The State v. Furgerson

• Decision Date: 21 May 1901
• Citation: 63 S.W. 101,162 Mo. 668
• Parties: THE STATE v. FURGERSON, Appellant
• Court: Missouri Supreme Court

63 S.W. 101

162 Mo. 668

THE STATE v. FURGERSON, Appellant

Supreme Court of Missouri, Second Division

May 21, 1901

Appeal from Grundy Circuit Court. -- Hon. P. C. Stepp, Judge.

Affirmed.

O. G Williams, W. G. Callison and W. C. Irwin for appellant.

(1) The first count in the indictment is worthless for the reasons First. It does not allege that the mortal wound, the homicidal act, was "feloniously," etc., given. State v. Green, 111 Mo. 588; State v Herrell, 97 Mo. 108; State v. Emerich, 87 Mo. 115; State v. Feaster, 25 Mo. 327; State v. Fairlamb, 121 Mo. 155; State v. Deffenbacher, 51 Mo. 27; State v. Murdock, 9 Mo. 740; State v. Clayton, 100 Mo. 519; State v. Rice, 149 Mo. 466. Second. It is bad on account of repugnancy. The indictment charges that defendant "struck and beat" deceased upon the "body," "crushing, fracturing and breaking his skull." This is a physical impossibility. 2 Am. and Eng. Ency. of Law (1 Ed.), p. 440, and note; State v. Draper, 65 Mo. 338. State v. Jones, 20 Mo. 60; State v. Gray, 21 Mo. 492; State v. Gibson, 111 Mo. 100; Sanchez v. People, 22 N.Y. 147; 2 Bishops's New Crim. Prac. (4 Ed.), sec. 522, et seq. (2) The second count of the indictment is bad for its failure to allege what the assault charged was made "with," or that it was made "with" anything, being the same defect as was in the former indictment, which this court held to be bad on a former appeal in this case. State v. Furgerson, 152 Mo. 97. (3) This indictment, as a whole, is a nullity for the reason that the wife of defendant was subpoenaed by the State as a witness before the grand jury, and was used as one of the procuring causes of the indictment. R. S. 1899, sec. 2367; State v. Berlin, 42 Mo. 577. (4) The failure of the court to instruct on all the law in the case was properly objected and excepted to, and the request for it to so instruct was both correct and timely. State v. Cantlin, 118 Mo. 111; State v. Waters, 156 Mo. 134. (5) The court should have instructed that proof of defendant's bad character went to his credibility as a witness, only, and was no evidence of his guilt. State v. Weeden, 133 Mo. 84.

Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.

(1) Under the rule, as adopted by our courts, the wound need not be located as described, and that part of the body upon which the mortal wound was inflicted need not be set out in an indictment for murder. State v. Henson, 81 Mo. 384; State v. Sanders, 76 Mo. 35; State v. Blaw, 69 Mo. 317; State v. Green, 111 Mo. 585; State v. Snell, 78 Mo. 240; State v. Ramsey, 82 Mo. 133; State v. Waller, 88 Mo. 402; State v. Edmundson, 64 Mo. 400; Cordell v. State, 22 Ind. 1; Dias v. People, 7 Black. 20. (2) It is a well-settled rule that an instruction for a lower degree of the crime should not be given unless there be evidence to warrant it. State v. Henson, 106 Mo. 66; State v. Sneed, 91 Mo. 552; State v. Collins, 86 Mo. 245; State v. Umble, 115 Mo. 452; State v. Dickson, 78 Mo. 438. Nor is the court required to give, nor should it give, an instruction on murder in the second degree, unless warranted by the evidence. State v. Umble, 115 Mo. 452; State v. Hopper, 71 Mo. 425. (3) Defendant can not claim that the court erred in failing to define something that did not exist, and which was incapable of definition. The court might have instructed the jury that, as a matter of law, there was "no just cause or provocation" for the killing, but this would have availed defendant nothing, hence, he was not prejudiced. (4) Even though the court should have instructed that proof of defendant's bad character went to his credibility as a witness, only, and was not evidence of his guilt, he can not at this time complain for the reason that no such instruction was asked of the court at the proper time. The question being a collateral one, it was not error to fail to instruct thereupon, unless specifically asked to do so.

BURGESS, J. Sherwood, P. J., and Gantt, J., concur.

OPINION

BURGESS, J.

From a second conviction of murder in the first degree and the imposition of the sentence of death for having killed and murdered one Stephen G. Wilson, at Grundy county, on the twenty-fifth day of March, 1897, defendant appeals.

The case was before this court on a former occasion (State v. Furgerson, 152 Mo. 92, 53 S.W. 427), the indictment held to be invalid, and the judgment reversed and the cause remanded. Subsequently, defendant was re-indicted and again convicted.

