State v. Edmundson

• Decision Date: 30 April 1877
• Citation: 64 Mo. 398
• Parties: STATE OF MISSOURI, Respondent, v. POINDEXTER EDMUNDSON, Appellant.
• Court: Missouri Supreme Court

64 Mo. 398

STATE OF MISSOURI, Respondent,

v.POINDEXTER EDMUNDSON, Appellant.

Supreme Court of Missouri.

April Term, 1877.

Appeal from Stoddard County Circuit Court.

H. H. Bedford, for Appellant, cited: State vs. Dean, 7 Blackf. 20; 2 How. Pleas Cr. Ch. 23, § 80; Id. 224; also 5 Coke, 245; 1 Chit. Crim. Law, 239-244; 1 Whart. Crim. Law, 592, § 1069; see also Whart. Prec. 155, 156; State vs. Pemberton, 30 Mo. 376.

J. L. Smith, Att'y Gen'l, for Respondent, cited: Cordell vs. State, 22 Ind. 1; Arch. Crim. Pl. (10th Ed.) 408; State vs. Farley, 14 Ind. 23; Malone vs. State, 14 Ind. 220; State vs. Murphy, 21 Ind. 441; Whelchell vs. State, 23 Ind. 89; 2 Bish. Crim. Proc. § 522; Rex vs. Culkin, 5 Car. & P. 121; Rex vs. Gromsell, 7 Car. & P. 788; Rex vs. Edwards, 6 Car. & P. 401; Rex vs. Warman, 1 Den. C. C. 183; 2 Car. & K. 195; East P. C. 343; Sanchez vs. The People, 22 N. Y. 147; 4 Parker's Crim. Cases, 535 and Com. vs. Woodward, 102 Mass. 159; Long's Case Coke, part. 5, p. 120; 1 Russ. Crimes, 558-562; The People vs. Powers, 2 Seld. 50; State vs. Green, 7 Ired. 39; Wagn. Stat. 1090, § 27.NORTON, Judge, delivered the opinion of the court.

Defendant was indicted in the Circuit Court of Stoddard County, at its December Term, 1876, for murder in the first degree, for killing William Shaw on the second day of October, of that year. At the March Term, 1877, of said court, a trial was had which resulted in the return of a verdict of murder in the first degree, upon which the judgment of the court was duly entered.

A motion for a new trial as well as a motion in arrest of judgment having been overruled, the cause is brought to this court by appeal.

The only point urged before us for a reversal of the judgment is, that the indictment does not allege on what part of the body of the deceased the mortal wound was inflicted.

It seems to be conceded that the indictment is perfect in every other particular, and we therefore only copy so much of it as constitutes the basis of defendant's objection.

The following is the language used by the pleader: “And the said Poindexter Edmundson with the leaden bullets aforesaid, out of the gun aforesaid, then and there by force of the gunpowder aforesaid, by the said Poindexter Edmundson shot off and discharged as aforesaid, then and there feloniously, wilfully, deliberately, premeditatedly and of his malice aforethought, did strike, penetrate and wound him, the said William Shaw, in and upon divers places of the body of him, the said William Shaw, giving to him, the said William Shaw, then and there with the bullets aforesaid, so as aforesaid discharged and shot out of the gun aforesaid by the said Poindexter Edmundson, one mortal wound of the depth,” etc.

We have been cited to various authorities to establish the proposition that in an indictment for murder, it is necessary to allege on what particular part of the body of the deceased the wound producing death was inflicted.

It is said in 3 Chit. Crim. Law, (735) that “when the death is occasioned by a wound or stroke, it is necessary to set forth the part of the body to which violence was applied, and if it merely stated the wound to be near or about the breast, it would be defective. But it is sufficient to state the wound to have been given in the breast, the neck, the stomach, or even the body.

In Whart. Crim. Law, 1069, it is said that “the indictment must state in what part of the body the wound was inflicted, but if the wound be stated to be on the right side, and be proven to be on the left side, the variance is not fatal.”

These authorities and others, to which we have been referred, while they clearly establish the proposition that an indictment for murder which does not state the particular part of the body on which the wound producing death was given, is defective, also clearly establish the further proposition that when the indictment does charge that the mortal wound was inflicted on a particular part of the body, it is not necessary to prove the charge as laid, but the prosecution may prove on the trial that it was inflicted on any other part of the body; that the wound may be alleged to have been on the right side and be proved to have been on the left side.

So that it would appear in sound reason that it is a hard and rigorous rule which requires an allegation to be made in a pleading which may be ignored, disregarded, disputed and contradicted by the pleader in his proof.

But conceding that such was the rule at common law, and that it was recognized to be so by this court in the case of the State vs. Jones, (20 Mo. 58) the question arises what is the effect of Wagn Stat., 1090, § 27, which declares “that no indictment shall be deemed invalid, nor shall the trial judgment or other proceedings thereon be stayed, arrested, or in any manner affected, for the want of an averment not necessary to be proved.”

If, as is argued under the common law rule, the indictment in the case at bar is defective in not stating the particular part of the body on which the wounds occasioning death were inflicted, inasmuch as under the same rule, if the wounds had been charged to have been inflicted on any particular part of the body, it would not be necessary to prove that they were so inflicted, but might be shown to have been inflicted on any other part, the provision of the statute above quoted would take the indictment from under the operation of such rule.

The case of the State vs. Jones, supra, was decided in 1854 under the revised code of 1845. While the code of 1845 under the head of practice in criminal proceedings recited many omissions which would not render an indictment invalid because of the omission, it did not contain the clause above quoted touching the omission to make “an averment not necessary to be proved.” The latter provision was not incorporated into the laws of the State till in December, 1855, and was not therefore before Judge Ryland who delivered the opinion in the case of the State vs. Jones, supra. In the latter case, Dias vs. The State, (7 Blackf., 20,) was cited as an authority and relied upon here. This case has been in effect overruled in the 10th Ind. 309 and 559; 8 Ind. 200; 14 Ind. 23, 220; 21 Ind. 441, also in the case of Cordell vs. State, 22 Ind. 1.

In the latter case it was held that an indictment charging the defendant with “cutting, stabbing, and mortally wounding Patrick Quirk with a knife, etc.,” was sufficient. In the opinion the following language is used: “We admit the common law required the allegation in the indictment (the part of the body on which the wound was given). Dias vs. The State (7 Black. 20). But in Arch. Crim. Prac. (side p. 408), even as to this it is said that ...