184 Mo. 261 | Mo. | 1904
The defendant, a negro man, was prosecuted by information duly verified and filed by the prosecuting attorney of Pemiscot county, for the murder of one Charles Clark on the third day of March, 1901. He was duly arraigned, pleaded not guilty, and was convicted of murder in the second degree. Prom the sentence imposed in pursuance of this verdict, he appeals to this court. The only error of which he complains is the insufficiency of the information upon which he was tried. He challenged the information by a motion in arrest of judgment which was overruled, and he saved his exception. The information, omitting caption, is in the following words:
“L. L. Collins, prosecuting attorney within and for the county of Pemiscot, in the State of Missouri, upon his official oath informs the court that John Williams, late of the county aforesaid, on the third day of March, 1901, at the county of Pemiscot, State aforesaid, did then and there in and upon the body of one Charles
I. It is insisted, first, that the information charges an assault upon Charles Clark and a wounding of Charley Clark, and that it can not be presumed they are one and the same person. We think there is no merit in this point. It is charged that the wounding and kill-was of the “said Charley Clark.”
II. The serious objection to the information is its failure to charge ‘ ‘a felonious striking, penetrating and wounding of the said Clark.”
The information in this case is to all intents and purposes a copy of the indictment which was held in
In Ohitty’s Criminal Law, vol. 3, star pages 752, 753 and 754 it is laid down that it is always1 necessary in charging a murder by shooting to use the words ‘ ‘ did strike and wound” and that the striking and wounding was done “feloniously, willfully, premeditatedly and of malice aforethought.” In his Precedents of Indictments and Pleas, Wharton says: “Wherever death is caused by physical violence, it is proper that the indictment should allege that the defendant struck tlie deceased. [See 5 Coke, 122a; 2 Hale, 184; 2 Hawkins, ch. 53, sec. 82; Wharton’s Crim. Law (8 Ed.), sec. 530; Edmondson v. State, 41 Tex. 496.]”
It is1 true that there are cases in which the legal equivalents of “strike and wound” have been held sufficient, as in Gibson v. Com., 2 Va. Cases 111, in which the murder was committed by stabbing with a dirk, and it was ruled that the words “did stab, stick and thrust” were sufficiént.
But in all the cases where the common law prevails it has always been held necessary to allege the striking or wounding to have been done feloniously, premeditatedly and of malice aforethought. It is not necessary to repeat those words immediately before the charge of striking or wounding where the technical words feloniously, premeditatedly, deliberately and of malice aforethought have been used in charging the assault and the words “then and there” connect these words with the charge of the fatal stroke or wounding, for in such cases the words feloniously, etc., will run through the subsequent allegations and thus connect them with the mortal stroke to which they are essential. [State v.
The offense is a grave one and the defendant may be guilty, but we are not justified on that account in relaxing those essentials of an indictment which have so long been held necessary. We can make no distinc
The information is insufficient, and the judgment must be and is reversed, and the defendant remanded to the custody of the sheriff of Pemiscot county in order that a new information or indictment may be preferred if desired.