State v. Evans

128 Mo. 406 | Mo. | 1895

Shebwood, J. —

1. This'prosecution, which resulted in the conviction of defendant and his being sent to the penitentiary for two years, is bottomed on section 3489, Revised Statutes, 1889.

The charging portion of the indictment is the following:

“That Solomon D. Evans on or about the third day of September, A. D. 1893, in and upon the body of one Lee Stewart feloniously on purpose of his malice aforethought did make an assault, and with a deadly weapon, to wit, a knife of the length of six inches and of the width of one half an inch, and of the thickness of one eighth, the said Solomon D. Evans did then and there feloniously, on purpose and of his malice aforethought* strike, cut, stab and thrust, with intent then and there him the said Lee Stewart to kill and murder against the peace and dignity of the state.

“R. M. Einney,

“Prosecuting Attorney for Dunklin county and state of Missouri.”

This indictment, it will be observed, either uses the name of Solomon D. Evans the second time unintentionally, and in the place of that of Lee Stewart, or else it omits to insert at the point of the asterisk the words “in and upon the body of him the said Lee Stewart.” As it is, the indictment is fatally defective in that it fails to state who it was that was cut, struck or stabbed. In such cases nothing material must be left to intendment or implication. 2 Hawk. P. C., ch. 25, sec. 61.

In criminal prosecutions everything constituting the offense must be set forth with certainty and clearness. State v. Rector, 126 Mo. 328.

2. As to the evidence in the cause, it was perhaps sufficient to warrant the result reached by the jury in their verdict. But we can not altogether approve instruction number 2 which will accompany this opinion, given by the court of its own motion, in that it ignores the question whether defendant began the attack with a felonious intent to do Stewart great bodily harm or else to'kill him, or only did so with a view merely to inflict personal chastisement upon him for his conduct toward the little boy, who, it seems, was somewhat related to defendant.

Even if defendant began the attack on Stewart “voluntarily and of his own free will,” intending only an ordinary battery, such attack though “voluntary” would not be made with “malice aforethought,” and would not deprive defendant of his imperfect right of self-defense. State v. Partlow, 90 Mo. 608, and subsequent cases. See, also, Meuly v. State, 26 Tes. Ct. App. loc. cit. 305; Hash v. Commonwealth, 13 S. E. Rep. loc. cit. 405.

For the errors aforesaid, the judgment should be reversed and the cause remanded.

All concur.