev. p. 326.) Where provocation is sought by the prisoner and induced by his own act in order to afford him a pretence for wreaking his malice, it will be in no case of any avail. (1 East. P. 0. ch. 5, 523, p. 239.) Before the law of necessity can exist, a case of necessity must exist. The slayer himself must be faultless; he must owe no duty to the deceased; be under no obligation of law to make his own safety a secondary object, otherwise he is answerable to the law of the land without any immunity under the shield of necessity. (Hays v. State, 17 G-eo. 484.) A bare' fear of the injury, to prevent which the homicide is committed, shall not be sufficient to justify the killing. It must appear that the circumstances were sufficient to excite the fears of a reasonable man, and that the party killing acted under the influence of these fears and not in the spirit of revenge. (Ib. 484.) The law requires that the person who kills another in his own defence should have retreated as far as he could to avoid the violence of the assault, before he turn upon his assailant, and that' not fictitiously or in order to watch his opportunity, but from real tenderness of shedding blood. For in no case will a retreat avail if it be feigned in order to get an opportunity. (1 Hale, 481-2-3 ; Foster, 277 ; 4 Black. 185 ; Roscoe Or. Ev. p. 661.) The characteristic ingredient in the offence of murder in the first degree is, the existence of a specific intention to take life ; and if that intention be deliberately formed and acted upon and death ensue, the intervention of provocation between the formation of the purpose to take life and the slaying will not reduce the offence below the grade of murder. (Clark v. State, 8 Humph. 671.) When a deliberate purpose to kill is ascertained, and there is a consequent unlawful act of killing, the provocation, whatever it may be, which immediately precedes the act, is to be thrown out of the case, and goes for nothing, unless it can be shown that this purpose was abandoned before the act was done. (State v. Johnson, 1 Ired. 354.) This court has laid down the rule which is sustained by authority and principle, that it will not disturb the verdict of a jury unless manifest injustice and wrong have been done ; nor will it control the discretion of the court below in relation to new trials. (State v. Cruise, 16 Mo. 611; Mc-Whett’s case, 3 Gratt. 611; Hill’s case, 2 Gratt.-; Me-Cune’s case, 2 Robinson, 790-1; Varder’s case, 12 Gratt. 727-8-9; Roberts v. State, 3 Kelly, Geo., 322-3; 1 Kelly, 618 ; Gills v. State, 6 Geo. 286; Alfred v. State, ib. 485 ; Com. v. Snelling, 4 Binn, 379; Kirbey v. State, 3 Htimpli. 289, 304; 2 Eng. Rep. 174 ; Walter v. State, 4 Pike, 87.)
   Napton, Judge,

delivered the opinion of the court.

It is not the province of this court to weigh evidence, nor has it been the practice to interfere with that discretion which has been entrusted to circuit judges over the verdicts of juries. I am not aware, however, that the court has in any case entirely repudiated all power over the subject, although I believe the tendency of recent decisions has been in that direction. . Without undertaking to define the precise limits within which this power may be exercised, we are constrained to say that the verdict in this case is unsupported by the evidence, and can not be allowed to stand.

The facts were, that the deceased went to the house of one of his tenants, where he accidentally learned the prisoner was, with the intention of beating him with a stick, which he had picked up before he started; that he ordered the prisoner to leave, which order the prisoner immediately set about to obey by starting away through a door opposite to where the deceased stood with his stick or club ; that he then commanded the prisoner to turn and pass through the door where the deceased stood, and the prisoner did so, and as he passed through, the deceased commenced striking him, the prisoner moving off rapidly; that the deceased followed the prisoner as he ran, all the time inflicting heavy blows upon him, and continued to beat him for from forty to eighty yards, when the prisoner turned and inflicted a single blow with a knife which proved fatal. The prisoner continued running and was shot in the back or side by a brother-in-law of the deceased, who, together with his father, had accompanied the deceased when he started to attack the prisoner. There was evidence of threats before and acknowledgements of malice after the affray; but it is apparent, without any comments upon the details of the testimony, that this was not a case of murder in the first degree.

The third instruction was not warranted by any testimony in the case, and should not have been given. "We have been unable, after a very careful examination of the bill of exceptions, to discover any evidence whatever that the prisoner went to the house of the deceased’s tenant with the intention of provoking a difficulty; much less that he did provoke a difficulty after he got there. On the contrary, the witnesses for the State are positive and clear and uncontradicted that the prisoner neither used any language or did any act, or in any way whatever, actively or passively, so conducted himself as to provoke a difficulty.

In a case of this importance, where human life is at stake, we feel it to be an imperative duty to interfere. A bare perusal of the evidence will make it apparent that the State did not make out the crime of which the prisoner was charged and convicted, and that in truth no testimony was given which could reasonably lead to such a conviction.

We shall therefore reverse the judgment and order a new trial.

