State v. Herrell

• Decision Date: 04 February 1889
• Citation: 97 Mo. 105,10 S.W. 387
• Parties: STATE v. HERRELL.
• Court: Missouri Supreme Court

10 S.W. 387

97 Mo. 105

STATE v. HERRELL.

Supreme Court of Missouri.

February 4, 1889.

1. HOMICIDE — INDICTMENT.

An indictment for homicide is insufficient which fails to charge that the killing was done feloniously, deliberately, etc., and such failure to charge is not supplied by the allegation that the assault was made feloniously, nor by the concluding words of the indictment, that defendant "feloniously, deliberately," etc., "did kill and murder," etc.

2. SAME — SELF-DEFENSE.

An instruction was correct that if defendant at the time purposely sought deceased, in order to bring on, and did voluntarily enter into a combat with him, with the intent to kill him, or do him great bodily harm, then the law of self-defense could not be pleaded in defendant's behalf.¹

3. SAME — INSTRUCTIONS — INTENT.

An instruction to the effect that the quality of the homicidal act was the same, whether it was perpetrated with or without a felonious intent, provided the perpetrator "brought on the difficulty or voluntarily entered into the same," is error.¹

4. SAME.

There being no testimony that defendant began the quarrel, the effect of these instructions was to mislead and confuse the jury.

5. SAME — MURDER IN FIRST DEGREE.

An instruction that an intentional killing was murder in the first degree, without any qualifications as to malice or deliberation, is erroneous.

6. SAME — JUSTIFICATION — EVIDENCE.

Evidence of adulterous intercourse for a long time between deceased and defendant's mother, of which defendant was fully cognizant, was inadmissible, and the fact constituted no justification for the homicide.

Appeal from circuit court, Greene county; W. D. HUBBARD, Judge.

Newton W. Herrell was indicted and convicted of the murder of one Amos Ring, and appeals from the judgment of conviction.

O. H. Travers, for appellant. The Attorney General, for the State.

SHERWOOD, J.

The indictment in this cause is as follows: "The grand jurors of the state of Missouri, chosen and selected from the body of Taney county, in said state of Missouri, who after being duly impaneled, charged, and sworn upon their oath, find and present that Newton W. Herrell, late of the county and state of Missouri, did on or about the 7th day of October, A. D. 1884, at said county of Taney and state aforesaid, in and upon one Amos Ring, then and there being, unlawfully, willfully, feloniously, deliberately, premeditately, on purpose, and of his malice aforethought, make an assault, and with a certain pistol, commonly called a `revolver,' then and there being loaded and charged with gunpowder and leaden bullets, and which said pistol was then and there held in the right hand of him, the said Newton W. Herrell, at, to, and against, and in and upon, him, the said Amos Ring, did unlawfully, willfully, feloniously, deliberately, premeditately, on purpose, and of his malice aforethought, shoot off and discharge, and by means and force of the gunpowder and leaden balls aforesaid, did give to him, the said Amos Ring, two wounds, which said wounds were then and there mortal wounds, — one of said wounds being on the left side of the body of him, the said Amos Ring, near the fifth rib, penetrating and entering the body of him, the said Amos Ring, near said fifth rib, said wound being of the depth of six inches, and width of one-half inch; and the other said mortal wound being on the top of the head of him, the said Amos Ring, and said wound being then and there a mortal wound, being in depth about six inches, and width of one-half inch; of which said mortal wounds he, the said Amos Ring, did then and there, on said 7th day of October, 1884, at the county of Taney and state of Missouri, instantly die. And so the grand jurors aforesaid do say that the said Newton Herrell, the said Amos Ring, in manner and form and by the means aforesaid, feloniously, deliberately, premeditately, on purpose, and of his malice aforethought, did kill and murder, against the peace and dignity of the state of Missouri." Under this indictment the defendant was tried, convicted of murder in the second degree, and his punishment assessed at 15 years in the penitentiary. Judgment accordingly, from which judgment defendant appeals.

Various errors are assigned for a reversal of the judgment, among them the refusal of the court below to hold the indictment insufficient on motion to quash and on motion in arrest.

1. The indictment was insufficient in that it failed to charge that the homicidal act itself was done feloniously, etc. The failure thus to charge was not supplied by the allegation that the assault was made feloniously, nor by the concluding words of the indictment, nor by anything else therein contained. This position is abundantly sustained by authority. State v. Feaster, 25 Mo. 324; Respublica v. Honeyman, 2 Dall. 228; 5 Bac. Abr. "Indictment," G, p. 68; 2 Bish. Crim. Proc. § 564.

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 mortal stroke by the words "and then and there;" for in such case the words "feloniously," etc., will run through the subsequent allegations, and thus connect them with the mortal stroke, to which they are essential, as already seen. 1 East, P. C. 346; 2 Hale, P. C. 184; State v. Lakey, 65 Mo. 217; State v. Steeley, Id. 218; State v. Sides, 64 Mo. 383. In the present case it will be observed that this has not been done, nor the necessary connecting words used.

2. Over the objections and exceptions of the defendant, a large number of instructions were given at the instance of the state, — 31 in all. How the minds of the jury were to be or were enlightened by such a mass of written matter it is impossible to tell. Three instructions, properly drawn, will embrace every idea which they contain, as well as the whole law of the case arising on the facts developed by the testimony.

3. The defendant relied on the theory and fact of self-defense, and his testimony tended to support his plea. Instruction No. 16 in the longsome series is the following: "But if you believe from the testimony that Herrell was at the time purposely seeking Ring in order to bring on, and did voluntarily enter into and engage in, a combat or fight with Ring, with the intent to shoot and kill or do Ring great bodily harm, then the law of self-defense does not...