98
The Green Bag
dravit' vitiates an indictment for mur der." The extreme technicality of the judges of the early days is often attributed to the severity of the criminal law which punished with death many offenses now dealt with as petty misdemeanors. Pris oners were also denied the right to counsel and were not permitted to call witnesses in their own behalf. But the sympathy of the judge does not fully explain this technicality. Something was due to that same love of casuistry which displayed itself in the forms of civil pleading. No indictments were more technically con sidered than those for murder. "Murdravit is a word of art and cannot be otherwise exprest." This is not an ex pression of sympathy, but of subtlety. Punishments are now apportioned to the nature of the offense; counsel is not only permitted to the defendant, but is provided for him, and he may not only call witnesses in his own behalf, but is granted compulsory process for them. While humanity no longer calls for these refinements, formalism does, and so we abandon the old precedents grudg ingly and reluctantly and indeed hold on to as much of them as we can in spite of statutes which provide that indictments shall not be held invalid for any defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits. In Lester v. State, 9 Mo. 666, the prosecutor, following the old precedents, charged that the defendant made an assault upon one Scott with a large stick of no value, which he held in both hands. In the olden days the value of the weapon with which murder was committed must be stated, because the weapon itself was forfeited as a deodand to the king, a reason which had no appli
cation in Missouri, but forms persist long after the reason for them has ceased. The prosecutor further charged that the defendant struck and beat Scott and inflicted mortal wounds upon him, and stated with precision the time when and the place where this was done. Instead of adding that of these wounds the said Scott did "then and there" die, he added more graphically that of these mortal wounds Scott "instantly" died. The indictment was assailed as not setting forth the time and place of death. In vain the Attorney- General argued that "instantly," in the con junction in which it was used, was the exact equivalent of "then and there"; it was, however, not a word of art, but was rather a word of general, popular use, and so could not be admitted, the court saying that "it would be difficult to foresee to what extent innovations would go if we lose sight of the estab lished precedents, so far as they fix the form of material averments." This was in 1846, a long time ago, but the ruling was repeated in 1877, the cases were cited approvingly in 1887, and they have never been overruled and may be said to be the law today. In State v. Jones, 20 Mo. 58, the adjectives "deliberate" and "premedi tated" were used instead of the corres ponding adverbs in describing an assault which resulted in murder, and for this fault of grammar the indict ment was held to be bad and the con viction set aside. This again is an old case, but modern cases hold as strict a rule. The Constitution of Missouri pro vides that all indictments shall con clude "against the peace and dignity of the state." In State v. Campbell, 210 Mo. 202, decided last year, the indict ment, which was for rape, concluded, "against the peace and dignity of state," omitting the article "the," and for this
