State v. Eaton

• Decision Date: 30 April 1882
• Citation: 75 Mo. 586
• Parties: THE STATE v. EATON, Appellant.
• Court: Missouri Supreme Court

75 Mo. 586

THE STATE

v.EATON, Appellant.

Supreme Court of Missouri.

April Term, 1882.

Appeal from Benton Circuit Court.--HON. F. P. WRIGHT, Judge.

REVERSED.

M. A. Fyke for appellant.

D. H. McIntyre, Attorney General, for the State.

HENRY, J.

The defendant was indicted at the October term, 1878, of the Benton circuit court for the murder of James S. Hatler, on the 26th of August, 1878. He was arrested under that indictment and admitted to bail September 11th, 1879. At the ensuing October term of said court a second indictment was found against him for the same offense, charging the shooting to have been done on the 30th day of August, 1878, and that Hatler's death resulted from it on the 1st day of September, 1878. He was arraigned at the October term, 1879, and pleaded not guilty, but there was a mis-trial. He was tried again at the May term, 1880, and found guilty of murder in the second degree, and his punishment assessed at fifteen years in the penitentiary. From the judgment thereon he has appealed.

1. PENDENCY OF FORMER INDICTMENT.

No notice was taken of the fact that an indictment against him for the same effense was preferred by the grand jury at the October term, 1878, until defendant filed his motion for a new trial, in which one of the grounds relied upon was that there was “a former indiotment pending against him in this court, found at a former term, for the same offense, which was not quashed prior to the time defendant was put upon trial herein, but the same was, and still is, pending.” This motion was overruled and this is the principal question discussed by defendant's counsel in his oral argument. The State v. Smith, 71 Mo. 45, and the State v. Webb, 74 Mo. 333, are relied upon by him. The State v. Smith is directly in point and sustains his position, and in the State v. Webb, although this question was not carefully considered, and its decision was not necessary to the determination of the cause, this doctrine of the State v. Smith, was incidentally recognized. But a more careful consideration of the subject has brought us to the conclusion that the doctrine announced in the State v. Smith, and recognized in the State v. Webb, is not maintainable, either on reason or authority. No authority is cited in the State v. Smith, in support of this doctrine, and, as we are of the opinion that it is erroneous, avail ourselves of the earliest opportunity to correct it.

Section 1808 of the Revised Statutes provides that: “If there be at any time pending against the same defendant two indictments for the same offense, or two indictments for the same matter, although charged as different offenses, the indictment first found shall be deemed to be suspended by such second indictment and shall be quashed.” The statute of New York is identical with ours, except that, where the word “suspended” occurs in ours, the word ““superseded” is employed in the New York statute.

In Austin v. State, 12 Mo. 394, the court, commenting on section 4, page 867, of the Revised Statutes, identical with section 1808 of the present revision, said: “This statute is the law that must govern in this case, and I must examine the defendant's plea by this statute. A plea under this statute should state that the indictment pleaded to was the one which was first found, and should state that the offense charged in the two indictments is not only the same offense, but is the same matter, the same transaction, the una et eadem res acta.” The statute suspends the first indictment, and declares that it shall be quashed. There could, therefore, be no prosecution under that indictment, because the finding of the second indictment suspends it. There could be no good plea to the second indictment, based on the fact that another had been previously preferred that had not been quashed. This was expressly ruled in Austin v. The State, supra. There is nothing in the section to impair, in any manner whatever, the second indictment. Certainly a plea to the jurisdiction could not be maintained. The court does not lose jurisdiction of the cause, because a former indictment, unquashed, was preferred. The right of the State to find a second indictment against the accused for the same offense, is distinctly recognized by the statute. The accused may have the first quashed. The court might, without any motion filed by him for that purpose, quash the first indictment, but whether it is quashed or not, is a matter of no consequence in the prosecution on the second indictment.

In the People v. Fisher, 14 Wend. 9, the same question was raised on that section of the New York statute above noticed, and Savage, C.J., said: “We have the authority of Hawkins for saying that a plea of a former indictment pending for the same offense, is bad, and by our Revised Statutes, the first indictment is superseded by the second, and liable to be quashed. It is not, therefore, a bar to such second indictment.” For these reasons, and on the foregoing authorities, we are constrained to overrule the State v. Smith, and so much of the State v. Webb as sanctions it.

The evidence on the trial of the accused was conflicting. On the part of the State, it tended to prove that the defendant was in a store-house in the town of Fairfield, and through the store window saw deceased passing along the street, and, stepping to the door, called to the deceased to “throw up his hands,” and instantly shot him, inflicting the wounds of which he died. The evidence on the part of the defense, tended to prove that about a week previous to the tragedy at Fairfield, the deceased and defendant had a difficulty, and deceased, in the language of witnesses, “Got the drop on defendant,” and made him hold up his hands; that deceased had made threats against defendant's life repeatedly after the previous difficulty; that about thirty minutes before he was shot, he was seen capping his pistol, which, when he was shot, was in plain view, at his side in the waist of his pantaloons, he having on neither coat nor vest. One witness testified (a brother of defendant) that deceased drew his pistol before defendant fired, and another that he attempted to draw it, and another that he had one hand on the handle, and with the other was holding the barrel of the pistol. No witness testified to the communication to defendant of any threat against him by the deceased. The nearest approach to a communication of any threat made by deceased, is to be found in the testimony of Creed Moore, which was that at the mill in Fairfield, on the day of the shooting, he said to defendant, “Look out.” Defendant inquired “Why?” Witness said: “You may get hurt.” Hatler's name was not mentioned, and if defendant had at that time heard no threats made by the deceased, there was nothing to connect Hatler's in his mind with the warning given by Moore, except that he and defendant had had a difficulty a week before. There was also evidence that Hatler was a quarrelsome, turbulent and dangerous man. The defendant's brother and other witnesses testified that they saw deceased putting caps on his pistol, about a half hour before he was shot, and yet neither of them communicated that fact to defendant.

2. MURDER IN THE SECOND DEGREE.

The court instructed the jury on murder in the first and second degree, and manslaughter. The court correctly defined murder in the second degree to be “the willful, felonious and premeditated killing of a human being, with malice aforethought, but without deliberation,” as these terms, “willful,” ““felonious,” “premeditated” and “deliberation,” are defined in the first instruction given for the State; and in the same instruction told the jury, “that when the circumstances of deliberation and malice are not proved, the law will only presume the killing to be murder in the second degree.” Of the latter clause of the instruction, defendant's counsel complains, alleging that it dispenses with proof of deliberation and malice, and declares that the law presumes them. Deliberation is out of the question, as the jury, by their verdict, found there was none; and we think the instruction not open to the criticisms made upon it. The meaning is obvious, that in the absence of proof of express malice the law presumes it from the intentional use of a deadly weapon, as declared in a previous instruction.

3. MURDER: deliberation.

The court, however, in its first instruction incorrectly defined the word ““deliberation” to mean “in a cool state of the blood, that is, not in a state of mental excitement, caused by lawful provocation,” etc. State v. Wieners, 66 Mo. 13; State v. Curtis...