Judge Richardson concurring.; Judge Scott dissenting.


source: Caselaw Access Project

author: Napton, Judge,

license: Public Domain

text:
    Lumley, Plaintiff in Error, v. Robinson, Defendant in Error.
    1. Where land is sold and a title bond given by the vendor, the interest of the vendee may be seized and sold under an execution against him.
    2. Should, however, the vendor, under a judgment rendered in his favor for the purchase money or a portion thereof, levy upon the interest of the ven-dee and purchase in the same at the execution sale, he will stand just where he stood before the sale; the vendee will still be entitled to a conveyance upon the payment of the purchase money.
    3. To entitle the vendee, in such case, to a decree of title, his petition must contain an offer to pay the purchase money due.

      Error to Morgan Circuit Court.

    The petition of plaintiff, Thomas Lumley, jr., set forth that on the 31st day of July, 1854, he purchased of defendant, Sidney S. Robinson, two several tracts, [describing them,] one tract containing forty acres, the other containing one hundred and sixty acres; that he paid to defendant one hundred dollars in hand, and executed and delivered to defendant three several promissory notes, each dated July 31, 1854— one for $300, payable December 20, 1854; one for $166.66, payable December 20, 1855, and one for $166.66, payable December 20, 1856; — that defendant obligated himself to convey said land to plaintiff upon the payment of each and all of said notes; that Robinson instituted suit upon the note for $300 and recovered judgment April 7, 1855; that he caused an execution to be issued on said judgment; that said execution was levied on the above tracts and also upon another tract owned by plaintiff, Lumley ; that on the 11th of October, 1855, the sheriff sold all the right, title and interest of Lumley, and that Robinson became the purchaser ; that in making the sale the sheriff sold in a body the first two tracts above mentioned, being the tracts purchased by Lumley from Robinson, and that Robinson purchased the same for $100; that the sheriff afterwards sold the third tract above mentioned to Robinson for $100 ; that plaintiff had no other right or interest in the tracts first sold than that acquired by his purchase from Robinson ; that the promissory notes, except the first, are still outstanding, and are in the hands of defendant; that if he, Lumley, had an interest in the tracts purchased by him from Robinson which was subject to sale under and by virtue of said execution, the levy, sale and purchase by defendant of said lands was and is a complete satisfaction and discharge of all liability or indebtedness on his part to defendant for and on account of the purchase by plaintiff Lumley, and the sale of the other lands was irregular and void; that the sheriff has made a deed, dated October —, 1855, conveying said tracts to Robinson. “ Plaintiff asks that the sale of said lands, except those purchased from defendant, be set aside ; that the sheriff’s deed be delivered up and cancelled, and that defendant be compelled to deliver to plaintiff his two promissory notes above described, and to enter satisfaction of his said judgment, and for all other such orders and judgments in the premises as to the court may seem just.”
    The defendant demurred to the above petition. The court sustained the demurrer.

      Ross and Edward & Ewing, for plaintiff in error.
    I. Lumley had no interest in the land bought by him of Robinson which was subject to sale under Robinson’s execution. This being the case, the plaintiff was entitled to have the sale set aside. The defendant may answer that the plaintiff has not prayed for such relief. The plaintiff is entitled to any relief consistent with the facts of the case, whether he has prayed for it or not. If Lumley had an interest which was subject to sale under Robinson’s execution, then Robinson takes under his purchase at the sheriff’s sale just as any other purchaser would have taken; that is, Robinson said in effect by his bid at the sheriff’s sale that he would discharge the encumbrance and pay $100 for Lumley’s interest in the land. This is what any other purchaser would have had to do before acquiring a title at such sale. If a stranger had .purchased he would have had to pay off the encumbrance before he could demand the title from Robinson. So Robinson must do the same; the law will regard the debt as discharged and require the notes to be cancelled. If the sale to Robinson stands and he is allowed to collect the balance of the purchase money, he manifestly got what no other purchaser at sheriff’s sale could acquire, both the legal and equitable title, free from encumbrance; whilst another purchaser would have acquired only Lumley’s equitable interest, subject to Robinson’s lien for the unpaid purchase money. He buys discharged of the lien, whilst another would have bought subject to the lien. The law allows no judicial sal where one purchaser has such advantage of another. (See McNair v. O’Fallon, 8 Mo. 188; Broadwell v. Yantes, 10 Mo. 398.)

      Morrow and Wright, for defendant in error.
    I. The demurrer was properly sustained. There is no prayer in the petition to set aside the sale of the property previously purchased by Lumley of Robinson.
    II. There is no equity in the petition. If Lumley, as he insists, had no interest subject to sale on execution, then Robinson’s purchase at the sheriff’s sale was a nugatory act. He acquired nothing by that purchase, nor was his undoubted right to buy the other tract, or his right to collect the residue of the purchase money, affected by it in the least.
    III. Lumley had an interest that could be sold on execution. (Brant v. Robertson, 16 Mo. 149.) There is no rule of law forbidding the vendor, Robinson, to purchase this interest. The purchase by him was good and binding. But if Robinson had no right to buy for his own benefit, would not the sale enure to Lumley’s benefit ? It is in the option of the cestui que trust to set aside a purchase made by a trustee on his own account. (1 Stoi Eq. § 422.) Lumley does not choose to regard the bid made by Robinson as made for himself. He has not offered to pay the balance of the purchase money or complied in all respects with his contract. He has, therefore, no right to complain, at least in the form now presented.
   Napton, Judge,

delivered the opinion of the court.

