State v. Jones

• Citation: 20 Mo. 58
• Parties: THE STATE, Respondent, v. JONES, Appellant.
• Decision Date: 31 October 1854
• Court: United States State Supreme Court of Missouri

20 Mo. 58

THE STATE, Respondent,

v.JONES, Appellant.

Supreme Court of Missouri.

October Term, 1854.

1. Under our statute, an indictment for murder in the first degree must set forth with accuracy the manner in which the murder was committed; if by poison or by lying in wait, it must be so stated, and if by any other kind of wilful, deliberate and premeditated killing, the circumstances must be set forth intelligibly.

2. An indictment for murder, which charges that the defendant “did strike and thrust” the deceased “in and upon the left side of the belly, and also in and upon the right shoulder, giving to the deceased then and there, in and upon the left side of the belly and also in and upon the right shoulder, one mortal would,” &c., is bad.

3. The part of the body where the wound was inflicted must be set forth with certainty.

4. Provocation is a question of law. (State v. Dunn, 18 Mo. affirmed.)

Appeal from Franklin Circuit Court.

The case is fully stated in the opinion of Judge Ryland. Among a large number of other instructions given by the court below, of its own motion, was the following:

12. If the jury believe from the evidence, that Jones killed Ashford suddenly, without any or without a considerable provocation, the law implies malice, and the homicide would be murder; but if they believe the provocation was great, they will find him guilty of manslaughter only.

The 13th instruction was of a similar character.

J. D. Stevenson, for appellant, among others, made the following points:

1. The court erred in leaving the sufficiency of the provocation to the jury. (State v. Dunn, 18 Mo.) 2. The indictment is bad.

H. A. Clover, for the State, insisted that no question could arise upon the instructions as to provocation, the jury having convicted the defendant of murder in the first degree, and as to the sufficiency of the indictment, cited 2 Hale, 185-6; 2 Hawk. P. C. c. 25, §81; 6 Binney, 183; 5 Yerg. 346; 13 Wend. 176; 1 Blackf. 65; Ib. 396.RYLAND, Judge, delivered the opinion of the court.

Jones was indicted at a special term of the Circuit Court of Franklin county, in December, 1853, for the murder of Jeremiah W. Ashford. He was tried and convicted of murder in the first degree. A motion for a new trial being made and overruled, he then moved in arrest of judgment, which was also overruled. Exceptions being properly taken, an appeal was prayed and allowed.

The counsel for the appellant contends that the motion in arrest of judgment should have been sustained, by reason of the insufficiency of the indictment. This indictment is as follows:

“State of Missouri, county of Franklin, ss. Franklin Circuit Court--special term, December, 1853. The grand jurors of, &c., upon their oath present, that John H. Jones, late, &c., on, &c., with force and arms, at, &c., “in and upon one Jeremiah W. Ashford, in the peace of the State, then and there feloniously, wilfully and of his malice aforethought, deliberate and premeditately did make an assault, and that the said John H. Jones, with a certain knife, which he, the said John H. Jones, in his right hand then and there had and held, the said Jeremiah W. Ashford, in and upon the left side of the belly, and also in and upon the right shoulder of him, the said Jeremiah W. Ashford, then and there feloniously, wilfully and deliberate and premeditated, and of his malice aforethought, did strike and thrust, giving to the said Jeremiah W. Ashford, then and there, with the knife aforesaid, in and upon the left side of the belly, and also in and upon the right shoulder of him, the said Jeremiah W. Ashford, one mortal wound, of the breadth of three inches, and of the depth of six inches, of which said mortal wound he, the said Jeremiah W. Ashford, then and there instantly died; and so the jurors aforesaid, upon their oath aforesaid, say that the said John H. Jones, the said Jeremiah W. Ashford in manner aforesaid, feloniously, wilfully and of his malice aforethought, deliberate and premeditately did kill and murder, contrary,” &c.

1. Is this indictment, under our statute, sufficient to support a judgment for murder in the first degree?

A law of the territory of Louisiana, of which territory Missouri was then a part, passed November 4th, 1808, declared: “That if any person or persons shall, within this territory, commit the crime of wilful murder, such person or persons, on being convicted thereof, shall suffer death.”

In 1825, the legislature of the State of Missouri declared “that every person who shall commit murder within this State shall, on being thereof convicted, suffer death.” R. C. 1825, “Crimes and Misdemeanors.”

Under these statutes, an indictment for murder must have been framed as at common law. It required all the formality and particularity and certainty of a common law indictment for murder. We had to resort to the common law to find what constituted murder, and to test the sufficiency of an indictment therefor by its rules and decisions.

In 1835, the legislature of Missouri declared that “Every murder which shall be committed by means of poison, or by lying in wait, or by any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary or other felony, shall be deemed murder in the first degree.” All other kinds of murder, at common law, not herein declared to be manslaughter or justifiable or excusable homicide, shall be deemed murder in the second degree.” Under this statute, the practice has been to describe the murder as it is laid down thereby; if it be committed by means of poison, to state it so; if by lying in wait, to set it forth accordingly, and if by any other kind of wilful, deliberate and premeditated killing, to aver it to have been so done.

The first case reported under the statute of 1835, is the case of Bower v. The State, 5 Mo. 364. Since this case, it has been the practice, in indictments for murder, in order to justify a conviction for that offense, in the first degree, to set forth the offence according to its nature and circumstances, as required by the statute. And, although the offence, as described, be murder in the first degree, yet a conviction for murder in the second degree, or for manslaughter, in any of its degrees, may be supported on such an indictment. Watson v. State, 5 Mo. 497; State v. Mallerson, 6 Mo. 399.

Although a different practice, under statutes using somewhat similar phrases in declaring what shall be murder in the first degree, and what in the second degree, has prevailed in the States of Pennsylvania, New York and Tennessee; (See Com. v. White, 6 Binn. 183; The People v. Enoch, 13 Wend. 159; Mitchell v. State, 5 Yerg. 340,) yet we consider it safest to follow the practice which has prevailed so long in our own State.

The indictment, then, in this case is not sufficient to sustain a judgment which deprives the defendant of life. It is not drawn with accuracy sufficient. The words describing the offense are not sensible. Not only are the words used in the description of the offense, in the manner and form in which they are used, ungrammatical, but some of these words are not known and recognized as common English words.

2. There is another defect in this indictment which is...