State v. Ferguson
| Decision Date | 16 May 1919 |
| Citation | 212 S.W. 339,278 Mo. 119 |
| Parties | THE STATE v. FARMER FERGUSON, Appellant |
| Court | Missouri Supreme Court |
Appeal from Greene Circuit Court. -- Hon. Arch A. Johnson, Judge.
Affirmed.
Frank B. Williams and Delaney & Delaney for appellant.
(1) The court erred in permitting the State to proceed against defendant by information. While the law contemplates a proceeding either by information or indictment, it holds the State to procedure first adopted. In this case defendant was arrested on warrant. A preliminary hearing was had and the evidence of witnesses reduced to writing, although not signed or filed as required by law. The defendant was committed to jail without bail to await the action of the grand jury. A vacation order was made by the court calling for a grand jury and directing that they be selected and summoned. After the making of this order the information herein was filed a few days before court convened. The grand jury was duly summoned and empanelled as by the order of court directed. It is not contemplated that an information for felony and especially for homicide may be filed when a grand jury has been ordered. Amendment of Constitution of March 1900; Sec. 5055, R. S 1909. (2) The alleged information, even if procedure by information be allowable herein, did not confer jurisdiction on the court and did not authorize proceeding by the court because the testimony taken at the preliminary hearing had not been signed by the respective witnesses who testified and because the signed testimony had not been filed in the criminal court or with the clerk thereof at or before the trial hereof. The object of a preliminary hearing and the requirement of filing same are: (a) To determine if there be sufficient evidence upon which to hold defendant; and (b) to advise defendant of the character of testimony against him and of the names of the witnesses so that he may have opportunity to prepare his defense. Unless Sec. 5042, R. S 1909, be complied with by filing the evidence, the chief object of the law so far as the defendant is concerned is defeated. Art. 5, Chap. 37, R. S. 1909; Laws 1913, p. 224; Secs. 5033, 5042 and 5056, R. S. 1909; State v. Jeffries, 210 Mo. 319; State v. Sassaman, 214 Mo. 718; State v. Keener, 225 Mo. 495. (3) Aside from the objections to the form of the information, to-wit, that it is not properly authenticated by the prosecuting attorney "of Greene County, Missouri," and because the oath does not purport to be made by the prosecuting attorney "of Greene County, Missouri," it is bad in substance and will not sustain a verdict of guilty or judgment thereon, in this: The charge of wilfulness is omitted entirely in the information. It is not charged that defendant assaulted deceased wilfully, or that the shot was fired wilfully or that the wound was inflicted wilfully. The element of wilfulness is an essential one and the omissions are fatal. No evidence should therefore have been admitted and the motion in arrest should have been sustained. On the use of the word wilful in approved forms and authorities we cite: State v. Comfort, 5 Mo. 357; State v. Harris, 34 Mo. 347; State v. McDonald, 67 Mo. 13; State v. Davis, 121 Mo. 404; State v. Green, 111 Mo. 588; State v. Rector, 126 Mo. 328; State v. Blan, 69 Mo. 317; State v. Reakey, 62 Mo. 42; State v. Reakey, 1 Mo.App. 3; State v. Myers, 99 Mo. 107; State v. Herrell, 97 Mo. 108; State v. Emerich, 87 Mo. 115; State v. Rice, 149 Mo. 466; Kelley Crim L. & Pr. (3 Ed.) secs. 190, 477, 478, 479; State v. Silk, 145 Mo. 240. A strained construction should not be indulged to sustain the information. The word "wilfully" has been incorporated by all writers into the form of indictment for murder in either degree -- as much so and with more reason than the word "feloniously." (4) The names of two material witnesses (one an eye-witness) were not originally indorsed on information and were not indorsed on the copy of the information served upon the defendant. This is unfair and prejudicial to the defense and is a virtual concealment from the defense of the witnesses to be used against him. It certainly ought not be cured or the practice sustained by Statute of Jeofails. (5) The court erred in permitting witnesses to testify to conclusions; that is, permitted them to state their opinions as to whether defendant was cool or excited following the homicide. The same character of testimony was offered by defendant and was excluded by court. Both rulings cannot be correct. (6) The court erred in submitting the alleged hypothetical case prepared by State because it failed to include material matter offered in defense. (7) The court erred in excluding evidence of communications between husband and wife through third parties which tended to show condition of defendant's mind and the relations of the parties. (8) It erred in excluding declarations and communications made by the daughter Theresa and by the son Charley to defendant, while permitting the expressions of defendant in same conversation. This was necessary to make the evidence admitted intelligible and show condition of defendant's mind. All of the conversations should have been admitted and then covered by proper instructions. (9) The court erred in excluding certain parts of the testimony tending to show relations between deceased wife and Smithmier; and by excluding testimony as to appearances of conduct between Smithmier and Clara Ferguson. (10) Instruction 7 on insanity is erroneous, in this: It virtually told the jury that insanity is the only defense the defendant has interposed. By a plain, every-day construction that would be placed upon it by an every-day run of jurors it excludes every other defense. It is erroneous in this: That it requires the defendant to raise in the minds of jurors more than a reasonable doubt as to his sanity, but places the burden on defendant to establish insanity affirmatively to the reasonable satisfaction of the jury.
