State v. Wade

• Decision Date: 21 November 1898
• Citation: 47 S.W. 1070,147 Mo. 73
• Parties: STATE v. WADE.
• Court: Missouri Supreme Court

47 S.W. 1070

147 Mo. 73

STATE v. WADE.

Supreme Court of Missouri, Division No. 2.

November 21, 1898.

HOMICIDE — INDICTMENT — SUFFICIENCY.

1. Under Bill of Rights, § 22, which declares that in criminal prosecutions the accused shall have the right to demand the nature and cause of the accusation, the conclusion of an indictment for the murder which fails to show that the grand jury charge that the killing was murder is insufficient, although Rev. St. 1879, § 1821, provides that no indictment is invalid for omitting to allege that the grand jurors were impaneled, sworn, or charged, etc.

2. Where a count in an indictment for murder does not have the formal conclusion alleging that the killing was murder, the count only charges manslaughter.

3. The failure of an indictment to contain a proper conclusion may be taken advantage of by motion in arrest.

4. The second count of an indictment for homicide, which charges that the murder was committed "in the manner and form aforesaid" (referring to the first count), but which does not allege what the manner and form or the means was, is fatally defective.

5. The failure of the first count in an indictment to contain a formal conclusion is not cured by a formal conclusion in the second count.

Appeal from circuit court, Clay county; E. J. Broaddus, Judge.

Francis M. Wade was convicted of murder in the second degree, and appeals. Reversed.

J. L. Farris, W. A. Cravens, and W. J. Courtney, for appellant. Edward C. Crow, Atty. Gen., Sam B. Jeffries, Asst. Atty. Gen., and W. W. Graves, for the State.

SHERWOOD, J.

Charged with murder in the first degree, because of shooting to death, with a shotgun, Alexander Schamel, defendant was found guilty of the second degree of that offense, and his punishment assessed at 20 years in the penitentiary. The difficulty which resulted in the tragedy had its origin in those fruitful sources of homicide in this state, — a disputed boundary and a division fence.

The first count in the indictment charged the homicide to have been perpetrated with a shotgun, and is in usual and approved form. But that count is bad, because it has no conclusion, such as was pointed out to be necessary in State v. Meyers, 99 Mo. 107, 12 S. W. 516, and cases cited. Owing to such omission. the first count only charges manslaughter. Id., 99 Mo., loc. cit. 115, 12 S. W. 518. Such a defect may be taken advantage of on motion in arrest, and, if no such motion be made, it is equally available in this court on appeal or writ of error. Id., 99 Mo., loc. cit. 112, 12 S. W. 517. Such point was, however, made in the lower court by motion in arrest.

The second count in the indictment is the following: "And the grand jurors aforesaid, upon their oaths aforesaid, do further present and charge that Lewis Wade, before the said felony and murder was committed in the manner and form aforesaid, and by the means aforesaid, at the time and place aforesaid, did then and there unlawfully, feloniously, willfully, deliberately, and premeditatedly incite, move, procure, aid, counsel, hire, and command him, the said Francis M. Wade, to do and commit the said felony and murder aforesaid, in manner and form aforesaid, and by the means aforesaid, at the time and place aforesaid, to do and commit; and the grand jurors aforesaid, upon their oaths aforesaid, do say that Francis M. Wade and Lewis Wade, him, the said Alexander Schamel, at the time and place aforesaid, in the manner and by the means aforesaid, feloniously, on purpose, willfully, deliberately, premeditatedly, and of their malice aforethought, did kill and murder, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state. William...