State v. Edwards

• Decision Date: 31 October 1879
• Citation: 70 Mo. 480
• Parties: THE STATE v. EDWARDS, Appellant.
• Court: Missouri Supreme Court

70 Mo. 480

THE STATE

v.EDWARDS, Appellant.

Supreme Court of Missouri.

October Term, 1879.

Appeal from Andrew Circuit Court. The case was tried before N. B. GIDDINGS, ESQ., sitting as Special Judge.

REVERSED.

Rea & Williams, Saunders & Mercer and Heren & Son for appellant.

1. The instruction in relation to manslaughter in the second degree should not have been given. State v. Alexander, 66 Mo. 148; State v. Phillips, 24 Mo. 490; State v. Sloan, 47 Mo. 615; State v. Lane, 64 Mo. 324.

2. The indictment is uncertain, meaningless and absurd. 2 Bishop Crim. Proc., 552; 1 Wharton Prec. Indict. & Pleas, 115.

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

HOUGH, J.

The indictment in this case is as follows: “The grand jurors of the State of Missouri. within and for the body of the county of Andrew, aforesaid, being duly impaneled, charged and sworn, upon their oaths present and charge that one Edward Edwards, late of said county, on the 28th day of February, A. D. 1878, in the county of Andrew, and State of Missouri, aforesaid, in and upon the body of one Aaron Dennis Ogle, there being, feloniously, willfully, deliberately, premedicatedly, on purpose, and of his malice aforethought, did make an assault, and that the said Edward Edwards, a certain reveiving pistol of the value of $5, then and there charged with gunpowder and six leaden bullets, which said revolving pistol, he, the said Edward Edwards, in his right hand had and held, feloniously, willfully, deliberately, premeditatedly, on purpose and of his malice aforethought, did discharge and shoot off, at, to, against and upon the said Aaron Dennis Ogle, and the said Aaron Dennis Ogle, with the leaden bullets aforesaid, out of the revolving pistol aforesaid, then and there, by force of the gunpowder aforesaid, by the said Edward Edwards discharged and shot off as aforesaid, then and there feloniously, willfully, deliberately, premeditatedly, on purpose, and of his malice aforethought, did strike, penetrate and wound him, the said Aaron Dennis Ogle, in and upon the left side of the belly of him, the said Aaron Dennis Ogle, giving to him, the said Aaron Dennis Ogle, then and there, with the leaden bullets aforesaid, so as aforesaid discharged and shot out of the revolving pistol aforesaid, by the said Edward Edwards, in and upon the left side of the belly of him, the said Aaron Dennis Ogle, one mortal wound of the depth of five inches, and of the breadth of one-half inch, of which said mortal wound the said Aaron Dennis Ogle, on the said 28th day of February, A. D. 1878, one hour, in the county aforesaid, did languish, and languishing, did live, and afterwards, on the said 28th day of February, A. D. 1878, the said Aaron Dennis Ogle, in the county of Andrew aforesaid, died. And so the grand jurors aforesaid, upon their oaths aforesaid, do say that the said Edward Edwards, him, the said Aaron Dennis Ogle, in the manner and by the means aforesaid, on the said 28th day of February, A. D. 1878, in the county of Andrew aforesaid, reloniously, willfully, deliberately, premeditatedly, on purpose and of his malice aforethought, did kill and murder, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State.”

The defendant was tried and convicted of manslaughter in the second degree. It is unnecessary to state the testimony in detail. It appears that on the evening of the 28th day of February, 1878, at a social gathering in Andrew county, the deceased and one Elbert Edwards, a brother of defendant, engaged in a scuffle. The deceased being victorious, boasted of his strength, said he could whip both the brothers, and without any apparent provocation, finally assaulted the defendant with his fist. In the conflict which ensued the defendant shot at the deceased, but without effect. The parties were separated; the deceased immediately left the room, but quickly returned, and after an angry colloquy with the defendant, again assaulted him and seized him by the throat, when, during a brief struggle, the defendant shot and killed the deceased. The defendant testified that during the struggle the deceased attempted to open a pocket knife. There was testimony as to the good character of the defendant.

2. INTENTIONAL HOMICIDE.

The only instruction complained of in the motion for a new trial, is the following: “If the jury believe from the evidence that the defendant, without a design to effect death, in the heat of passion, but in a cruel or unusual manner, shot and killed the deceased, but not under such circumstances as to constitute excusable or justifiable homicide, then he is guilty of manslaughter in the second degree; and you will find him guilty of manslaughter in the second degree; and so state in your...