State v. Johnson

90 S.W. 89, 191 Mo. 177, 1905 Mo. LEXIS 199

• Court: Supreme Court of Missouri
• Decided: November 21, 1905
• Status: Published

Opinion

GANTT, J.

This is a prosecution for murder in the second degree by information filed by the prosecuting attorney of Pemiscot county against the defendant, Tom Johnson, Ed Johnson and Lon Moore for the murder of Elvey Williams. The defendant was separately tried and convicted of murder in the second degree and his sentence fixed at ten years in the State penitentiary.

Prom that conviction he appeals. The information in this case is ideutical with that filed in State v. Williams, 184 Mo. 261, and is fatally defective in that it fails to charge that the defendants, with the leaden halls shot out of the pistol, did strike and penetrate the body of the said Elvey Williams. It was ruled in State v. Green, 111 Mo. 585, that this was an absolutely essential allegation in such a case, and upon the authority of State v. Williams, 184 Mo. 261, and State v. Green, 111 Mo. 585, the information herein must be and is held fatally defective and accordingly the judgment is reversed and the cause remanded in order that a new information may he filed, and the prisoner is remanded to the custody of the sheriff of Pemiscot county to await such action by the prosecuting attorney.

Burgess, P. J., and Fox, J., concur.