State v. Williams

• Decision Date: 22 November 1904
• Citation: 184 Mo. 261,83 S.W. 756
• Parties: STATE v. WILLIAMS.
• Court: Missouri Supreme Court

83 S.W. 756

184 Mo. 261

STATE v. WILLIAMS.

Supreme Court of Missouri, Division No. 2.

November 22, 1904.

INFORMATION — SUFFICIENCY — IDENTITY OF ACCUSED — FELONIOUS STRIKING AND WOUNDING.

1. An information charging an assault on "Charles C.," and a wounding and killing of the "said Charley C.," was not fatally defective.

2. An information charging that defendant did unlawfully, etc., "discharge at and upon the body of the said C., thereby and thus striking him, the said C., with the leaden balls aforesaid, so shot off and discharged as aforesaid, and inflicting on and giving to him, on and in the right side of the body of him, the said C., one mortal wound," and not using the words "then and there," was insufficient, for failing to allege that the striking or wounding was done feloniously.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

John Williams was convicted of murder in the second degree, and appeals. Reversed.

Duncan & Bragg, for appellant. E. C. Crow, Atty. Gen., and Sam B. Jeffries, for the State.

GANTT, P. J.

The defendant, a negro man, was prosecuted by information duly verified and filed by the prosecuting attorney of Pemiscot county for the murder of one Charles Clark on the 3d day of March, 1901. He was duly arraigned, pleaded not guilty, and was convicted of murder in the second degree. From the sentence imposed in pursuance of this verdict, he appeals to this court. The only error of which he complains is the insufficiency of the information upon which he was tried. He challenged the information by a motion in arrest of judgment, which was overruled, and he saved his exception. The information, omitting caption, is in the following words:

"County of Pemiscot. State of Missouri vs. John Williams. L. L. Collins, prosecuting attorney within and for the county of Pemiscot, in the state of Missouri, upon his official oath informs the court that John Williams, late of the county aforesaid, on the 3d day of March, 1901, at the county of Pemiscot, state aforesaid, did then and there in and upon the body of one Charles Clark, then and there being, unlawfully, willfully, feloniously, deliberately, premeditatedly, on purpose, and of his malice aforethought, make an assault, and a certain dangerous and deadly weapon, to wit, a pistol, which said pistol was then and there loaded with gunpowder and leaden balls, and which said pistol he, the said John Williams, then and there in his hand had and held, the said John Williams did then and there unlawfully, willfully, feloniously, deliberately, premeditatedly, on purpose, and of his malice aforethought, shoot off and discharge at and upon the body of him, the said Charley Clark, thereby and thus striking him, the said Charley Clark, with the leaden balls aforesaid, so shot off and discharged as aforesaid, and inflicting on and giving to him, on and in the right side of the body of him, the said Charley Clark, one mortal wound, of the breadth of one-half inch and of the depth of six inches, of which said mortal wound he, the said Charley Clark, at the county of Pemiscot and state of Missouri, then and there instantly died. And so L. L. Collins, prosecuting attorney aforesaid, upon his official oath aforesaid, states that he, the said John Williams, him, the said Charley Clark, in the manner and by the means aforesaid, unlawfully, willfully, feloniously, deliberately, premeditatedly, on purpose, and of his malice aforethought, did kill and murder, against the peace and dignity of the state."

1. It is insisted, first, that the information charges an assault upon "Charles Clark," and a wounding and killing of "Charley Clark," and that it cannot be presumed they are one and the same person. We think there is no merit in this point. It is charged that the wounding and killing was of "the said Charley Clark."

2. The serious objection to the information is its failure to charge a "felonious striking, penetrating, and wounding of the said Clark." The information in this case is to all intents and purposes a copy of the indictment which was held...