State v. Hagan

• Decision Date: 12 November 1901
• Parties: THE STATE v. HAGAN, Appellant
• Court: Missouri Supreme Court

65 S.W. 249

164 Mo. 654

THE STATE v. HAGAN, Appellant

Supreme Court of Missouri, Second Division

November 12, 1901

Appeal from Perry Circuit Court. -- Hon. H. C. Riley, Judge.

Reversed.

John V Noell with Killian & Greenwell for appellant.

(1) The indictment is insufficient; the word "die" can not be construed "died" or "did die." The death of the assaulted party is a necessary allegation in the indictment and can not be supplied by intendment. State v. Furgerson, 152 Mo. 92, 63 S.W. 101; State v Rector, 126 Mo. 328. (2) Instruction 2, asked by defendant, presented the law as applicable to the facts in this case, and should have been given. The threats of deceased against defendant were admissible to characterize the acts of deceased and for the purpose of showing that deceased made the attack on defendant, and the error committed by the court is not cured by the giving of instruction 7 by the court of its own motion. State v Elkins, 63 Mo. 159; State v. Herrod, 102 Mo. 590; State v. Alexander, 66 Mo. 148; State v. Lee, 66 Mo. 165.

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

(1) "Of which mortal wound aforesaid, the said Edward Harr then and there immediately and instantly die" is sufficient, though it might have been better to have added the letter "d" to the word "die." The failure to so affix the letter "d" was merely clerical, which can not be said to reach to the substance of the indictment and does not in anywise prejudice the substantial rights of the accused. Sec. 2535, R. S. 1899. It can not be said of this indictment that the accused was not fully informed of the offense charged against him. State v. Edmunston, 64 Mo. 398; State v. Foster, 61 Mo. 549; State v. Counter, 46 Mo. 564; State v. Schloss, 93 Mo. 361; State v. Mills, 146 Mo. 195. Besides, mere bad spelling, when the meaning is plain, will not vitiate an indictment. State v. Lucas, 147 Mo. 70; State v. Vaughn, 141 Mo. 514. (2) Defendant's refused instruction numbered 2 is fully covered by instruction numbered 7, given by the court upon its own motion. That instruction fully covers the law of the case, so far as threats are concerned as applied to the plea of self-defense. By it the jury was given to understand that threats made by deceased against defendant and not communicated to defendant before the killing could only be considered in determining whether the deceased or the defendant made the first assault. But that if such threats had been previously communicated to the defendant they may be considered for the further purpose of determining whether or not defendant had reasonable cause to apprehend danger. State v. Harrod, 102 Mo. 570; State v. Hayden, 83 Mo. 198. Proof of uncommunicated threats of the deceased are to be considered solely in passing upon the question as to who was the aggressor. State v. Harris, 59 Mo. 550; State v. Sloan, 47 Mo. 604; State v. Rider, 90 Mo. 54. By defendant's refused instruction numbered 2, the jury were to be given the right to consider such threats in passing upon the question whether or not defendant believed, and had reasonable cause for believing, deceased was about to take his life or do him some personal injury, and that, too, without reference to whether the threats had been communicated to him or not. Such is not the law. One against whom threats have been made is not justified in assaulting the threatener unless he makes some attempt to execute his threats. State v. Rider, 90 Mo. 54; State v. Hays, 23 Mo. 287; State v. Eaton, 75 Mo. 586.

OPINION

SHERWOOD, P. J.

The defendant was indicted for the murder of one Edward Harr, by shooting him to death with a revolver. Florence Harr, the widow of deceased, was joined in the indictment with defendant, but on a trial previous to his, was acquitted. The jury found defendant guilty of murder in the second degree and assessed his punishment at thirty years in the penitentiary and he appeals.

