State v. Adkins
| Decision Date | 01 December 1920 |
| Parties | THE STATE v. EDDIE ADKINS, Appellant |
| Court | Missouri Supreme Court |
Appeal from Carroll Circuit Court. -- Hon. Ralph Hughes, Judge.
Reversed and remanded.
James F. Graham and Franken & Timmons for appellant.
(1) The second amended information upon which defendant was tried and found guilty is fatally defective. It concludes with the words, "against the peace and dignity of State." The omission of the word "the" before the word "State" in said conclusion makes the information fatally defective. Mo. Constitution, art. 6, sec. 38; State v. Skillman, 209 Mo. 408; State v Campbell, 210 Mo. 202; State v. Warner, 220 Mo 203. (2) The court erred in giving, over the objections and exceptions of defendant, Instruction 10. This instruction is an unwarranted comment on the evidence and singles out certain facts to the exclusion of others. Such an instruction is erroneous. Sec. 5244, R. S. 1909; State v. Reed, 137 Mo. 139; State v. Rutherford, 152 Mo. 124 153; State v. Wortz, 191 Mo. 569; State v Mitchell, 229 Mo. 697; State v. Holmes, 239 Mo. 472; State v. Shaffer, 253 Mo. 337; State v. Rogers, 253 Mo. 412; State v. Dixon, 190 S.W. 294; State v. Fish, 195 S.W. 998; State v. Smith, 53 Mo. 271; State v. Driscoll, 235 Mo. 385.
Frank W. McAllister, Attorney-General, and Henry B. Hunt, Assistant Attorney-General, for respondent.
(1) An examination of the information discloses that, if the authorities are to be followed, it is defective because the article "the" is omitted before the word "State" in the concluding clause. Section 38, art. 6, Mo. Constitution; State v. Warner, 220 Mo. 23; State v. Skillman, 209 Mo. 412; State v. Campbell, 210 Mo. 215. (a) At the common law great particularity was required in the concluding clause of an indictment. 2 Hale P. C. 188; 1 Chitty, Cr. L. 247; 2 Hawkins' P. C. 345, 346; Damon's Case, 6 Me. 152; 2 Bish. New Crim. Proc. sec. 649. (b) At the common law, no council was allowed the prisoner upon his trial, upon the general issue in any capital crime, unless some point of law arose proper to be debated; and no person accused of a capital crime was suffered to excuplate himself by the testimony of any witnesses. 4 Lewis's Blackstone, 1740, 1744, secs. 355, 359. (2) A substantial compliance with Section 38, Article VI, of the Constitution, is sufficient. 22 Cyc. 243-b; 2 Bish. New Crim. Proc. secs. 651-(4), 652a; State v. Campbell, 210 Mo. 216; State v. Waters, 1 Mo.App. 9; 22 Cyc. 291; Sec. 5115, R. S. 1909. (a) The sufficiency of an information must be judged from the information as a whole, and not from solated parts thereof. State v. Griffin, 249 Mo. 628.
(3) Instruction 10 is not erroneous by reason of the fact that it comments on the evidence. 21 Cyc. 1033; State v. Seal, 47 Mo.App. 608; Gharst v. Transit Co., 115 Mo.App. 412; Leeser v. Boeckhoff, 33 Mo.App. 238; State v. Birks, 199 Mo. 275; State v. Hale, 238 Mo. 509; State v. Hudspeth, 159 Mo. 197, 208; Lowe v. State, 201 S.W. 987; State v. Inich, 173 P. 233; State v. Wilson, 250 Mo. 329.
Frank E. Atwood and Lozier & Morris for respondent.
Having assisted the State in the trial of this cause, we desire to present one proposition to the court. That proposition is whether the omission of the word "the" before the word "State" in the concluding part of the second information renders said information a nullity. We are aware that this court has expressly decided that such an omission is fatal, in the three cases cited by defendant's counsel. However, we respectfully insist that the reasoning employed in those cases is not sound, and that those decisions are out of harmony with the spirit of our State Constitution and is a departure from the previous decisions of this court in construing Section 38 of Article VI and similar questions arising out of similar constitutional and statutory provisions. Believing that the doctrine as announced in those cases is contrary to the spirit and purpose of all of our laws and is based solely on an extreme technicality, we deem it our duty respectfully to ask the court to reexamine those cases and to make a new pronouncement in keeping with what we consider the spirit and purpose of our constitutional and statutory laws relating to trials by indictment or information.
