State v. Pemberton

• Decision Date: 31 July 1860
• Citation: 30 Mo. 376
• Parties: THE STATE, Respondent, v. PEMBERTON, Appellant.
• Court: Missouri Supreme Court

30 Mo. 376

THE STATE, Respondent,

v.PEMBERTON, Appellant.

Supreme Court of Missouri.

July Term, 1860.

1. An indictment is rendered bad by reason of the omission of the words: “against the peace and dignity of the state.”

2. The concluding clause of the twenty-seventh section of the fourth article of the act regulating proceedings in criminal cases, (R. C. 1855, p. 1176, § 27,) providing that no indictment shall be deemed invalid, nor the trial, judgment or other proceedings thereon be stayed, arrested or in any manner affected, “for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits,” should, at least, be limited in its application to imperfections of the class previously enumerated in said section.

3. An indictment for murder, after charging an assault by the accused upon one H. D. and the felonious infliction of a mortal wound upon the latter by stabbing with a knife, whereof the said H. D. died, concluded as follows: “And so the jurors aforesaid, upon their oaths aforesaid, do say that the said C. H. P., in manner and form and by the means aforesaid, feloniously, wilfully, maliciously, deliberately, premeditatedly, on purpose, and of his malice aforethought, did kill and murder; contrary to the form of the statute, and against the peace and dignity of the state. Held, that the indictment was bad, inasmuch as it did not designate the person murdered.

Appeal from Benton Circuit Court.

This was an indictment against Charles H. Pemberton for murder. The first count did not conclude “against the form of the statute, and the peace and dignity of the state.” The second count of the indictment, after charging a felonious, premeditated and malicious assault by Charles H. Pemberton upon one Hezekiah Depew, and a felonious, premeditated and malicious wounding of the latter, mortally, by stabbing with a knife, whereof said Depew died, proceeded as follows: “And so the jurors aforesaid, upon their oaths aforesaid, do say that the said Charles H. Pemberton, in manner and form and by the means aforesaid, feloniously, wilfully, maliciously, deliberately, premeditatedly, on purpose, and of his malice aforethought, did kill and murder; contrary to the form of the statute, and against the peace and dignity of the state.”

Upon this indictment the defendant was found guilty of murder in the first degree. It is deemed unnecessary to set forth the evidence, or the instructions given or refused.

Johnson & Ballou, for appellant.

I. The indictment is wholly insufficient. The first count does not conclude “against the peace and dignity of the state.” (State v. Lopez, 19 Mo. 254; Const. of Mo. art. 5, § 19.) The second count is bad. It does not allege whom the defendant killed and murdered in the conclusion. (Dias v. State, 7 Black. 20.) Defendant could not be lawfully convicted on it of murder. (Whart. C. L. 490; 3 Chitty, C. L. 750, 759, 766; Whar. on Hom. 276; 1 Arch. C. P. 92; State v. Lester, 9 Mo. 666.) The court erred in giving and refusing instructions. The verdict is unwarranted by the testimony.

Knott, (attorney general,) for the State.

I. The second count is sufficient to sustain the judgment of conviction. It may be true that it would not have been a good indictment at common law. (Dias v. State, 7 Blackf. 20.) The defect--omission of the name of the deceased--did not tend to the prejudice of the substantial rights of the defendant upon the merits. It should not authorize an arrest of judgment. (R. C. 1855, p. 1177, § 27.) The court did not err in giving or refusing instructions. (18 Mo. 419, 435; State v. Neuslien, 25 Mo. 111; 20 Mo. 58; 8 Humph. 671; 1 Ired. 354; 3 Ired. 424; 1 Ashm. 289; 9 Mo. 271; 16 Mo. 391; 19 Mo. 241; 2 Rob. 790; 2 Grat. 594; 3 Id. 595; 6 Id. 728; 12 Gratt. 729; 3 Humph. 304; 5 Yerg. 151; 4 Pike, 88; 2 English, 174.)

NAPTON, Judge, delivered the opinion of the court.

The first count in this indictment is bad, under the decision of this court, by reason of the omission of the words “against the peace and dignity of the state.” (State v. Lopez, 19 Mo. 254.)

The second count is conceded by the attorney general to be bad at the common law, in consequence of the omission of the technical word “murder,” or rather the omission of the name of the deceased, in the allegation that “so the jurors aforesaid do say that the said Charles H. Pemberton, in manner and form aforesaid, feloniously, wilfully, maliciously, deliberately, premeditatedly, on purpose, and of his malice aforesaid, did kill and murder.,' This is equivalent to an entire omission of the allegation; and the authorities are uniform that such an indictment is bad. (Dean v. The State, 7 Black. 20, and cases there cited.)

It is contended, however, that our statute, which provides that a judgment in a criminal case shall not be arrested or affected for any defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant, upon the merits, has changed the law in this respect. (2 R. C. 1855, p. 1177.)

The section of the statute in which...