State v. Snell

• Decision Date: 30 April 1883
• Citation: 78 Mo. 240
• Parties: THE STATE v. SNELL, Appellant.
• Court: Missouri Supreme Court

78 Mo. 240

THE STATE

v.SNELL, Appellant.

Supreme Court of Missouri.

April Term, 1883.

Appeal from Clinton Circuit Court.--HON. GEO. W. DUNN, Judge.

AFFIRMED.

Woodson, Porter & Hughes for appellant.

D. H. McIntyre, Attorney General, and James W. Coburn, for the State.

HENRY, J.

At the September term, 1881, of the circuit court of Platte county, the defendant was indicted for the murder of Stephen T. Newman. On his application a change of venue was awarded, and the cause sent to the circuit court of Clinton county, and at the March term, 1882, of said court, he was tried and found guilty of murder in the second degree, and his punishment assessed at twenty years' imprisonment in the penitentiary, and he has prosecuted his appeal from the judgment.

1. MURDER: indictment.

Several objections are made to the indictment: 1st, That it does not charge the wounding “to have been done feloniously, willfully, deliberately, premeditatedly and of malice aforethought.” It alleges that: “with a certain knife, * * which he, the said Clay Snell, in his right hand then and there had and held, him the said Stephen T. Newman feloniously, willfully, deliberately, premeditatedly and of his malice aforethought, did strike, stab and thrust in and upon the body, giving to the said Stephen T. Newman then and there with the knife aforesaid, in and upon the body of him, the said Stephen T. Newman, one mortal wound.” The stabbing was alleged to have been done feloniously, willfully, etc., and the wounding was the immediate result of the stabbing, and this was a sufficient allegation that the assault, stabbing and wounding were done “feloniously,” etc.

2nd, It is contended that it is not alleged that “deceased was wounded on the 2nd day of September, 1881, and languished until the 29th day of September, 1881, and then and there died from the effects of the wound.” The language of the indictment is as follows: “Of which mortal wound, the said Stephen T. Newman, from said 2nd day of September, 1881, until the 29th day of September, 1881, at the county aforesaid, did languish, and languishing did live, on which 29th day of September the said Stephen T. Newman, in the county aforesaid, of the mortal wound aforesaid, did die.” From this it will be perceived that the objection is unfounded.

2. ____: ____.

Another objection is, that the wound is not so described as to show that it was of a character likely to produce death. It is not necessary that it should. Describing it by its length, width and depth, would not necessarily show that it was a mortal wound. It is sufficient to allege that it was a mortal wound, and caused the death of the party.

3. ____. “feloniously.”

The second instruction for the State defined the word “feloniously” to mean “wrongfully, without just cause or excuse, not accidentally.” The definition of the word is certainly incorrect, but there was no necessity for defining it. It is employed to classify offenses, but is not a distinct element of a crime. If the facts proved establish a felony, then the crime was committed feloniously--if they establish a misdemeanor, the offense was not feloniously committed. A correct definition of the word could not have aided the jury in their deliberations, nor could the incorrect definition, in this instance, possibly have prejudiced the defendant's case, or been an obstacle in the way of the jury to a proper verdict on the law and the facts.

___. “premeditation.”

It is also insisted that the court erred in defining premeditation to be “thought of beforehand, for any length of time, however short.” That definition has too often and too long had the sanction of this court, to be modified or repudiated now.

5. _____ “deliberation.”

The definition of deliberation in the instruction is not correct, but the defendant was not convicted of murder in the first degree, and the jury gave him the benefit of the law, to the same extent as if the court had declared it, by finding that there was such heat of passion, other than technical heat of passion, as under the decisions...