State v. Nueslein

• Citation: 25 Mo. 111
• Parties: THE STATE, Respondent, v. NUESLEIN, Appellant.
• Decision Date: 31 March 1857
• Court: United States State Supreme Court of Missouri

25 Mo. 111

THE STATE, Respondent,

v.NUESLEIN, Appellant.

Supreme Court of Missouri.

March Term, 1857.

1. A jury, in the case of an indictment for murder, were instructed as follows: “If you have a reasonable doubt of defendant's guilt, you should acquit; but a doubt, to authorize an acquittal on that ground, ought to be a substantial doubt touching defendant's guilt, and not a mere possibility of his innocence;” held, that the instruction was good.

2. To constitute murder in the first degree, it is not necessary that the fatal stroke be given with the specific intent to kill; it is sufficient if it be given willfully and maliciously, and with the intent to inflict great bodily harm.

3. Whether a weapon used, a stick or club, is of a character likely to produce death or great bodily harm is a question of fact to be passed upon by the jury.

Appeal from St. Louis Criminal Court.

C. C. Carroll, for appellant.

C. G. Mauro (circuit attorney), for respondent.

RYLAND, Judge, delivered the opinion of the court.

Jacob Nueslein was indicted at the September term of the St. Louis Criminal Court, in the year A. D. 1856, for the murder of Ann Mary Nueslein. He was subsequently arraigned and plead not guilty. There was a mistrial of the case in November--the jury failing to agree in a verdict. He was tried in January, 1857, in the St. Louis Criminal Court, and was convicted of murder in the first degree. He moved for a new trial, which, being overruled, he excepted, and brings the case here by appeal. In this court, his counsel relies principally for a reversal of the judgment upon improper instructions given by the court below to the jury, and upon the refusal of the court to give a proper instruction asked by the defendant. The bill of exceptions discloses the following circumstantial evidence in the case:--Mary McDonald, a witness for the State, testified as follows: I live beyond the reservoir. I don't know the street. My house is below the reservoir; I live about forty yards from defendant's house. His house is this side of mine; his is nearest the city. Defendant lived there four or five months. I knew Ann Mary Nueslein; she was the wife of the defendant; she is dead; she died on Friday, July last. I saw her on that day before she died; I saw her that day between seven and eight o'clock, pulling lettuce seed. She was near the fence; just saw her there. I saw defendant at the time on the other side of the field plowing with horses; I never saw her after that, until I saw her dead; I saw her dead between ten and eleven o'clock of that day. I was eating my dinner, and the defendant came to my house. He said, “come neighbor, come;” he was outside on the prairie, near my door; he then turned and ran home, entering one door and coming out of another of his house, and passed down to the cellar. I was just behind him. He took hold of her and raised her up and bid her wake up; I saw she was dead, and ran out again; I did not remain in the cellar but a minute or so, and came right out and met my husband at the cellar door. He went down; I went back through the house; I did not then see wounds on her; I knew by her looks that she was dead; I felt her leg, it was cold. My husband came out in a couple of minutes; he went over for neighbors; he was not long away; I remained watching the defendant; he (defendant) brought her (his wife) in or through the back door, and laid her down on the kitchen floor; that was when he saw my husband coming back with the neighbors. He (defendant) took a pitcher off of the shelf and ran in the hole or cellar again; he only laid her on the floor; I did not afterwards go to the house until he was taken to the jail. My husband and a one-handed German arrested him; I did not hear him (defendant) say any thing at that time. Ann Mary was, as I said, on the floor of the kitchen; I saw a large cut behind her right ear; her eyes were black, and her nose was scratched; her knees were black and blue; all seemed black and blue around her shins; they were scratched like you had hurt them. I saw blood on the wall, over the lounge, in the dining-room. The blood was as high about as the head would reach in sitting on the lounge; not a great deal of blood was on the floor. Her brother, Cooper, who was in Frenchtown, came and took her away in a carriage. I saw said Ann Mary sometimes in the field working with defendant; at one time I saw defendant strike her; he made a few boxes at her with his hand; he struck at her as fast as he could, until she ran into the house. This was a good while before Ann Mary died. I saw blood on his shirt as they were taking him to jail; I saw some one having hold of a piece of stick on which there was some blood. Patrick Shehan has gone away, also his wife. When I first saw Ann Mary on the day she died, she was in a lump, doubled up; the clothes looked tattered; her hair was nasty and dirty looking. I did not see blood in the cellar; didn't go to see it. On cross-examination the witness said: I reckon defendant knew what ailed his wife when he came to our house. There might have been persons at defendant's house between the time I saw her in the garden and the time when defendant came over to our house saying, “Come, neighbor, come;” I mean other persons than defendant. He (defendant) seemed to be much distressed when he came over, judging from his manner; he seemed like a crazy man. When I first went into the cellar, he shook her up, and told her to wake. Ann Mary was barefooted at that time. I saw scratches on her nose; her eyes were black, and her face was black; I don't know but these bruises might have been caused by her falling down; I was but little acquainted with deceased, Ann Mary; I think she was a good little woman; I never saw her drunk.

