State v. Foster

• Court: United States State Supreme Court of Missouri
• Writing for the Court: WAGNER
• Citation: 61 Mo. 549
• Parties: THE STATE OF MISSOURI, Respondent, v. WILLIAM FOSTER, Appellant.
• Decision Date: 31 January 1876

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

[61 Mo. 550]

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

[61 Mo. 551]

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...