The mode of enforcing the equitable mortgage of a vendor’s lien upon the land sold is a subject which has several times been considered by this court. (McNair and others v. O’Fallon and others, 8 Mo. 188; Broadwell & Dyer v. Yantis, 10 Mo. 378; Calmes v. Talbot and others, decided in 1849 and not published.)

It is not denied that under our statute the interest of the vendee is saleable under execution, but where the execution under which the sale is made is upon a judgment obtained by the vendor in a suit for the purchase money or a portion of it, the effect of such a sale has been always attended with difficulties. Where the purchaser is a stranger, the embarrassment is increased ; for, where the plaintiff in the execution buys himself, we should feel no hesitation in saying that his purchase has not advanced him a particle, and that he stands just where he did before the sale. He has not extinguished the mortgage, and a court of equity would still convey the title to the vendee upon his paying up the purchase money.

Where the purchaser at a sale of this charter is a stranger, it may happen that other notes than the one sued on are still due, and these notes may be in the hands of the vendor, or they may have been previously assigned to third persons. In either event the subject is attended with confusion. A more embarrassing case than either would be where only a very small proportion of the purchase money is due, as was the case in Calmes v. Talbot and others (heretofore referred to), and in this way the title of the mortgagee or vendee be transferred to the purchaser at the execution sale for a mere song. Chancellor Kent alludes to these difficulties in Tice v. Annin, 2 John. Ch. 127, and seems to entertain no doubt that a court of equity would compel the vendor or mortgagee to assign over to the vendee or mortgagor the bonds and mortgage, so that he may compel the purchaser of equity to refund him the debt out of the land charged. For instance, if a tract of land is sold for five thousand dollars and the purchase money is all paid but five hundred dollars, and the vendor sues upon the note for five hundred dollars and gets judgment and levies execution on the land, the purchaser, by bidding five hundred dollars, extinguishes the debt and gets the legal and equitable title. It is plain, however, that if matters remain in this condition, the original vendee has lost his four thousand five hundred dollars and the land too, and it would be equitable, according to the doctrine of Ch. Kent, to compel the vendor to assign over the equitable mortgage, which his lien on the land created, to the vendee, in order that he might get from the purchaser of the land the amount paid to the original vendor. This, of course, must proceed upon the hypothesis that the purchaser is buying not the mortgagor’s equity only, but the mortgagee’s legal title, or rather it is hard to say what he was buying. The amount is, that a court of chancery will so treat the whole transaction as ultimately to attain the same equitable results to all the parties concerned as would have been the effect of a bill of foreclosure. (See Crafts v. Aspinwall, 2 Comst. 291.)

The effect of purchases by third persons, other than the vendor, is -not material to be considered or decided here, nor is it probable that the question will ever be important, for the reason that such cases will not occur. All the cases which have ever been up in this court, have been cases of purchases by the plaintiff in the execution. Strangers will not buy at such sales, because they do not know what they are buying.

In Pennsylvania the subject is disposed of in a very plain and equitable manner. The sale under an execution in cases of this kind is regarded as a sale of the whole title, both of' the vendor and vendee. The vendor, by putting up the land for sale under his own execution, to enforce the collection of the purchase money, is understood as offering his own title as well as that of the vendee, and the purchaser bids as in other cases for the land unencumbered, and the purchase money goes to extinguish the vendor’s lien first, and the remainder goes to the vendee or judgment debtor, or to other execution creditors, where there are any. (Horbach v. Riley, 7 Ban. 81; Davy v. Lowe, 5 Watts, 412.) If we could adopt this doctrine and practice here, all embarrassment on the subject would cease and sacrifices of property be avoided; but such has not been the understanding of the law and such has not been the understanding of bidders at such sales. The statute law and practice under it on execution sales in Penn sylvania differ from ours, and tlie intervention of tlie legislature would be necessary to introduce sucb a rule here.

This bill contains no equity; it'contains no offer to comply with the contract and pay up the purchase money due.

In relation to the sale of the tract of land originally owned by Lumley, there is nothing in the petition to show that a court of equity would interfere. Whether the sale of this tract was so connected with the previous sale as to make it a part of the same transaction and entitled to share the same fate, is a matter about which not enough is disclosed in this bill to enable us to form any opinion. It will be time enough to consider these questions when the party copies into court with an offer to do what is equitable himself. This is the essential basis of all such demands for relief.

The other judges concurring, judgment affirmed.


text:
    Cable et al., Plaintiffs in Error, v. McCune et al., Defendants in Error.

