State v. Burns

• Decision Date: 27 January 1890
• Citation: 99 Mo. 542,13 S.W. 686
• Parties: STATE v. BURNS.
• Court: Missouri Supreme Court

13 S.W. 686

99 Mo. 542

STATE v. BURNS.

Supreme Court of Missouri.

January 27, 1890.

For majority opinion, see 12 S. W. Rep. 801.

SHERWOOD, J. I dissent, for the following reasons:

It is among the fundamentals of criminal jurisprudence that, in indictments for felonies, nothing material can be supplied by implication or intendment. 2 Hawk. P. C. c. 25, §§ 60, 61; 1 Chit. Crim. Law, 172; 1 Bish. Crim. Proc. §§ 79-81, 86, 88, 517, 518, 519, especially last three sections. See, also, 2 Hale, P. C. 193; Russ. Crimes, (4th Ed.) 676, note; State v. Hayward, 83 Mo. 299; State v. Herrell, 97 Mo. 105, 10 S. W. Rep. 387; State v. Meyers, 12 S. W. Rep. 516, — which last cases cited from our own Reports the foregoing opinion virtually overrules. That opinion is a new departure from all precedent form and authority. If it be sufficient to say in an indictment that the defendant, with a certain knife, "did strike, stab, and thrust, in and upon the left side of the body of him, the said Frank Phelan, one mortal wound," why would it not be also sufficient to say, in another indictment, that the defendant, with a certain pistol, "did shoot, strike, discharge, and fire off, in and upon the left side of the body of him, the said Frank Phelan, one mortal wound?" Would any one contend that such an indictment would be good? If not good in the latter case, how then good in the former? If all forms are to be discarded and held for naught; if only what the indictment means is to be considered, — then prosecutions in criminal causes will certainly be greatly simplified. If, for an instance, a man is to be charged with uttering, or passing counterfeit money, all that the indictment need charge is that he "shoved the queer." If he is to be charged with forgery, all that need be said is that he "wrongfully imitated the handwriting of A. B."