State v. Foster

• Decision Date: 31 January 1876
• Parties: THE STATE OF MISSOURI, Respondent, v. WILLIAM FOSTER, Appellant.
• Court: Missouri Supreme Court

61 Mo. 549

THE STATE OF MISSOURI, Respondent,

v.WILLIAM FOSTER, Appellant.

Supreme Court of Missouri.

January Term, 1876.

Appeal from St. Louis Court of Appeals.

P. P. Stewart, for Appellant, cited State vs. Bryant, 55 Mo., 79; State vs. Wyatt, 50 Mo., 310; State vs. Ostrander, 30 Mo., 17-20; State vs. Smith, 53 Mo., 271; Sloan's Case, 47 Mo., 604; State vs. Dunn, 18 Mo., 224; State vs. Hayes, 23 Mo., 324; State vs. Holme, 54 Mo., 161; State vs. Underwood, 57 Mo., 49; State Const., Art. I, § 18; Id., Art. VI, § 26; Lemon vs. State, 6 Am. Rep., 293; 5th Amend. to U. S. Const.

Hockaday, Att'y Gen'l, cited in argument, State vs. Jones, 20 Mo., 59; State vs. Dunn, 18 Mo., 421; State vs. Holme, 54 Mo., 153; State vs. Hays, 23 Mo., 287; State vs. Starr, 38 Mo., 270; Green vs. State, 13 Mo., 383; State vs. Byrne, 24 Mo., 151.

W. L. Morsey & Nat. C. Dryden, cited in addition, Wagn. Stat., 420, § 15; Id., 1090-91, § 27; State vs. England, 19 Mo., 308; Greeson vs. State, 5 How., [Miss.] 33; Williams vs. State, 30 Tex., 404; McBean vs. State, 3 Heisk. [Tenn.] 20; Dutell vs. State, 4 Greene, [Iowa] 125; 65 N. Car., 463; Wise vs. State, 2 Kans., 419; Woodsides vs. State, 2 How., [[[[[[Miss.] 33; State vs. Hudson, 59 Mo., 138; State vs. Schoenwald, 31 Mo., 147.

WAGNER, Judge, delivered the opinion of the court.

This cause comes here for review from a judgment of the St. Louis Court of Appeals, affirming a conviction in the circuit court. The main errors assigned are the defectiveness of the indictment and the giving and refusing of instructions. It is insisted that the indictment is fatally defective because it uses the words “State of Mo.,” instead of “State of Missouri,” although the record shows that it was found by a grand jury at a regular term of the Warren county circuit court. By article VI, § 26, of the Constitution, in force when these proceedings were had, it is declared that “all writs and process shall run and all prosecutions shall be conducted in the name of the ‘State of Missouri.’ ” All writs shall be attested by the clerk of the court from which they shall be issued; and all indictments shall conclude against the peace and dignity of the State.”

The provision that all writs and process shall run in the name of the State of Missouri, has been held by the court to be directory only (Davis vs. Wood, 7 Mo., 162); and a failure to comply with the requirement is regarded as a mere irregularity. (Jump vs. Batton, 35 Mo., 193; Doan vs. Boley, 38 Mo., 449.) It is equally, however, imperative as to the injunction that prosecutions shall be conducted in the same name. If it is not absolutely essential that there should be a strict literal compliance in every particular, then our statute comes in and cures the defect, which declares that in all proceedings in courts of record such abbreviations as are commonly used in the English language may be used. (Wagn. Stat., 420, § 15.) The contraction or abbreviation of “Mo.” for “Missouri” is so common and in such general use, that its meaning is brought home to and within the cognizance of every one. Again, our statute provides that no indictment shall be deemed invalid for any defect or imperfection which does not tend to the prejudice of the substantial rights of the accused, on the merits. (Wagn. Stat., 1090, § 27.) There can be no pretence that the abbreviation of the word “Missouri” into “Mo.” had any tendency whatever to prejudice defendant's rights. The prosecution was the same-- conducted by the same power--and the objection is too technical to be sustained.

It is as well to remark that this careless manner of prosecuting officers in drawing indictments ought not to be encouraged. Surely, the labor of adding a few additional letters to a word is not so great as to furnish an excuse for their omission, and then render their indictments liable to objections and contentions.

Defendant raises an objection that the court erred in not giving his instruction upon murder in the second degree, but in looking into the record we find no evidence that would justify such an instruction.

The crime was obviously murder in the first degree, or it was nothing, and under the well settled law of this State, where the evidence all tends to prove a case of murder in the first degree, or justifiable homicide, it is proper for the court, by its instructions, to confine the attention of the jury to those issues. (State vs. Schoenwald, 31 Mo., 147; State vs. Starr, 38 Mo., 270.)

There was no error in the action of the court in refusing the instructions in reference to defendant's good character, for there was no evidence on which to base it.

The most important and material point relied on by defendant's counsel was the giving of what he designates as the fifth instruction for the prosecution. The record shows that the only instruction for the State was drafted and given by the court of its own motion. The whole charge appears as one entire instruction, covering all the elements of the offense and the nature of the crime. It first proceeds to tell the jury what is meant by wilful, malicious, premeditated and deliberate killing, and then says that to convict the prisoner of the crime charged, it must be proved to the satisfaction of the jury that the shooting or killing was felonious, wilful, malicious, premeditated and deliberate. The instruction then continues: “And the jurors are further instructed that if the prisoner wilfully and intentionally shot and killed the person mentioned and described in the indictment, and they so find from the evidence, then the law presumes, in the absence of any testimony, to the contrary, that such shooting and killing was deliberate, premeditated and malicious.” It is this last clause just quoted to which the objection is taken, and it is contended that under our statute a wilful and intentional killing only amounts to murder in the second degree, and that to raise the grade to the higher offense of murder in the first degree, it is necessary to instruct the jury that they must not only find that the killing was intentional, but that it was deliberate and premeditated. Our statute, as has been repeatedly held, has changed the common law, which presumed from the simple act of killing that the crime was murder in the first degree, but now, according to our law, if nothing but the act of unlawful killing appears it is murder in the second degree.

To show the construction invariably placed upon the statute a few of the leading authorities may be appropriately referred to.

In the case of the State vs. Dunn, (18 Mo., 421), Judge Scott, speaking for the court, says: “Under the act, the unlawful killing is presumed to be murder, but not murder in the first degree. Whenever it appears from the whole evidence that the crime was, at the moment, deliberately and intentionally executed, the killing is murder in the first degree.” The same doctrine is re-affirmed and approved in the State vs. Starr (38 Mo., 270).

In the State vs. Holme (54 Mo., 153), it was declared that from the simple act of killing the law would presume that it was murder in the second degree; but that whenever it appeared from the whole evidence, that the crime was at the moment deliberately or intentionally executed, the killing was murder in the first degree. Again, in the case of the State vs. Underwood (57 Mo., 40), it was held, “that to constitute murder in the first degree, it was necessary that circumstances of wilfulness and deliberation should be proven. That the proof, however, need not be express or positive. It might be deduced from all the facts attending the killing, and if the jury could reasonably and satisfactorily infer from all the evidence, the existence of the intention to kill, and the...