State v. Blan

• Decision Date: 30 April 1879
• Citation: 69 Mo. 317
• Parties: THE STATE v. BLAN, Appellant.
• Court: Missouri Supreme Court

69 Mo. 317

THE STATE

v.BLAN, Appellant.

Supreme Court of Missouri.

April Term, 1879.

Appeal from St. Louis Court of Appeals.

R. A. Buckner for appellant.

J. L. Smith, Attorney-General, for the State.

HOUGH, J.

At the September term, 1878, of the St. Charles circuit court, John Blan and Joseph Blan were jointly indicted for murder in the first degree, in killing one Elijah Warren. Joseph Blan was acquitted. John Blan was convicted of murder in the first degree, and sentenced to be hanged. The judgment of the circuit court was affirmed by the court of appeals, and the defendant has appealed to this court.

The indictment contained five counts. The first count charged that John Blan and Joseph Blan, at, &c., “with sticks, clubs, loaded guns and other deadly weapons, which they, the said John Blan and Joseph Blan. in their hands then and there had and held, him, the said Elijah Warren in and upon the head and face of him, the said Elijah Warren, then and there feloniously, willfully, deliberately, premeditatedly, on purpose and of their malice aforethought, did strike, cut, hit and shoot, giving unto him, the said Elijah Warren, then and there, with the said sticks, clubs and guns, and other deadly weapons, in and upon the head and in and upon the face of him, the said Elijah Warren, several mortal wounds of the length of two inches each, and of the depth of six inches each, of which said mortal wounds the said Elijah Warren then and there instantly died. And so the grand jurors aforesaid, upon their oaths aforesaid, do say that the said John Blan and the said Joseph Blan, in the manner and form aforesaid, him, the said Elijah Warren, feloniously, willfully, deliberately, premeditatedly, on purpose and of their malice aforethought, did kill and murder, against the peace and dignity of the State.”

The second count charged that the defendants did kill and murder the deceased by striking, hitting and mortally wounding him with sticks and clubs. This count contained no express averment that Warren died of the wounds so inflicted, nor were the wounds described. The third count charged that the defendants did shoot, kill and murder the deceased with loaded guns, but contained no description of the wounds inflicted, and no express averment that the deceased died therefrom. The fourth count charged that the defendants assaulted the deceased with sticks, clubs and loaded guns, and did kill and murder him by striking him with clubs and shooting him with guns. This count, like the second and third, contained no description of the wounds, and no express averment that the deceased died therefrom. The fifth count contained no description of the wounds inflicted, but in other respects is substantially the same as the first.

1. INDICTMENT FOR MURDER: several weapons: several defendants.

The first count is objected to as being vague and uncertain as to the manner of the assault, and as being faulty in not separately stating the individual acts of each of the defendants. There is no force in these objections. It is well settled in this State, and held elsewhere, that an assault may be charged to have been made with several different kinds of weapons. State v. York, 22 Mo. 462; State v. McDonald, 67 Mo. 13; State v. Painter, 67 Mo. 85; Commonwealth v. Macloon, 101 Mass. 24; State v. McClintock, 1 G. Greene 392; Vide, State v. Baker, 63 N. C. 276.

In an indictment for murder, if two be charged as principals, one as the principal perpetrator and the other as aiding and abetting, it is not material which of them be charged as principal in the first degree, as having given the mortal blow. 1 Whart. Crim. Law, § 129. If, therefore, an indictment that A gave the blow and B was present and abetting, is sustained by evidence that B gave the blow and A was present and abetting, it is wholly immaterial whether it is correctly stated in the indictment that either or both did it. In the State v. Dalton, 27 Mo. 14, the indictment charged that John Dalton and Michael Gaughy feloniously and willfully made an assault upon one Charles Hanfeneister, “with a certain knife of the length of six inches and of the breadth of two inches, which they, the said John Dalton and Michael Gaughy, then and there in their right hand had and held, with the intent,” &c., and the indictment was held legally sufficient to sustain a conviction. We are of opinion, therefore, that the objections to the first count are untenable.

2. ______: essential allegations: jeofails.

The second, third and fourth counts are objected to because they contain no allegation that the deceased died of the wounds charged to have been inflicted by the defendant, and do not describe said wounds.

In the case of Alexander v. The State, 3 Heiskell 475, an indictment stating time and place and charging that the defendants assaulted and “then and there unlawfully, deliberately, premeditatedly, feloniously, and of their malice aforethought did kill and murder” the deceased, was held to be sufficient under the provisions of the code of Tennessec relating to indictments. In Cordell v. The State, 22 Ind. 1, the indictment charged that defendant did kill and murder the deceased by cutting, stabbing and mortally wounding him, but omitted the averment that the deceased died of the wounds so inflicted; the court said: “We think the indictment sufficient under the code. It shows the death of the assaulted individual. The word ‘murdered,’ ex vi termini, imports death.” In Pennsylvania it is declared by statute that is shall not be necessary to set forth the manner in which, or the means by which, the death of the deceased was caused, but that it shall be sufficient to charge that the defendant did feloniously, willfully, and of his malice aforethought kill and murder the deceased. Rev. Act, 1860, p. 435.

Our statute provides that no indictment shall be deemed invalid, nor the judgment thereon arrested “for want of the averment of any matter not necessary to be proved; nor for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.” Wag. Stat. 1090, § 27. The section in which the foregoing provision occurs enumerates various trivial and formal defects and concludes with the clause quoted. In the case of the State v. Pemberton, 30 Mo. 376, this court in construing this section, held that the concluding clause should be limited in its application, to imperfections of the class or character previously enumerated. The court said: “If the design of our legislature had been to change the entire system of criminal pleading, they would undoubtedly have supplied a substitute for the one abolished. They have done so in civil proceedings, but in criminal proceedings changes, when made, have been specific. The ancient forms of proceeding have been retained, with specific modifications, and it is only from the clause that we are now called upon to construe that any inference can be drawn of a design on the part of the legislature to abolish the entire system of criminal pleading. To give so liberal and latitudinous a construction to this clause, would undoubtedly destroy many if not all of the forms which have been hitherto observed,” and the court declined so to construe the statute.

It is indispensably necessary, says Mr. Wharton, to state that the death ensued in consequence of the act of the prisoner. Whart. Crim. Law, § 285; State v. Wimberly, 3 McCord 190; and it is clearly inadmissible to allege simply a legal conclusion. It has been decided that it is no longer necessary in this State to describe the wound, or to state on what particular part of the body the wound was inflicted. State v. Edmundson, 64 Mo. 398. But it is necessary, under our statute, to allege the substantive facts necessary to be proved. It is necessary, therefore, in a case like the present, to allege an assault and the nature thereof, a mortal wounding of the deceased, and that the deceased died of such wounds within a year and a day. These facts being properly stated, the legal conclusion therefrom may then be stated, that the defendant did kill and murder the deceased. Nothing short of this will, in our judgment, secure to ...