The indictment in question was, in the charging part, as follows: "Do present and charge that Augustin Hagan and Florence Harr, late of the county aforesaid, on the twenty-eighth day of April, 1899, at and in the county of Perry, State of Missouri aforesaid, then and there in and upon one Edward Harr, there being, feloniously, willfully, deliberately, premeditatedly and of their malice aforethought, did make an assault, and a certain revolving pistol, a deadly weapon, which was then and there loaded with gunpowder and leaden balls, and which they, the said Augustin Hagan and Florence Harr, in their hands then and there had and held, at and against the breast of him, the said Edward Harr, did then and there, feloniously, willfully, deliberately, premeditatedly and of their malice aforethought, shoot off and discharge at and upon him, the said Edward Harr, and with the revolving pistol aforesaid, loaded as aforesaid, and with the leaden balls aforesaid, then and there, feloniously, willfully, deliberately, premeditatedly and of their malice aforethought, did shoot and strike him, the said Edward Harr, in and upon the breast of him, the said Edward Harr, thereby, then and there feloniously, willfully, deliberately, premeditatedly and of their malice aforethought, giving to him, the said Edward Harr, in and upon the breast of him, the said Edward Harr, two mortal wounds, each of said mortal wounds being of the diameter of half an inch and of the depth of six inches, of which mortal wounds aforesaid the said Edward Harr then and there immediately and instantly die. And so the grand jurors aforesaid, upon their oath aforesaid, do charge and say that they, the said Augustin Hagan and Florence Harr, him, the said Edward Harr, at the time and place aforesaid, in the manner and by the means aforesaid, feloniously, willfully, 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. "Samuel Bond, Prosecuting Attorney."

A motion in arrest challenges the sufficiency of this indictment; the challenge is well grounded. The indictment contains no allegation that Edward Harr is dead. Touching this point, Hawkins says (Book 2, chap. 25, sec. 60): "Also it seems to be generally agreed, that no indictment of death can be good without an express allegation, that the deceased both received the hurt which is laid as the cause of his death, and also that he died of the hurt so received; and that the want thereof can not be made good by any implication whatsoever; as hath been more fully shown (chap. 23, secs. 82, 83). Also it hath been adjudged that an indictment against J. S. for feloniously breaking such a prison, and commanding J. N. who was therein imprisoned for felony to escape, is not a good indictment for a felonious breaking, without expressly showing that J. S. did escape, and yet the breaking is expressly laid to be felonious, and it is impossible that it could be so, unless the party did escape. But it will be needless to enumerate any more instances of this kind, which are so very frequent that there is scarce any case which mentions exceptions taken to indictments, without having some or other grounded on this rule, that in an indictment nothing material shall be taken by intendment or implication."

In another place, above referred to, the learned author says: "For it being the strict rule of law in these cases to have the substance of the fact expressed with precise certainty, the judges will suffer no argumentative certainty whatsoever to induce them to dispense with it. For if they should once be prevailed with to do it in one case, the like indulgence would be expected from them in others nearly resembling it, and then in others resembling those, and no one could say where this might end; which could not but endanger the subverting of one of the most fundamental principles of the law, by giving room to judges by arguments from what the jury have found, to convict a man of a fact which they have not found."

Other authorities pursue the same line of thought and theory.

If any fact, word or circumstance which forms a necessary ingredient in, or a material description of, the offense be omitted in the indictment, such omission vitiates the indictment and of such vitiation defendant may advantage himself by demurrer, motion in arrest or by writ of error. [Rex v. Osmer, 5 East 304; Rex v. Everett, 8 B. & C. 114; Rex v. Norton, 8 C. & P. 196; Rex v. Jackson, 1 Leach 303].

The substantial description and outline of the charge in an indictment for murder done by violence are first, the felonious and mortal stroke given by defendant; second, the death of the person struck within a year and a day after receiving such stroke and in consequence thereof. So that, in the Latin forms, although the indictment charged "dedit mortalem plagam," without saying percussit, the indictment was bad. [2 Hale, 184, 186; Wharton Crim. Plead. and Prac., sec. 259.]

So with the omission or dropping of any other essentially descriptive word. Thus of dropping or omission of the word "did" where that word is essential to describe the criminal act done or the transpiring of some event necessary to the completion of the crime charged. [Whart. Crim. Plead. and Prac., sec. 275.]

Thus, in State v. Halder, 13 S.C. L. 377, 2 McCord 377, the indictment, which was for passing counterfeit money, charged that the defendant "feloniously utter and publish, dispose and pass," etc., etc.; but omitted the word "did," before utter, etc., the court arrested the judgment because no charge was made that the prisoner did the act. To like effect is State v. Perry, 2 Bailey, L. 17.

In a number of instances in the State...