State v. Henson
| Decision Date | 30 April 1884 |
| Citation | 81 Mo. 384 |
| Parties | THE STATE v. HENSON, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Howell Circuit Court.--HON. J. R. WOODSIDE, Judge.
AFFIRMED.
No brief for appellant.
D. H. McIntyre, Attorney General, for the State.
There was no repugnancy in the charge that the striking and wounding were in the breast, and the mortal wound so given was in and through the body. The breast is a part of the body. The indictment need not state upon what part of the body the wound was given, nor describe the wound. State v. Edmundson, 64 Mo. 398; State v. Sanders, 76 Mo. 35. It is only necessary to allege an assault, its nature, a mortal wounding and death from such wounds within a year and a day from their infliction. State v. Blan, 69 Mo. 317; People v. King, 27 Cal. 507; Jones v. State, 35 Ind. 122. It was not error in the court to overrule defendant's application for a continuance. Defendant did not show in his affidavit where the absent witnesses resided, or might be found, as required by the statute. R. S. 1879, § 1884. The affidavit, itself, reveals the fact that subpœnas had been issued and could not be served, because the witnesses could not be found. It is in cases of this kind that the admissions may be made by the State, as provided by section 1886, and a continuance prevented. State v. Hickman, 75 Mo. 419.
The record contains nothing to show that the court abused its discretion in overruling defendant's application for a change of venue. It was a matter resting in the discretion of the trial court. R. S. 1879, § 1859; State v. Whitton, 68 Mo. 91; State v. Guy, 69 Mo. 431; State v. Bohanan, 76 Mo. 562. It makes no difference that defendant did not intend to shoot the deceased. The killing was done in the attempt to perpetrate another felony, and although defendant bore deceased no malice, the law transfers the malice and makes it murder. 1 Hale P. C., top p. 466; Foster's Crown Law, 258, 259, 261; 1 East P. C., 230, 257; 1 Bish. Crim. Law, (5 Ed.) § 328, and authorities cited; 1 Hawkins P. C., p. 126, § 41; State v. Smith, 32 Me. 369.
At the October term, 1882, of the Howell county circuit court, defendant was indicted for murder in the first degree for killing one Frank Vosburg on the 21st of August, 1882. He was tried at the same term and found guilty of murder in the second degree, and his punishment assessed at twenty-five years imprisonment in the penitentiary. From this judgment defendant has appealed, and by his appeal puts in question the propriety of the action of the trial court in overruling a demurrer to the indictment, in refusing to grant a continuance of the cause, in overruling defendant's application for a change of venue and in giving and refusing instructions.
The indictment was demurred to on the ground that it was vague and uncertain in that it alleged the wound to have been given in the heart, and that the wound causing death was through the body, and that the wound was not described. The indictment alleges an assault, a wounding and the instant death of the deceased as the result of such wounding, and that such wounding was done wilfully, feloniously, deliberately, premeditatedly and with malice aforethought. There is no repugnacy in the averments that the striking and wounding were in the heart, and that the mortal wound so given was through the body. The objections to the indictment on this ground, as well as on the ground that the wound was not described as to length, depth, etc., is answered by the case of State v. Edmundson, 64 Mo. 398; State v. Sanders, 76 Mo. 35 and State v. Blan, 69 Mo. 317. The demurrer was properly overruled.
The affidavit for continuance showed upon its face that subpœnas had been issued and returned, not served on the witnesses whose absence constituted the basis of the application, and the prosecuting attorney having agreed that the statement of what defendant expected to prove by the...
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State v. Bryant
... ... (section 1884) when it does not state that affiant believes ... that the testimony set forth in the application is true, and ... that the same facts cannot be proved by any other witnesses ... whose testimony could be as readily procured. State v ... Underwood, 76 Mo. 639; State v. Henson, 81 Mo ... 384; State v. Lett, 85 Mo. 52. (3) An application ... for a continuance is addressed to the sound discretion of the ... trial court, and unless it appears that this discretion has ... been exercised oppressively, to defendant's prejudice, ... this court will not reverse. State ... ...
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The State v. Furgerson
...as described, and that part of the body upon which the mortal wound was inflicted need not be set out in an indictment for murder. State v. Henson, 81 Mo. 384; State v. Sanders, 76 Mo. 35; State v. 69 Mo. 317; State v. Green, 111 Mo. 585; State v. Snell, 78 Mo. 240; State v. Ramsey, 82 Mo. ......
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The State v. Clark
... ... [147 Mo. 29] be drawn accordingly, to wit, it must allege ... that the assault was made on the party murdered, and so on, ... in all respects, just as if the party killed had ... been the party shot at ... So are all the precedents in ... this State and elsewhere. [ State v. Henson, 81 Mo ... 384; State v. Payton, 90 Mo. 220, 2 S.W. 394; ... State v. Jump, 90 Mo. 171, 2 S.W. 279; State v ... Montgomery, 91 Mo. 52, 3 S.W. 379; State v ... Gilmore, 95 Mo. 554, 8 S.W. 359; State v ... Pollard, 139 Mo. 220, 40 S.W. 949; 1 Hale, P. C ... 469-470. See, also, ... ...
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...v. Pagels, 92 Mo. 308; State v. Bryant, 93 Mo. 278. It is not shown where the absent witness may be found. This is imperative. State v. Henson, 81 Mo. 384; State v. Underwood, 76 Mo. 630; State Lange, 59 Mo. 418; R. S. 1889, sec. 4181. An affidavit of an absent witness by whom it is alleged......