# State v. Lee > Supreme Court of Missouri · March 13, 1924 · 303 Mo. 246 URL: https://www.frixlaw.com/law-library/cases/9866304 ## Case - **Full name:** The STATE v. JOHN LEE, Appellant - **Court:** Supreme Court of Missouri - **Decided:** March 13, 1924 - **Citations:** 303 Mo. 246; 259 S.W. 798; 1924 Mo. LEXIS 857 - **Precedential status:** Published - **Opinion:** Dissent by Gantt - **Judges:** Blair, David, Gantt, Walker, White - **Cited by:** 7 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9866304 ## Opinion text Gantt, J., in a strong dissenting* opinion in the case of State v. Coleman, points out that the requirement in an indictment that it shall be averred to be on the oaths of the grand jurors is very different from any similar allegation in an information presented upon the official oath of the prosecuting attorney; that in the latter, the allegation is no part of the facts constituting the offense, either specifically or in general. That dissenting opinion is much better reasoned and shows a much greater research of the authorities than any of the majority opinions in those cases. In the last case (State v. Minor, 193 Mo. 607 ), written by Valliant, J., this reason is given for requiring an allegation that the information is upon oath: ‘ ‘ Charging the crime in the information on the oath of the prosecuting attorney does not mean that the prosecuting attorney is speaking of his own knowledge any more than do the grand jurors when they on their oath charge the crime in an indictment, but it means with the prosecuting attorney what it means with the grand jury; that is, that he has diligently inquired and faithfully considered the evidence that has come to him and as the result of his investigation is so satisfied as to the truth of the charge that he is willing to say on his oath, in the same sense that the grand jurors say on their oath, that the accused committed the crime specified.” That is exactly the office and purpose of the statutory affidavit as explained in the Bonner Case and in all the authorities upon the subject; the allegation is *264 entirely superfluous. So far as I can find, in no other state which has a statute similar to ours is such an allegation required. The text-books cite Missouri alone as holding to the doctrine contended for. In the Coleman Case this is pointed out by Gantt, J., who made a similar investigation (186 Mo. l. c. 172). In that respect there is no reason or authority for the distinction between murders and other felonies. Further the Statute of Jeofails, Section 3908, Revised Statutes 1919, says that no indictment or information shall be deemed invalid “for the want of the averment of any matter not necessary to be proved.” It cannot for a moment be contended that it is necessary to prove that the prosecuting attorney performs his duties, including the presentment of an information upon his oath of office; no one ever heard of a criminal trial in which such proof was offered or required. No doubt some rulings have been influenced by a habit of mind in judges educated and long trained in common-law procedure and familiar with forms which at one time were wholly indispensable. In the present day fever for “direct action,” when “hello!” is the most elaborate form of polite address, it is difficult to appreciate how in the elder day ceremony was the essence of social and official life. Not only executives but courts of justice could not function without elaborate ceremonial. Form' was so essential that it could not be distinguished from substance, just as in the philosophy of matter “the thing itself” cannot be separated from its attributes. The form of the law was the law. Progress in procedure has been made, not by the abolition, but in the simplification arid adaptation of forms. Certain forms of procedure became so fixed in practice, and acquired so definite a significance, that a practitioner was always on safe ground when he followed them. To break away from them at once and entirely was to be left without a compass or a guide, the sport of judicial whims. We cannot abolish forms any *265 more than we can abolish principles; you cannot retain a triangle if you erase its three lines. The form of a criminal charge is the substance of the charge; the charge may be expressed adequately or insufficiently, or the attempt may not state the offense at all. We have stated this as strongly as we could because now no reason exists for the so-called rule contended for. There may be sufficient reason for requiring an information for murder to charge the crime as fully and completely as is required in an indictment, and to include the concluding general statement which characterizes the grade of the crime. But the averment in such conclusion that it is upon the official oath of the prosecutor has no reason for its presence, either in the common-law form for informations, or in the necessities of the case; on the contrary the statute, as*construed in the Bonner Case, plainly supplies a different method of serving the same purpose. We hold, therefore, that the statutory verification is intended to apprise the defendant that he is charged upon proper authority, that the verification of an information supplants the common-law requirement that an indictment allege in the body of it that it. is upon the oath of the grand jurors; that the statute does not in terms, nor by its relation to any common-law rule, tolerate any difference in respect to that mere formal requirement between a charge of murder and a charge of some other felony. IY. Error is assigned to the failure of the court to instruct on manslaughter. There ^was no evidence whatever upon which to base an instruction upon manslaughter. All of the evidence, excepting that of the defendant himself, shows that murder, cold-blooded and unprovoked, was accomplished. The defendant himself did not testify to facts which would justify the instruction on manslaughter. He testified that Young attacked him with a knife and that he got the knife away from him. in the scuffle and didn’t know that he was cutting him. *266 On Ms statement an instrnetion on self-defense was necessary and was given; if what he said was true he struck solely in self-defense, and without any intention to kill— then there was no manslaughter. Y. Error is assigned to the admission of the dying declaration of Young. This declaration was taken and reduced to writing, assented to by him two days after he was cut, and a few hours before his death. He was informed that he could not live, and stated that he expected to die. This was entirely sufficient to make it admissible. Other alleged errors are mentioned but we do not deem them sufficiently important to merit further consideration. Accordingly the judgment is affirmed. Walker, J., concurs; David E. Blair, P. J., concurs in result. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9866304. Public record. Not legal advice.