OPINION
Thomas, J.
The
defendant Stacy was jointly indicted with William Sprague in
the circuit court of Oregon county. The indictment is as
follows:
"State
of Missouri,)
"County
of Oregon.)
ss.
"In
the circuit court of Oregon county, Missouri, February term,
A. D. 1890.
"The grand jurors for the state of Missouri,
summoned from the body of the county of Oregon, duly
impaneled, sworn and charged to inquire within and for the
body of the county of Oregon, and state of Missouri, upon
their oath present and charge that William Sprague, late of
the county of Oregon, and state of Missouri, on the twentieth
day of October, A. D. 1889, at and in the county of Oregon,
and state of Missouri, in and upon one, D. M. Cornelius, then
and there being, feloniously, wilfully, deliberately,
premeditatedly and of his malice aforethought, did make an
assault and with a dangerous and deadly weapon, to-wit: A
shotgun, then and there loaded with gunpowder and leaden
balls which he, the said William Sprague in both hands then
and there had and held at, and against him, the said D. M.
Cornelius, then and there feloniously, on purpose, and of his
malice aforethought, wilfully, deliberately, and
premeditatedly did shoot off, and discharge, and with the
shotgun aforesaid, and the leaden balls aforesaid, then and
there feloniously, and on purpose, and of his malice
aforethought, wilfully, deliberately and premeditatedly did
shoot and strike him, the said D. M. Cornelius, in and upon
the back of the neck of him, the said D. M. Cornelius, giving
to him, the said D. M. Cornelius, then and there with the
dangerous and deadly weapon, to-wit, the shotgun aforesaid,
and the gunpowder and leaden balls aforesaid, in and upon the
back of the neck of him, the said D. M. Cornelius, one mortal
wound of the breadth of one inch, and of the depth of three
inches, of which mortal wound the said D. M. Cornelius then
and there immediately and instantly died. And the grand
jurors aforesaid, upon their oath aforesaid, do further
present and charge that S. P. Stacy, before the said felony
and murder was committed in the manner and form aforesaid,
and by the means aforesaid, at the time and place aforesaid,
did then and there, unlawfully, feloniously, wilfully,
deliberately and premeditatedly, incite, move, procure, aid,
counsel, hire and command him, the said William
Sprague, to do and commit the said felony and murder
aforesaid, in manner and form aforesaid, and by the means
aforesaid, at the time and place aforesaid, to do and commit,
and the grand jurors aforesaid, upon
their oath aforesaid, do say that William Sprague and S. P.
Stacy, him, the said D. M. Cornelius, at the time and place
aforesaid, in the manner and by the means aforesaid,
feloniously, on purpose, wilfully, deliberately,
premeditatedly and of their malice aforethought, did kill and
murder, contrary to the form of the statute in such cases
made and provided, and against the peace and dignity of the
state."
Defendant
filed a demurrer to this indictment as follows:
"Now
at this day comes the defendant, S. P. Stacy, and demurs to
the indictment in the above entitled cause, wherein the state
of Missouri is plaintiff and S. P. Stacy is defendant, and
wherein he stands charged with murder, as principal, in the
first degree, for the following reasons, to-wit:
"First.
Because there is a misjoinder of defendants.
"Second.
Because the indictment in the first count does not conclude
'against the peace and dignity of the state.'
"Third.
Because the name of the defendant is not mentioned in the
first count of the pretended indictment.
"Fourth.
Because the pretended indictment is contradictory of another
indictment returned by the same grand jury, charging the said
murder and felony to have been committed by the said William
Sprague and Albert Stacy, at the same term of court.
"Fifth.
Because the indictment is vague, indefinite and uncertain and
contradictory, and impeaches the grand jury for truth and
veracity. Defendant, therefore, moves the court to quash said
indictment and that he be discharged."
The demurrer was sustained, the indictment quashed
and held for naught, and the state appeals.
The
defendant has filed no statement or brief in this court, nor
can we determine from the brief filed by the attorney general
what specific objections were made to this indictment, or
upon what specific grounds the demurrer was sustained by the
court below. We have carefully examined the indictment,
however, and we can discover only two defects in it that can
with any plausibility be urged as fatal. The first is that
what is supposed to be the first count does not conclude,
"against the peace and dignity of the state," and
the second is that the allegations are contradictory of each
other.
I. We
do not concur in the theory of the demurrer, that there are
two counts in this indictment. All the allegations in it
constitute but one charge against two men. A count must be
one complete charge of crime in itself. In this case, what is
thought, no doubt, to be the first count of the indictment
is not a complete charge of any crime in itself. It does not
conclude, "against the peace and dignity of the
state," which is an averment without which no formal
charge of crime is good. Const. Mo., sec. 38, art. 6;
State v. Lopez, 19 Mo. 254; State v.
Pemberton, ...
