State v. Green

• Citation: 111 Mo. 585,20 S.W. 304
• Parties: STATE v. GREEN.
• Decision Date: 10 October 1892
• Court: United States State Supreme Court of Missouri

20 S.W. 304

111 Mo. 585

STATE v. GREEN.

Supreme Court of Missouri, Division No. 2.

October 10, 1892.

MURDER — INDICTMENT — DESCRIPTION OF WOUND — FINDING.

1. An indictment for murder, which alleges merely that defendant feloniously, willfully, etc., shot and discharged at deceased a pistol loaded with ball, "thereby and by thus striking" deceased with said ball inflicting a mortal wound, instead of alleging that with the ball so shot defendant then and there feloniously, willfully, etc., did strike, penetrate, and wound said deceased, is insufficient, the words quoted being properly used only where there has been a previous allegation of striking and wounding.

2. It is not necessary that an indictment for murder should describe the wound as to depth, location, etc., so that the court may be able to say from inspection whether it could in fact have produced death, but a bare allegation of its mortality is enough.

3. The fact that a former grand jury had refused to find a certain bill is not ground for quashing an indictment for the same offense found by another jury.

Appeal from criminal court, Jackson county; HENRY P. WHITE, Judge.

Indictment against David H. Green for murder. There was a motion to quash, which was sustained. The prosecution appeals. Affirmed.

John M. Wood, Atty. Gen., for the State. B. L. Woodson, for respondent.

GANTT, P. J.

1. The following indictment was returned by the grand jury in the criminal court of Jackson county at its April term, 1891, against the defendant: "State of Missouri, county of Jackson — ss.: In the criminal court of Jackson county, April term, 1891. The grand jurors for the state of Missouri, in and for the body of the county of Jackson, upon their oath present that David H. Green, whose Christian name in full is unknown to the jurors, late of the county aforesaid, on the 7th day of November, 1890, at the county of Jackson, state aforesaid, in and upon one Joseph Beaumont, then and there being, feloniously, willfully, deliberately, premeditately, and of his malice aforethought, did make an assault, and a certain revolving pistol, which then and there was loaded with gunpowder and leaden bullets, and by him, the said David H. Green, had and held in his right hand, he, the said David H. Green, did then and there feloniously, willfully, deliberately, premeditately, and of his malice aforethought, shoot off and discharge at and upon the said Joseph Beaumont, thereby and by thus striking the said Joseph Beaumont with the said leaden bullet inflicting on and in the forehead and head of said Joseph Beaumont one mortal wound, of which said mortal wound the said Joseph Beaumont then and there instantly died; and so the grand jurors aforesaid, upon their oath aforesaid, do say that the said David H. Green, him, the said Joseph Beaumont, in the manner and by the means aforesaid, feloniously, willfully, deliberately, premeditately, and of malice aforethought, did kill and murder, against the peace and dignity of the state."

At said term the defendant filed the following motion to quash the indictment: "(1) Because the indictment does not sufficiently charge any public offense against the defendant. (2) Because the indictment does not locate or describe the alleged mortal wound, as to depth, width, or in any other way, so as to enable the court to say, upon inspection and as matter of law, that said alleged wound may have caused the death of the deceased. (3) Because the alleged striking and killing of the deceased by the leaden bullets charged to have been shot out of the pistol by the defendant is not charged to have been felonious, willful, deliberate, premeditated, and of his malice aforethought. (4) Because before the finding of this...