State v. Furgerson

• Decision Date: 07 May 1901
• Citation: 63 S.W. 101,163 Mo. 668
• Parties: STATE v. FURGERSON.
• Court: Missouri Supreme Court

63 S.W. 101

163 Mo. 668

STATE v. FURGERSON.

Supreme Court of Missouri, Division No. 2.

May 7, 1901.

HOMICIDE — SUFFICIENCY OF INDICTMENT — OBJECTION — WAIVER — HARMLESS ERROR — MURDER IN SECOND DEGREE — INSTRUCTION.

1. An indictment which charged that defendant in and on one W. then and there, feloniously, etc., and of his malice aforethought, did make an assault, and with a certain ax, a deadly weapon, held in the hands of the said defendant, did then and there, feloniously, etc., of his malice aforethought, forcibly strike and beat the said W., fracturing and crushing his skull and giving to him a mortal wound, was not objectionable as not stating that the mortal stroke was done feloniously, since the word "feloniously," as used, was necessarily and logically connected with the words describing the giving of the mortal wound.

2. An indictment which charged that defendant did forcibly strike and beat W. in and upon the body of W., crushing, fracturing, and breaking the skull of said W., was not bad on account of repugnancy; for, as it is not necessary to describe the part of the body on which the wound was inflicted, repugnancy in describing it will not vitiate the indictment.

3. Where a homicide was committed with an ax, an indictment which charged that defendant did make an assault, and that he, the said defendant, some heavy instrument or deadly weapon which the said defendant in his hand then and there held, then and there did forcibly strike and beat the said W., was bad, in failing to allege what the assault was made "with," since without the word "with" there was no connection between the instrument of death and the assault.

4. The objection that an indictment was bad because defendant's wife was summoned before the grand jury by the state cannot be raised for the first time on appeal.

5. Rev. St. 1889, § 4070, authorizes the foreman of every grand jury to administer an oath in the manner prescribed by law to any witness who shall appear before the grand jury; and section 4071 declares that any person having taken such oath who shall willfully violate the same shall be adjudged guilty of a misdemeanor. Defendant's wife testified in his behalf, and was asked if she did not say before the grand jury that her husband came home the night of the murder about 9 o'clock, but was not required to answer. Held that, though the question was improper, the mere asking it was not prejudicial to defendant, and hence did not warrant a reversal of the judgment.

6. Where the deceased was called from his place of business late at night, and a few moments later was found dead, with three mortal wounds in his head, and the evidence tended to show that they were inflicted by defendant, it was not error to refuse an instruction on the law of murder in the second degree, since defendant was either guilty of murder in the first degree or innocent.

7. The court instructed that "deliberately" meant done in a cool state of the blood, but did not mean brooded over or considered or reflected on for a week or a day or an hour, but it meant an intention to kill, executed by a party not under the influence of a violent passion suddenly aroused. Held, that while the instruction was inaccurate, in omitting that the homicide must have been committed, in the furtherance of a formed design, to gratify revenge or to accomplish some other unlawful purpose, it was not prejudicial to defendant, where there was no evidence of justification or provocation which could reduce the crime from murder in the first degree to a lower grade of homicide.

8. Where there was no evidence of defendant's bad character, the failure to charge that evidence of defendant's bad character went only to his credibility as a witness, and was not evidence of guilt, was not erroneous.

9. Where defendant had made contradictory and incriminating statements regarding the homicide, and requested an instruction that defendant's statements could only be considered as affecting his credibility as a witness, which was refused, he cannot complain on appeal because the court failed to charge that defendant's bad character could be considered only as affecting his credibility as a witness, since the two instructions were not equivalent.

10. Where defendant made contradictory and incriminating statements regarding the homicide, an instruction that such statements could be considered only as affecting defendant's credibility as a witness was properly refused, since all of defendant's statements which tended to show he committed the crime were admissible.

11. Where both counts in an indictment referred to the same transaction, and both charged murder in the first degree, and the instructions were for murder in that degree, and the second count was bad, the first was sufficient to sustain a verdict of guilty as charged.

Appeal from circuit court, Grundy county; P. C. Stepp, Judge.

William Furgerson was convicted of murder, and he appeals. Affirmed.