      1. A demand against a corporation for damages for the loss of a steamboat through the negligence of its agents is not a debt of the corporation -within section 18 of the first article of the act concerning corporations, (R. C. 1845, p. 234,) which makes the stockholders jointly and severally liable if the corporation fail to give notice annually of all the “ existing debts” of the corporation.

      Error to St. Louis Court of Common Pleas.

    The object of this action, which was commenced August 21, 1854, is to subject the defendants to personal liability as stockholders of a corporation called “ The St. Louis Marine Railway and Dock Company, established and organized under an act of the general assembly, approved January 18, 1849.” (See Sess. Acts, 1849, p. 144.) The petition sets forth substantially that in and prior to August, 1851, the defendants were, and thenceforward continued to be, stockholders in The St. Louis Marine Kailway & Dock Company, a corporation created by an act of the general assembly, approved January 18, 1849; that at the same time plaintiffs were the owners of a certain steamboat called the James Hewett; that the said corporation was the proprietor of a certain marine railway, dock, &c., and then held itself forth as ready, prepared and furnished with good and sufficient agents, dock, machinery, works and means for raising and repairing steamboats, and especially said steamboat James Hewett; that in consideration of a certain sum said corporation agreed to raise said steamboat free from the water, in the dock of said corporation, in a condition to permit the repairs, and thereafter to deliver said steamboat to the owners thereof again in good and sound condition as received and repaired, and to do the same in a good, safe and workmanlike manner ; that said corporation did not perform its undertaking ; that the steamboat was delivered to the corporation for the purposes aforesaid August 17, 1851; that by reason of the insufficiency of the docks, machinery, &c., and by reason of the want of skill, care and due diligence on the part of said corporation, its agents and servants, the said boat was stove in and broken, and before she was raised out of the water and in a condition to be repaired was precipitated over the side of said dock into the Mississippi river and sunk in deep water, and rendered utterly worthless and totally lost; that on the 25th day of October, in the year 1851, the plaintiffs instituted an action against the said corporation for the recovery of the damages sustained by them by reason of the non-performance of the aforesaid contract; that, in that action they recovered a judgment against the corporation November 23, 1853, for $18,080, which judgment still remains unsatisfied, an execution issued thereon having been returned “ nulla bonathat from the time of the establisment of said corporation, up to and long after the making and breach of said contract as above set forth, the corporation did not, nor did any of its officers, agents or servants, give notice, in any newspaper printed in the county of St. Louis, of all the existing debts of said corporation, as required by law; that by reason of tbe non-performance of the contract aforesaid plaintiffs have sustained damages in the sum of $18,085, for which and interest they ask judgment.
    Defendants, in their answer, admit the recovery as alleged of the judgment against The St. Louis Marine Railway & Dock Company in the month of November, 1853; admit that upon the rendition of that judgment the relation of debtor and creditor was established between plaintiffs and the corporation; but deny that prior to the rendition of the judgment any such relation existed. They allege that the action resulting in said judgment was brought for the alleged misfeasance, negligence, unskillfulness and remissness of the agents and servants of the corporation in respect of the steamboat James Hewett, which allegation was denied by said corporation, and upon which allegation and denial the issue was joined which resulted in the verdict on which said judgment was rendered. Defendants deny that the liability of the corporation to the plaintiffs for and on account of the sinking of the James Hewett constituted a “ debt” in any proper sense of the term, either popular or technical; and say that it was impossible for the said corporation, in making publication of existing debts, to mention and enumerate among them a claim for damages the legal validity of which the corporation wholly disputed and repudiated; that it appears from the record of the judgment in the case of Cable et ah, v. St. Louis Marine Railway & Dock Company and the pleadings therein, that the said action was not brought upon the con tract between the owners of the James Hewett and the said corporation, but proceeded upon the negligence, misfeasance and unskillfulness of the agents of the corporation ; that all the debts of the corporation existing prior to Jauuary 17, 1852, have been fully paid and satisfied; that upon said last mentioned day, and afterwards in each year during the con tinuance of the corporation to do business and have an office for the transaction of business, the said corporation did give notice, as required by law, of all existing debts of the corporation ; that in 1858 also notice was given as required by law; that in the month of May, 1853, all the property and effects of the corporation, of whatever kind, were sold at public sale to satisfy the debts of said corporation, and all the assets and effects were consumed and exhausted by said sale and in paying said debts; and since the month of May, 1853, the said corporation has had no place of business whatever, nor any property; nor has any board of directors or other officers been since that time chosen to take charge of any of the affairs of said company, nor has said company since that time had any affairs to take care of.
    The cause was submitted to the court upon the petition and answer and the following agreement: “In this case all the facts set up in the answer respecting the publication of notice by the directors, and the payment of all previous debts by the company (excepting the claim of the plaintiffs for the loss of the James Hewett steamboat) which accrued prior to the 17th of January, 1852, are admitted. It is also admitted that in May, 1853, all the property and effects of the corporation, of whatever kind, were sold at public aution to satisfy the debts of the corporation owing, and that after said sale the said company had no office or place of business, or any election of officers, and has not since that time (May, 1853) done or attempted to do any business as a corporation. And thereupon the cause is submitted to the court upon the pleadings and this agreement, the record in the case of Cable et al., v. St. Louis Marine Railway & Dock Company being also in evidence.”
    The petition in this action (Cable v. St. Louis M. R. & D. Co.) which was commenced at the February term, 1852, of the St. Louis court of common pleas, set forth that plaintiffs were, in August, 1851, the owners of the James Hewett; that the corporation was the owner of a marine railway and machinery, &c., and held itself out to the public as ready and prepared, &c., for doing the work of raising and repairing steamboats, and especially the James Hewett, which, in consideration that plaintiffs would pay a certain sum, defendant undertook to raise from the water, repair and redeliver to plaintiffs again in good and sound condition as received and repaired, and to do the same in a good, safe and workmanlike manner; that defendant did not perform said promise ; that the boat was delivered to defendant on the 17th of August, 1851; and that, by reason of the insufficiency of their dock and the want of skill and care on the part of the agents of defendant, the boat was broken, stove, sunk and ruined, to the damage of the plaintiffs, &c. The answer of the corporation set forth that the loss complained of arose from inevitable accident and not from any want of skill or care on the part of the corporation or its agents. On the issue thus formed there was a trial, and a verdict and judgment for plaintiffs, which was affirmed by the supreme court. (See 21 Mo. 133.) The judgment was for $18,080, and was rendered November 23,1853.
