State v. France

• Decision Date: 31 October 1882
• Citation: 76 Mo. 681
• Parties: THE STATE v. FRANCE, Appellant.
• Court: Missouri Supreme Court

76 Mo. 681

THE STATE

v.FRANCE, Appellant.

Supreme Court of Missouri.

October Term, 1882.

Appeal from St. Clair Circuit Court.--HON. J. D. PARKINSON, Judge.

AFFIRMED.

D. H. McIntyre, Attorney General, for the State.

NORTON, J.

The defendant was indicted in the circuit court of St. Clair county for murder in the first degree, at its March term, 1878, for killing William Dickey. He was put upon his trial at the March term, 1880, of said court, and was convicted of murder in the second degree, and his punishment assessed at forty years' imprisonment in the penitentiary, from which judgment he has appealed to this court. As counsel for defendant have not filed a brief in this cause, we are left to an examination of the record for the discovery of reversible error, and upon such examination we find among other things an objection that the indictment does not charge either that the killing was done willfully, deliberately, premeditatedly and with malice aforethought, or that it was done in St. Clair county.

This objection is without foundation, as the indictment, after setting out the assault with a shot-gun by discharging the same in and upon the body of deceased, distinctly avers that the said F. J. France him the said William Dickey in the manner and by the means aforesaid, willfully, feloniously, deliberately, premeditatedly, of his malice aforethought, did kill and murder. After alleging that the assault and wounding was done in St. Clair county, it is averred that of “said three mortal wounds the said William Dickey did languish, and there and then, on the 2nd day of January, 1878, within the county and State aforesaid, by reason of said wounds, did die.”

An objection was also made to W. B. Fortune and John V. Burgess, who had been summoned as petit jurors, on the ground that they had not resided in the State and county one year. Upon the voir dire examination of these persons touching their qualifications as jurors, it appeared that one of them had lived in the State and county of St. Clair about two months, and the other about five months, and that both of them had settled there with the intention of making their permanent homes in the county and State. This was all that is required by section 2777, Revised Statutes, which provides “that every juror, grand or petit, shall be a male citizen of the State and resident of the county, sober and intelligent, of good reputation, over twenty-one years of age, and otherwise qualified.”

No exception was taken by defendant, either to the reception or rejection of evidence, and it will only, therefore, be referred to for the purpose of determining whether or not the court erred in giving and refusing instructions.

The evidence tends to show that the homicide was committed under the following circumstances: Deceased had been living for some weeks at defendant's house and with his family; that defendant became suspicious that improper intimacy was existing between deceased and defendant's wife, and defendant, who testifies in his own behalf, stated in his evidence that on the morning of the tragedy, to satisfy himself of the guilt of his wife, he requested her to accompany him to his Aunt Polly Rickman's, who lived about one-fourth of a mile distant; that they started, and while on the way he charged her with infidelity, which she at first denied, but finally admitted that on Saturday, two days previous, she had illicit intercourse with deceased. As to what occurred after they arrived at Mrs. Rickman's, defendant testified as follows: “I charged her guilt to Aunt Polly; I made some statement; I don't remember the language. She declared her innocence except as to the Saturday previous. She might have said Saturday at one time and Friday at another. ...