State v. Seward

CourtUnited States State Supreme Court of Missouri
Citation42 Mo. 206
PartiesSTATE OF MISSOURI, Appellant, v. MINOR SEWARD, Respondent.
Decision Date29 February 1868

Appeal from Andrew Circuit Court.

This is a case where defendant was indicted, at the October term, 1866, of the Andrew county Circuit Court, for an assault with intent to kill. At the April term, 1867, of said court, he filed his motion to quash the indictment, and the same was sustained. The State then took the case to the Fifth District Court, where the ruling of the Circuit Court for Andrew county was affirmed; and the case is now brought to this court by appeal.

J. C. Parker, for appellant.

I. It is not necessary that an indictment for an assault with intent to kill, under § 32, pp. 780-81, Gen. Stat. 1865, should aver that the offense was committed “of malice aforethought.” (State v. Johnston, 4 Mo. 618; State v. Thompson, 30 Mo. 470; State v. Stewart, 29 Mo. 419; State v. York, 22 Mo. 462; Jennings v. State, 9 Mo. 862; State v. McGrath et al., 19 Mo. 678.)

Vories & Vories, for respondent.

I. The indictment is clearly founded on section 29, chapter 200, Gen. Stat. 1865, and, failing to use the descriptive words, “with malice aforethought,” is clearly bad. (State v. Comfort, 5 Mo. 357; Humphries v. State, 5 Mo. 203; State v. Harris, 34 Mo. 347.)

II. Section 32 is designed to punish offenses not before defined or provided for; and plainly this indictment attempted to describe an offense provided for in section 29, but described the offense imperfectly.

WAGNER, Judge, delivered the opinion of the court.

The sole question in this case is whether the court committed error in sustaining the demurrer to the indictment. The indictment contains but one count, and alleges that the defendant, with force and arms, upon the body of one Edward Carter, then and there being, feloniously, on purpose, and willfully, with a deadly weapon to-wit: a double-barreled shot gun, loaded with gunpowder and leaden balls, which he, the said Minor Seward, then and there had and held, did then and there make an assault, with the intent him, the said Edward Carter, then and there to kill, contrary, etc. The objection stated in the demurrer, upon which the court held the indictment bad, was, that it did not charge that the offense was committed on purpose and with malice aforethought. The decision of the court below was made on the hypothesis that the indictment was framed on the twenty-ninth section of chapter two hundred of the General Statutes, and that it could not be applied to the thirty-second section of the same chapter. The omission to state that the act was done with malice aforethought would be a fatal defect within the meaning of the twenty-ninth section, as has been repeatedly held by the decisions of this court. (State v. Comfort, 5 Mo. 357; State v. Harris et al., 34 Mo. 347.)

But the next question is, whether the indictment does not sufficiently set out an offense under the thirty-second section. It is immaterial what section was in the mind of the pleader when the indictment was drawn, or on what particular section he intended to base it, provided that a sufficient...

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26 cases
  • The State v. Foster
    • United States
    • Missouri Supreme Court
    • March 26, 1920
    ... ... that the act was committed feloniously, on purpose and with ... malice aforethought. [State v. Anderson, 252 Mo. 83, ... 158 S.W. 817; State v. Harris, 209 Mo. 423, 108 S.W ... 28; State v. Temple, 194 Mo. 228, 92 S.W. 494; ... State v. McDonald, 67 Mo. 13; State v ... Seward, 42 Mo. 206; State v. Harris, 34 Mo ... 347.] The felonious intent with which the act was committed ... is properly charged. [State v. Bond, 191 Mo. 555, 90 S.W ... 830.] As we held in State v. Phelan, 65 Mo. 547, and ... numerous other cases reviewed in State v. Bond, supra, the ... ...
  • State v. Hickam
    • United States
    • Missouri Supreme Court
    • May 21, 1888
    ... ... for the state. Nichols v. Winfrey, 79 Mo. 544; ... State v. Palmer, 88 Mo. 568; State v ... Sloan, 47 Mo. 604; Runyan v. State, 57 Ind. 80 ... (3) The eighth instruction for the state was erroneous ... State v. Curtis, 70 Mo. 594, 598; State v ... Seward, 42 Mo. 206; State v. Sands, 77 Mo. 118; ... State v. McNally, 87 Mo. 644; State v ... Ellis, 74 Mo. 207, 219; Morgan v. Durfee, 69 ... Mo. 469; Rains v. Railroad, 71 Mo. 164; State v ... Stewart, 29 Mo. 419. (4) The ninth instruction, under ... the evidence in this case, was misleading. It ... ...
  • State v. Cooper
    • United States
    • Missouri Supreme Court
    • October 11, 1948
    ... ... between the higher (Sec. 4408) and the lower (Sec. 4409) ... grades of felonious assault with intent to kill et cetera is ... the presence or absence of malice aforethought. State ex ... rel. Dutton v. Sevier, 336 Mo. 1236, 1238, 83 S.W. 2d ... 581, 582[1]; State v. Seward, 42 Mo. 206, 208 ... Consult State v. Watson, 356 Mo. 590, 592[2], 202 ... S.W. 2d 784, 786[2-4]; instructions Nos. 1, 2, 3 in State ... v. Tetrick, 199 Mo. 100, 103, 97 S.W. 564, 565. By ... express words "an assault with intent to kill or to do ... great bodily harm" is an essential element ... ...
  • State v. Hickam
    • United States
    • Missouri Supreme Court
    • May 21, 1888
    ...i. e., with malice and premeditation. The instruction omitted an important element. State v. Curtis, 70 Mo. 594, 598; State v. Seward, 42 Mo. 206; State v. Sands, 77 Mo. 118; State v. McNally, 87 Mo. 644. Again, it left the jury to grope in the dark as to what would constitute "sufficient r......
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