    The court held that the plaintiffs could not recover. A motion for a review was made and overruled.
    The 18th section of the first article of the act concerning corporations, approved March 19, 1845, (R. C. 1845, p. 234,) is as follows: “ Every corporation hereafter created shall give notice, annually, in some newspaper printed in the county where the corporation is established, and in case no paper is printed therein, then in the nearest paper, of the amount of all the existing debts of the corporation; which notice shall be signed by the president and a majority of the directors; and if any of the said corporations shall fail to do so, all the stockholders of the corporation shall be jointly and severally liable for all the debts of the company then existing, and for all that shall be contracted before such notice shall be given.”
    Drake, for plaintiffs in error.
    I. The 18th section of article 1 of the act concerning corporations is unquestionably in its nature remedial. The familiar principle that remedial statutes are to be liberally construed, to suppress the mischief and promote the remedy, fully applies. The defendants do not deny that there was a contract between the owners of the boat and the company ; but, on the contrary, in stating “ that the action (Cable y. St. L. M. It. & D. Co.) was not brought upon the contract between the owners of the James Hewett and the said corporation,” it is admitted that there was a contract. The gist of the action against the company was the contract of the company. The same contract is also the gravamen of this action. In both the breach of the contract is averred to have resulted from the insufficiency of the docks, machinery, works and means by the company provided, and from the want of skill, care and due diligence on the part of the company and its agents in the premises. In the action against the company, the defendant, not denying the existence of the contract, or its breach, took issue upon this insufficiency, want of skill, &c., and the issue was found against it. It was an immaterial issue, relating merely to the cause of the breach, and not disputing, but admitting, the fact. So in this action, where the contract and the breach thereof are alleged and not denied, it is sought to tender again an immaterial issue in regard to the ground of the recovery against the company. But suppose there was no express contract between the owners of the boat and the company, it is admitted that the boat was delivered to the company to be docked, repaired and redelivered to the owners. The law implied a contract. This implied contract was broken ; whether through malfeasance, non-performance or misfeasance is wholly unimportant.
    II. Previous to the publication of the required notice the stockholders stood in the position, in law, to the world, of members of an unincorporated copartnership, and were neither guarantors nor sureties, but principals. They were mere individuals, with a corporate capacity for certain purposes, but without the exemption from personal liability usually enjoyed by stockholders in a corporation. The law prescribed the condition on which this position might be changed, viz., the publication of the notice; but they chose not to avail themselves of it. They had it fully in their power to relieve themselves from all personal liability, but they would not. Their incorporation enabled them to carry on, as a corporation, a particular business, to use a given name, to have a common seal, and to do other things in a corporate capacity; but as to those who transacted business with them, and as to the community at large, they were to every intent only persons represented in their individual characters by certain officers and agents appointed and employed by them, and responsible to all parties with whom, through those officers and agents, they contracted. The law never intended to confer on them personal immunity from liability, unless they performed a certain act; but, on the contrary, declares and imposes individual liability up to the time that that act should be done. It is, then, clearly consonant with the letter and spirit of the law that they shall be regarded as principals, and subject to all the responsibility attaching to that character. • (See Allen v. Sewell, 2 Wend. 827; 6 Wend. 335; 2 Hill, 269; 2 Denio, 123; Bailey v. Bancker, 3 Hill, 188 ; Corning v. McCullough, 1 Comst. 47.)
    III. The demand of plaintiffs against the company was a debt within section 18. In the month of August, 1851, the company was liable to the plaintiffs for the value of their boat. All the facts necessary in law to create and fix this liability existed at that date; it simply remained to fix its amount. This was done by the judgment in November, 1853, which related back to and was based upon the state of facts existing in August, 1851. This liability was, in August, 1851, a debt of the company within the meaning of the statute, and having been contracted before any publication was made as required by the law was binding on the defendants as stockholders. The statute was remedial and requires a liberal construction. The word “ debt” should not be construed in its strict legal sense. The word “ debt” is universally employed as expressing whatever one man owes another in any form of liability arising out of contract. This is its “ general and popular use” — its “ natural, plain, obvious ordinary and familiar signification and import. (See the lexicographers — Johnson, Walker, Barclay, Bailey, Richardson, Webster, Worcester and' Tomlin; Bouvier’s Inst. § 575 ; Gray v. Bennett, 8 Mete. 522.) The law of suits by attachment throws no little light on this subject. The question would necessai-ily arise as to what is a debt that would authorize a suit by attachment. In New York, where the plaintiff was required to swear that the defendant was indebted to him, the court said it did not follow that the demand is to be so certain as to fall within the technical definition of a debt. Being indebted is synonymous with owing. It is therefore sufficient if the demand arise on contract. The court held that an attachment would lie in an action founded on a bill of lading, whether the goods shipped were not delivered or were delivered in a damaged condition. (Lenox v. Howland, 3 Caines, 323; 3 Barb. 229; see also Hunt v. Norris, 4 Martin, 517 ; Peter v. Butler, 1 Leigh, 285 ; Roe-lofson v. Hatch, 3 Mich. 277; also 2 Bell’s Comm. 319.) In Massachusetts, under a statute requiring every corporation to give notice, annually, in some newspaper, of the amount of all assessments voted by said corporation, and actually paid in, and all existing debts, and declaring that if any corporation should fail to comply, the members thereof should be personally liable for any debt then due, the meaning of the word debt was considered in connection with a question of the competency of a witness. The action was in assumpsit, against a corporation, for unliquidated damages for breach of contract. The corporation offered as a witness a person who was one of its members when the cause of action arose ; but it appeared that no notice had been published as required by the statute, and his admissibility was contested on the ground of his personal liability for the demand of the plaintiff against the company. The court held him, for that reason, incompetent as a witness. (Mill Dam Foundry v. Hovey, 21 Pick. 417, 455 ; see also Carver v. Braintree Manuf. Co. 2 Sto. 432.)
    IY. The judgment obtained by the plaintiffs against the company is the measure of their recovery in this action, and conclusively establishes the amount for which the defendants are liable. (Slee v. Bloom, 20 Johns. 669 ; Moss v. McCul-logh, 7 Barb. 279; Daneby v. Brown, 24 Yerm. 197, 209 ; Bank of U. S. v. Dallam, 4 Dana, 574.)

