State v. Steeley

• Decision Date: 30 April 1877
• Citation: 65 Mo. 218
• Parties: STATE OF MISSOURI v. STEELEY, APPELLANT.
• Court: Missouri Supreme Court

65 Mo. 218

STATE OF MISSOURI

v.STEELEY, APPELLANT.

Supreme Court of Missouri.

April Term, 1877.

Appeal from Dade Circuit Court.

Robinson and Bray & Cravens for appellant.

I. The indictment is wholly insufficient, contradictory, repugnant and indefinite. 1st. It does not sufficiently charge when the act of shooting was done. 2nd. It does not charge when and where he died. 3rd. It is not certain whether the defendant is charged to have committed the offense or Wm. Steeley. 4th. It is uncertain whether defendant or Wm. Steeley made the assault. The charge is that “they, the said John Steeley, in each of their right hands had and held then, and there, and which pistols so loaded and charged and so had and held, were then and there each of them deadly weapons and which said pistols they the said John Steeley and William Steeley did then and there unlawfully, feloniously, willfully, deliberately, premeditatedly, on purpose, and of his malice aforethought, shoot off and discharge at, upon and against the body of the said Harvey Sitton, and did then and there unlawfully, feloniously, willfully, deliberately, on purpose and of his malice aforethought, by means of the pistol and gunpowder” &c. * * * and then concludes that by reason of the wounds inflicted by John and Wm. Steeley the said Harvey Sitton did then and there immediately die. In order to make a killing murder, it must be maliciously done. Who was it that entertained malice, was it John or William? State v. Hardwick, 2 Mo. 226; State v. Hays, 24 Mo. 358; State v. Gray, 21 Mo. 492; Jane v. The State, 3 Mo. 61.

II. The court should have compelled the State to make its challenges, and then the defendant should have had the list on which to make his challenges. Wag. Stat. 800 §§ 23, 24, 25.J. L. Smith, Attorney General, for the State.

I. The indictment is sufficient, and charges the offense upon the defendant with necessary certainty, and is certainly good after verdict. Wag. Stat. page 1097, sec. 27; State v. Craighead, 32 Mo. 561; State v. Dalton, 27 Mo. 13. An indictment is sufficient if enough remains to constitute a charge of an offense after striking out the objectionable parts. State v. Wall, 39 Mo. 532; State v. Edwards, 19 Mo. 674; State v. Hamilton, 7 Mo. 300. An indictment which follows the words of the statute is sufficient. State v. Mitchell, 6 Mo. 147; Spratt v. State, 8 Mo. 247; Simmons v. State, 12 Mo. 268; State v. Stubblefield, 32 Mo. 563. And it is sufficient if the offense be set forth with substantial accuracy and certainty. State v. Ross 25 Mo. 426. We hold that that portion of the indictment objected to by defendant, to-wit:“which said pistols so loaded and charged, they, the said John Steeley,” and “of his malice aforethought,” as repugnant and uncertain, are cured by our statute of jeofails. WAG. STAT. 1090. And, if not, they can be stricken out and a sufficient indictment for murder in the first degree under our statutes will remain. Wag. Stat., page 445, Sec 1.

II. The court did not err in requiring the defendant to make his challenges without seeing the challenges of the State. The defendant had the full benefit of all his challenges and his case was not prejudiced in that respect. State v. Hays, 23 Mo. 287; State v. Klinger, 46 Mo. 224

HENRY, J.

At an adjourned term of the circuit court of Jasper county, held in December, 1875, the defendant was indicted jointly with William Steeley for the murder of Harvey Sitton, and at the same term, on his application, a change of venue was awarded to Dade county. At the April term of the Dade circuit court there was a trial of the cause, which resulted in the conviction of defendant of murder in the first degree, and judgment was entered accordingly, from which defendant has appealed. A motion to quash the indictment was overruled, and this is assigned as error. The grounds of objection to the indictment are that it does not, with sufficient particularity, allege when and where Harvey Sitton died of the wounds, which, it was charged, were inflicted upon him by the defendant, or when the act of shooting was done; second, that is is uncertain whether defendant or William Steeley is charged to have committed the offense.

1. INDICTMENT: certainty of averments as to time, place and parties to the offense.

The indictment charges that on or about ______ day of ______ A. D. 1871, at the county of Jasper, in the State of Missouri, John and William Steely made an assault upon Harvey Sitton with certain pistols, which they, said John and William, in each of their right hands had and held, and did then and there shoot off and discharge at, upon, &c. It alleges that John and William Steeley did then and there, on purpose, &c., and of his malice aforethought, shoot off and discharge, &c. It alleges that of the mortal wounds inflicted upon him, “the said Harvey Sitton, did then and there instantly die.” Neither the case of Lester v. The State, 9 Mo. 658, nor the State v. Sides, 64 Mo. 383, sustains the objections to this indictment. The language of the indictment in Lester v. The State was “of which the said Scott did instantly die,” and in the State v. Sides the language was that deceased “did immediately languish, and languishing did die.” In the case at bar, the indictment states when the wounds were inflicted upon the deceased, and where it occurred, and the word ““then” has relation to that time, and “there” to the place previously stated. It contains the very words which NAPTON, J., held, in Lester v. The State, would have made the indictment good in that case. The word used in the State v. Sides, “languish,” imports that the death was not instantaneous, and the deceased may have languished more than a year and a day before he died, and the averment in the indictment have been true.

It is urged that it is not clear whether it charges that defendant or William Steeley committed the offense, but we think it sufficiently clear that both are charged. It is...