State v. Payton

• Decision Date: 06 December 1886
• Citation: 90 Mo. 220
• Parties: STATE v. PAYTON.
• Court: Missouri Supreme Court

90 Mo. 220

STATE

v.PAYTON.

Supreme Court of Missouri.

December 6, 1886.

Appeal from circuit court, Christian county.

Indictment for murder.

The Attorney General, for the State. J. M. Patterson, for appellant, Payton.

BLACK, J.

The defendant, 15 years of age, and his brother, William R. Payton, were jointly indicted for killing Claudie E. Mathews, an infant, on the twelfth April, 1885. After a severance, James S. Payton was tried, and found guilty of murder in the first degree. The evidence shows that these two boys lived with their parents. L. T. Mathews resided in the same neighborhood, on a farm to which it seems the father of the Payton boys made some claim. There is some evidence to the effect that defendant had said they would cultivate the place, and no one else should. On the twelfth April, 1885, at about 4 o'clock in the afternoon, Mathews was moving from the house on the place before referred to. He was sitting on the right-hand side of the front seat in a wagon filled with household goods. His wife was to his left, and her sister behind them, holding in her lap the child, Claudie. When about a quarter of a mile from the house, two men fired one shot each from rifle guns from behind a log, not more than 15 steps from the wagon, and then ran away. One ball struck Mr. Mathews in the breast, and came out under the arm. Another passed through the head-board of a bedstead standing in the wagon, and thence into and through the head of the child, Claudie, killing it. Mr. Mathews jumped out of the wagon when he first heard the shots, and says he watched the men who shot until they were 250 or 300 yards away from him. Says he knew the Payton boys well, and knows they were the persons who shot himself and child. On the next evening after the shooting the boys were arrested, and it is shown by those who assisted in making the arrest that they and their father were then armed in an outhouse. One of the parties making the arrest asked James if he did not do the shooting, when James answered: “Wouldn't you do like us if anybody was trying to kill you?” The boys and their father then claimed that some one had exploded giant-powder on a house in which they had previously resided, and they were afraid of a repetition of the same thing, and for that reason were armed, and watching in the out-house. There is no evidence that Mathews threw giant-powder on the house, or that he had in any way interfered with the Paytons. Defendant offered evidence tending to show an alibi, and the state offered contrary evidence in rebuttal.

1. The objection that the record does not show that the indictment was returned into court by the foreman of the grand jury in the presence of the jurors cannot be sustained. The record shows that the grand jury came into open court, and, through the hand of their foreman, returned into open court one indictment, etc. The entry is in full compliance with section 1797, Rev. St. 1879.

2. The next objection is that the indictment is inconsistent, in that it charges that one mortal wound produced the death of the child, and that the wound was given by both defendants with different guns. The indictment, after alleging an assault, proceeds to state that the defendants, with rifle guns loaded with powder and leaden balls, “him, the said Claudie E. Mathews, feloniously,” etc., “by means of the powder and balls aforesaid, did shoot, penetrate, and wound, and thereby then and there give to him, said Claudie E. Mathews, one mortal wound, of the width,” etc. There can be no doubt but the defendants were properly included in the same indictment, and both properly charged as principals. Whart. Hom. (2d Ed.) § 338; Rev. St. 1879, §§ 1649, 1811. It was said in State v. Dalton, 27 Mo. 14, if two persons are charged as principals, one as the immediate perpetrator of the injury, and the other as aiding and abetting, it is immaterial which of them is charged as having inflicted the wound, inasmuch as the law imputes the injury given by one as the act of the other; so that an indictment that A. gave the blow, and B. was present and abetting, is sustained by evidence that B. gave the blow, and A. was present and abetting. Now, while the indictment might have been inconsistent in the form above indicated, it does not follow that the present one is bad. It was held in State v. Blan, 69 Mo. 318, that an indictment for murder in the first degree was not faulty in failing to state separately the individual acts of each defendant. And in State v. Dalton, supra, the indictment was held to be sufficient to support a conviction, though it alleged that both defendants held the same knife, club, or pistol in the right hand. The indictment may either allege the matter according to the fact, or charge them both as principals in the first degree. State v. Anderson, 1 S. W. Rep. 135. In the present case it cannot be said which of the defendants fired the particular shot which killed the child, but, in the eye of the law, both are equally responsible. Bishop, in his Criminal Procedure, (3d Ed.) § 471, says: “The common method is simply to name them, [defendants,] and add that they did so and so. Offenses jointly committed being in law several, such an allegation is equivalent to saying that each defendant did the criminal act.” The indictment is therefore well enough.

3. The next objection is that the verdict is against the evidence, and, in view of this contention, and of the fact that the court refused...