Lester v. State
| Decision Date | 31 January 1846 |
| Citation | 9 Mo. 666 |
| Parties | LESTER v. THE STATE. |
| Court | Missouri Supreme Court |
APPEAL FROM JACKSON CIRCUIT COURT.
GEORGE TOMPKINS, for Appellant. Lester was condemned to be hanged, by the Circuit Court of Jackson county, on the 2nd January, in the year 1846. He moved in arrest of judgment, and his motion was overruled. The only point relied on, is that the indictment is grossly defective, for the reasons following: 1st. There is no description of the mortal wound in either of the four counts of said indictment. 2nd. It is not stated in either count, that this mortal wound was inflicted with the same stick with which the assault was made, &c. 3rd. It is not stated either when, or where the mortal wound was given. 4th. It is not stated in either the 1st, 3rd, or 4th counts, when or where the death occurred. 5th. The second count does indeed state when and where the death occurred, but it is liable to all three of the objections first above assigned. The giving of the mortal stroke is in all four counts thus expressed: “Giving him the said King B. Scott, by such striking and beating, divers mortal bruises and contusions,” without stating either the time or place of giving those mortal bruises, &c. The death is thus stated in all the counts but the second, “of which said mortal brusies and contusions, he the said Scott did instantly die,” without any statement of either time or place. The second count is not indeed liable to this last objection, the death being herein stated with the circumstance both of time and place. But in this second count, besides the objections above made to it, there is no statement of an assault made by Lester on the deceased; and for anything in that count stated, the mortal stroke might have been given to prevent a violent and dangerous stroke from the deceased.
STRINGFELLOW, Attorney-General, for The State.
The appellant was indicted and found guilty of the murder of one King B. Scott. After a verdict, a motion in arrest of judgment was made, which being overruled, the case is brought to this court.
The only question presented by the record, is the one arising from the motion in arrest. The indictment consists of four counts, the first, third and fourth of which are in all respects material to the question, precisely alike. The second count is different. In the first count it is alleged that the defendant, with force and arms, at, &c., on, &c., “in and upon one King B. Scott, in the peace of the State, &c., felonously, willfully and of his malice aforethought, and by laying in wait, did make an assault, and that the said Lester did then and there, with force,” &c., “and with a large stick of no value which he the said Lester in both the hands of him the said Lester, then and there had and held, him the said Scott in and upon the head of him the said Scott, feloniously, willfully, and of his...
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