187 Mo. 60 | Mo. | 1905
During the December term, 1903, of the circuit court of Monroe county, and on the eighth day of said month, there was filed in said court an information by the prosecuting attorney of said county, in which the defendant Dawson was charged with having on the fourth day of December, 1903, at
The facts disclosed by the record are substantially as follows:
The deceased, Anna Hartman, and the defendant, at the time of the homicide, lived in the same neighborhood in Monroe county, the former at or near Madison in said county. On the afternoon of the fourth day of December, 1903, there was a dance at the residence of George Ownby, which was a few miles from Madison. The deceased, Anna Hartman, was present, together with a large number of other young people residing in that community. The defendant had been drinking in the afternoon and at about five o’clock on the day in question went to a hardware store kept by William F. Walker and borrowed a revolver, at the same time purchasing some cartridges. Sometime prior to this, defendant had apparently fallen in love with the deceased, Anna Hartman. They, however, had some disagreement prior to September, 1901, and from that date until the commission of the homicide defendant is shown to have made repeated threats in which he stated that he would kill her before she should marry any one else. Defendant went on horseback from Madison to the Ownby home, arriving there about seven-thirty, p. m. After becoming somewhat intoxicated at Madison, he put two pint bottles of whiskey in his pocket and started to the dance. On Ms way he fell from his horse twice. After reaching the home of Mr. Ownby, he mingled with the crowd and to several parties stated that he intended to kill some s— of a b— before they danced two rounds. About half past eight o’clock, friends of the defendant put him on his horse and started him home. In about one-half an
Tom Engle and the deceased were dancing as partners. As soon as defendant fired the first shot, Engle grabbed him and pulled him to the floor, but during the scramble, defendant fired two more shots. Two bullets took effect in deceased’s left breast, from the effect of one of which she died soon afterwards. Defendant then left the house as rapidly as possible.
On cros s-examination of Mrs. Ethel Ownby, she stated that deceased immediately after the shooting said she did not see why Frank Dawson wanted to shoot her.
The defense interposed was. that defendant was in a drunken condition and was not a man lof strong mind; in fact, insanity was set up. There was an abundance of evidence showing defendant to be a young man of good character; on the other hand, quite a number of witnesses testified that his reputation was not good.
The first point presented for our consideration on this appeal is with respect to the sufficiency of the information, which defendant claims is bad because it does not conclude as required in case of homicide prosecuted by indictment. The information concludes as follows: “And so the said James P. Boyd, prosecuting attorney of and within and for the county of Monroe and State of Missouri as aforesaid, does inform the court aforesaid, that he the said Frank Dawson, her, the said Anna Hartman, in the manner and by the means aforesaid, feloniously, willfully, premeditatedly, deliberately, on purpose and of his malice aforethought, at
The contention is that the crime charged in the information is nothing more than manslaughter. In the case of the State v. Meyers, 99 Mo. 107, it is held that the conclusion of a count of an indictment for murder is just as essential as other portions of the count, and the concluding charge in such'case should be by the grand jurors upon their oaths; otherwise, the previous words of the indictment will charge only manslaughter.
The same rule is announced in State v. Furgerson, 152 Mo. 92; State v. Sanders, 158 Mo. 610.
In State v. Cook and Frogge, 170 Mo. 210, Gantt, J., in speaking for the court, said:
“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. l. c. 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 grand 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. Furgerson, 152 Mo. 98.]”
If, as we have said, an indictment for murder at common law was not good unless it concluded as we
The information, with the exception intimated, seems to be in compliance with the statute, and free from objection.
Before another trial the information will, in all probability, be amended so as to conform to the views before expressed, and, in that event, we are not inclined to pass any criticism upon the instructions that were given at the last trial, further than to say they seem to be correct upon the theory upon which the case was tried.
There is nothing disclosed by the record by which the court was called upon to instruct for murder in the second degree, or any grade of offense other than murder in the first degree.
For the reasons stated, the judgment is reversed and the cause remanded to be proceeded with in accordance with the views herein intimated.