12 S.W. 516 (Mo. 1889), State v. Meyers

Citation:12 S.W. 516, 99 Mo. 107
Opinion Judge:Sherwood, J.
Party Name:The State v. Meyers, Appellant
Attorney:F. M. Lowe for appellant. John M. Wood, Attorney General, for the State.
Judge Panel:Sherwood, J. Barclay, J., defers an expression of opinion. Barclay, J., concurs in the result.
Case Date:December 02, 1889
Court:Supreme Court of Missouri
 
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12 S.W. 516 (Mo. 1889)

99 Mo. 107

The State

v.

Meyers, Appellant

Supreme Court of Missouri

December 2, 1889

Appeal from Jackson Criminal Court. -- Hon. Henry P. White, Judge.

Reversed and remanded.

F. M. Lowe for appellant.

(1) The jury was separated during the trial of the cause, and, for this reason, the cause should be reversed. State v. Murray, 91 Mo. 95; State v. Collins, 81 Mo. 652, and R. S. 1879, sec. 1909. (2) The court erred in refusing to give the instruction asked by defendant taken from the case of State v. Pagels, 92 Mo. 300, and also instruction asked by defendant to the effect that insanity once proven is presumed to continue. State v. Lowe, 93 Mo. 570.

John M. Wood, Attorney General, for the State.

(1) Objections to the sufficiency of an indictment cannot be taken by objecting ore tenus to the introduction of evidence. State v. Risley, 72 Mo. 609. The indictment need not charge that the jurors were empanelled, sworn or charged. State v. Vincent, 91 Mo. 662. The charge in the second count that the wound was inflicted with a certain iron weapon and means, which they, the said Charles Meyers and John Bogard, then and there had and held in their hands, was sufficient. State v. Dalton, 27 Mo. 14; State v. Blan, 69 Mo. 317. The second count in the indictment in other respects correctly charges the offense of murder in the first degree, committed in the attempt, and in execution of said attempt, to rob. Laws, 1885, p. 138; State v. Hopkirk, 84 Mo. 278. (2) The objection to the state introducing witnesses whose names were not endorsed on the indictment is without merit. State v. Pagels, 92 Mo. 300. (3) The declarations of defendant and his confederate, the night of and just prior to the murder, was admissible to prove that they had no money, as a circumstance in proof of the motive of defendant, and tending to establish the charge in the second count in the indictment. Whar. Crim. Ev. [9 Ed.] sec. 24, and note. (4) The order of the admission of testimony is in the discretion of the trial court. State v. Linney, 52 Mo. 40. There was, therefore, no error committed in overruling defendant's objection to the state recalling and re-examining witness Ross. (5) Had the testimony of witness Bert Girard, objected to (rec. 191), been inadmissible, it established nothing to the prejudice of defendant, and would not constitute grounds for a reversal. (6) The confession of defendant was not induced or extorted by means of any promises or threats, or other influences calculated to excite his hopes or his fears. The evidence of the confession was properly admitted. State v. Hopkirk, 84 Mo. 278; Whar. Crim. Ev. [9 Ed.] secs. 672, 673; Green. Ev., sec. 223; 1 Roscoe's Crim. Ev., p. 68. (7) It was competent to prove the statement of defendant that he was guilty, made at a previous term of court when the indictment was read over to him, as testified to by witnesses Ward and McClannahan. Whether it be considered as judicial or an extra-judicial confession, it was a voluntary confession of guilt, and admissible. State v. Briggs, 27 N.W. 358; State v. Rice, 22 Tex.App. 654; State v. Giles, 23 Tex.App. 281; United States v. Kirkwood, 13 P. 234; State v. Lamb, 28 Mo. 218; State v. German, 54 Mo. 526; Roscoe's Crim. Ev. *40; Whar. Crim. Ev. [9 Ed.] secs. 664, 667; Green. Ev., secs. 216, 227; 1 Bish. Crim. Proc., sec. 1255. (8) Questions when asked an expert should be stated hypothetically, embracing the facts testified to on the trial, upon which his opinion is required. When the facts are doubtful or disputed, it is improper to ask an expert, who has heard the evidence, what his opinion is upon the case on trial. The questions asked Dr. Punton were incomplete, and otherwise objectionable in form. State v. Klinger, 46 Mo. 224; Green Ev., secs. 440; Whar. Crim. Ev. [9 Ed.] sec. 4180; 1 Roscoe's Crim. Ev., p. 2240. And the same can be said of questions asked Dr. Field. (9) Persons who are not experts are permitted to give their opinions based upon their observation of, and association with, the person alleged to be insane. See authorities, supra. The evidence of witness Chadburn objected to was, therefore, admissible. (10) Defendant saved no exceptions during the progress of the trial to the giving or refusal of the instructions, and they are not now subject to review. State v. McDonald, 85 Mo. 539, and authorities cited.