The coroner, William J. Kennedy, was next called as a witness. He stated as follows: I am the coroner of St. Louis county; I saw defendant first in the calaboose; I went to defendant's house and saw him at the calaboose afterwards; I went there on the 26th day of July last. It was the day after his wife's death. The house is situated near the new city reservoir, to the west of it-- about three or four blocks west of it. The house faces to the road running east and west; fronts to the north, being on the south side of the street. Mrs. McDonald lives two or three hundred yards from Nueslein's, being further west. The road runs twenty feet from the house. McDonald's house is rather northwest from defendant's. Defendant's house is a one-story frame, with two rooms in it; two doors facing to the north, and one to the south; the rooms alongside of each other; a front door to each of these rooms; a fire-place between the two rooms; the door on the south from the east room; the cellar is underneath the east room; it is about eight feet square, dug out of the clay, and about five feet deep; there was a small hole to go down into it on the south side of the house; the hole is about three feet broad by two and a half deep; it slants down into the cellar, and you have to bend down to get into it; there are no steps going down to the cellar. The said house is within the city and county of St. Louis. I went about eight o'clock in the morning to hold an inquest on Ann Mary Nueslein; I saw her lying on the floor on her back, in a crooked position, in the east room, on the south side of the room, her head towards the west. The house was in a disorderly state. The bed clothing and floor in the west room clean. The bed was in the west room, and lounge in the east room in the southeast corner. There was blood on the floor under her head; a considerable pool of blood. Her hair was all matted up. There was a spot of blood under the dining table; this was in the northeast corner, about four feet from where she was laying. There was some blood on the wall, immediately over the settee, or lounge, about as high up as a person would sit. There was not a great deal of blood, but enough to see it. I examined the body of the deceased; found a wound on the right side of the head, just above her ear, about one inch and a half in length, cut into the skull bone. The skull bone was laid open, and to be seen. There was a dent, and a sensible one, in the skull. There were bruises on her face. Her eyes were black. In the forehead was a bruise that appeared to have been done with some heavy instrument or fist. Her face was rather pale. There were several other scratches on her face, and one on her nose. There were two bruises on her left breast, one of which was three or four inches in diameter, nearly round; the other was not so large. These wounds were inflicted, as it appeared to me, with some blunt instrument. There were no other wounds on her breast. Both of her shin bones and knees were skinned. The said wounds could be done by falling down or a kick from a boot, both of them. Her legs were skinned from the toes up to the knees. The whole body appeared to be black and blue all over. I did not turn her over. There was blood on the bosom of her clothes and sleeves. She had been bleeding. The blood came out of her right ear, and out of her nose. The right ear was full of blood; the left ear did not bleed any. The nose was swollen. I went down in the cellar; there I saw blood, but not a great deal. It was on the hoops of the barrels, about four inches above the ground; two or three barrels in the cellar, in the back part, to the northeast corner. There were jars and crocks, about a dozen, in the cellar. The barrels and jars took up half the cellar. I saw a piece of pine wood with blood on it, about three feet in length, and about two and a half inches broad, and one inch thick. The stick was broken in three pieces; one piece was about eighteen inches in length, which had the blood on it. It was broken, and there was blood on the new part. The blood was on the new part, as if seized hold of with bloody fingers. There was no more blood on that piece. I matched those pieces...