      Gantt and Thomas & Sharp, for defendants in error.
    I. The controversy turns entirely upon the meaning of the word “ debt” as employed in the 18th section of the first article of the act concerning corporations. (R. C. 1845, p. 234.) The demands for which, in default of publication, the stockholders are to be made liable, are of the same kind with those of which the publication should take notice, and no others. The word “ debts” is used, de industria, as a less comprehensive word than claims demands, or rights of action; and its meaning, both in popular language and among professional men, is well ascertained as something very distinct from dioses in action. There was no debt owing by the corporation to the plaintiffs on account of the sinking of the James Hewett until the rendition of the judgment on the 23d of November, 1852. No action of indebitatus assumpsit or debt would have lain against the corporation upon the facts stated in the petition filed to the February term, 1852. The contract to repair the vessel was mere inducement. The gist of the action was the malfeasance of the agents of the corporation, and the action was in substance ex delicto. (Acks v. Ball, 14 Mo. 396; Com. Dig. tit. Debt; Chitty on Plead. 374,123 ; 13 Mo. 549.) Until November, 1853, the corporation wholly denied its liability by reason of the matters stated in the petition of plaintiffs, and stoutly contested that liability in a suit at law. The damages claimed for the misfeasance, &c., were in the strictest, sense of the term unli-quidated. To require the directors to acknowledge, and even to proclaim, a debt on account of such an affair, would be equivalent to taking from them all chance of a successful defence. Either the claim of the plaintiffs for the loss of the James Hewett is a debt (prior to judgment) and should be notified as such in its annual advertisement, or it was not such a claim as could be enforced against the stockholders for want of an advertisement during the year preceding the misconduct out of which the claim grew. Publication was duly made in 1852 and 1853, and all demands accruing prior to January 17,1852, had, with the exception of that of plaintiffs, been fully paid. The legal acceptation of debt is a sum of “ money due by a certain and express agreement.” (3 Black. Comm. 154-5.) Debt is by no means so broad a term as demand or claim. A release of all demands or of all claims would discharge all debts but not e converso. (2 Thomas’ Coke, p. 362, note B; Jacob, L. Die. tit. Debt; Bac. Abr. tit. Debt, A.) The idea that until publication the corporators are in the position of an unincorporated company is utterly untenable. There is no color for it. The statutes construed in the cases cited on the part of plaintiffs in error are different from the one now before this court.
   Napton, Judge,

delivered the opinion of the court.

