The State v. Lockwood

• Decision Date: 31 January 1894
• Citation: 24 S.W. 1015,119 Mo. 463
• Parties: The State, Appellant, v. Lockwood
• Court: Missouri Supreme Court

24 S.W. 1015

119 Mo. 463

The State, Appellant, v. Lockwood

Supreme Court of Missouri, Second Division

January 31, 1894

Appeal from Henry Circuit Court. -- Hon. James H. Lay, Judge.

Affirmed.

R. F Walker, Attorney General, and W. E. Owen, Prosecuting Attorney, for the state.

(1) The indictment in this case is sufficient. It follows the language of the statute under which it is drawn, and clearly charges the offense of which the defendant is accused. Its allegations are not repugnant as charging both a voluntary and involuntary killing. 2 Bishop on Crim. Proc., sec. 564; State v. Sundheimer, 93 Mo. 311. It has been repeatedly held by this court that an indictment for murder in the first degree includes every degree of manslaughter. If, therefore, the allegation "feloniously, willfully deliberately, premeditatedly and of malice aforethought" embraces a charge for an involuntary killing, how can the charge of "feloniously, willfully and with culpable negligence." State v. Dierberger, 96 Mo. 666; State v. Rider, 95 Mo. 474; State v Edwards, 70 Mo. 480; State v. Curtis, 70 Mo. 594; State v. Robinson, 73 Mo. 306; State v. Anderson, 86 Mo. 309. (2) It is evident from careful reading of the indictment that the phrase, "with culpable negligence," is used for the purpose of limiting the offense charged to manslaughter in the fourth degree, and differentiates it in that degree, namely, an involuntary killing. "Feloniously and with culpable negligence" sufficiently define this offense. The indictment is good, although the term willfully be rejected as surplusage. Again, the word "willfully," although common in an indictment for manslaughter, is unnecessary. 1 Bishop on Crim. Proc., 434, 440, 491; 2 Bishop on Crim. Proc., 534 and 58.

C. C. Dickinson for respondent.

OPINION

Burgess, J.

-- At the September term, 1893, of the circuit court of Henry county, an indictment was returned by the grand jury of said county against the defendant, which, omitting the formal parts is as follows:

"That Albert Lockwood, on the thirty-first day of July, 1892, at the county of Henry and state of Missouri, in and upon one Robert McAllister, then and there being, feloniously, willfully and with culpable negligence, did make an assault and with a dangerous and deadly weapon, to wit, a pistol, then and there loaded with gunpowder and leaden balls, which he the said Albert Lockwood, then and there in his right hand had and held at and against him, the said Robert McAllister, did then and there feloniously and willfully, and with culpable negligence, did shoot off and discharge, and with the pistol aforesaid, and the leaden balls aforesaid, then and there feloniously, willfully and with culpable negligence did shoot and strike him, the said Robert McAllister, in and upon the front part of the head and just above the left eye of him, the said Robert McAllister, giving him, the said Robert McAllister, then and there with the dangerous and deadly weapon, to wit, the pistol aforesaid, and the gunpowder and leaden balls aforesaid, in and upon the front part of the head, and just above the left eye of him, the said Robert McAllister, one mortal wound of the breadth of one inch and of the depth of four inches, of which said mortal wound the said Robert McAllister then and there on the said thirty-first day of July, 1892, at the county aforesaid, died, and so the grand jurors aforesaid, upon their oath aforesaid, do say that the said Albert Lockwood him, the said Robert McAllister, in the manner and by the means aforesaid, willfully and with culpable negligence did kill and murder against the peace and dignity of the state."

At the May term, 1893, the defendant filed his motion to quash, which is as follows:

"Because it charges a willful or intentional killing and an involuntary killing in the same count. Because said indictment is evidently intended to be drawn for manslaughter in the fourth degree, and for an involuntary killing as a result of culpable negligence, and there could be no willful killing under said indictment.

"Because said indictment charges or attempts to charge both an intentional and an unintentional killing."

Which said motion was by the court sustained, to which action the state, by its prosecuting officer, duly excepted. After unsuccessful motion in arrest the state perfected its appeal.

The insistence on the part of the state is that, although the indictment is for involuntary manslaughter, that the word willful where used in it...