State v. Minor

• Decision Date: 26 February 1906
• Citation: 193 Mo. 597,92 S.W. 466
• Parties: STATE v. MINOR.
• Court: Missouri Supreme Court

92 S.W. 466

193 Mo. 597

STATE v. MINOR.

Supreme Court of Missouri.

February 26, 1906.

1. HOMICIDE—MURDER—INFORMATION—INSUFFICIENCY.

An information for murder in the first degree, executed by the prosecuting attorney of the county in which the homicide occurred, which failed to recite that the allegations made were upon the prosecuting attorney's oath, was insufficient to sustain a conviction of murder in the second degree.

2. SAME—FIRST-DEGREE MURDER—EVIDENCE— INTENT.

Where, in a prosecution for homicide, defendant claimed that the shooting was accidental, and the state's evidence only proved that defendant killed deceased with a deadly weapon, there being no evidence of any ill will or other motive for the homicide and no eye witness who testified, except defendant himself, it was improper to submit the question of murder in the first degree to the jury.

3. SAME—INSTRUCTIONS.

In a prosecution for homicide, the court charged that if defendant willfully, premeditatedly, and of his malice aforethought, but without of deliberation, shot with a pistol, and by such shooting killed deceased, then defendant was guilty of murder in the second degree. By another instruction it charged that if defendant shot with a pistol and killed deceased, the law presumed that the killing was murder in the second degree, in the absence of proof to the contrary, and in such case the burden was on defendant to show that he was guilty of a less crime than murder in the second degree or that the homicide was excusable. Held, that the latter instruction was an improper qualification of the first, as authorizing the jury to convict of murder in the second degree without finding that the killing was "intentional," that being the only disputed fact in the case.

4. SAME—USE OF DEADLY WEAPON—SECOND-DEGREE MURDER—PRESUMPTIONS.

In a prosecution for homicide, the jury cannot presume that murder in the second degree was committed, from the bare fact that defendant used a deadly weapon, unless they are satisfied from the facts and circumstances of the case that such use was intentional.

5. HOMICIDE — DYING DECLARATIONS — DETERMINATION OF ADMISSIBILITY—EXAMINATION OF WITNESS.

Where, in a prosecution for homicide, the jury were excused in order that the competency of the evidence of a witness excepted to, testifying to dying declarations of the deceased, might be passed on before the evidence was heard by the jury, but the prosecuting attorney refused to interrogate the witness in the absence of the jury, the court should have permitted defendant's counsel to do so, that the witness might be admonished not to make an objectionable statement.

In Banc. Appeal from Circuit Court, Montgomery County; H. W. Johnson, Judge.

Joseph Minor was convicted of murder in the second degree, and he appeals. Reversed.

Claude R. Ball, Emil P. Rosenberger, and James F. Ball, for appellant. The Attorney General and N. T. Gentry, for the State.

VALLIANT, J.

Defendant was arraigned on an information designed to charge murder in the first degree. The trial resulted in a conviction of murder in the second degree, and a sentence of 12 years in the penitentiary. From that judgment this appeal comes.

