The defendants were tried and convicted in the court below for having conspired together to kill one Haggerty. This under our statute (section 3780, Revised Statutes 1889), is made a misdemeanor.
The record is voluminous and we shall make no effort to detail the evidence. It may be stated however, that it tends to establish a strong and convincing case against the defendants, each and all of them. Mrs. True Nell and Haggerty, it seems, had some trouble in relation to a mining claim at or near Joplin. The woman conceived the idea of “doing away” with Haggerty, as the witnesses term it, and engaged the cooperation of the defendants Mat and Harry Doherty. "With this in view the evidence tends to prove that several desperate characters were approached and efforts were made to have them killHaggerty. One of these was to waylay Haggerty at a point where he was in the habit of passing in the night time and shoot him; another was to engage him in an affray on the street, and still another was to throw him into a mining shaft. Only one of these however, ever approached execution. Mike Marrs (known as “Big Mike”) assaulted Haggerty on the street beat him badly, and which might have resulted seriously had not others interfered.
At the trial in the circuit court the defendants were found guilty, a small fine of one dollar was imposed on each, and from the judgment they have appealed.
conspiracy: in-act. I. The indictment was objected to, on a motion to quash, for the reason that it failed to allege any overt act by the defendants. The objection is without merit. In a case where the conspiracy is to commit a felony upon the person of another, it is not necessary to allege or prove an overt act to accomplish the deed. R. S. 1889, sec. 3781. The indictment *246plainly charged an agreement to commit a felony, namely to murder Haggerty.
Trial practice: continuance: diligence. Cdencé^deJikr”1’ rator: practice, Neither did the court err in denying the defendants’ application for a continuance. There was not even the most ordinary diligence shown in procuring the attendance of the absent witnesses. It is further 4 insisted that the court erred in permitting certain witnesses to detail conversations had with one of the alleged conspirators, in the absence of the others, and before the conspiracy had been established. The rule of course is well understood that the acts or declarations of one conspirator in the prosecution of the common enterprise is admissible in evidence against all. The better practice, too, in such cases, is first to require proox of the combination before admitting such acts and declarations. This order of proof is not, however, indispensable; the trial court may in the exercise of a sound discretion vary this rule and change the natural order, permitting proof of the acts and declarations to precede evidence of conspiracy. It will be sufficient if the conspiracy be established by evidence introduced later on. State v. Ross, 29 Mo. 32; Hart v. Hicks, 129 Mo. loc. cit. 105; State v. Daubert, 42 Mo. 238.
Atice^evidence?" edfrecord?íect" After the state had offered all its evidence in rebuttal, the defendants sought to introduce what counsel called all the papers and records in some criminal prosecution against Mike Marrs for assaulting Haggerty. The court excluded the offer because incompetent and out of time. Of this ruling defendants’ counsel now complain. There are several good reasons for overruling this assignment of error. It is sufficient however to say that the abstract now before us fails to disclose just what was contained in the offer and we are therefore unable to say whether there was or was *247not error in its rejection. What possible relation existed between the two cases we are" not advised. When the appellant complains of the action of the trial court in rejecting certain evidence offered at the trial, the same should be set forth, in substance at least, so that the appellate court may determine its materiality and competency, and whether or not the complaining party-was injured by the rejection.
same result: in-' struction. As to the matter of instructions given and refused we can discover no substantial error in the court’s action. The defendants were very fairly treated in that, respect. The most serious objection is found . " m the number and length of these instructions, there being fifteen given, covering, too-, about seven printed pages of the abstract. It is to be expected that in all these some verbal inaccuracies would appear. These however were entirely harmless.
Objections, too, relating to the admission of evidence have been examined and found without merit.
This case was twice tried in the circuit court and with the same result. It would seein best to put an end to the litigation unless some really substantial and prejudicial error is shown by the record. This we do not find, and the judgment therefore will be affirmed.
All concur.