Our opinion in this case is based entirely upon the penal character of the statute we are called upon to construe.

The corporation is required to publish an annual statement of their condition for the information of the public, and a failure to do so renders the stockholders responsible for a specified class of demands existing prior to or at the time of such publication. The object is to inform the public, who expect to have dealings with such corporations, of their probable responsibility. This liability, in the event of there being no required publication, does not depend upon the actual injury which the failure to publish may have occasioned in a given case, but is absolute, dependent only on the proof of publication or no publication. Such a statute can be regarded in no other light than a penal one ; and accordingly such was the view taken by this court of some of its provisions less penal than the one we are now considering, in the case of Kritzer v. Woodson, 19 Mo. 827.

As no publication was made in this case of any kind previous to the claim now sued on, it is useless to inquire into the character of the claims or demands which such a publication ought to embrace. It is not perceived that the corporations would be more embarrassed in stating claims against them for contested unliquidated damages than they would be in stating the debts due upon plain notes, the whole or parts of which might be disputed. Such a difficulty might be readily settled by holding the corporation responsible for the event. If willing to risk this, the claim could be omitted ; but if the claim was ultimately established, the publication would be defective in the meaning of the law.

The question, however, here is, what class of demands is embraced within the words “ debts contracted ?” Our legislature did not go the length which others have in fixing the liabilities of the stockholders of these manufacturing corporations. They did not enact, as in many other states it is enacted, that the stockholders should be responsible for every liability established against the corporation, and which its assets turned out insufficient to meet. Such statutes as these, creating a general and determined liability not dependent on circumstances, becoming as it were a part of the very essence of the charter, may reasonably admit of a very different construction from a law which seems to recognize the general principle of individual irresponsibility subject to a very limited exception, and only ventures to hold out such responsibility as a penalty for a failure on the part of its managers to perform certain acts directed in the law .and supposed to furnish some advantages to the public. The statute, which Judge Story construed in Carver v. Braintree Man. Co. 2 Story, 432, was of this remedial character. That act declared that every member of the manufacturing company named should be liable in his individual capacity for all debts contracted whilst he was a member. There was no penalty for an omission or a commission; it was simply a recognition of the individual liability principle on the face of the charter. Called upon to construe such a charter, Judge Story held it to be remedial, not penal, and so viewing it he gave the word “ debt,” which was the term used, a very lib-eral and extensive signification, to forward the manifest purposes of the law and the interest of society.

Had our legislature taken the same step and boldly inserted such a provision in all their charters of this class of corporations, Judge Story’s views, forcible and reasonable as they are, ought to have great weight, in determining the construction of such a statute. Judge Story concedes that the interpretation he gives to the word “ debts” is a very loose one, and in short is making it synonymous with demands.” He substituted for the words “ debts contracted,” the phrase “ dues owing” or “ liabilities incurred,” regarding them as essentially equivalent expressions. The result was that a demand founded on tort was equally within the meaning of the act with a debt liquidated or unliquidated. We do not feel ourselves authorized, upon well settled and long established principles, to take this liberal view of the word debts when used in our statute. Although the language is the same in the two statutes, ours is manifestly highly penal in its nature, whilst the Massachusetts act was considered by Judge Story as a remedial one. The demand sought to be enforced in the present action is certainly not a debt in the legal acceptation of the term, and it is, to say the least, doubtful whether it could be so regarded in its popular acceptation. The defendants are entitled to the benefit of such doubts. The popular meaning of a term may very properly be resorted to in ascertaining its construction in a purely remedial statute, and the plain objects of such laws ought not to be defeated by a narrow and technical definition. Unfortunately there are some words — and this word “ debt” is perhaps one of them — the popular meaning of which is unsettled and fluctuating and hard to be ascertained. Where there is room for doubt and the statute is penal, the safer rule is to adhere to that limited and definite sense to which long established legal usage has restricted it.

