State v. Clark

• Decision Date: 07 November 1898
• Parties: STATE v. CLARK.
• Court: Missouri Supreme Court

47 S.W. 886

147 Mo. 20

STATE v. CLARK.

Supreme Court of Missouri, Division No. 2.

November 7, 1898.

HOMICIDE — INDICTMENT — INSTRUCTIONS — REASONABLE DOUBT — EVIDENCE — CONTINUANCE — JURY — APPEAL — REVIEW — BILL OF EXCEPTIONS.

1. An indictment for homicide which charges an assault with a pistol against Lizzie Clark, and the shooting and striking "of one Lizzie Hatch," is bad, as the assault and the battery must be alleged to have been made on the same person.

2. Where a person shoots at one person and kills another, malice will be implied as to the latter, and therefore the indictment must allege the assault as made on the person killed.

3. Where an indictment contains one good and one bad count, a general verdict will be held to be founded on the good count.

4. Where the court instructs only on one of two counts in an indictment, the other count will be presumed to have been abandoned.

5. An application for a continuance on the ground of absence of witnesses, which does not show that defendant is unable to prove the same facts by other witnesses, or what steps were taken to procure the testimony of the absent ones, or that the testimony is material, or that it can be procured, or that the witness was not absent by the connivance of defendant, or that the application is not made for vexation or delay, as required by Rev. St. 1889, § 4181, is properly denied.

6. A finding of fact by the trial court as to a jury list which was excepted to, being unauthorized, cannot be considered in reviewing the question.

7. Affidavits in support of an exception to a jury list are worthless on review, as such matters should be contained in the bill of exceptions.

8. Matters regarding an exception to a jury list, which are recited in the record instead of being brought up in a bill of exceptions, cannot be considered on review.

9. Where, after the discovery that in the jury list of the state the name of a juror who had been challenged for cause had been substituted in place of another juror, the mistake is immediately corrected, the error is harmless.

10. Where no exception is saved to a ruling on an objection, the question cannot be reviewed.

11. Accused, after his wife left him, broke into the house where she was staying, and shot her to death, in accordance with a threat which he had made on the same day. After the act he told a witness that he was not ashamed of what he had done. He remained in hiding for two days, and then escaped to another state. A number of witnesses testified that for several weeks after his wife left him, and before the crime, he had acted strangely, talked disconnectedly, refused to eat, and had become moody and melancholy. Held, that a verdict against defendant on the defense of insanity was proper.

12. Under Rev. St. § 4208, providing that "the court must instruct the jury, in writing, upon all questions of law arising in the case which are necessary for their information in giving a verdict, which instructions so given shall include, whenever necessary, the subjects of good character and reasonable doubt; and a failure to so instruct in cases of felony shall be good cause, where the defendant is found guilty, for setting aside the verdict and granting a new trial," — it is error to fail to instruct on reasonable doubt, whether such instruction is requested or not.

Appeal from criminal court, Jackson county; John W. Wafford, Judge.

Thomas Clark was convicted of murder in the first degree, and appeals. Reversed.

E. L. Snider, for appellant. The Attorney General and Sam. B. Jeffries, for the State.

SHERWOOD, J.

