State v. Lockwood

• Decision Date: 31 January 1894
• Citation: 24 S.W. 1015,119 Mo. 463
• Parties: STATE v. LOCKWOOD.
• Court: Missouri Supreme Court

24 S.W. 1015

119 Mo. 463

STATE v. LOCKWOOD.

Supreme Court of Missouri, Division No. 2.

January 31, 1894.

MANSLAUGHTER — INDICTMENT — SUFFICIENCY — INCONSISTENT ALLEGATIONS.

An indictment for involuntary manslaughter, charging that defendant "willfully" and with "culpable negligence" killed deceased, is bad for inconsistency.

Appeal from circuit court, Henry county; James H. Lay, Judge.

Albert L. Lockwood was indicted for manslaughter. A motion to quash was sustained, and the state appeals. Affirmed.

R. F. Walker, Atty. Gen., and W. E. Owen, Pros. Atty., for the State. C. C. Dickinson, for respondent.

BURGESS, J.

At the September term, 1893, of the circuit court of Henry county, an indictment was returned by the grand jury of said county against the defendant, which, omitting the formal parts, is as follows: "That Albert Lockwood, on the 31st day of July, 1892, at the county of Henry, and state of Missouri, in and upon one Robert McAllister, then and there being, feloniously, willfully, and with culpable negligence did make an assault, and with a dangerous and deadly weapon, to wit, a pistol, then and there loaded with gunpowder and leaden balls, which he, the said Albert Lockwood, then and there in his right hand had and held at and against him, the said Robert McAllister, did then and there feloniously and willfully and with culpable negligence, shoot off and discharge, and with the pistol aforesaid, and the leaden balls aforesaid, then and there feloniously, willfully, and with culpable negligence did shoot and strike him, the said Robert McAllister, in and upon the front part of the head, and just above the left eye, of him, the said Robert McAllister, giving him, the said Robert McAllister, then and there, with the dangerous and deadly weapon, to wit, the pistol aforesaid, and the gunpowder and leaden balls aforesaid, in and upon the front part of the head, and just above the left eye, of him, the said Robert McAllister, one mortal wound of the breadth of one inch and of the depth of four inches, of which said mortal wound the said Robert McAllister then and there, on the said 31st day of July, 1892, at the county aforesaid, died; and so the grand jurors aforesaid, upon their oath aforesaid, do say that the said Albert Lockwood, him, the said Robert McAllister in the manner and by the means aforesaid, willfully and with culpable negligence did kill and murder, against the peace and dignity of the state." At the May term, 1893, the defendant filed his motion to quash, which is as follows: "Because it charges a willful or intentional killing and an involuntary killing in the same count. Because said indictment is evidently intended to be drawn for manslaughter in the fourth degree, and for an involuntary killing as a result of culpable negligence, and there could be no willful killing under said indictment. (3) Because said indictment charges or attempts to charge both an intentional and an unintentional killing." Which said motion was by the court sustained, to which action the state, by its prosecuting officer, duly excepted. After unsuccessful motion in arrest, the state perfected its...