The State v. Vaughan
| Decision Date | 23 November 1897 |
| Citation | 42 S.W. 1080,141 Mo. 514 |
| Parties | The State v. Vaughan, Appellant |
| Court | Missouri Supreme Court |
Appeal from Osage Circuit Court. -- Hon. Rudolph Hirzel, Judge.
Reversed and remanded.
W. A Davidson and Ryors & Voshall for appellant.
(1) The indictment does not charge that the offense was committed feloniously. State v. Duffenbacher, 51 Mo. 26; State v. Emerich, 87 Mo. 110; State v Herrell, 97 Mo. 105; State v. Clayton, 100 Mo 516; State v. Fairlamb, 121 Mo. 137. (2) The indictment is not written in the English language as required by the statute. R. S. 1889, sec. 3240. The indictment does not charge the killing was done deliberately, premeditatedly, and with malice aforethought. You can not torture the word "deliberately" into "deliberately," "wolice" into "malice," "ofaretbaught" into "aforethought." State v. Meyers, 99 Mo. 107; State v. Green, 111 Mo. 585; State v. Rector, 126 Mo. 329; State v. Fairlamb, 121 Mo. 137. "Felonious" and "felenious" are not idem sonans as held by the trial court. Bouvier's Dic., p. 677. (3) The indictment does not conclude in the manner required by the Constitution, article VI., section 36, and is not saved in this respect by any rules regarding bad spelling. The word "stote" is a recognized English word of entirely different meaning from the word "State." 10 Am. and Eng. Ency. of Law, p. 548, subdivision g; State v. Fitzgerald, 20 Mo.App. 408. (4) Instruction 1 is fatally defective in this: it impliedly tells the jury that the defendant did the cutting, and that unless they believe the act was done in self-defense they must convict him, nor is the error in the first instruction cured by giving a correct instruction, which announces a correct rule. State v. Herrell, 97 Mo. 105; State v. Cable, 117 Mo. 380; Bluedorn v. Railroad, 108 Mo. 439; Stevenson v. Hancock, 72 Mo. 612. (5) Instruction 8 is bad. It deprives the defendant of any right of self-defense where he enters into the combat voluntarily, no matter what his intention was when he entered into the combat, nor how hard pressed he became, nor how great his peril. State v. Herrell, 97 Mo. 105; State v. Partlow, 90 Mo. 608; State v. Cable, 117 Mo. 380.
Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.
(1) The general rule is that false grammar, wrong spelling or defective rhetoric will severally not render an indictment insufficient. Employing the wrong word, adding a useless one, or substituting one word for another, will be fatal or not fatal, according as it changes or weakens the indictment, so that the meaning will be adequate or inadequate, as the case may be. 1 Bish. Crim. Proc., secs. 348, 356, 509 and 510; 1 Chitty's Crim. Law, 231; Pierce v. State, 75 Ind. 199; State v. Myers, 85 Tenn. 203; State v. Fitzgerald, 20 Mo.App. 409; State v. Earp, 41 Tex. 418; State v. Thomas, 2 Tex. Ct. App. Rep. 293. (2) Before an objection because of false grammar, incorrect spelling, or mere clerical error is entertained, the court should be satisfied of the tendency of the error to mislead, or to leave in doubt as to the meaning a person of common understanding. 1 Bish. Crim. Proc., secs. 354-357; State v. Grant, 50 Ala. 207. (3) Instruction 1 is not defective, because it no more implies or tells the jury that defendant did the cutting than it does imply or tell them that they must acquit the defendant. (4) Instruction 8 is not bad. In the first place, all the law governing the case can not be stated in one instruction, but it is sufficient if, without conflict, all of the instructions state all of the law. (5) The instructions must be taken as a whole, and if so taken they clearly define the law of the case, it is sufficient. State v. Berkley, 109 Mo. 676. (6) Instruction 7, taken together with instruction 8, eliminates the objection to instruction 8 for the reason that it states clearly and accurately the right of self-defense, where one enters into a combat voluntarily without felonious intention. State v. Nueslein, 25 Mo. 111; State v. Partlow, 90 Mo. 608; State v. Gilmore, 95 Mo. 554; State v. Parker, 106 Mo. 217; State v. Berkley, 92 Mo. 41.
The defendant was convicted of murder in the second degree in the Osage circuit court at the March term, 1897. His motions for new trial and in arrest were overruled and he has appealed to this court. The indictment, omitting caption and indorsements, is as follows:
"The grand jurors for the State of Missouri, impaneled, charged and sworn to inquire within and for the body of the inhabitants of the county of Osage and State aforesaid, upon their oath, present and charge that one Wm. B. Vaughan, late of the county and State aforesaid, on or about the 12th day of September, 1896, at the county of Osage, in the State of Missouri, in and upon one Walter Wilson then and there being feloniously, willfully, deliberately, premeditately, on purpose and of his malice aforethought, did make an assault, and with a certain knife which he, the said Wm. B. Vaughan, in his right hand, then and there had and held, him, the said Walter Wilson, feloniously, willfully, deliberately, premeditately, on purpose and of his malice aforethought, did strike and thrust in and upon the right arm, giving to the said Walter Wilson then and there, with the knife aforesaid, in and upon the right arm of him, the said Walter Wilson, one mortal wound, of which said mortal wound the said Walter Wilson, from the 12th day of September, in the year aforesaid, in the county aforesaid, until the 13th day of September, in the year aforesaid, in the county aforesaid, did languish, and languishing did live, on which said 13th day of September, in the year aforesaid, the said Walter Wilson, in the county aforesaid, of the mortal wound aforesaid, died; and so the grand jurors aforesaid do say that the said Wm. B. Vaughan, him, the said Walter Wilson, in the manner and by the means aforesaid, feloniously, willfully, deliberately, premeditately, on purpose and of his malice aforethought, did kill and murder, against the peace and dignity of the State."
The defendant was duly arraigned and plea of not guilty entered in his behalf on the second day of the March term, 1897.
The evidence tends to show that on the night of the twelfth day of September, 1896, George White and Walter Wilson, two young men, had arranged to have a dance for the young people of the neighborhood of Bonnot's Mills in Osage county at the house of one Wicks. These two young men had paid Mr. Wicks for the use of his house and were in charge. To bear the expenses they charged the young men who danced fifty cents apiece. The evidence tends to show that some days prior to the dance the defendant said these young men were going to get up the party and he was going down and break it up, and if they objected or resisted "he would cut their guts out." He was also seen to sharpen his knife and was heard to say he had some cutting to do. After the party had assembled and the dancing commenced on the evening of the twelfth of September, he came to the house, and accosting White, inquired what it cost to dance, and was told fifty cents. He said he wouldn't pay it and left. Somewhere between 11 and 12 o'clock that night he returned and again asked White what it would cost him to dance, and White answered that as the dance was at least half over he could dance for twenty-five cents. He then said he would pay the twenty-five cents, but White, noticing he was intoxicated, told him he could not dance at all, and put him out of the room. The house had a porch and railing around it with a gateway from the steps into the porch. Defendant went into the yard and began to curse White and Wilson and dare them out. He applied the most opprobrious and insulting epithets, at the same time displaying an open knife, until White, who had come out on the porch, jumped down and knocked defendant down with a blow from his fist. The night was dark and the only light in the yard was produced by hand lanterns. White, after knocking defendant down, left him and came back...
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