Ex parte Knight. advantage of the petitioners. It is claimed that Ben Knight's going to Kingsville on horseback, and apparent waiting there for Harry Knight to come, was evidence of premeditation and deliberation, and perhaps of a conspiracy. The car was driven by Harry Knight at a rapid rate of speed through the town as if he were not expecting to stop there for any purpose. He drove quite a distance beyond where he saw his father standing, before he could stop his car. It was shown in the preliminary hearing that Harry Knight and his two companions left Kansas City in a large car and in a space of about two hours appeared at McCormick's place in Holden with his father and brother then in his car. It would not matter where he picked them up. What appeared at the preliminary hearing would be just as strong evidence of prior arrangement as the additional incident of picking up Ben Knight at Kingsville would make it. So we think that the depositions, aside from the incompetent attack upon the reputation of Harry Knight, added nothing to the State's case. III. It is claimed that the evidence of flight raised the presumption of guilt. As stated, Harry Knight was arrested at Mobile, Alabama, a month after the occur rence. Flight. This appears in the depositions taken. It is claimed that this additional evidence is important. But giving the State the benefit of the fact that Harry Knight fled and was arrested in Alabama, what effect does it have upon the probability that he was guilty of murder in the first degree? If flight was consis-. tent with his innocence of that particular crime it would possess no weight against him. [State v. Harris, 232 Mo. 323; State v. Goodson, 252 S. W. 366; 8 R. C. L. p. 192.] Conceding that Harry Knight's flight from the scene of the fight would indicate a conscious guilt of some crime -although it is stated by the State that feeling was high against the petitioners and they were unsafe in jail in Johnson County-would not Harry Knight be as apt to flee to escape arrest if he felt he was guilty of murder in 止 Ex parte Knight. the second degree as he would if he felt he was guilty of murder in the first degree? If he was conscious of guilt it does not necessarily follow that it was conscious guilt of any particular grade of crime. So, we think that the evidence of flight does not add materially to the probability of guilt. As this court has said in one of its latest cases upon the subject, Ex parte Verden, 291 Mo. 552, 1. c. 563, before a defendant should be committed without bail, "such facts must be shown as to raise a strong presumption of guilt of the crime charged." The blow which killed McCormick was struck by Harry Knight with the butt of his revolver. If he had deliberately intended to kill McCormick it seems as if he would have shot him when the difficulty first began. His possession of the weapon is not conclusive that he Intention intended to use it. Owing to McCormick's size to Kill. and strength and his apparently aggressive character, Harry may have intended merely to stand McCormick off. He did not draw his weapon until after he, his father and brother had been knocked down and Smith had appeared with a hammer as an ally of McCormick. He then pointed his revolver at Smith and told him to stand off. This indicates an intention on his part to have the fight proceed against McCormick without interference from the outside while he had overwhelming odds in his favor. Even that intention may have been formed after the fight began. Still he did not shoot McCormick, but in the fray he struck him on the head with the butt, showing he did not intend to shoot. It is by no means certain that he intended to kill. In fact, it rather appears that he did not. So far as the actual combat was concerned, evidence of deliberation on the part of Harry Knight was quite weak. It is claimed by the State, however, that there was evidence of a conspiracy in pursuance of which Harry Knight and his friends came from Kansas City and were joined by his father and brother before going to the McCormick home. There was bad blood between the Ex parte Knight. parties and those acts indicate a predetermined intention to have a difficulty with McCormick. Undoubtedly it is the law, if the Knights appeared at the McCormick home with the intention of committing a felony of any kind and in pursuance of that attempt McCormick was killed by one of them, then they would be guilty of murder in some degree. We think the evidence is not convincing that they entertained an intention to commit a felony. If they appeared there for the purpose of committing any crime short of a felony and McCormick was killed without deliberation and premeditation, it would reduce the grade of the crime. The Knights, no doubt, intended to call McCormick to account; that they intended to assault him is not so certain. Harry Knight asked why he killed his hogs. A soft answer might have turned away wrath. McCormick himself struck the first blow, and he struck several blows before there was any effective return. It was only