State v. Taylor

• Decision Date: 31 July 1855
• Citation: 21 Mo. 477
• Parties: THE STATE, Respondent, v. TAYLOR & GIST, Appellants.
• Court: Missouri Supreme Court

21 Mo. 477

THE STATE, Respondent,

v.TAYLOR & GIST, Appellants.

Supreme Court of Missouri.

July Term, 1855.

1. On the trial of two persons jointly indicted for aiding and abetting a murder, an instruction to the jury that “if the defendants or either of them were present, &c., they must convict,” will not be supposed to have misled them.

2. If, in an indictment for aiding and abetting a murder, a venue is laid to the murder itself, and it is stated that the defendants were then present, aiding and abetting, &c., this is sufficient.

Appeal from Clinton Circuit Court.

Clark, for appellants.

1. The first instruction declares all of the defendants guilty under the indictment if one was present, and is clearly erroneous. (19 Mo. 529.) 2. No sufficient venue is laid in the indictment. (1 Chitt. Crim. Law, 218, 222. 2 Chitt. Cr. Law, 4.)

Gardenhire, (attorney general,) for the State.RYLAND, Judge, delivered the opinion of the court.

The defendants, Benjamin Taylor and Henry Gist, together with William Taylor and Jacob Taylor, were indicted for the murder of George L. Oster, in the Circuit Court of Caldwell county, at the September term, 1853.

On the petition of the defendants, the venue was changed to the Circuit Court of Clinton county. At the November term of the Clinton Circuit Court, 1854, the case was tried between the State and the two defendants, Benjamin Taylor and Henry Gist; the defendant, William Taylor, having in the meantime made his escape from the jail in Clay county, and the defendant, Jacob Taylor, having obtained an order for a separate trial. The jury found the defendant, Benjamin Taylor, guilty of manslaughter in the second degree, and assessed his punishment to three years' imprisonment in the penitentiary. They also found the defendant, Gist, guilty of manslaughter in the third degree, and assessed his punishment to three months' imprisonment in the county jail, and the payment of a fine of one hundred dollars.

The defendants moved for a new trial, and also in arrest of judgment; these motions being overruled, exceptions were taken, and the defendants bring the case here by appeal.

The record is very voluminous, containing all the evidence, about which there is no controversy in this court; it will not, therefore, be necessary to make a statement in regard to it.

The appellants rely upon two grounds for reversing the judgment below. The first is in regard to an improper instruction alleged to have been given for the State, for which it is contended that a new trial ought to have been granted. The second relates to the indictment, which is objected to as insufficient, and for which it is contended the judgment should have been arrested.

Let us examine these grounds. The instruction alleged to be improper is as follows: “That, if the jury believe from the evidence, that George L. Oster was wilfully, deliberately, premeditatedly and maliciously killed in the month of June, 1853, in the county of Caldwell, and that the prisoners, Benjamin Taylor and Henry Gist, or either of them, were present aiding, assisting, comforting and maintaining in the killing, they must convict.”

The appellants contend that, as the defendants are all charged in the indictment as being present aiding, abetting, &c., this instruction declares all guilty under the indictment, if any one of them were present at the shooting. We do not think this the correct interpretation of this instruction; nor do we suppose that the jury could be misled by it. It...