Ex parte Keet

• Decision Date: 06 August 1926
• Docket Number: 27356
• Citation: 287 S.W. 463,315 Mo. 695
• Parties: Ex parte Artie Keet
• Court: Missouri Supreme Court

287 S.W. 463

315 Mo. 695

Ex parte Artie Keet

No. 27356

Supreme Court of Missouri

August 6, 1926

Petitioner remanded.

Allen & Allen for petitioner.

North Todd Gentry, Attorney-General, for respondent.

Ragland J. All concur, except Graves, J., absent.

OPINION

RAGLAND

On a trial by jury in the Criminal Court of Greene County, the petitioner was, on the 7th day of August, 1919 found guilty of murder in the second degree, and her punishment assessed at imprisonment in the State Penitentiary for a term of ten years. Subsequently, on August 11, 1919 sentence and judgment in accordance with the verdict were formally pronounced, and thereafter, at the same term of court, she was allowed an appeal to this court and admitted to bail pending the appeal. She having thereafter taken no steps to perfect her appeal the same was dismissed by this court, on motion of the Attorney-General, on the 4th day of October, 1923. Thereafter she was taken into custody and conveyed to the State Penitentiary, on the 12th day of December, 1923, where she is now confined pursuant to the sentence and judgment of the Criminal Court of Greene County.

The information upon which the petitioner was tried and convicted, omitting formal parts, was as follows:

"O J. Page, Prosecuting Attorney within and for the County of Greene, in the State of Missouri, under his oath of office informs the court that Artie Keet, late of the county and state aforesaid, on the 8th day of June A. D. 1919, at the County of Greene and State of Missouri, in and upon one Minor Keet, then and there being, feloniously, wilfully, premeditatedly and of her malice aforethought, did make an assault, and with a dangerous and deadly weapon, to-wit, a revolving pistol and then and there loaded with gunpowder and leaden balls, which she, the said Artie Keet, in both her hands then and there had and held at and against him, the said Minor Keet, then and there feloniously, on purpose and of her malice aforethought, wilfully and premeditatedly, did shoot off and discharge, and with the revolving pistol aforesaid, and the leaden balls aforesaid, then and there feloniously, on purpose and of her malice aforethought wilfully, premeditatedly, did shoot and strike him, the said Minor Keet, in and upon the abdomen and bowels, the said Artie Keet giving to him, the said Minor Keet, then and there with a dangerous and deadly weapon aforesaid, the revolving pistol aforesaid and the leaden balls aforesaid, in and upon the abdomen and bowels of the said Minor Keet, one mortal wound of the breadth of one inch and of the depth of twelve inches, of which mortal wound the said Minor Keet then and there instantly died; contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State."

It is the contention of the petitioner that the information of which the foregoing is a copy charged nothing more than manslaughter; consequently, she was convicted of, and is now undergoing imprisonment for, a crime with which she was never charged. If the contention is sound her imprisonment is illegal. [29 C. J. 44.]

A critical examination of the pleading discloses that it embraces within its allegations every element of murder in the second degree, it alleges in direct and unequivocal language that the accused killed the deceased, the manner in which and the means by which she killed him, and the intent with which she was actuated in the doing of the acts which pertained to and constituted the killing. As a charge of the commission of murder in the second degree, the information describes the offense with such certainty, that the accused was bound to know what she was called upon to answer and the court and jury the issue they were to try -- and that a conviction or acquittal could be pleaded in bar of a subsequent prosecution. It therefore served every purpose of such a pleading according to common-law principles, and satisfied constitutional requirements as well. [Secs. 22 and 23, Art. II, Missouri Constitution.] The specific defect in the information as one for murder, it is claimed, is its failure to have appended to it the formal conclusion found in ancient precedents of common-law indictments for murder. According to those precedents it should have ended thus: "And so the prosecuting attorney aforesaid, upon his official oath aforesaid, does say, that the said Artie Keet him, the said Minor Keet, in manner and form aforesaid, and by the means aforesaid, did feloniously, wilfully premeditatedly and of her malice aforethought, kill and murder," etc. [State v. Rector, 126 Mo. l. c. 341.] This language embodies a conclusion of law, and nothing more. Neither alone, nor in connection with the other averments of the information, would it have served any of the purposes of a pleading. According to all the rules of pleading, applicable alike to both criminal and civil actions, the pleading of a mere legal conclusion is a futile thing. The requirement, if there be one, that an indictment or information for murder must so conclude, is a legal solecism.

In 30 Corpus Juris, 117, it is stated: "At common law great strictness and technical accuracy was exacted as to the conclusion of an indictment for murder, and in some states it is still held that the conclusion of an indictment for murder distinguishes it from an indictment for manslaughter, the previous words without the conclusion being insufficient to charge murder." The authorities in support of the text consist almost exclusively of cases decided by this court. The leading one is State v. Meyers, 99 Mo. 107. In that case the indictment concluded as follows: "And, so said Charles Meyers and John Bogard, in manner and form aforesaid, and by the means aforesaid, did feloniously, wilfully, deliberately, premeditatedly and of their malice aforethought kill and murder the said James Weir, against the peace and dignity of the State." It was held insufficient because of the omission of the words, "the grand jurors aforesaid, upon their oath aforesaid, do say." The reasoning of the opinion takes for its major premise the proposition: "An indictment (as the term is used in the Constitution) means just what it did at common law;" it then searches Coke, Chitty, Blackstone and East's Pleas of the Crown for precedents of common-law indictments for murder. The one in Heydon's case, as reported by Coke, it seems to regard as a model. It was drawn in Latin and in the beginning of the formal conclusion are found the words: "Et sic juratores praed' dic' super sacram' suum quod praedictus." In State v. Furgerson, 152 Mo. 92; State v. Sanders, 158 Mo. 610; and State v. Cook, 170 Mo. 210, indictments for murder were held bad because in the commencement of the formal conclusion, "And so the grand jurors aforesaid, upon their oath aforesaid," the words, "upon their oath aforesaid," were omitted. Besides the cases just mentioned there are numerous others, which for lack of time we do not collate and cite, which hold indictments insufficient because some one or more of the magical words of the formal conclusion were left out.

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