State v. Meyers

• Decision Date: 02 December 1889
• Citation: 12 S.W. 516,99 Mo. 107
• Parties: STATE v. MEYERS.
• Court: Missouri Supreme Court

12 S.W. 516

99 Mo. 107

STATE v. MEYERS.

Supreme Court of Missouri.

December 2, 1889.

HOMICIDE — INDICTMENT — CONFESSIONS — EXPERT EVIDENCE — VERDICT — APPEAL.

1. Under Rev. St. Mo. § 1993, which provides that no assignment or joinder in error is necessary in criminal prosecutions, but the court shall render judgment on the record before them, the sufficiency of an indictment will be reviewed on appeal, whether or not defendant's objection thereto is defective.

2. Under Rev. St. Mo. § 1232, which provides that murder committed in the perpetration of robbery, etc., shall be deemed murder in the first degree, the usual form of indictment is sufficient, irrespective of the manner in which the crime was committed; and so much of an indictment as charges the murder to have been committed in the perpetration of robbery is surplusage.

3. Under the Missouri Bill of Rights, § 22, which declares that in criminal prosecutions the accused shall have the right to demand the nature and cause of the accusation, the conclusion of an indictment, which does not show that the grand jurors charge the murder, is insufficient, and not cured by Rev. St. Mo. § 1821, which provides that no indictment is invalid for omitting to allege that the grand jurors were impaneled, sworn, or charged, etc.

4. Under Rev. St. Mo. § 1234, which provides that the jury must ascertain the degree of murder of which the defendant was guilty, a verdict that "we, the jury, find the defendant guilty of murder in the first degree, as charged in the second count in the indictment," is sufficient.

5. Where exceptions are not taken when the instructions are given or refused, it is too late to raise objections thereto on motion for a new trial.

6. Defendant confessed that after he met his accomplice they walked from a distance in search of work, and, after arriving in town, tired and hungry, and having received something to eat from a lady, they strolled about various buildings to get warm; that late at night they sought shelter in the depot, and found deceased, the only person there, sleeping on a chair; that after a while his accomplice said that he had seen deceased have some money, and suggested that they hold him up, and secure it; that defendant objected, but finally acceded, and they went out on the platform, and consulted how to execute their design; that his accomplice finally got a coupling-pin, and told defendant merely to stun deceased with it, while he got the money; that defendant at first refused, but, upon being accused of cowardice, and being in a frenzy, struck deceased two blows on the head; that they then secured the money, and made their escape. Similar confessions were made to others, and there was evidence to corroborate the same, and to identify defendant, and establish his proximity to the scene of the murder on the night in question. Held, that a conviction for murder in the first degree was sustained.

7. Such confession will be presumed to have been voluntary, unless the contrary is shown.

8. Evidence that defendant pleaded guilty at a former term of court, which plea the court refused to receive, is inadmissible, and does not require a special objection.

9. Where the depositions of physicians who had treated defendant professionally, to the effect that his mind had been seriously impaired by masturbation, are first read to or by experts, they may answer questions as to the mental condition of a person so afflicted; whether such insanity is permanent, and easy or hard to cure; and whether a person insane from such cause one year before would remain so down to the time of the trial.

Appeal from criminal court, Jackson county; HENRY P. WHITE, Judge.

The second count of the indictment upon which the defendant was tried, convicted, and sentenced reads this way: "And the grand jurors aforesaid, upon their oaths aforesaid, do further present and say that Charles Meyers and John Bogard, on the 3d day of January, 1888, at the county of Jackson and state aforesaid, did feloniously, willfully, deliberately, premeditatedly, and of these malice aforethought, make an assault upon James Weir, [intending and attempting then and there the money and property of said James Weir, from the person and against the will of the said James Weir, and by force and violence to the person of said James Weir, then and there to feloniously rob, steal, take, and carry away;] and did then and there, [while so intending and attempting, and in execution of such intent and attempt,] feloniously, willfully, deliberately, premeditatedly, and of their malice aforethought, with a certain iron weapon and means, an exact description whereof is to these jurors unknown, which they, the said Charles Meyers and John Bogard, then and there had and held in their hands, strike and beat him, the said James Weir, thereby giving to him, the said James Weir, in and upon the head of him, the said James Weir, certain mortal bruises, wounds, contusions, and fractures, of which said mortal bruises, wounds, contusions, and fractures, the said James Weir, then and there, thence continually languished until, on the 10th day of January, 1888, he there died. And so said Charles Meyers and John Bogard, in manner and form aforesaid, and by the means aforesaid, did feloniously, willfully, deliberately, premeditatedly, and of their malice aforethought, kill and murder the said James Weir, against the peace and dignity of the state. BLAKE L. WOODSON, Prosecuting Attorney."

