State v. Patterson

• Decision Date: 30 April 1881
• Citation: 73 Mo. 695
• Parties: THE STATE v. PATTERSON, Appellant.
• Court: Missouri Supreme Court

73 Mo. 695

THE STATE

v.PATTERSON, Appellant.

Supreme Court of Missouri.

April Term, 1881.

Appeal from Henry Circuit Court.--HON. JAS. B. GANTT, Judge.

AFFIRMED.

R. C. McBeth and M. A. Fyke for appellant.

The indictment should have been quashed, because the names of the material witnesses were not indorsed thereon when the same was found by the grand jury, as required by Revised Statutes 1879, section 1802, and because the same is multifarious, vague and uncertain. Defendant in the same count is charged with making two assaults upon deceased, each complete in itself, and with inflicting upon deceased several different mortal wounds, but it does not appear with sufficient certainty of which of said wounds deceased died. State v. Reakey, 62 Mo. 40. The Henry circuit court had no jurisdiction after the change of venue to Morgan; and finding a new indictment could not re-invest the jurisdiction. If a new indictment became necessary on account of any defect in the first, it was the duty of the Henry circuit court to certify it to Morgan county. Even had the two courts concurrent jurisdiction, a plea in bar to the second indictment would have been good. State v. Yarbrough, 1 Hawks (N. C.) 78; State v. Tisdale, 2 Dev. & Bat. 159; Paris v. State, 36 Ala. 232. The court erred in admitting the confessions of defendant. It does not appear that they were voluntarily made. In determining this question all the circumstances ought to be considered. They should not have been received unless clearly shown to have been voluntary, because about twelve years had elapsed, and the memory of witnesses is too treacherous to warrant a conviction upon such evidence. There was not sufficient proof of the corpus delicti to warrant a conviction. There is no evidence that James G. Clark is dead. No witness who was present at the inquest was asked to describe him, nor was any such description given as would enable one to identify him. The confessions of defendant, even if held admissible, are not of themselves sufficient to establish the identity of James G. Clark. State v. German, 54 Mo. 526; Matthews v. State, 55 Mo. 187; Whart. Am. Crim. Law, (5 Ed.) § 746. The instructions asked by defendant as to murder in the second degree ought to have been given.

D. H. McIntyre, Attorney General, and C. C. Dickinson, Prosecuting Attorney, for the State

Failure to indorse the names of the State's witnesses on the indictment, did not affect its validity, but only the State's right to a continuance. State v. Nugent, 71 Mo. 145. It is not error to charge two assaults in the same count. 3 Chitty Crim. Law, 764, 777; 12 Cush. 619; 56 N. Y. 100. Defendant's motion to remand, was properly overruled. The transcript of the record from the Morgan circuit court showed that the indictment theretofore pending against defendant for the same offense had been dismissed. R. S. 1879, § 2321. The evidence of the confessions of defendant was admissible. There was nothing to show that they were induced by hope on the one hand, or by fear or intimidation on the other. The mere fact that defendant was in custody when they were made does not render them inadmissible. State v. Simon, 50 Mo. 372; State v. Carlisle, 57 Mo. 104, 105; State v. Talbott, 73 Mo. 347; State v. Guy, 69 Mo. 430. The evidence is explicit and positive that no inducements of any kind were held out to defendant. But confessions obtained by artifice, or in answer to questions, are admissible. State v. Jones, 54 Mo. 478; State v. Staley, 14 Minn. 105; Miller v. State, 40 Ala. 54; Com. v. Whittemore, 11 Gray 201; Com. v. Cuffee, 108 Mass. 285. And the fact that a prisoner is urged to confess, or is told that it would be better for him to tell the truth, will not exclude his confessions. 7 Mo. 190; 8 Ohio St. 98; State v. Howard, 17 N. H. 171. It could make no difference even, if the confessions were made when the prisoner was tied. If voluntary, they were admissible. Franklin v. State, 28 Ala. 9. There was sufficient evidence to show that the name of the murdered man was James G. Clark. The witness, Bradley, testified that he saw the body of the dead man on the prairie, and recognized him as the man who had stayed at his house the night of the 2nd of December, and who had said his name was Clark. Cory testified that he knew James G. Clark; that he went away the last of November, 1868; that he sent by him for 200 yards of trout line, 100 fish hooks and a pair of steelyards; that Clark never came back, but property, such as he had sent for by Clark, was left at Clark's place and sold by his administrator. Maxwell, one of the men who arrested Patterson in Illinois, testified that he said to him “I arrest you for the murder of James G. Clark in Missouri in 1868,” and defendant said, “I am your man, I did it.” It is presumed that defendant knew the full name of deceased, as he had been in his employ and became possessed of his money and other things calculated to reveal the christian name of deceased. The admission of defendant was that he had killed James G. Clark. Other facts and circumstances in evidence tended to show the same thing. From the evidence in the case the court was not warranted in instructing for murder in the second degree. 71 Mo. 425; State v. Talbott, supra.