Frank W. McAllister, Attorney-General, and Shrader P. Howell, Assistant Attorney-General, for respondent.
(1) The information contains all allegations essential to constitute murder in the second degree. State v. Clay, 201 Mo. 679; State v. Privitt, 175 Mo. 223; State v. Conley, 255 Mo. 194. (2) The omission of the word "wilfully' is not fatal for the reason that its meaning is embraced in the words "feloniously" and "of malice aforethought." Secs. 4448, 4449, R. S. 1909; 4 Blackstone, p. 195; State v. Arnold, 11 S.E. (N. C.), 990; Ward v. State, 11 So. 217; Aubrey v. State, 35 S.W. 792; Carrol v. State, 75 S.W. 471; Daniels v. State, 88 S.W. 845; Wharton on Homicide, sec. 111, p. 158; State v. McDaniel, 45 La. Ann. 686; Flint v. Comm., 81 Ky. 187; State v. Lowe, 93 Mo. 573; State v. Marsh, 171 Mo. 522; Bower v. State, 5 Mo. 379. (3) By express terms of the Constitution indictments and informations are concurrent remedies and, therefore, the prosecuting attorney has authority to file an information at any time, either in term or in vacation. Article 2, sec. 12, Const. Mo. 1875; Sec. 5077, R. S. 1909; State v. Jones, 168 Mo. 398; State v. Kyle, 166 Mo. 287. (4) And even after defendant has been bound over to the circuit court the prosecuting attorney may file an information in lieu of an indictment. State v. Harvey, 214 Mo. 409. (5) The information is properly signed and the phrase "upon his oath" as contained in the jurat is sufficient. State v. Gregory, 178 Mo. 55; State v. White, 251 Mo. 178. (6) The information being signed as prosecuting attorney, the mere failure to make the official designation under the signature to the jurat does not invalidate the same. State v. Salts, 263 Mo. 304. (7) The record shows that the summoning of the jury panel was regular and proper in all respects. Sec. 5223, R. S. 1909; State v. Smith, 114 Mo. 423; State v. Page, 212 Mo. 239. (8) The fact that the justice failed to reduce to writing the testimony of witnesses at the preliminary hearing and certify the same to the circuit court is insufficient in the absence of prejudice to the defendant's rights to constitute a valid ground for reversal. Sec. 5033, 5043, R. S. 1909; State v. Sherman, 264 Mo. 374. (9) The giving of instruction No. 21 does not constitute reversible error under the circumstances of this case. Sec. 5115, R. S. 1909; State v. Jackson, 99 Mo. 63; State v. Manicke, 139 Mo. 548; State v. Payne, 223 Mo. 118. (10) Hypothetical questions may properly be framed and asked by the State covering its own theory of the facts in evidence. State v. Privitt, 175 Mo. 276; State v. Hyde, 234 Mo. 200. (11) The court did not err in permitting the State to offer in rebuttal testimony relative to the actions and statements of defendant at the time of firing the fatal shot. State v. Baker, 262 Mo. 689; State v. Eisenhour, 132 Mo. 140.
OPINION
In Banc
The appellant was charged by information in the circuit court of Greene County with murder in the first degree in having shot and killed his wife, Clara Ferguson. Upon a trial, he was convicted of murder in the second degree, and his punishment assessed at ten years' imprisonment in the penitentiary. From this judgment he appeals.
At the time of the homicide, the appellant was 62 years of age, and his wife was 48 or 49. They had been married 29 years, and six children had been born to them. Prior to September, 1915 the family has resided in Camden County. At this time, the wife for the ostensible purpose of affording a fourteen-year-old daughter better educational advantages, removed with their household effects to Springfield. Although appellant remained in Camden County, there was no breach in his family relations, his...
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