1. An
indictment for murder, which states that the
assault, but not that the wounding which caused
death, was willful, deliberate, and premeditated
held to be insufficient to support a conviction.
2. The
manner in which the murder was committed must appear with
certainty in the indictment.
3. The
indictment must lay the time of death within a year and a day
from the wounding.
4. An
indictment that concludes, " against the peace and
dignity of the state, and against the form of the
statute," etc., is not bad as not concluding "
against the peace and dignity of the state."
5. The
word " immediately" will not supply the place of
" then and there" in an indictment.
ERROR
to Lincoln Circuit Court.
Reversed and remanded.
Wm. A. Alexander, for plaintiff in error, cited
Wag. Stat. 445, sec. 1; State v. Jones, 20 Mo. 58;
Old Const., sec. 26; Art. 6, New Const., sec. 38; State
v. Loper, 19 Mo. 254; State v. Manafield, 41
Mo. 470.
Josiah Creech, Circuit Attorney, for defendant in
error.
OPINION
BAKEWELL
J.
Henry
Reakey was indicted at the fall term of the Circuit Court of
Lincoln county, in October, 1875, for the murder of his wife.
He was tried and convicted of murder in the first degree.
Motions in arrest and for a new trial were made and
overruled, and, exceptions being properly taken, the case is
brought here by writ of error.
The
counsel for appellant contend that the motion in arrest
should have been sustained by reason of the insufficiency of
the indictment.
The
indictment is as follows:
" State of Missouri, county of Lincoln. The grand jurors
of the State of Missouri, summoned from the body of Lincoln
county, impaneled, charged, and sworn, upon their oaths
present that Henry Reakey, late of the county aforesaid, on
or about the 9th day of September, A. D. 1875, at the county
of Lincoln, State aforesaid, did feloniously, willfully,
deliberately, premeditatedly, on purpose, and of his malice
aforethought, make an assault on and upon the body of one
Eliza Reakey, and that the said Henry Reakey, at the time and
place as aforesaid, with a stick or cudgel of some kind
unknown to these jurors, and with his opened right hand, the
same being deadly weapons, the which the said Henry Reakey
then and there held in his hand or hands, to, at, and against
the said Eliza Reakey, he, the said Henry Reakey, then and
there feloniously, on purpose, and of his malice
aforethought, with said stick or cudgel of some kind unknown
to these jurors, as aforesaid, did strike, penetrate, bruise,
and wound the said Eliza Reakey, in and upon the right side
of the forehead, immediately over the right eye, fracturing
the skull of the said Eliza Reakey with said stick or cudgel
as aforesaid, and in and upon the throat, with his open right
hand, seized, choked, suffocated, and strangled her, the said
Eliza Reakey, thereby giving her, the said Eliza Reakey, then
and there, with the said stick or cudgel of some kind unknown
to these jurors as aforesaid, and with his open right hand as
aforesaid, by means of striking, penetrating, bruising,
choking, suffocating, strangling, and wounding the said Eliza
Reakey as aforesaid, two mortal wounds in and upon the right
side of the forehead, immediately over the right eye, and in
and upon the throat of her, the said Eliza Reakey, of which
said mortal wounds, from the said stick or cudgel, and from
the said choking and strangling her with the said right hand
as aforesaid, the said Eliza Reakey immediately died.
And so
the jurors aforesaid, upon their oaths aforesaid, do say that
the said Henry Reakey, in the manner and by the means
aforesaid, feloniously, willfully, deliberately,
premeditatedly, of his malice aforethought, did kill and
murder the said Eliza Reakey, as above stated, against the
peace and dignity of the State, and contrary to the form of
the statute in such cases made and provided by the
State."
Is this
indictment, under our statute, sufficient to support a
conviction for murder in the first degree?
1. It
sets forth that the assault was willful, deliberate, and
premeditated, but it does not state that the wounding
bruising, and penetrating by which death is alleged to have
been effected were willful, or...