O. G. Williams, W. C. Callison, and W. C. Irwin, for appellant. Edward C. Crow, Atty. Gen., and Sam B. Jeffries, Asst. Atty. Gen., for the State.

BURGESS, J.

From a second conviction of murder in the first degree, and the imposition of the sentence of death, for having killed and murdered one Stephen G. Wilson, at Grundy county, on the 25th day of March, 1897, defendant appeals. The case was before this court on a former occasion (State v. Furgerson, 152 Mo. 92, 53 S. W. 427), the indictment held to be invalid, and the judgment reversed and the cause remanded. Subsequently defendant was reindicted and again convicted. The facts and circumstances as they appeared upon the last trial were substantially as upon the last preceding one, the only difference being with respect to matters unnecessary to state now, but, if thought to be material to a determination of the case, will be noticed in course of the opinion.

The indictment, leaving off the formal parts, is as follows:

"The grand jurors for the state of Missouri, and from the body of Grundy county, duly impaneled, sworn and charged, upon their oaths present and charge that one William Furgerson on the 25th day of March, 1897, at Grundy county, Missouri, in and upon one Stephen G. Wilson, then and there being, feloniously, willfully, deliberately, premeditately, and of his malice aforethought did make an assault, and with a certain ax, a deadly weapon, by him, the said William Furgerson, held in his hands, the said William Furgerson did then and there feloniously, willfully, deliberately, premeditately, and of his malice aforethought, forcibly strike and beat the said Stephen G. Wilson in and upon the body of the said Stephen G. Wilson, crushing, fracturing, and breaking the skull of the said Stephen G. Wilson, giving to him, the said Stephen G. Wilson, a mortal wound, of which said mortal wound he, the said Stephen G. Wilson, did then and there instantly die. And so the grand jurors aforesaid, upon their oaths aforesaid, do say the said William Furgerson him, the said Stephen G. Wilson, in the manner and by the means aforesaid, feloniously, willfully, deliberately, premeditately, on purpose, and of his malice aforethought, did kill and murder, against the peace and dignity of the state.

"And the grand jurors aforesaid, impaneled as aforesaid, upon their oaths aforesaid do further charge and present that the said William Furgerson on the said 25th day of March, 1897, at Grundy county, Missouri, in and upon the body of the said Stephen G. Wilson, then and there being, feloniously, willfully, deliberately, premeditately, on purpose, and of his malice aforethought, did make an assault, and that he, the said William Furgerson, some heavy instrument or deadly weapon to these jurors unknown, which said instrument or deadly weapon he, the said William Furgerson, in his hand, then and there held, then and there feloniously, willfully, deliberately, premeditately, on purpose, and of his malice aforethought, did forcibly strike and beat the said Stephen G. Wilson in and upon the body of the said Stephen G. Wilson, crushing, fracturing, and breaking the skull of the said Stephen G. Wilson, giving to him, the said Stephen G. Wilson, a mortal wound, of which said mortal wound, he, the said Stephen G. Wilson, did then and there instantly die; and so the grand jurors aforesaid, upon their oaths aforesaid, do say that the said William Furgerson him, the said Stephen G. Wilson, in the manner and by the means aforesaid, feloniously, willfully, deliberately, premeditately, on purpose, and of his malice aforethought, did kill and murder, against the peace and dignity of the state."

The first count in the indictment is assailed upon the ground that the homicidal act — the mortal stroke with the ax — is not alleged to have been done feloniously; that while the assault, battery, and striking are alleged to have been feloniously made, it is not alleged that the wounding was done feloniously. State v. Green, 111 Mo. 588, 20 S. W. 304, is relied upon as sustaining that contention; but in that case the indictment was held bad upon the ground that the words "thereby and by thus striking" indicated that a striking and wounding had been previously alleged, where such was not the case, but this essential averment was entirely omitted. State v. Herrell, 97 Mo. 105, 10 S. W. 387, is also relied upon by defendant. In that case it was said: "There are authorities, however, for holding that an indictment will be made good, notwithstanding it fails to allege that the wound was feloniously, etc., given, provided that the words, `feloniously,' etc., previously alleged, are connected with the...