State v. McDaniel

• Decision Date: 14 November 1887
• Citation: 7 S.W. 634,94 Mo. 301
• Parties: STATE v. McDANIEL.
• Court: Missouri Supreme Court

7 S.W. 634

94 Mo. 301

STATE v. McDANIEL.

Supreme Court of Missouri.

November 14, 1887.

1. HOMICIDE — MURDER — EVIDENCE TO SUPPORT CONVICTION.

Defendant was tried and convicted of murder. The evidence showed that deceased and defendant were neighbors; that on the day of the killing defendant went to deceased's barn, where deceased was, and cursed and abused him, and used vile language towards him; that deceased asked defendant if he came there to have a fuss, and defendant said he had, and that he intended to have it, and at the same time removed his coat; that deceased said to the by-standers, "Boys, I can't stand this any longer," and threw off his coat, and knocked defendant down twice; and then said that he was cut to pieces; that deceased went to his house, where he died in a short time. The evidence also showed that deceased was cut in the arm, and that the cutting was done during the scuffle, which lasted only a few moments; and that it was done with a knife which defendant carried in his vest. Held, that the evidence was sufficient to sustain the verdict.

2. SAME — INDICTMENT NEED NOT CHARGE USE OF DANGEROUS WEAPON.

An indictment for murder is not defective because it fails to charge that the assault was made with a deadly or dangerous weapon, or with a weapon recognized by the law to be deadly or dangerous.

3. SAME — INDICTMENT — IMPOSSIBLE DATE — CLERICAL ERROR.

The indictment charged that defendant assaulted and cut deceased on December 25, 1886, and that deceased died on December 25, 1885. The indictment was found in May, 1886. Rev. St. Mo. § 1821, provides that no indictment shall be deemed invalid, or judgment thereon arrested, for stating the offense to have been committed on a day subsequent to the finding of the indictment. Held, that it was clear that the insertion of 1886 for 1885 was a clerical error, and, under the statute, furnished no ground for arresting the judgment.

4. SAME — SELF-DEFENSE — PROVOKING QUARREL — MURDER IN FIRST DEGREE.

The evidence showed that defendant went to deceased's barn, where deceased was, and provoked a difficulty, in the course of which he stabbed and killed deceased. The court instructed the jury "that although they may believe that Kivett, the deceased, struck the first blow with his fist, yet if they further believe that defendant went to Kivett's house with preconceived malice, and intentionally sought and brought on the difficulty, and provoked Kivett to strike him, and make the first assault, with the intention of killing Kivett, then the jury will find defendant guilty of murder in the first degree." Held that, under the evidence, the instruction was not erroneous.

5. SAME — SELF-DEFENSE — PROVOKING QUARREL — HEAT OF PASSION.

On trial for murder, a charge that, if defendant commenced the difficulty by any willful or unlawful act of his, then there was no self-defense in the case, however high his passion may have arisen, or however imminent his peril, is not error when taken in connection with charges given for defendant that violent, vulgar, and abusive language towards deceased did not justify an assault by him; and if, upon such provocation, he did assault defendant, and was about to do him great injury, then deceased was the aggressor, and defendant could repel force by force, though it resulted in the death of deceased, provided the defendant did not bring on the difficulty for the purpose of affording him an opportunity to kill deceased. SHERWOOD and BRACE, JJ., dissenting.

6. SAME — APPEAL — ASSIGNMENT OF ERRORS — MATTERS NOT APPARENT OF RECORD.

Defendant was tried and convicted of murder. In his bill of exceptions he assigned as error the refusal of the trial court to give certain instructions asked for by him. The record failed to show any instructions asked and refused. Held, that the error assigned could not be considered.

7. SAME.

A motion for a new trial, on the ground of improper remarks by the attorney for the state, cannot be considered where the remarks complained of are not preserved in the record.

Appeal from circuit court, Texas county; C. C. BLAND, Judge.

The Attorney General, for respondent. F. A. Seay and Harris & Travers, for appellant.

