State v. McDaniel
| Decision Date | 14 November 1887 |
| Parties | The State v. McDaniel, Appellant |
| Court | Missouri Supreme Court |
Appeal from Texas Circuit Court. -- Hon. C. C. Bland, Judge.
Affirmed.
No brief for appellant.
B. G Boone, Attorney General, for the state.
Such an error as the one appearing on the face of the indictment viz., alleging that the offence was committed on a day subsequent to the finding of the indictment, is merely clerical, and this court will not reverse. State v Eaton, 75 Mo. 586; R. S., sec. 1821; State v. Burnett, 81 Mo. 119. It was not necessary to allege in the indictment that the knife with which the mortal wound was inflicted was a deadly weapon. This is not a question of law to be determined on demurrer or motion in arrest, but a question of fact for the jury. State v. Harper, 69 Mo. 425. A knife is recognized by the statute as a deadly weapon, and it need not be so alleged in the indictment. Acts 1885, p. 139; State v. Hoffman, 78 Mo. 256. The eighth instruction given for the state asserts the doctrine, that although the jury may believe that Kevitt, the deceased, struck the first blow with his fist, yet if they further believe that defendant went to Kevitt's house with preconceived malice and intentionally sought and brought on the difficulty and provoked Kevitt to strike him and make the first assault, with the intention of killing Kevitt, then the jury will find defendant guilty of murder in the first degree. This declaration of law is, under the evidence and in connection with the other instructions given, not improper. The main feature in this, as in other similar cases, is the intent with which defendant entered into the difficulty. State v. Partlow, 90 Mo. 608; State v. Christian, 66 Mo. 138; State v. Underwood, 57 Mo. 40.
OPINION
-- The defendant was indicted at the May term, 1886, of the circuit court of Texas county, for killing Victor Kevitt. 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. (3 Ed.) sec. 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 offences, 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 day of December, 1886, and then states: "Of which mortal wound the said Victor Kevitt, 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 Kevitt, 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 day of August, and that the deceased languished until September 1, 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. 119. Again the statute (R. S., sec. 1821) declares that no indictment shall be deemed invalid, nor the judgment thereon arrested, "for stating the offence 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 allegations 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 err or 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, and that, in October, 1885, he said he would kill Kevitt, and that he would "like for him to carry his guts in his hands a while 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 of 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, hallcoing and cursing. He came up to them, cursing and abusing the deceased, using the most vile and vulgar language. Kevitt 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. Kevitt 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 arm, and there is some evidence that he kicked the defendant, when down. It is left in doubt as to what particular time the cutting was done by the defendant, though it must have been during the scuffle, which lasted for a few moments only. Defendant jumped on his horse, which one of the young men had borrowed before going to Kevitt's house, and rode away; and there is evidence that he then and thereafter, on the same day, threatened to kill another man, though no name is given. The defendant, in his own behalf, testified that he went to Kevitt's to get the horse; that he had no thought of getting into a difficulty; that he said he could whip any man who yoked his horse, but does not know what else he may have said; that Kevitt knocked him down three times and then jumped upon him; and that he cut Kevitt to save his own life, and would do it again under like circumstances. It is plain to be seen that the complaint made in the motion for a new trial, that the verdict is against the evidence, is not well taken. The evidence not only supports, but the weight of it is in favor of the verdict.
Facts stated in the motion are not proved by the motion itself, and as there is nothing to show that any attorney, representing the state, made any, much less improper, remarks, that complaint cannot be considered. The remarks should have been preserved in the record. Again, there is nothing to show that the court made any additions to the instruction, asked by the defendant, and that ground, assigned for a new trial, must also be disregarded.
This brings us to the instructions given at the instance of the state. The first relates to murder in the first degree and the presumption arising from the use of a deadly weapon. It is the same as the second for the state, approved in the case of State v. Thomas, 78 Mo. 327, and is applicable to the present case. Other instructions were given as to murder in the second degree, and manslaughter in the fourth degree, which are unobjectionable. The distinction between murder in the first and second degree is made to turn upon the definition given to the term deliberation which is defined to ...
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