after he had held his own in the general fight, and had shown almost that he was capable of a successful defense against the five men, that the fatal blow was struck. He. had bruises and contusions on various parts of his body which did not seem to have affected his fighting capacity. It would be entirely reasonable for the jury to infer that the blow of Harry Knight was struck in a sudden heat of passion engendered by the general fight in which he and the others were knocked down. It must be noted that the occurrences occupied but a very short time; it could have been only the space of seconds, hardly minutes, between the time when Harry was knocked down until he struck McCormick. We are not in this proceeding to determine whether a jury would be justified in finding the defendants guilty of murder in the first degree; we are only to determine whether on the facts produced the probability is so strong that they are not entitled to bail. We conclude that the evidence is not sufficient to warrant denial of bail.. For these reasons this court on August 21, 1923, on considering the petition of petitioners, and the evidence mentioned, ordered that Harry Knight be re State to use of Divine v. Collier. leased upon giving bond in the sum of fifteen thousand dollars; that Guy Knight and Frank Carey be released upon giving bond each in the sum of ten thousand dollars, the sureties on such bonds to be approved by this court, and that the prisoners be remanded to the custody of the Sheriff of Johnson County until such conditions should be complied with. This opinion is filed in pursuance of leave given on said date. Harry Knight thereafter presented his bond, as required by said order, and Guy Knight presented his bond as required by said order, and such bonds were filed in this court and approved by this court. All concur, except Ragland, J., who dissents. THE STATE at Relation and to Use of R. C. DIVINE, Collector of Revenue Within and For CITY OF GREENFIELD, v. L. A. COLLIER, Appellant. In Banc, November 20, 1923. 1. APPELLATE JURISDICTION: Construction of Revenue Laws: City Taxes. A determination of the legal right of a city of the fourth class to assess and collect from a resident citizen of the city a city tax on his hogs, cattle and other personal property located outside its corporate limits but within the county, involves a construction of the revenue laws, and the Supreme Court has jurisdiction of an appeal from a judgment that the city is empowered to assess and collect such tax. 2. CITY PERSONAL TAXES: Resident of City: Upon Property on Farm. A city of the fourth class is empowered to levy, assess and collect from a resident in the city a personal city tax on cattle, hogs, sheep, mules, machinery and other personal property situated upon and used in connection with his farm located in the county in which the city is situated. Appeal from Dade Circuit Court.-Hon. Berry G. Thurman, Judge. AFFIRMED. State to use of Divine v. Collier. Ben M. Neale for appellant. (1) The city of Greenfield, being a city of the fourth class, has only such powers as are specifically given by law. Authority to assess and collect taxes at the time these taxes were assessed and were collectible, was found in Sec. 9347, R. S. 1909 (now Sec. 8445, R. S. 1919). Under this section, the city assessor is given authority to assess all property "in such cities," and further on in the section it is made the duty of the county clerk to deliver to the mayor a certified abstract from his assessment book of all property "within such city. "Under this section, unless property is located "in the city" or "within" the city, it is not assessable by the city assessor, consequently, not taxable. The farm owned by the appellant, and on which his personal property was located, could not be taxed by the city, for the reason that the farm was not "in" or "within" such city. The only theory on which city tax could be collected on the stock and farm implements, located and used exclusively on the farm, is that because it is personal property, it has a different location from the location of the farm; its location being the same as the location, or home, of the owner. (2) Prior to the enactment of Secs. 11337 and 11355, R. S. 1909, the rule in Missouri was that tangible personal property, such as horses, cattle and farm implements, was assessable and taxable where it is actually located, though that situs might be different from the domicile of the owner. See Plattsburg v. Clay, 76 Mo. App. 497; School District v. Bowman, 178 Mo. 654; Leavell v. Blades, 237 Mo. 695; State ex rel. v. County Court, 47 Mo. 594. Recognizing this rule, and with the purpose, evidently, of changing it in certain respects, Sec. 11337, R. S. 1909, was enacted, requiring personal property to be taxed in the county in which the owner resides. And Section 11355 was enacted, providing that personal property of an estate, in charge of administrator, shall be taxable by and for the benefit of the school district where the deceased resided at the time of his death. These two |