1. The main question in the case arises upon the face of the information which was presented by the prosecuting attorney of the county in which the homicide occurred. The information follows closely the usual form of an indictment for murder in the first degree in its words descriptive of the acts constituting the alleged crime, charging that the assault, the discharge of the weapon, and the inflicting of the deadly wound, each, was done willfully, deliberately, premeditatedly, feloniously, and of the defendant's malice aforethought. Then it concludes as follows: "And so the said A. W. Lafferty, prosecuting attorney aforesaid, does say; that the said Joseph Minor, him the said William Green, then and there in the manner and form and by the means aforesaid, at the county aforesaid, on the day aforesaid, feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought did kill and murder; against the peace and dignity of the state." The only ground on which the sufficiency of this information is challenged is that the words "upon his oath" are not included in the concluding clause, that is, it does not say that the "prosecuting attorney aforesaid upon his oath does say," etc. This precise point has been very recently considered by this court in the case of State v. Coleman, 186 Mo. 151, 84 S. W. 978, 69 L. R. A. 381, wherein, in an opinion by Burgess, J., reviewing the former decisions of this court, it was expressly held that the words "upon his oath," in the connection above mentioned, were essential in an information charging murder, and because of their absence the information then under consideration was held to be not sufficient although the concluding clause there, as here, charged that the defendant willfully, deliberately, premeditatedly, feloniously, and of his malice aforethought did kill and murder the deceased. The decision in that case has since been followed and approved in State v. Atchley, 186 Mo. 174, 84 S. W. 984, and State v. Dawson, 187 Mo. 60, 85 S. W. 526. In the case at bar the Attorney General has asked us to reconsider the subject, and has fortified his request with such an earnest and learned argument that we have deferred to his request and have gone carefully over the matter again with the aid of the additional light that the learned law officer has given us, but we have found no sufficient reason for recalling what we said in the Coleman Case. In State v. Meyers, 99 Mo. 107, 12 S. W. 516, an indictment, in all respects otherwise sufficient to constitute a charge of murder, was held insufficient because in the concluding clause it was not said that the grand jurors upon their oath so charged. The indictment in that case in the beginning said: "The grand jurors aforesaid upon their oaths aforesaid present" etc., but the words "upon their oath" were not repeated in the concluding clause. For the omission of those words the indictment was held insufficient. That decision was approved and followed in State v. Stacy, 103 Mo. 11, 15 S. W. 147, and State v. Furgerson, 152 Mo. 92, 53 S. W. 427.

The Attorney General concedes that the words in question are essential in the concluding clause of an indictment for murder, because such was the form of such an indictment at common law, but that for the same reason those words are not necessary in an information, that is, because such was not the form of an information at common law. It is true those words were not used in an information at common law, and in this connection the Attorney General refers us to our decision in State v. Kyle, 166 Mo. 303, 65 S. W. 763, 56 L. R. A. 115, wherein it was said that the information referred to in our Constitution was the common-law information. The reference in that case to the common law for an understanding of the term "information," as distinguished from an indictment, was for the purpose of pointing out the difference in the source of an information from that of an indictment, the latter coming from a grand jury, whereas an information was "a criminal charge which at common law was presented by the Attorney General, or, if that office is vacant, by the Solicitor General of England," etc. The same distinction, there pointed out, between an indictment and an information still exists in this state notwithstanding the amendment to our Constitution, that is, the one emanates from a grand jury, the other from the Attorney General or the prosecuting attorney of the county in which the crime was committed. That is all that was said on that point in the Kyle Case. By force of the recent amendment of our Constitution, an information has, in one important respect at least, been placed upon equality with an indictment, that is, it is confined no longer, as it formerly was, to the presentation of minor offenses, but is authorized to be used to bring an accused person to trial on a charge of the highest felony known to the law.

There was no other legal document at common law in which there was such particularity as to the words and form of expression required as in an indictment for murder. And that great particularity was required, not because of the source from which the indictment emanated, but because of the high grade of crime which it charged; because life and liberty were at stake. An information at common law emanated from the Attorney General, who was pre-eminently learned in the law and in the knowledge and meaning of words and was skilled in the art of arranging his language in a form to express most clearly his meaning. Therefore the fact that an information came from the Attorney General furnished no reason for indulging in less technical particularity of words to charge a crime in an information than in an indictment; the reason for the difference was that the offense charged in an information was not of such serious consequence. But, under the recent amendment to our Constitution, an information may be used to charge the crime of murder and, when so used, it rises to equal solemnity with an indictment, and there is no reason why we should be less strict in the requirement of apt words to distinguish the different degrees of crime in homicide in the one than in the other. We find no precedent in a common-law information charging the crime of murder, therefore the forms and precedents of informations and their set phraseology are of no use to us in this inquiry. When we seek to know in what words and form a charge of murder must be stated the only precedents we have are those contained in common-law indictments. The words which this court, in former decisions, has adjudged to be...