State v. Hargraves

• Decision Date: 16 May 1905
• Citation: State v. Hargraves, 188 Mo. 337, 87 S.W. 491 (Mo. 1905)
• Parties: STATE v. HARGRAVES.
• Court: Missouri Supreme Court

87 S.W. 491

188 Mo. 337

STATE v. HARGRAVES.

Supreme Court of Missouri, Division No. 2.

May 16, 1905.

MANSLAUGHTER—DEFENSES—INSTRUCTIONS —INDICTMENT—VARIOUS COUNTS— ELECTION—VENUE.

1. Where the various counts of an information charged but one offense, but each count charged it to have been committed in a different manner, it was not necessary for the state to elect on which count it would proceed to trial.

2. Where, in a criminal case, the witnesses who testified that the difficulty occurred in the county of trial, on cross-examination were unable to state positively where the line between that county and another was located, but they testified as to where the recognized lines were, and nothing appeared to the contrary, the venue was sufficiently shown.

3. On a prosecution for murder, it appeared that deceased was in defendant's saloon, when defendant stated that he desired to close up for the night, and that some words then took place between the parties in regard to the closing, and that deceased struck defendant, who, in hitting back, knocked deceased down and killed him. Held, that it was not error to reject instructions predicated on deceased's having been a trespasser, and defendant having undertaken to eject him from the premises.

Appeal from Circuit Court, Bollinger County; Robert A. Anthony, Judge.

Thomas Hargraves was convicted of manslaughter in the fourth degree, and he appeals. Affirmed.

The defendant in this cause was convicted of manslaughter in the fourth degree. The information upon which this prosecution is based charges defendant with murder of the first degree. There were four counts in the information, and the offense was thus charged:

"Comes now Charles G. Revelle, prosecuting attorney within and for the county of Bollinger and state of Missouri, and, upon his oath, informs the court that one Thomas Hargraves, late of the county and state aforesaid, on or about the 15th day of January, in the year 1904, at and in the county of Bollinger and state of Missouri, in and upon one John Greer, then and there being, feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought, did make an assault, and, with a certain dangerous and deadly weapon, which said weapon is to this affiant unknown, him, the said John Greer, in, upon and about the head and body of him, the said John Greer, then and there feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought, did strike and beat, giving to the said John Greer at the time and place aforesaid, with the dangerous and deadly weapon aforesaid, in the manner aforesaid, in, upon, and about the head and body of him, the said John Greer, several mortal wounds, of which mortal wounds he, the said John Greer, then and there instantly did die. And so Charles G. Revelle, prosecuting attorney aforesaid, upon his oath aforesaid, does inform the court that the said Thomas Hargraves him, the said John Greer, in the manner and form aforesaid, by the means aforesaid, at the time and place aforesaid, feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought, did kill and murder; contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state.

"And Charles G. Revelle, prosecuting attorney aforesaid, upon his oath aforesaid, does further inform the court that one Thomas Hargraves, late of the county and state aforesaid, on or about the 15th day of January, in the year 1904, at and in the county of Bollinger and state of Missouri, in and upon one John Greer, then and there being, feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought, did make an assault, and with a certain dangerous and deadly weapon, which said weapon is to this affiant unknown, him, the said John Greer, in, upon, and about the head and body of him, the said John Greer, then and there feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought, did strike and beat, giving to the said John Greer at the time and place aforesaid, with the dangerous and deadly weapon aforesaid, in the manner aforesaid, in, upon, and about the head and body of him, the said John Greer, several mortal wounds, of which said mortal wounds he, the said John Greer, did languish, and languishing did live from the said 15th day of January, in the year 1904, at and in the said county of Bollinger and state of Missouri, until the 16th day of January, in the year 1904, on which said 16th day of January, in the year 1904, the said John Greer, of the mortal wounds aforesaid, at and in the said county of Bollinger and state of Missouri, died. And so Charles G. Revelle, prosecuting attorney aforesaid, upon his oath aforesaid, does inform the court that one Thomas Hargraves him, the said John Greer, in the manner and form aforesaid, feloniously, and willfully, deliberately, premeditatedly, and of his malice aforethought, did kill and murder; contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state.

"And Charles G. Revelle, prosecuting attorney aforesaid, upon his oath aforesaid, does further inform the court that one Thomas Hargraves, late of the county of Bollinger and state of Missouri, on or about the 15th day of January, in the year 1904, at and in the county of Bollinger and state of Missouri, in and upon one John Greer, then and there being, feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought, did make an assault, and with his hand or hands him, the said John Greer, in, upon, and about the head and body of him, the said John Greer, feloniously, willfully, unlawfully, deliberately, premeditatedly, and of his malice aforethought, then and there did strike, beat, wound, and bruise, giving to the said John Greer, at the time and place aforesaid, in the manner and by the means aforesaid, in, upon, and about the head and body of him, the said John Greer, several mortal wounds, of which mortal wounds he, the said John Greer, then and there instantly did die. And so Charles G. Revelle, prosecuting attorney aforesaid, upon his oath aforesaid, does inform the court that one Thomas Hargraves him, the said John Greer, in the manner and form aforesaid, by the means aforesaid, at the time and place aforesaid, feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought, did kill and murder; contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state.

"And Charles G. Revelle, prosecuting attorney aforesaid, upon his oath aforesaid, does further inform the court that one Thomas Hargraves, late of the county and state aforesaid, on or about the 15th day of January, in the year 1904, at and in the county of Bollinger and state of Missouri, in and upon one John Greer, then and there being, feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought, did make an assault, and that the said Thomas Hargraves did then and there feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought, fix, clasp, and press the hands of him, the said Thomas Hargraves, about the neck and throat of him, the said John Greer, and did then and there, feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought, mortally choke and strangle him, the said John Greer, of which said mortal choking and strangling as aforesaid the said John Greer then and there instantly did die. And so Charles G. Revelle, prosecuting attorney aforesaid, upon his oath aforesaid, does inform the court that the said Thomas Hargraves him, the said John Greer, in the manner and form aforesaid, by means aforesaid, at the time and place aforesaid, feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought, did kill and murder; contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state.

"And Charles G. Revelle, prosecuting attorney aforesaid, upon his oath aforesaid, does further inform the court that one Thomas Hargraves, late of the county and state aforesaid, on or about the 15th day of January, in the year 1904, at and in the county of Bollinger and state of Missouri, in and upon one John Greer, then and there being, feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought, did make an assault, and him, the said John Greer, in some way and manner and by some means and instruments to this affiant unknown, did then and there feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought, deprive of life, so that he, said John Greer, then and there instantly did die. And so Charles G. Revelle, prosecuting attorney, aforesaid, upon his oath aforesaid, does inform the court that the said Thomas Hargraves, him, the said John Greer, in the manner and form aforesaid, at the time and place aforesaid, feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought, did kill and murder; contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state.

            Charles G. Revelle
                                "Prosecuting Attorney
                

"Charles G. Revelle, prosecuting attorney aforesaid, makes oath and says that the facts stated in the foregoing information are true, according to his best knowledge and belief. Charles G. Revelle, Prosecuting Attorney.

"Subscribed and sworn to before me this 14th day of March, in the year 1904. Sam J. McMinn, Clerk, by Chas. O. Hobbs, Deputy. [L. S.]"

Defendant filed his motion requesting the court to compel the state to elect upon which count it would proceed to trial. This motion was by the court overruled, to which action of the court proper and timely objections and exceptions were duly made, and preserved in the record.

Chris Allers was the only...