The liability of the St. Louis Marine Railway and Dock Company to the plaintiffs was not a debt within the legal acceptation of that term as declared by Blackstone and other writers of established authority. It was not “ a sum of money due by certain and express agreement.” Whether the suit against the company which resulted in the. judgment sought to be enforced against the defendant was one which would properly fall within the class of actions considered as founded on contract, or in, that class which is based upon tort, is a more difficult question to determine, if it was important that it should be determined at all. In the division of actions made by Blackstone, it would probably be considered as founded on contract; for his definition of actions upon implied contracts is comprehensive enough to embrace almost every action on the case, except slander, libel, assault and battery, and similar actions. In his sixth subdivision of actions upon implied contracts, Blackstone includes a variety of actions for what he terms breaches of implied duty or trust, which would comprehend almost every case of damage imaginable. This court, upon previous occasions, have treated actions like the present as substantially founded on tort, although a breach of contract is stated as inducement to the action. (Acks v. Ball, 14 Mo. 396; McDonald & Rew v. Forsyth, 13 Mo. 549.) So in New York, Judge Nelson, in the case of Heacock v. Sherman, 14 Wend. 58, considered .the action as one for damages upon a tort and not arising upon contract, although, upon Blackstone’s division of actions, that case, which was for the loss of a horse by reason of the failure of a corporation to keep a bridge in repair, might very well have been considered as an action for damages arising out of contract. There was an implied contract that the company should keep the bridge in repair, and by reason of their failure to comply with their obligations the damage resulted, and in this way the case might be,said remotely to be founded on contract. But the real gist of the action, in that case as in this, was a tort; namely, the negligence and misfeasance of the corporation’s agents, and the insufficiency of the bridge in the one case, and of the dock in the other, by which the damage complained of was sustained. Such damages can hardly, in popular acceptation, be regarded as debts. Certainly it is by no means clear that tbe legislature meant to embrace such demands.

We regret that in tbe examination of tbis subject we have been without any precedent to guide us. Tbe only case directly in point is the one cited from Massachusetts; (21 Pick. 455;) and that is undoubtedly against tbe conclusion to which we have arrived. An opinion of a court of such acknowledged ability as the supreme court of Massachusetts is entitled to great respect, but the circumstances under which that opinion was delivered detract somewhat from its importance as authority. The question arose incidentally upon the exclusion of a witness, and it would seem from the curt manner in which the court disposed of it that not much importance was attached to its decision. No investigation was made into the matter upon principle or authority, and it is easily inferred from a perusal of the case, which turned principally upon other points, that the question here considered was entirely a subordinate one, and its decision either way probably had no material influence upon the result. The statute under which the question arose seems also to have differed from ours in the use of the word “ contracts” as well as debts ; although the court did not, so far as I can perceive, attach any particular importance to this word. Under these circumstances, the case, as a mere precedent, does not appear entitled to great weight, notwithstanding the respectability of the court which decided it. On the other hand, the case of Heacock v. Sherman, 14 Wend. 58, is an authority, not only directly at variance with the decision of the supreme court of Massachusetts, but also entirely irreconcilable with Judge Story’s views in Carver v. Braintree Manuf. Co. 2 Story, 432. Judge Nelson, who delivered the opinion of the court in that case, refused to give a construction to the words “ debts contracted” that would embrace a demand for damages in an action founded on a tort. The other authorities referred to in the argument of this case are upon statutes essentially different from the one now under consideration.

I am not apprised of any views of sound public policy which ought to exempt the stockholders of the class of corporations, such as in this instance was sued, from all the individual responsibility which attaches to the members of ordinary mercantile partnerships; much less have I been able to perceive any reason for a distinction in the kinds of liabilities to which they ought to be subjected in the event of the insolvency of the corporation. The conclusion, therefore, to which we have arrived, has been, so far as I am concerned, reached with reluctance; but I am the better reconciled to it by a consideration that the provision in question is of comparatively recent origin, and is contained, not in the charter of the company, but in the general corporation law; and to go a step beyond the strict letter of the law might occasion surprise and perhaps produce injustice.

The other judges concurring, the judgment is affirmed.

       A motion for a rehearing was made in this case and overruled.


author: Richardson, Judge,

text:
    Ubsdell & Pierson, Defendants in Error, v. Cunningham, Plaintiff in Error.
    1. Where a cause is tried by the court without a jury and evidence is adduced to prove a fact in issue, and the same, after having been seen and examined by the court, is ruled out as inadmissible, this will be regarded as equivalent under the circumstances to declaring the evidence thus excluded insufficient to establish the fact sought to be proved thereby.

      Error to St. Louis Law Commissioner's Court.

    This case is the same case heretofore decided by this court, and reported in 22 Mo. 124.
    Whittelsey, for plaintiff in error.

      Krum & Harding, for defendants in error.
   Richardson, Judge,

delivered the opinion of the court.

The rejected evidence in this case was contained in two receipts and a deposition. The defendant had the right to show that the notes sued on had been included in a previous settlement between him and one of the plaintiffs, and that the receipts taken at the time omitted by mistake to mention them. The evidence offered by the defendant was competent for whatever it was worth, as tending to make out his de-fence ; and if the case had been tried by a jury, it should have been submitted to them and they could have given whatever weight to it they pleased. But the case was tried without a jury ; the deposition and receipts were offered in evidence and were seen by the court; they were objected to as irrelevant; and the court excluded them. This, under the circumstances, was equivalent to declaring the evidence rejected insufficient to prove the fact it was offered to prove.

There is no question of law in the case, for if the court had received the evidence and then found for the plaintiff we would not have interfered with the judgment, and as the matter is now presented the action of the court was equivalent to a declaration that the evidence did not establish the defence.

The judgment is affirmed,

the other judges concurring.