State v. Elliott

• Decision Date: 20 May 1889
• Citation: 11 S.W. 566,98 Mo. 150
• Parties: STATE v. ELLIOTT.
• Court: Missouri Supreme Court

11 S.W. 566

98 Mo. 150

STATE v. ELLIOTT.

Supreme Court of Missouri.

May 20, 1889.

MURDER — MANSLAUGHTER — INSTRUCTION.

1. On a trial for murder, the state's evidence showed that defendant struck deceased with a heavy club, knocked him off his horse, and struck him repeatedly while on the ground, inflicting fatal wounds. Defendant's evidence was that deceased had used abusive and indecent language to defendant and his wife, and refused to leave, and when ordered to do so, drew a knife and threatened to kill defendant, and that, when defendant aimed an ineffectual blow at him with a light stick, deceased leaped from his horse and attacked defendant, who then inflicted the wounds. There was no proof of previous malice, and defendant testified that he did not intend to kill deceased. Held, that it was error to charge that the jury should find defendant guilty of murder in one of the degrees, or acquit him, as there was evidence from which manslaughter might have been found under Rev. St. Mo. §§ 1244, 1249, which define the first degree of that offense to be homicide by the use of a dangerous weapon, in the heat of passion, without design to inflict death, and the second as such homicide committed without a dangerous weapon.

2. When the jury are fully instructed that a reasonable doubt as to defendant's guilt requires an acquittal, it is not error to omit to qualify an instruction on the facts prima facie constituting murder in the second degree, by charging that such facts must be proved beyond a reasonable doubt.

3. Under Rev. St. Mo. § 1785, providing that each indictment found by a grand jury shall be certified under the hand of the foreman to be a true bill, an indorsement on an indictment of "A true bill," followed by the name and title of the foreman, is sufficient, though only the name is written by the foreman, who adopts the certificate already prepared for his signature by the prosecuting attorney.

Error to circuit court, Moniteau county; E. L. EDWARDS, Judge.

Wallace W. Elliott was indicted and convicted of murder in the second degree, and sentenced to 30 years' imprisonment. From this judgment he brings error.

The Attorney General, for the State. Edmund Burke, for plaintiff in error.

BLACK, J.

The defendant was convicted of murder in the second degree, and sentenced to imprisonment for 30 years, for killing Rudolf Niederhauser on the 5th of July, 1887. A reversal is asked because the court overruled a motion to quash the indictment. On the back of the indictment appear these words, "A true bill," which are erased by a stroke of the pen, and then follows this certificate: "A true bill. J. V. JOHNSON, Foreman of the Grand Jury." It appears the prosecuting attorney made this indorsement, except the signature of the foreman, who signed his name in a blank left for that purpose, before the indictment was returned into court. The point of the objection seems to be that the whole indorsement should have been written by the foreman. The statute (section 1795) upon which reliance is placed for the contention makes no such requirement. It simply provides that the foreman shall "certify under his hand that such indictment is a true bill," giving the form of the certificate. When the foreman of the grand jury signed the blank indorsement, he thereby made the whole of the certificate his own act by adoption, and it matters not who wrote the body of the certificate. State v. Bruce, 77 Mo. 193, is not in conflict with the conclusion just stated; for in that case the prosecuting attorney had failed to sign the indictment, and the effect of that failure was the only question before the court.

The evidence shows that deceased was on the streets of California; that he had been drinking, and was disposed to use insulting language with those with whom he conversed. He and the defendant then met for the first time. He wanted to trade horses, and they went to defendant's stable, which fronted on an alley, to look at defendant's mule. The animal was not in the stable, but in use by defendant's son, and they went to see it, and some offers for a trade were made. They returned, and, when close to the alley, the deceased got into an altercation with another person, used some offensive language and this person told him he had better go home. The defendant went to his stable, the deceased following him, — whether by invitation of defendant or of his own accord is in dispute. The witnesses for the state testified that in a few minutes thereafter they heard defendant order the deceased to leave; that the deceased was then sitting on his horse in the alley near the stable; that deceased said something, but they could not hear what it was; that defendant then picked up a club and struck him over the back and head twice, knocking him off his horse; that as he raised up defendant hit him a third blow on the head, and then kicked him. The blows on the head proved fatal. The evidence of the defendant, his son, and wife is that deceased came up to the stable, and in some conversation about the mules, then in the stable, called defendant a liar; that defendant's wife came out to milk the cows, and told her son to drive the cows in the stable; that deceased said to her: "What have you got to do with it, you damned bitch?" that defendant then ordered him to leave, and he started to go out of the alley, but turned around on his horse with...