State v. Herrell

• Decision Date: 04 February 1889
• Parties: The State v. Herrell, Appellant
• Court: Missouri Supreme Court

10 S.W. 387

97 Mo. 105

The State v. Herrell, Appellant

Supreme Court of Missouri

February 4, 1889

Appeal from Greene Circuit Court. -- Hon. W. D. Hubbard, Judge.

Reversed and remanded.

O. H Travers for appellant.

(1) The motion to quash the indictment should have been sustained. The indictment does not charge that the wounding which produced the death was wilful, deliberate and premeditated. A cursory inspection even, of the indictment will reveal this defect. State v. Reakey, 1 Mo.App. 3; State v Snell, 78 Mo. 241; State v. Emerich, 87 Mo 110; State v. Feaster, 25 Mo. 324. (2) The court should not have instructed on any grade of homicide not shown by the evidence. State v. Wilson, 86 Mo. 520; State v. Jones, 14 Mo.App. 589; State v. Greene, 66 Mo. 631; State v. Alexander, 66 Mo. 148. And when the testimony shows a clear case of murder in the first degree or justifiable homicide, it is reversible error to instruct on any other than the first degree. State v. Lane, 64 Mo. 319. And when the only question is whether the act was done in self-defense or not, it is error to instruct on any grade of homicide except murder in the first degree. State v. Alexander, 70 Mo. 148; State v. Talbott, 73 Mo. 347. (3) The court committed error in giving the other instruction on the part of the state.

B. G. Boone, Attorney General, for the State.

(1) The indictment is sufficient. After charging that the assault was made wilfully, feloniously, etc., the wounds inflicted are described and the indictment concludes, "and so the grand jurors aforesaid do say that the said Newton W. Herrell, the said Amos Ring, in manner and form and by the means aforesaid, feloniously, deliberately, premeditatedly, on purpose and of his malice aforethought, did kill and murder, against the peace and dignity of the state of Missouri." State v. Snell, 78 Mo. 240. (2) It does not appear that the defendant saved any exceptions to the action of the trial court in declaring the law to the jury. State v. Bayne, 88 Mo. 604.

Sherwood, J. Black and Brace, JJ., concur; Barclay, J., not sitting.

OPINION

Sherwood, J.

The indictment in this cause is as follows:

"The grand jurors of the state of Missouri, chosen and selected from the body of Taney county, in said state of Missouri, who, after being duly empaneled, charged and sworn, upon their oath, find and present that Newton W. Herrell, late of the county and state of Missouri, did, on or about the seventh day of October A. D., 1884, at said county of Taney, and state aforesaid, in and upon one Amos Ring, then and there being unlawfully, wilfully, feloniously, deliberately, premeditatedly, on purpose, and of his malice aforethought, make an assault, and with a certain pistol commonly called a revolver, then and there being loaded and charged with gun-powder and leaden bullets, and which said pistol was then and there held in the right hand of him, the said Newton W. Herrell, at, to and against, and in and upon him, the said Amos Ring, did unlawfully, wilfully, feloniously, deliberately, premeditatedly, on purpose, and of his malice aforethought, shoot off and discharge, and by means and force of the gun-powder and leaden balls aforesaid, did give to him, the said Amos Ring, two wounds, which said wounds were then and there mortal wounds, one of said wounds being on the left side of the body of him, the said Amos Ring, near the fifth rib, penetrating and entering the body of him, the said Amos Ring, near said fifth rib, said wound being of the depth of six inches, and width of one-half inch, and the other said mortal wound being on the top of the head of him, the said Amos Ring, and said wound being then and there a mortal wound, being in depth about six inches, and width of one-half inch, of which said mortal wounds, he, the said Amos Ring, did then and there, on said seventh day of October, 1884, at the county of Taney and state of Missouri, instantly die. And so the grand jurors, aforesaid, do say that the said Newton Herrell, the said Amos Ring, in manner and form, and by the means aforesaid, feloniously, deliberately, premeditatedly, on purpose and of his malice aforethought, did kill and murder, against the peace and dignity of the state of Missouri."

Under this indictment the defendant was tried, convicted of murder in the second degree and his punishment assessed at fifteen years in the penitentiary; judgment accordingly, from which judgment defendant appeals. Various errors are assigned for a reversal of the judgment, among them the refusal of the court below to hold the indictment insufficient on motion to quash and on motion in arrest.

I. The indictment was insufficient in that it failed to charge that the homicidal act itself was done feloniously, etc. The failure thus to charge was not supplied by the allegation that the assault was made feloniously, nor by the concluding words of the indictment, nor by anything else therein contained. This position is abundantly sustained by authority. State v. Feaster, 25 Mo. 324; Respublica v. Honeyman, 2 Dall 228 (Penn.) ; 5 Bac. Ab. Indictment, G. p. 68; 2 Bishop's Crim. Proc., sec. 564. There are authorities, however, for holding that an indictment will be made good, notwithstanding it fails to allege that the wound was feloniously, etc., given, provided that the words feloniously, etc., previously alleged, are connected with the mortal stroke by the words "and then and there;" for in such case, the words feloniously, etc., will run through the subsequent allegations and thus connect them with the mortal stroke to which they are essential, as already seen. 1 East P.C. 346; 2 Hale P. C. 184; State v. Lakey, 65 Mo. 217; State v. Steeley, 65 Mo. 218; State v. Sides, 64 Mo. 383. In the present case it will be observed that this has not been done, nor the necessary connecting words used.

II. Over the objections and exceptions of the defendant, a large number of instructions were given at the instance of the state; thirty-one in all. How the minds of the jury were to be, or were enlightened by such a mass of written matter it is impossible to tell. Three instructions properly drawn will embrace every idea which they contain as well as the whole law of the case arising on the facts developed by the testimony.

III. The defendant relied on the theory and fact of self-defense, and his testimony tended to support his plea.

Instruction number sixteen, in the longsome series, is the following:

"But if you believe from the testimony that Herrell was at the time purposely seeking Ring in order to bring on and did voluntarily enter into and engage in a combat or fight with Ring with the intent to shoot and kill or do Ring great bodily harm, then the law of self-defense does not arise in behalf of the defendant, and cannot excuse or justify him for killing Ring."

It declares the correct doctrine as announced by this court on former occasions. State v. Hays, 23 Mo. 287; State v. Packwood, 26 Mo. 340; State v. Partlow, 90 Mo. 608, 4 S.W. 14; State v. Berkley, 92 Mo. 41, 4 S.W. 24; State v. Gilmore, 95 Mo. 554, 8 S.W. 359; State v. Parker, 96 Mo. 382, 9 S.W. 728. Those cases, as well as all carefully considered cases in other jurisdictions, and all the text-writers, recognize as sound and wholesome law the principle that if a man bring on a difficulty, with the purpose of wreaking his malice by slaying his adversary, or doing him some great bodily harm, and actuated by such a felonious purpose, he does the homicidal act, then there is no self-defense in the case, and he is guilty of murder in the first degree, and nothing less.

The eighth instruction was as follows:

"The court instructs the jury that if you believe from the evidence in this case, that the defendant sought or invited the difficulty in which Ring was killed, or that he provoked or commenced or brought it on by any wilful act of his own,...