170 Mo. 210 | Mo. | 1902
At the June Term, 1900, of the criminal court of Buchanan county, the grand jury returned .the following indictment:
“State of Missouri, County of Buchanan, ss.
“In the Criminal Court of Buchanan county, at the June term thereof, 1900.
“The grand jurors of the State of Missouri, within and for the body of the county of Buchanan aforesaid, being duly impaneled and sworn, upon their oath do present that Jesse Cook and Boy Progge, on the sixth day of May, 1900, at the county of Buchanan and State aforesaid, in and upon one James Mize then and there being, feloniously, willfully, premeditatedly, deliberately, on purpose and of their malice aforethought, did make an assault, and with a dangerous and deadly weapon, to-wit, a shotgun loáded then and there with pow*213 der and leaden balls and shot which they the said Jesse Cook and Roy Frogge in their hands then and there had and held at and against him the said James Mize, then and there feloniously, willfully, premedi-tatedly, deliberately on purpose and of their malice aforethought did shoot off and discharge and with a shotgun aforesaid and the leaden balls and .shot aforesaid, then and there feloniously, willfully, premeditatedly, deliberately, on purpose and of their malice aforethought, did shoot, strike and penetrate and wound him the said James Mize, in and about a vital part of the body, and legs, and thighs of him the said James Mize, to-wit, in the legs and thighs of him the said James Mize, giving to him the said James Mize at the said county of Buchanan .and State of Missouri on the said sixth day of May, 1900, with the dangerous and deadly weapon, to-wit, the shotgun aforesaid and the powder and leaden balls and shot aforesaid in and upon the body and legs and thighs of him the said James Mize, one mortal wound, •of the width of about one inch, and of the depth of •about three inches, of which mortal wound he the said .James Mize, languished and languishing did live for the space of about fifty hours, when of the said mortal wound the said James Mize on the ninth day of May, 1900, at the county of Buchanan and State of Missouri, ■died; and so the grand jurors aforesaid, do say that they the said Jesse Cook and Roy Frogge him the said James Mize in the manner and by the means aforesaid, feloniously, willfully, premeditatedly, deliberately, on purpose and of their malice aforethought, at the said •county of Buchanan and State of Missouri, on the said -day aforesaid did kill and murder, contrary to the form of the statute in such cases made and provided, and ■against the peace and dignity of the State. ’ ’
The defendants were duly arraigned and entered •their plea of not guilty. A panel of forty jurors was impaneled out of which to obtain a panel of twelve to. -try the cause. The defendants duly objected to making -.their challenges from a panel of forty jurors and de
The defendants were convicted each of murder in the second degree and sentenced to the penitentiary for a term of ten years each. In due time they filed their motions for new trial and in arrest which were overruled and they excepted, and perfected their appeals to this court.
I. The motion in arrest should have been sustained. The indictment is not sufficient to sustain a conviction of murder. The indictment only charges manslaughter. As was ruled in State v. Sanders, 158 Mo. loc. cit. 612, an indictment under our Constitution means just what it did at common law. [Ex parte Slater, 72 Mo. 102; State v. Meyers, 99 Mo. 116.] At common law it was essential to an indictment for murder that it should state, “and so the gránd jurors, or jurors, aforesaid, upon their oath” do say, etc. [Heydon’s Case, 4 Coke 41b; 3 Chitty’s Crim. Law, 750; Wharton’s Homicide, sec. 49.] And an indictment for' murder without these words is fatally defective. [State v. Purgerson, 152 Mo. 98.]
In view of these recent utterances, it is not deemed necessary to discuss this proposition at greater length.
For this, if no other reason, the judgment must be-reversed.
II. While the Attorney-G-eneral makes the point that the motion to quash the panel* of forty is not properly preserved, an inspection of the record shows that the panel was only forty instead of forty-seven, which the statute requires where the trial occurs in cities-having over one hundred thousand inhabitants. [State v. May, 168 Mo. 122.]
This error should be avoided in future, in trials-in St. Joseph. This court takes ex officio notice that St. Joseph is a city of over 100,000 inhabitants by the last census of the United. States.
As other errors pointed out can be readily obviated on another trial, it is unnecessary to dwell upon them. The judgment is reversed and the cause remanded, that