| Mo. | Jan 15, 1846
delivered the opinion of the Court.
The appellant was indebted and found guilty of the murder of one King B. Scott. After verdict, a motion in arrest of judgment was made, which being overruled, the case is brought to this court.
The only question presented by the record, is the one arising from the motion in arrest. The indictment consists of four counts, the first, third and fourth of which are in all respects, material to the question, precisely alike. The second count is different. In the first count it is alleged that the defendant, with force and arms, at, &c., on, &c., “in and upon one KingB. Scott, in the peace of the State, &c., feloniously, wilfully and of his malice aforethought, and by laying in wait, did make an assault, and that the said Lester did then and there, with force, &c.,” “and with a large stick of no value which he the said Lestci- in both the hands of him the said Lester, then and there had and held, him the said Scott in and upon the head of him the said Scott, feloniously, wil-fully, and of his malice aforethought and by laying in wait did strike and beat, giving him the said Scott by such striking and beating, divers mortal bruises and contusions in and upon the head of him the said Scott, of which said mortal bruises and contusions he the said Scott did instantly die, and so the jurors,” &c.
The second count omits any averment of an assault, and charges the infliction cf the mortal wound, in the same manner it is charged in the other counts, but gives a venue to the death.
Time and place must be stated to the allegation both of the injury and t'ne death., in order that it may appear that the eharge is cognizable by the court. 2 Chitty Cr. L. 787; Cro. Eliz. 738; 2 Hale, 179. Here the word instantly seems designed to supply the place of the words then and there; and the attorney general insists that both in its popular and proper legal acceptation, it will embrace every thing which is conveyed by those words. This may be true so far as time is concerned, but in capital cases, it has been thought expedient to require great strictness, and it would be difficult to fores.ee to what extent innovations would go, if we lose sight of the established precedents, so far as they fix the form of material averments. In East’s Pleas of the Crown, it is said, “The respective times of the wound and death are also required to be shewn, in order that it may appear that the deceased died within a year and a day from the .stroke or other cause of death; in the computation of which, the day on which the act was done shall be reckoned the first. This may be done, either by stating that he died instantly of the wound, or that he languished of the same till the day
Whether the statement of time and place must accompany the allegation of giving the mortal blow, as well as the preceding charge of giving the stroke, it is not material to determine. It is certainly safer to follow the precedents, and specify time and place, whether the allegation be percussit dans or percussit et dedit. The second count is however defective in omitting any averment of an assault.