Sherwood, J. Barclay, J., defers an expression of opinion. Barclay, J., concurs in the result.

OPINION

[99 Mo. 111] Sherwood, J.

-- The second count of the indictment, upon which the defendant was tried, convicted and sentenced, reads this way: "And the grand jurors aforesaid, upon their oaths aforesaid, do further present and say, that Charles Meyers and John Bogard, on the third day of January, 1888, at the county of Jackson and state aforesaid, did feloniously, wilfully, deliberately, premeditatedly, and of their malice aforethought, make an assault upon James Weir (intending and attempting then and there the money and property of said James Weir, from the person and against the will of said James Weir, and by force and violence to the person of said James Weir, then and there to feloniously rob, steal, take and carry away), and did then and there (while so intending and attempting, and in execution of such intent and attempt) feloniously, wilfully, deliberately, premeditatedly and of their malice aforethought, with a certain iron weapon and means, an exact description whereof is to these jurors unknown, which they, the said Charles Meyers and John Bogard, then and there had and held in their hands, strike and beat him, the said James Weir, thereby giving to him, the said James [99 Mo. 112] Weir, in and upon the head of him, the said James Weir, certain mortal bruises, wounds, contusions and fractures, of which said mortal bruises, wounds, contusions and fractures, the said James Weir, then and there, thence continually languished

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until the tenth day of January, 1888, he there died. And, so said Charles Meyers and John Bogard, in manner and form aforesaid, and by the means aforesaid, did feloniously, wilfully, deliberately, premeditatedly, and of their malice aforethought kill and murder the said James Weir, against the peace and dignity of the state."

"Blake L. Woodson, Prosecuting Attorney."

I. It seems that the counsel for the defendant objected ore tenus to the introduction of any evidence, because of the insufficiency of the indictment, but such a method of objection avails nothing. State v. Risley, 72 Mo. 609.

In the motion in arrest, however, it is stated: "That the second count in the indictment, upon which the verdict was found, does not state facts to constitute a cause of action." It is unnecessary to inquire whether such a general objection is good or not, by reason of the fact that, in criminal prosecutions, no assignment of error or rejoinder in error is necessary; and by reason of the fact that our statutory duty requires that in the absence of such assignment of error we proceed and render judgment upon the record before us. R. S. 1879, sec. 1993; State v. Barnett, 63 Mo. 300; State v. Krieger, 68 Mo. 98; State v. Davidson, 73 Mo. 428. And such general objection, if insufficient, is also healed by the further consideration that, if the defect in the indictment be a material one, one available on motion in arrest, it is equally available in this court on appeal or error. McGee v. State, 8 Mo. 495.

II. An indictment in the usual form, charging the murder to have been done deliberately, premeditatedly, etc., is sufficient, under our statute, to charge murder in [99 Mo. 113] the first degree, no matter whether the murder be committed in the perpetration of robbery, rape, etc., or otherwise. State v. Hopkirk, 84 Mo. 278; State v. Kilgore, 70 Mo. 546; State v. Green, 66 Mo. 631. The perpetration or the attempt to perpetrate any of the felonies mentioned in the statute, during which attempt, etc., the homicide is committed, stands in lieu of, and is the legal equivalent of, that premeditation, deliberation, etc., which otherwise are the necessary attributes of murder in the first degree. The correctness of this view is recognized in Pennsylvania, from which statute section 1232 is derived. Commonwealth v. Flanagan, 7 W. & S. 415. See, to same effect, Titus v. State, 49 N.J.L. 36, 7 A. 621.

The rule was the same at common law; it was not necessary to charge that the murder was committed in the perpetration of another crime; it sufficed to charge it in common form, and then, upon proof that the crime was done in the perpetration, etc., this answered the ends of the prosecution and stood in the stead of proof of "malice aforethought." 2 Bishop's Crim. L., sec. 694; Foster's C. L. 258, et seq.; 1 Hale's P. C. 465.

As will have been observed, in the present case, the pleader has evidently endeavored to draw an indictment based upon the allegation of facts occurring in the perpetration of a robbery, and resulting in the crime of murder. I have never met with but one precedent, where the endeavor was made to charge a murder committed in the attempt...

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