I.

SHERWOOD, C. J.

The sufficiency of the indictment will first be examined.

It is no ground of objection that the names of the material witnesses for the State were not endorsed thereon. The only consequence growing out of such failure is, that no continuance on account of the absence of such witnesses will be granted the State, save upon the affidavit of the prosecuting attorney. R. S. 1879, § 1802; State v. Nugent, 71 Mo. 136. Besides, the names of the principal witnesses were indorsed on the indictment prior to the motion to quash.

Nor is the indictment obnoxious to objection because of any supposed vagueness or other uncertainty; because charging two assaults in one count, or because it charges divers mortal wounds were inflicted, whereof the deceased died. It was proper to charge two assaults in the same count, if this was in accordance with the facts. For sometimes the murderous result is only attained after repeated assaults, and is as much attributable to one assault as to another 3 Chitty Crim. Law, 764, 777; Com. v. Stafford, 12 Cush. 619; People v. Davis, 56 N Y 100.

And it was equally competent to charge that death occurred as the result of several mortal wounds, without specifying which one caused death, as this would not have been susceptible of proof, and the charge need not be more definite than the evidence requisite to support it. In the State v. Draper, 65 Mo. 335, the concluding words of the charge were: “In and upon the breast of him, the said Gilbert, and in and upon the belly of him, the said Gilbert, four mortal wounds, etc., of which said mortal wounds the said Gilbert did then and there instantly die;” and held sufficient. Under our statute relating to practice in criminal cases, “No indictment shall be deemed invalid, nor judgment thereon arrested, for want of any averment not necessary to be proved.” 2 Wag. Stat., pp. 1090, 1091, § 27; State v. Edmundson, 64 Mo. 398.

The concluding words of the charge here are: “Of which said mortal wounds, and the mortal wounds, bruises and contusions inflicted as aforesaid, the said James G. Clark then and there died,” and we hold them sufficient.

II.

No error occurred in overruling the motion to remand the cause to Morgan county. It is true that a change of venue had been taken to the circuit court of that county, but subsequently to that time the indictment on which the defendant was tried was found, and after its finding and before the motion aforesaid was filed, a nolle prosequi was entered in the Morgan circuit court. It would, therefore, in the circumstances detailed, have been as palpably erroneous to have granted the motion, and by granting it sent the cause to the circuit court of Morgan county, as it would have been to have sent the cause to any other circuit court whatsoever; because the jurisdiction of the Morgan circuit court over the case ceased at once when the action we have stated was taken. And it was perfectly competent for the grand jury of Henry county to find the second bill of indictment, notwithstanding a change of venue had been awarded to Morgan county. The circuit court of that county was indeed possessed of the cause, but this did not prevent the grand jury of Henry county from finding another bill, any more than they would have been thus prevented, had no change of venue been taken. The jurisdiction over the cause is one thing; the power and duty to find a new bill of indictmentupon whose charges that cause shall be tried, is another and totally distinct and different thing. State v. Tisdale, 2 Dev. & Bat. 159. Our statute expressly recognizes the right of a grand jury to find one indictment pending another, by providing that the indictment first found shall be quashed. And under that statute we have ruled that until such quashing occurs, no trial can take place on the second indictment. State v. Smith, 71 Mo. 45.

At common law the rule was different. A second indictment might be found and the accused be put to trial on it, the first indictment being undetermined. Com. v. Drew, 3 Cush. 279, and cases cited; Dutton v. State, 5 Ind. 533, and cases cited; 1 Whart. Crim. Law, §§ 521, 547. It is unnecessary to say what would be our ruling had not the nolle prosequi been entered in the Morgan circuit court anterior to the trial.

In Texas, a trial upon a second indictment found against the defendant alone, has been held valid, where prior to that time a change of venue was had, the defendant being jointly indicted with another for the same offense and the change of venue taken at the instance of the codefendant and over the objections of the party tried, and that indictment still pending. But that ruling was grounded in part upon the peculiar...