BLACK, J.

The defendant was indicted at the May term, 1886, of the circuit court of Texas county, for killing Victor Kivett. The trial resulted in a verdict of guilty of murder in the first degree. From a judgment entered in accordance with the verdict, the defendant appealed, but we have no brief on his behalf, and must look to the motions in arrest and for new trial, for the grounds of his complaint.

One ground stated in the motion in arrest is that the indictment does not state that the assault was made with a deadly or dangerous weapon, nor that the assault was made with a weapon recognized by the law to be a deadly or dangerous one. The indictment does not charge either of these facts. It simply describes the weapon used, and with which the crime was committed, as "a certain knife." That is sufficient in an indictment for murder. 2 Bish. Crim. Proc. (3d Ed.) § 514. It is not necessary that the weapon should be alleged to have been a deadly or dangerous one. This is not a case of an indictment for an assault with a dangerous weapon, with intent to kill, as was the case in State v. Jordan, 19 Mo. 212; State v. Chandler, 24 Mo. 371; and State v. Hoffman, 78 Mo. 256. Those were statutory offenses, and, of course, the indictment in such cases must follow the statute.

It is next objected that the indictment is bad because it charges an impossibility. It alleges that defendant assaulted and cut the deceased on the twenty-fifth December, 1886, and then states — "of which mortal wound the said Victor Kivett, from the twenty-fifth day of December, 1885, the year aforesaid, to the twenty-fifth day of December, 1885, and in the county aforesaid, languished, and languishing did live; on which said twenty-fifth day of December in the year aforesaid, the said Victor Kivett, in the county aforesaid, of the mortal wound aforesaid died," etc. In State v. Eaton, 75 Mo. 595, the indictment charged the wounding to have occurred on the thirtieth August, and that the deceased languished until September 1st, on which day of August in the same year he died. It was there held that the insertion of August for September was manifestly a clerical error, and furnished no ground for arresting the judgment. See State v. Burnett, 81 Mo. 120. Again, the statute, section 1821, declares that no indictment shall be deemed invalid, nor judgment thereon arrested, "for stating the offense to have been committed on a day subsequent to the finding of the indictment, or on an impossible day, or on a day that never happened. The indictment here was found in May, 1886, and from this and the other allegation above quoted, it is clear beyond all doubt that the insertion of 1886 for 1885, was a mere clerical error; and in view of the statute and former rulings of the court this error furnishes no valid reason for arresting the judgment.

The further objection to the indictment, that it fails to state that defendant did kill and murder the deceased in Texas county, Missouri, and that it fails to state where the deceased died, are not well taken in point of fact, for the indictment is specific in all of these respects.

The evidence for the state shows previous threats of defendant; that in October, 1885, he said he would kill Kivett, and that he would "like for him to carry his guts in his hands awhile anyway." From the evidence of several persons, who were present on the occasion in question, it appears that the accused and the deceased were neighbors in Texas county, living not more, and perhaps less, than a mile apart. On the twenty-fifth December, 1885, five or six persons, mostly young men, assembled at the house of the deceased, preparatory to going to a dance. Some of them had fed their horses, and were intending to take dinner with the deceased. While they and the deceased were at the barn, they heard defendant coming from the direction of his house, hallooing and cursing. He came up to them, cursing and abusing the deceased using the most vile and vulgar language. Kivett asked him if he came there to raise a fuss with him, and the deceased said he did, and that he intended to have it; at the same time he began to remove his coat. Deceased said, "Boys, I can't stand this any longer," threw off his coat, and the two men came to blows. Kivett knocked the defendant down twice, and then made the remark that he was cut to pieces. His intestines were protruding from a large gash cut in the abdomen; these the deceased gathered up in his hands, walked to his house, and died in a short time. The knife used by the defendant is identified as a case knife, from four to six inches in length of the blade, pointed and sharpened, which defendant carried in a scabbard in his vest. Deceased was also cut in the...