State v. Sundheimer

• Decision Date: 28 November 1887
• Citation: 6 S.W. 52,93 Mo. 311
• Parties: STATE v. SUNDHEIMER.
• Court: Missouri Supreme Court

6 S.W. 52

93 Mo. 311

STATE v. SUNDHEIMER.

Supreme Court of Missouri.

November 28, 1887.

1. HOMICIDE — MANSLAUGHTER IN FOURTH DEGREE — INDICTMENT.

An indictment for manslaughter in the fourth degree, under Rev. St. Mo. 1879, § 1250, which provides that "every other killing of a human being, * * * which would be manslaughter at common law, and not herein declared to be manslaughter in some other degree, shall be manslaughter in the fourth degree," should conform in its allegations with an indictment for murder, except as to the allegations regarding malice, deliberation, and premeditation.

2. SAME — ALLEGATION OF TIME AND PLACE OF DEATH.

An indictment for manslaughter in the fourth degree charged that the defendant, "on the first day of January, A. D. 1886, did, * * * with culpable negligence kill and slay" the deceased, by then and there discharging a loaded gun in his face, whereby the deceased "received such injuries as to cause his death," etc. Held, that the indictment was defective in not stating expressly when and where the death happened, or that death ensued from the injuries then and there received.

Appeal from circuit court, Cole county; E. L. EDWARDS, Judge.

B. G. Boone, Atty. Gen., for appellant. J. L. Smith and Edwards & Davison, for respondent.

RAY, J.

Defendant herein was indicted in the circuit court of Cole county for manslaughter in the fourth degree. Omitting caption and signature of the prosecuting attorney, the indictment is as follows: "The grand jurors for the state of Missouri, duly summoned, impaneled, sworn, and charged to inquire within and for the body of the county of Cole and state of Missouri, upon their oath, present and charge that Steffen Sundheimer, at the county of Cole and state aforesaid, on the first day of January, A. D., 1886, did unlawfully, feloniously, and with culpable negligence kill and slay William Singer by then and there unlawfully, recklessly, feloniously, and with culpable negligence discharging a gun loaded with powder and paper wads in and upon the face and head of him, the said William Singer, whereby he, the said William Singer, received such injuries as to cause his death, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state." A motion to quash the same, filed by defendant, was sustained, and judgment rendered discharging the defendant, so that the only question before us is as to the sufficiency of the indictment, which is based upon section 1250, Rev. St. 1879. The section is as follows: "Every other killing of a human being, by the act, procurement, or culpable negligence of another, which would be manslaughter at the common law, and which is not excusable or justifiable, or is not declared in this chapter to be manslaughter in some other degree, shall be deemed manslaughter in the fourth degree."

Under the common law precedents and usages, indictments for manslaughter are, it seems, the same as for murder, with the words "murder" and "malice aforethought" omitted. 2 Bish. Crim. Proc. § 506. Archb. Crim. Pl. 726; 1 Chit. Crim. Law, 242. If you take from the indictment for murder the words "deliberately, premeditatedly, and of his malice aforethought," the indictment is one for manslaughter. Kelly, Crim. Law & Pr. § 470. We have not met with in our examination, and counsel have been unable, they say, to cite us to any precedent or case in point, where the indictment has been drawn for this offense upon our statute, or other similar statute. We have been referred to the case of State v. Emery, 78 Mo. 77, but in that case the indictment was for murder in the second degree, and a conviction had for manslaughter in the fourth degree. This has been, perhaps, pretty uniformly the practice, — to indict for the higher grades of homicide, and, where the evidence requires, to take a conviction for the lower offense; the indictment for murder being good as an indictment for the inferior grades of homicide. But if this course is not followed, and the indictment is drawn, or sought to be drawn, as in this case, under this section of the statute, then it would seem, under the above authorities, the indictment should only differ in its allegations from the indictment for murder in omitting the statement as to malice, deliberation, and premeditation. To say the least of it, this would, we think, be the safer and better practice, and would, perhaps, best subserve...