State v. Burns

• Decision Date: 27 January 1890
• Citation: 12 S.W. 801,99 Mo. 471
• Parties: STATE v. BURNS.
• Court: Missouri Supreme Court

12 S.W. 801

99 Mo. 471

STATE v. BURNS.

Supreme Court of Missouri.

January 27, 1890.

CRIMINAL LAW — APPEAL — HOMICIDE — INDICTMENT — PUNISHMENT.

1. Judgment in a criminal case will be reversed for substantial error apparent on the record, though no motion in arrest or for new trial was made.

2. An indictment charging that defendant with a certain knife did stab, etc., in and upon the left side of the body of deceased one mortal wound, omitting before "one mortal wound" the expression "giving him then and there," etc., is sufficient after verdict.

3. Rev. St. Mo. § 6533, reducing by one-fourth the period of imprisonment of orderly and peaceable convicts, does not prevent a jury from awarding imprisonment for life for murder.

Appeal from circuit court, Camden county; W. I. WALLACE, Judge.

Nixon & King, for appellant. Atty. Gen. Wood, for the State.

BRACE, J.

At the August term, 1887, of the circuit court of Camden county the defendant was tried and convicted of murder in the second degree, and his punishment assessed at imprisonment in the penitentiary for life. There is in the record neither a motion in arrest or for new trial, consequently there is nothing before us for review except the record proper, for error in which affecting the merits a judgment will be reversed in a criminal case, although no such motions were made in the trial court. State v. Marshall, 36 Mo. 400. The indictment charges "that David Burns, on the 12th day of June, A. D. 1886, at the county of Camden, in and upon one Frank Phelan, then and there being, feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought, did make and assault, and with a certain knife, which he, the said David A. Burns, in his right hand then and there had and held, him, the said Frank Phelan, feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought, did strike, stab, and thrust in and upon the left side of the body of him, the said Frank Phelan, one mortal wound, of the length of one inch, of the breadth of half an inch, and of the depth of three inches, of which said mortal wound the said Frank Phelan, from the 12th of June, in the year aforesaid, at Osage Iron-Works, in the county aforesaid, did languish, and languishing did live, on which said 15th day of June, in the year aforesaid, the said Frank Phelan, at Osage Iron-Works, in the county aforesaid, of the mortal wound aforesaid, died, and so the grand jury aforesaid," etc. The conclusion is in the usual form.

1. If the pleader in this indictment had inserted next before the words "one mortal wound" the words "giving to the said Frank Phelan then and...