Public-domain · open source
OpenJurist

61 Mo. 549

State v. Foster

Supreme Court of Missouri

Decided January 15, 1876

Supreme Court of Missouri · decided 1876-01-15

<p>1. Indictment running in name of “State of Missouri" not fatally defective.— An indictment is not fatally defective under section 26, Art. VI. of the Constitution of 1S65, because headed “State of Mo.,” instead of “State of Missouri.” The injunction therein contained that all prosecutions shall be conducted in the name of the “State of Missouri,” is directory merely, anda failure to comply with that requirement, is simply an irregularity cured by the statute. (Wagn. Stat., 420, ji 16 ; See also, Id., 1090, § 27.)</p> <p>2. Practice, criminal — Instructions should be confined to the issues proved. — Where the evidence all tends to prove a ease of murder in the first degree, or justifiable homicide, it is proper for the court by its instructions to confine the attention of the jury to those issues.</p> <p>3. Criminal, practice — Instruction defining murder in first degree must include deliberation and premeditation- — Under the statute (Wagn. Stat., 446) proof of wilful ami intentional killing alone will not raise the presumption of murder in the first degree. To that end the proof must show such circumstances as will warrant the jury in finding that there was deliberation and premedication. These circumstances need not be expressly proved, but the facts must appear from which their existence may he inferred. And an instruction omitting the latter terms of the definition is improper.</p>

Good law ✅— No negative treatment on recordhow we know

Decided 1876-01-15

How this case has been cited

Cited by 26 later decisions — most recently May 1986 · most notably State v. Roberts (1986), State v. Young (1894)

1 federal appellate · 25 state decisions

70187618801890190019101920193019401950196019701980decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

Per Wagner, J.,

¶1on Motion for Rehearing.

¶2The counsel for the State has filed a motion for a re-hearing in this ease, on the ground that the opinion is in conflict with the prior decisions of this court. But this is an utter misapprehension. So far from being in conflict, it is in complete harmony with them.

¶3The law is definitely and consistently settled in this State, settled upon principles that are at once just to the prosecution and the accused, and we are unwilling to unsettle it by sanctioning a new departure from it.

¶4The statute makes a willful, deliberate and premeditated killing murder in the first degree. But no case has ever declared, that where the killing was merely willful, or intentional, or in other words, not accidental, that deliberation and premeditation, the main ingredients of the ofi’ence, followed as a presumption of law. The law makes no such presumption, and no decision founded upon the statute gives the slightest countenance to the doctrine. The deliberation or *556premeditation need not be expressly proved. The intention or deliberation witli which the act was done may be inferred by tiie jury from all the circumstances. But it is for them to draw their conclusions, and make their findings, from the facts in evidence.

¶5This doctrine has so often been announced that it seems like a work of supererogation to re-state it.

¶6The motion will be overruled.

/61/mo/549 · .json · Public domain