State v. Rector, 126 Mo. 328

State v. Rector

126 Mo. 328 | Mo. | 1894

Sherwood, J.

— I. The indictment in this cause is-clearly bad, and this for several reasons, a. Because-the word “with” being omitted therefrom, there is no-allegation showing with what the alleged homicidal act was done. In criminal prosecutions, everything constituting the offense must be set forth with certainty and clearness, nothing must be left to be-*341implied. This is true of all felonies. Hawkins says: “That in an indictment nothing material shall be taken by intendment or implication.” 2 Hawk. P. C. ch'. 25, sec. 60. If an essential word be dropped, it is fatal. Wharton on Crim. Plead, and Prae. [9 Ed.], sec. 275, and cases cited.

b. The [indictment is also faulty in that it has not the proper conclusion. “Did kill and murder” is wholly insufficient. The indictment in its conclusion should have alleged: And so the jurors aforesaid upon their oath aforesaid do say, that the said Henry Willis and John Rector him, the said Charles Cargile, in manner and form aforesaid, and by the means aforesaid, did feloniously, wilfully, deliberately, premeditatedly and of their malice aforethought, kill and murder, etc. State v. Meyers, 99 Mo. 107; 2 Bishop on Cr. Proc. [3 Ed.], secs. 541, 548; Wharton on Horn. [2 Ed.], ch. 22, subdiv. 19, p. 673; Com. v. Gibson, 2 Va. Cas. loc cit. 74; 3 Chit. Cr. Law, 737, 779; Kelley’s Cr. Law and Prac. [2 Ed.], sec. 503. Any material omission in the conclusion of an indictment is as fatal as if occurring in any other portion of the instrument. State v. Pemberton, 30 Mo. 376.

II. The evidence in this cause is entirely lacking in every constituent element necessary to establish the guilt of defendant; this is apparent for several reasons: The evidence shows beyond peradventure that defendant did not by word or act, aid, abet or assist Willis in striking Cargile, either with fist or hoe. This appears in the clearest possible manner by the testimony of Ed. Rector, and by that of Willis, who entirely exonerates defendant from any participation in the acts resulting in Cargile’s death. Though the1 probative force of defendant was affected by the. record of his conviction for larceny, yet, still, that record did not destroy his *342competency as a witness, and he testifies to substan-r tially the same facts as Willis and Ed. Rector. There is. no testimony t.o' the contrary. In fact, the evidence tends, to corroborate the statements made by the tbyee witnesses just mentioned. Cargile is found dead with his knife open lying by his side, the soft mud indicating that he had walked and fallen there; the contusion between his cheek and his neck, as shown by the testimony of one of the physicians, might have resulted from a blow of the fist; and the testimony of other physicians shows that if the death did result from a blow of the fist, it was in consequence of a rupture of a blood vessel, which produced a fatal pressure on the spinal cord, and that, in such circumstances, a person suffering from such an injury, might be able to walk as far as Cargile is said to have walked before he fell. Besides, as no autopsy was held, it is impossible to tell what really did cause C argüe’s death, and so one of the physicians testified. He may have died as the result of heart disease, or of one of the “thousand natural shocks that flesh is heir to.”

', It is true that defendant did-not, after discovering that Cargile still lay where he fell, obey the dictates of humanity, by going to his assistance or by informing the neighborhood of the sad affair'; but defendant was not tried on the hmnanity counts; and there is no evidence to be found in the record that defendent attempted to escape. The endeavor to escape being shot by jumping into the water is a widely different thing. If the evidence did show an attempt to escape, that fact, standing alone, would not be. sufficient. “In criminal trials the party accused is entitled to the benefit of the legal presumption in favor of innocence, which in doubtful cases is always sufficient to turn the scale in his favor. ' It is, therefore, a rule of criminal law, that the guilt of the accused must he fully proved. *343Neither a mere preponderance of evidence, nor any weight of preponderant evidence, is sufficient for the purpose, unless it generate full belief of the fact, to the exclusion of all reasonable doubt. * * * And this degree of conviction ought to be produced when the facts proved coincide with, and áre legally sufficient to establish the truth of, the hypothesis assumed, namely, the guilt of the party accused, and are inconsistent with any other hypothesis. For it is not enough that the evidence goes to show his guilt; it must be inconsistent with the reasonal supposition of his innocence.” 3 Greenleaf on Evidence [14 Ed.], sec. 29.

Suspicions however strong or probabilities however great will not answer. Even a prima facie case will not warrant a conviction. Ogletree v. State, 28 Ala. 693 and cases cited.

III. Whatever may have been the guilt of Willis, there is nothing in the evidence to implicate the defendant. But if Willis, in doing what he did do, was only engaged, so far as the evidence shows, in his lawful self-defense, then clearly no culpability could attach either to him or to defendant, although the latter encouraged or aided him in doing an act lawful in itself. 2 Bishop’s New Criminal Law, sec. 1259; 1 lb. sec. 877; 1 East’s P. C. 289. The trial court gave an instruction embodying the view just presented, and this, under the authorities, was correct.

As there is no evidence which supports the verdict, the judgment will be reversed and the defendant discharged.

As to clause a of the first paragraph, no opinion is expressed by my associates. Judge Gantt is in favor of reversing and remanding. ,

Bubgess, J., concurs.