State v. Nocton
| Decision Date | 08 May 1894 |
| Parties | STATE v. NOCTON. |
| Court | Missouri Supreme Court |
1. In a murder case it appeared that deceased was shot three times, two of the balls passing through the body. One week after he was shot, and two months before he died, he said that physicians had told him he could not possibly recover, and, when asked if he expected to get well, he said, "How can I?" and that he expected to die, but said nothing as to when he was going to die. He was so weak that the statement made "was made between gasps;" and at the beginning of it he said he believed he was "about to die." Held, that the statement was admissible as dying declarations.
2. Where defendant is convicted of murder in the second degree, and the evidence supports the verdict, an instruction as to manslaughter in the third degree, which is erroneous, because there is no evidence of unintentional killing, is harmless.
3. On the trial of N. and J. for murder, it was competent to show that J., who was indicted as an accomplice of N., attempted to bribe witnesses to leave the state, so as not to be present at J.'s trial, where the court restricted the evidence to such point.
4. Defendant's self-serving statements, made at the police station on surrendering himself after the homicide, were not res gestae, and were inadmissible.
5. Evidence that J. stated that N. was going to take a gun and kill deceased if he crossed him, or said anything to him, was competent.
6. It was not error to exclude evidence as to what deceased "said" about defendant just before the shooting, it not appearing that the fact that deceased uttered a threat was called to the attention of the trial court.
7. Where deceased's brother testified for the state that deceased never carried arms, it was not error to strike out the answer to the question, "He did not need to carry a revolver, did he?" asked on cross-examination; especially where it was shown that deceased was a powerful man, and quarrelsome when drinking.
8. If the fact that a juror was a "good friend" of deceased were ground for disturbing a verdict, affidavits which fail to show that defendant and his counsel did not know of such fact before the trial are fatally defective.
9. Where there are conflicting affidavits as to the prejudgment of a juror, the ruling of the trial court will not be reversed unless clearly erroneous.
Appeal from criminal court, Jackson county; John W. Wofford, Judge.
James Nocton was convicted of murder in the second degree, and he appeals. Affirmed.
Defendant was indicted for the crime of murder in the first degree, perpetrated by shooting with a revolver Gerald Clune. Nora Jones, his paramour, was indicted as an accomplice in the crime. Though indicted and charged with murder in the first degree, the defendant Nocton, after being, arraigned, with the assent of the prosecuting attorney, was permitted, with two sureties, to give bail in the sum of $1,000 for his appearance at the next term of the court. Defendant Jones was, with the like assent, also permitted to enter into personal recognizance of $1,000 for her appearance at the same time. Upon being tried, Jones was acquitted, and Nocton, alias Leary, was convicted of murder in the second degree, his punishment assessed at 10 years' imprisonment in the penitentiary, and he appeals to this court.
On behalf of the state the testimony shows that Nora Jones was a prostitute, with whom defendant James Nocton, alias Leary, was living in adultery. She also bestowed her favors on a single man, Gerald Clune, who lived about a block distant from Jones, with his mother. He was a young man, some 22 years of age, of whom Nocton, alias Leary, was excessively jealous, and this jealousy produced frequent quarrels between Nocton and Nora, and he several times beat her because of Clune's clandestine attentions. Nora, however, persistently denied to defendant that there were any illicit relations between Clune and herself, but did not succeed in deceiving defendant, who, from time to time, made threats of killing Clune. These threats were fulfilled on the 25th of August, 1892, at about 8 o'clock in the evening. The Jones woman occupied rooms up stairs over a store, on a public business street. There were two entrances thereto, — one flight of stairs leading up from the public street, in front, and the other leading up from the rear towards the alley, and ending directly opposite the front stairs; both stairways opening into a hallway extending along the center of the building. At the foot of the rear stairs was a door, while the front stairway was open. All of the larger portion of the afternoon of the day mentioned, it appears from the evidence, defendant was watching the house where Jones lived. About 5 o'clock Clune called at the house, the woman then being absent. Defendant followed him upstairs, and, while incensed and angered, concealed his purpose and feelings, and acted friendly towards Clune, and the two drank some beer together. Clune left, but defendant still kept up his watch on the premises, returning several times, and remarking that he believed she was away somewhere with Clune, and making ugly threats when he left. Jones returned home about 7 o'clock, and she had no sooner entered than defendant followed her up, breaking forth into great abuse of her because of his suspicions as to Clune's visits and attentions. During the quarrel he struck her, and knocked her down, and then left. He went home, and got the woman's picture from his trunk, to return to her, and then went to the shop where he worked, and got her revolver, in order, as he says, to return that to her also. It was only partly loaded, and he loaded the empty chambers, and returned near to where Jones lived, and continued his watch of the premises. About 8 o'clock young Clune went up to the rooms occupied by Jones, she having sent his young brother after him.
