State v. Dale

108 Mo. 205

• Court: Supreme Court of Missouri
• Decided: October 15, 1891
• Status: Published

Opinion

Thomas, J.

Defendant was put upon his trial in the circuit court of Ray county for murder of the second •degree, was found guilty of manslaughter of the second' degree, and sentenced to pay a fine of $1,100, and he .appealed. The only specific ground on which he seeks .a reversal of the sentence is the failure of the indictment to use the word “premeditatedly” in charging the offense, the contention being that the use of this word is necessary to constitute a good charge of murder of the second degree. This position is not maintainable in this case for the reason that the indictment, while not employing the word “premeditatedly,” uses equivalent' words. It charges that defendant “feloniously, wilfully, deliberately and of his malice aforethought” struck Charles Burgess with a billiard ball, and thereby killed him. The word “deliberately,” which is here used, is a generic term including “premeditatedly.” When a man kills another premeditatedly, he thinks of killing beforehand. When a man deliberately kills .another, he does it in cold blood with a formed design to take life, uninfluenced by any passion or excitement of mind recognized by law. Hence, it is manifest that “deliberately” logically contains in it all that is meant by “premeditatedly” and more. But “premeditat•edly” is also contained in the phrase, “malice aforethought,” the latter words being held to mean malice and premeditation. State v. Thomas, 78 Mo. 327; State v. Lowe, 93 Mo. 547. No error appearing of record, and the punishment inflicted on defendant being very moderate indeed, the judgment is affirmed.

All concur.