The conviction in the case at bar was of murder in the first degree. The indictment was as follows: "The grand jurors for the state of Missouri, in and for the body of the county of Jackson, upon their oath present that Thomas Clark, whose Christian name in full is unknown to these jurors, late of the county aforesaid, on the 5th day of June, 1897, at the county of Jackson, state of Missouri, then and there being, in and upon one Lizzie Hatch, then and there being, feloniously, willfully, deliberately, premeditately, on purpose and of his malice aforethought, did make an assault, and with a dangerous and deadly weapon, to wit, a certain revolving pistol then and there loaded with gunpowder and leaden balls, which he, the said Thomas Clark, in both his hands then and there had and held, at and against her, the said Lizzie Hatch, then and there feloniously, willfully, deliberately, premeditately, on purpose and of his malice aforethought, did shoot off and discharge, and with the revolving pistol aforesaid, and the gunpowder and leaden balls aforesaid, then and there feloniously, willfully, deliberately, premeditately, on purpose and of his malice aforethought, did shoot and strike her, the said Lizzie Hatch, in and upon the body of her, the said Lizzie Hatch, then and there with the dangerous and deadly weapon, to wit, the revolving pistol aforesaid, and the gunpowder and leaden balls aforesaid, in and upon the body of her, the said Lizzie Hatch, feloniously, willfully, deliberately, premeditately, on purpose and of his malice aforethought, then and there and thereby giving to her, the said Lizzie Hatch, one mortal wound, of which said mortal wound the said Lizzie Hatch then and there instantly died. And so the grand jurors aforesaid, upon their oaths aforesaid, do say that the said Thomas Clark, her, the said Lizzie Hatch, 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. And the grand jurors aforesaid, upon their oaths aforesaid, do further present and charge that said Thomas Clark, on the 5th day of June, 1897, at the county of Jackson and state of Missouri, then and there being, in and upon one Lizzie Williamson, alias Lizzie Clark, then and there being, feloniously, willfully, deliberately, premeditately, on purpose and of his malice aforethought, did make an assault, and with a dangerous and deadly weapon, to wit, a certain revolving pistol, then and there loaded with gunpowder and leaden balls, which he, the said Thomas Clark, in both his hands then and there had and held, at and against her, the said Lizzie Williamson, alias Lizzie Clark, then and there feloniously, willfully, deliberately, premeditately, on purpose and of his malice aforethought, did shoot off and discharge, and with the revolving pistol aforesaid, and the gunpowder and leaden balls aforesaid, then and there feloniously, willfully, deliberately, premeditately, on purpose and of his malice aforethought, did shoot and strike one Lizzie Hatch, then and there being, on the body of her, the said Lizzie Hatch, then and there with the dangerous and deadly weapon, to wit, the revolving pistol aforesaid, and the gunpowder and leaden balls aforesaid, in and upon the body of her, the said Lizzie Hatch, then and there and thereby feloniously, willfully, deliberately, premeditately, on purpose and of his malice aforethought, giving to her, the said Lizzie Hatch, one mortal wound, of which said mortal wound she, the said Lizzie Hatch, then and there instantly died. And so the grand jurors aforesaid, upon their oaths aforesaid, do say that the said Thomas Clark, her, the said Lizzie Hatch, 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. Frank M. Lowe, Prosecuting Attorney."

1. The first count in the indictment is undoubtedly good. As much, however, cannot be said of the second. The evidence shows that Lizzie Hatch is the mother, and Lizzie Williamson, alias Lizzie Clark, is her daughter. Now, the second count charges an assault with a revolver upon Lizzie Williamson, alias Lizzie Clark, then the discharge of the pistol had and held against Lizzie Clark, alias Williamson, then the shooting and striking "of one Lizzie Hatch," etc. Who Lizzie Hatch is — whether she is the same person mentioned in the first count — we are not informed. If the words had been, "the said Lizzie Hatch," then, under the rulings in this court and elsewhere, the reference to the person mentioned in the first count would perhaps have been sufficient. State v. Wagner, 118 Mo., loc. cit. 629, 24 S. W. 219, and cases cited. But had the words "the said," etc., been used, the count would still have been insufficient, for the reason that, as the count stands, the assault is alleged to have been made on one person, to wit, Lizzie Williamson, etc., and the battery done upon another, to wit, Lizzie Hatch. But an assault is always necessary to be charged when a battery occurs in the perpetration of a murder. Lester v. State, 9 Mo. 666; 2 Bish. New Cr. Proc. § 537; Whart. Hom. § 808; 1 Whart. Cr. Law (9th Ed.) § 518; 1 Archb. Cr. Prac. 789. And, of course, both the assault and the battery must be alleged to have been made and done on the same person, or else there would be a murder perpetrated by means of a battery without an assault having first been made. But an objection still more grave confronts the validity of the count under review, because "where the party shoots at one man and kills another, malice will be implied as to the latter; and the felonious intent is transferred, on the same ground, where poison is laid to destroy one person and is taken by another. 1 Hale, P. C. p. 466." 3 Chit. Cr. Law, 729. And where the felonious intent is thus transferred, the indictment must be drawn accordingly, to wit, it must allege that the assault was made on the party murdered, and so on, in all respects, just as if the party killed had been the party shot at. So are all the precedents in this state and elsewhere. State v. Henson, 81 Mo. 384; State v. Payton, 90 Mo. 220, 2 S. W. 394; State v. Jump, 90 Mo. 171, 2 S. W. 279; State v. Montgomery, 91...