RAILEY, C. White and Mozley CC., concur. WILLIAMSON, J., concurring. Williams, P. J., and Walker, C. J., concur with Williamson.
Defendant was charged by information with murder in the first degree for shooting, with a shotgun, and killing, Clete Bachtel, in Carroll County, Missouri, on June 29, 1918. The information was filed September 14, 1919. It is in the usual form, charging defendant with murder in the first degree, except as to the conclusion, which reads as follows: "did kill and murder, against the peace and dignity of State." On October 6, 1919, defendant waived a formal arraignment and entered his plea of not guilty. On October 9, 1919, the jury returned into court the following verdict:
"We, the jury, find the defendant guilty of murder in the second degree and assess his punishment at imprisonment in the penitentiary for ten years."
The facts, as disclosed by the record, are substantially as follows:
Defendant, with his father and brother, and deceased, Clete Bachtel, hired a public auto livery at Carrollton, Missouri, driven by one Otte Steele, to take them to Alma, Missouri, which is across the river from Carrollton, in Saline County, Missouri. They left Carrollton between ten and eleven o'clock on the morning of June 29, 1918, crossed the river at Waverly, and arrived at Alma about noon. There they drank a few rounds of beer. The defendant and his father each purchased a pint of whiskey. The party remained in Alma about twenty minutes and started back to Carrollton. Shortly after getting back on the Carroll County side, deceased began trying to start a fight with defendant Adkins. He had the driver stop the car and invited defendant out to fight him. Appellant refused to do so at the time, telling deceased that he wanted no trouble with him. Deceased then got back in the car and began to abuse defendant. As the party neared Carrollton, defendant instructed Steele to let him out of the automobile at the north end of what is known as the wire bridge, the same being a long bridge across the Wakenda Drainage District ditch, just southwest of Carrollton. Steele stopped the car at the north end of the bridge, as instructed; defendant got out of the car and started home across the bridge, taking with him his pint of whiskey. Deceased had been drinking after leaving Alma, was considerably under the influence of liquor, and, as the car started, after its stop at the bridge, jumped out of the car, ran back to defendant, and began to fight him. During the fight, deceased got the fingers of defendant in his mouth and badly lacerated them. In order to compel deceased to release his fingers, defendant cut him twice on the arm. The brother of defendant separated them, and persuaded deceased to go with him toward Carrollton. Deceased and defendant's brother started north. Deceased said to defendant when leaving the latter, that he would get defendant before night, or that he would get even with him for cutting him. After Pete Adkins and deceased started toward Carrollton, deceased picked up three or four bricks, and said he was going back down there to get even with defendant. Finally Pete persuaded him to throw the bricks down and go with him towards the home of defendant's father. Afterwards, deceased saw Winfrey and Underback near the Santa Fe depot, south of said bridge. He wanted them to take him to the wire bridge. He said he wanted to settle the fight that he and Adkins had had.
In the meantime, defendant stopped near the wire bridge, talking with Reed and Plaster, who had hitched their horse, with a spring wagon attached, to the south end of the bridge. They had talked there, perhaps a half hour, when Reed looked to the south and saw Bachtel coming down the road toward them. Reed told defendant, he had better make it, as Bachtel was coming for trouble. Reed and Plaster were going squirrel-hunting, and had two shotguns in the wagon. As they were starting south in the wagon, defendant stepped to the rear of the wagon and got a single-barreled shotgun. He went east through a large gap, into a corn-field, in which corn was growing about knee-high, and went behind a clump of bushes about 150 feet east of the bridge. Reed and Plaster continued south on the road, and passed Bachtel. The latter had in his shirt bosom a protruding object, and did not speak to Reed or Plaster as he passed them, but continued north toward defendant. Bachtel passed the gap, through which the defendant passed into the corn-field, walked upon the bridge, looked around, came quickly back and walked through the gap directly toward defendant. The latter stepped from behind the bushes, leveled the gun on deceased and told him to stop. Deceased kept coming, and threw two pieces of rock or brick at defendant, then thrust his hands toward the protruding object in his shirt, at which time, defendant fired and killed deceased with said gun.
The evidence disclosed that deceased, when under the influence of liquor, had the reputation of being a dangerous and turbulent man.
An examination of the deceased's body indicated that death was caused from shotgun wounds in the face and forehead, some of the shot penetrating the brain.
Elaborate instructions were given by the court, which will be considered, with other matters, as far as necessary, in the opinion.
After defendant was sentenced, he was permitted by the court to prosecute his appeal to this court as a poor person.
I. Appellant is...
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