The facts and circumstances as they appeared upon the last trial were substantially as upon the last preceding one, the only difference being with respect to matters unnecessary to state now, but if thought to be material to a determination of the case, will be noticed in the course of the opinion.

The indictment, leaving off the formal parts, is as follows:

"The grand jurors for the State of Missouri, and from the body of Grundy county, duly impanelled, sworn and charged upon their oaths, present and charge that one William Furgerson, on the twenty-fifth day of March, 1897, at Grundy county, Missouri, in and upon one Stephen G. Wilson, then and there being, feloniously, willfully, deliberately, premeditatedly and of his malice aforethought, did make an assault, and with a certain ax, a deadly weapon, by him, the said William Furgerson, held in his hands, the said William Furgerson, did then and there feloniously, willfully, deliberately, premeditatedly and of his malice aforethought, forcibly strike and beat the said Stephen G. Wilson, in and upon the body of the said Stephen G. Wilson, crushing, fracturing and breaking the skull of the said Stephen G. Wilson, giving to him, the said Stephen G. Wilson, a mortal wound, of which said mortal wound he, the said Stephen G. Wilson, did then and there instantly die. And so the grand jurors aforesaid, upon their oaths aforesaid, do say the said William Furgerson, him the said Stephen G. Wilson, in the manner and by the means aforesaid, feloniously, willfully, deliberately, premeditatedly, on purpose and of his malice aforethought, did kill and murder; against the peace and dignity of the State.

"And the grand jurors aforesaid, impanelled as aforesaid, upon their oaths aforesaid, do further charge and present that the said William Furgerson, on the said twenty-fifth day of March, 1897, at Grundy county, Missouri, in and upon the body of the said Stephen G. Wilson, then and there being, feloniously, willfully, deliberately, premeditatedly, on purpose and of his malice aforethought, did make an assault, and that he, the said William Furgerson, some heavy instrument or deadly weapon to these jurors unknown, which said instrument or deadly weapon he, the said William Furgerson, in his hand, then and there held, then and there feloniously, willfully, deliberately, premeditately, on purpose and of his malice aforethought, did forcibly strike and beat the said Stephen G. Wilson, in and upon the body of the said Stephen G. Wilson, crushing, fracturing and breaking the skull of the said Stephen G. Wilson, giving to him, the said Stephen G. Wilson, a mortal wound, of which said mortal wound he, the said Stephen G. Wilson, did then and there instantly die; and so the grand jurors aforesaid, upon their oaths aforesaid, do say that the said William Furgerson, him the said Stephen G. Wilson, in the manner and by the means aforesaid, feloniously, willfully, deliberately, premeditatedly, on purpose and of his malice aforethought, did kill and murder; against the peace and dignity of the State."

The first count in the indictment is assailed upon the ground that the homicidal act, the mortal stroke with the ax, is not alleged to have been done feloniously. That while the assault, battery and striking are alleged to have been feloniously made, it is not alleged that the wounding was done feloniously.

State v. Green, 111 Mo. 585, 20 S.W. 304, is relied upon as sustaining that contention, but in that case the indictment was held bad upon the ground that the words "thereby and by thus striking" indicated that a striking and wounding had been previously alleged, where such was not the case, but this essential averment was entirely omitted. State v. Herrell, 97 Mo. 105, 10 S.W. 387, is also relied upon by defendant. In that case it was said: "There are authorities, however, for holding that an indictment will be made good, notwithstanding it fails to allege that the wound was feloniously, etc., given, provided that the words feloniously, etc., previously alleged, are connected with the mortal stroke by the words 'then and there,' for in such case, the words feloniously, etc., will run through the subsequent allegations and thus connect them with the mortal stroke to which they are essential, as already seen. [1 East P. C. 346; 2 Hale P. C. 184; State v. Lakey, 65 Mo. 217; State v. Steeley, 65 Mo. 218; State v. Sides, 64 Mo. 383.]"

In the case at bar the essential averments are properly connected by the following language: ". . . . one William Furgerson on the twenty-fifth day of March, 1897, at Grundy county, Missouri, in and upon one Stephen G. Wilson, then and there being, feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought, did make an assault, and with a certain ax, a deadly weapon, by him, the said William Furgerson, held in his hands, the said William Furgerson did then and there feloniously, willfully, deliberately, premeditatedly and of his malice aforethought, forcibly strike and beat the said Stephen G. Wilson," etc.

State v. Rice, 149 Mo. 461, 51 S.W. 78, is another authority relied upon by defendant, but in that case the indictment was held good, the court holding that it would have been better pleading,...