The testimony on behalf of the state shows, in substance, that Clune arrived at the invitation of Jones, but had scarcely done so, when defendant, who, it seems, had been watching, went to the back-stairway door, and rapped. When Jones inquired, "Who is that?" Gallagher, a negro woman, who worked for her, said to her, "Jim; you know who it is." Thereupon Jones said to Clune, "Gerald, go down and open the door; I am afraid." Upon this request, in his shirt sleeves, and without any arms, Clune went down the back steps, and opened the door, at which Jim Leary, alias Nocton, was standing, but Clune, as it seemed to a witness who stood in the hall only a few feet from the stairway, did not go out of the back door, nor did the witness hear any noise below, nor any blows struck, though she thinks she was in a position to have heard them. When Clune reached there, defendant "Jim" was heard to ask Clune, "Let me get my hat," and Clune said: Just then four shots were fired in rapid succession, and Clune screamed out in agony at the first shot, when defendant said: Clune then staggered up the steps, coming backwards, as it appeared to the witness, and when he got to the top of the steps he fell, and asked witness to go for his mother and the priest. Some one came, and asked who shot Clune, and Jones instantly spoke up and said, "That nigger down there," whereupon Gallagher, a negro woman, and witness, said, "No, it was not the nigger; it was Jim Leary." Jones denied making this statement, but the fact that Jones made it was established by at least three witnesses. Immediately upon the shots being fired, smoke filled the hall, so that it was impossible to see. There were three wounds on the body of the deceased; one on the right side, about four inches from the backbone. The bullet which made this wound entered in the back on a level with the ninth rib. It cut that rib, went through the liver, entered the rib in front, passed through it, and lodged in the vest pocket. The other wound was caused by a bullet which struck the right side of the back, went through, and lodged in the left side, between two ribs, and rather in front, and caused inflammation of the left lung; and the third wound was in the right shoulder blade, having entered, it seems, in front, a little above, the interior of the armpit.
Defendant, testifying in his own behalf, said: "I am the defendant in this case. I saw Gerald Clune before he was shot that day. I met him in Nora Jones' house, some time between five and six o'clock. I can't say what time. There was no trouble between us. While there I said I was going home and get supper, and go to work the next day, and he asked me if I was any good. I sent Lizzie Gallagher for a bucket of beer, and me and Gerald drank it. The way I happened to do that was, he asked me if I was any good, — he wanted beer. I didn't care to drink beer. I was going to work the next morning, and I knew if I began to drink any I would drink too much, and wouldn't go to work in time. Yes, sir; Clune and me drank beer in Nora Jones' house between five and six o'clock. I started to leave first, and went out the back way, and he said, `I will go with you,' and he got up, and came out with me. He went down the alley to Hickory street. He stopped and talked with ladies there, of his. I did not leave him there. I waited there for him. Along came friends of his, and talked to him, and asked him if he had a friend who would buy him a can of beer, and I gave the fellow 25 cents, and he went for 10 cents' worth. Clune didn't let anybody drink, and I told him to excuse me, I was going to get my supper. The fellow asked me where I went, and I said down to St. Louis avenue. The fellow went with us to Ninth and Wyoming, where I left him. All that time we were good...
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