Frank M. Lowe, for appellant. The Attorney General, for the State.

SHERWOOD, J., (after stating the facts as above.)

1. It seems that the counsel for the defendant objected ore tenus to the introduction of any evidence because of the insufficiency of the indictment, but such a method of objection avails nothing. State v. Risley, 72 Mo. 609. In the motion in arrest, however, it is stated: "That the second count in the indictment, upon which the verdict was found, does not state facts to constitute a cause of action." It is unnecessary to inquire whether such a general objection is good or not, by reason of the fact that in criminal prosecutions no assignment of error, or joinder in error, is necessary; and by reason of the fact that our statutory duty requires that, in the absence of such assignment of error, we proceed and render judgment upon the record before us. Rev. St. 1879, § 1993; State v. Barnett, 63 Mo. 300; State v. Krieger, 68 Mo. 98; State v. Davidson, 73 Mo. 428. And such general objection, if insufficient, is also healed by the further consideration that, if the defect in the indictment be a material one, — one available on motion in arrest, — it is equally available in this court on appeal or error. McGee v. State, 8 Mo. 495.

2. An indictment in the usual form, charging the murder to have been done deliberately, premeditatedly, etc., is sufficient, under our statute, to charge murder in the first degree, no matter whether the murder be committed in the perpetration of robbery, rape, etc., or otherwise. State v. Hopkirk, 84 Mo. 278; State v. Kilgore, 70 Mo. 546; State v. Green, 66 Mo. 631. The perpetration, or the attempt to perpetrate, any of the felonies mentioned in the statute, during which attempt, etc., the homicide is committed, stands in lieu of, and is the legal equivalent of, that premeditation, deliberation, etc., which otherwise are the necessary attributes of murder in the first degree. The correctness of this view is recognized in Pennsylvania, from which statute section 1232 is derived.¹ Com. v. Flanagan, 7 Watts & S. 415, See, to same effect, Titus v. State, 49 N. J. Law, 36, 7 Atl. Rep. 621. The rule was the same at common law. It was not necessary to charge that the murder was committed in the perpetration of another crime. It sufficed to charge it in common form, and then, upon proof that the crime was done in the perpetration, etc., this answered the ends of the prosecution, and stood in the stead of proof of "malice aforethought." 2 Bish. Crim. Law, § 694; Fost. Cr. Law, 258 et seq.; 1 Hale, P. C. 465. As will have been observed, in the present case the pleader has evidently endeavored to draw an indictment based upon the allegation of facts occurring in the perpetration of a robbery, and resulting in the crime of murder. I have never met with but one precedent where the endeavor was made to charge a murder committed in the attempt to perpetrate another felony; and in that case the endeavor failed. Titus v. State, 49 N. J. Law, 36, 7 Atl. Rep. 621. As before seen, it is wholly unnecessary to do more, when murder is committed in the perpetration, etc., than to make the charge in the ordinary way for murder in the first degree, and then show the facts in evidence; and, if they establish that the homicide was committed in the attempt, etc., this suffices. It is immaterial, in the case at bar, to determine whether the pleader has succeeded in the indictment before us, because, if you strike out that portion of the indictment which I have marked in brackets, there will be sufficient left to form the body of a good charge of the crime, so far as concerns that portion of the count. The authorities abundantly sustain the position that if after striking out a portion of an indictment, enough be left to make a valid and substantial charge of the crime intended to be charged, no essential part of the case being omitted after the striking out occurs, then such striking out is permissible. Whart. Crim. Pl. § 158. Treating of this topic, that redoubtable old warrior of criminal jurisprudence, Chitty, says: "But, though the indictment must in all respects be certain, yet the introduction of averments, although superfluous and immaterial, will seldom prejudice. For, if the indictment can be supported without the words which are bad, they may, on arrest of judgment, be rejected as surplusage." 1 Chit. Crim. Law, 173; Id. 231, 233, 238. Elsewhere he says: "It is a general rule, which runs...