State v. Gleason

• Decision Date: 03 February 1903
• Citation: 72 S.W. 676,172 Mo. 259
• Parties: STATE v. GLEASON.
• Court: Missouri Supreme Court

72 S.W. 676

172 Mo. 259

STATE v. GLEASON.

Supreme Court of Missouri, Division No. 2.

February 3, 1903.

MURDER — INDICTMENT — SUFFICIENCY — EVIDENCE — INSTRUCTIONS — MISCONDUCT OF JURY.

1. An indictment for murder is not fatally defective, because alleging in its conclusion that the grand jurors upon their oaths say that defendant killed deceased "by the means aforesaid," instead of "in the manner and form aforesaid."

2. Where an indictment for murder charged that defendant "did make an assault," and that said defendant "a certain pistol then and there charged with gunpowder and leaden balls, which said pistol he did discharge and shoot off," etc., the omission of the word "with," before the allegation "a certain pistol then and there charged," etc., did not render the indictment defective.

3. Where the evidence was conflicting, and that of the state tended to show that defendant, after an altercation with deceased in the dining room of a restaurant, operated by the two jointly, went into the front room, armed himself with a revolver, and, returning, presented it at deceased while he was waiting on a customer, and that deceased merely warded off the pistol when defendant shot him, an instruction on murder in the second degree was justified by the evidence.

4. Where alleged misconduct of a juror occurred in the presence of the court and counsel for defendant, and counsel did not at the time except, the finding of the court that there was no misconduct cannot be disturbed on appeal.

5. In a criminal case, a verdict on conflicting evidence will not be disturbed on appeal.

Appeal from circuit court, Dent county; L. B. Woodside, Judge.

John Gleason was convicted of murder, and appeals. Affirmed.

At the April term, 1899, of the circuit court of Dent county, the grand jury of that county preferred the following indictment for murder against the defendant, John Gleason: "The grand jurors for the state of Missouri, summoned from the body of the inhabitants of Dent county, being duly impaneled, sworn, and charged to inquire within the body of the county of Dent aforesaid, on their oath do present and charge that John Gleason, at Dent county, Missouri, on the 24th day of December, 1898, in and upon one Harry Nelson, in the peace of the state then and there being, feloniously, willfully, deliberately, premeditatedly, and on purpose, and of his malice aforethought, did make an assault, and that the said John Gleason a certain pistol then and there charged with gunpowder and leaden balls, which said pistol he, the said John Gleason, in his hands then and there had and held, then and there feloniously, willfully, deliberately, premeditatedly, on purpose, and of his malice aforethought did discharge and shoot off, to, against, and upon the said Harry Nelson; and that the said John Gleason, with the leaden balls aforesaid, out of the pistol aforesaid, then and there by force of the gunpowder aforesaid, by the said John Gleason discharged and shot off as aforesaid, then and there feloniously, willfully, deliberately, premeditatedly, on purpose, and of his malice aforethought did strike, penetrate, and wound him, the said Harry Nelson, then and thereby feloniously, willfully, deliberately premeditatedly, on purpose, and of his malice aforethought giving to him, the said Harry Nelson, in and upon the upper part of the left breast of him, the said Harry Nelson, one mortal wound of the depth of six inches and of the breadth of one half inch, of which mortal wound he, the said Harry Nelson, then and there instantly died. And so the grand jurors aforesaid, upon their oath aforesaid, do say that the said John Gleason him, the said Harry Nelson, then and there, by the means aforesaid, at the county aforesaid, on the day aforesaid, feloniously, willfully, premeditatedly, deliberately, on purpose, and of his malice aforethought did kill and murder, against the peace and dignity of the state." The defendant was duly arraigned, and entered his plea of not guilty.

After two mistrials, the prosecuting attorney elected to prosecute for murder in the second degree only, and defendant was again duly arraigned, and the cause tried, resulting in a conviction of murder in the second degree, and assessing his punishment at 10 years in the penitentiary. From the sentence on that verdict, defendant appeals.

The defendant and Harry Nelson, the deceased, were partners in a restaurant business, in the city of Salem, at the time of the homicide. The deceased, Nelson, was the cook in the establishment. Prior to December 24, 1898, the evidence discloses no bad feeling between the partners, but on the afternoon of that day it appears there was a rush of business, and about 4:30 or 5 o'clock deceased came into the front room of the store, and complained that he must have more help in the dining room and kitchen, saying that he and his boy Roy Nelson could not do all the work, and that defendant was sitting there smoking his pipe and doing nothing. Another assistant, Rouse, was sent to help him, and deceased returned to the kitchen and dining room to serve the guests, who were complaining of the delay. In a short time — only a few minutes — defendant came to the dining room, and, accosting deceased, inquired what he would take for his interest in the business and get out. Deceased replied, "fifty dollars and his wages." Defendant refused to give that sum, and deceased again made the charge that defendant was not doing his part, to which defendant replied deceased was a liar. Defendant then returned to the front room, and placed a revolver in his pocket — he says in his pants pocket, others say he had it in his right-hand hip pocket. Thus armed, he returned to the dining room, where deceased was just serving some oysters to a guest. Defendant approached deceased where he was standing near the table, and at this point the evidence becomes very conflicting and contradictory. On the part of the state the testimony tends strongly to prove that defendant came into the dining room with his pistol in his hand, and approached deceased, coming within five or six feet of him, and that deceased, seeing the revolver, struck at it as if to ward it off, and thereupon defendant shot him in the breast, giving him a mortal wound, from which he instantly fell to the floor, and expired within 30 minutes; that deceased had made no assault on defendant prior to the presenting of the revolver at him, and then only to avert the shot. On the part of defendant the evidence tended to show that the wordy altercation was renewed, in which each gave the other the lie, and that deceased slapped or struck defendant with his hand or fist, and then reached for a plate on the table. Some of the witnesses say he threw the plate, and others that he reached the plate, but it was knocked from his hands. Still others say he struck defendant and knocked him back, and was pursuing the fight before defendant drew the revolver and fired. This court cannot reconcile the conflicting statements of the witnesses for the state and defendant. There was also evidence that defendant borrowed the pistol that forenoon about 11 o'clock; that when he came back into the dining room, after getting the pistol in the front room, he said, "I'll kill some G____d d____n nigger before sundown." The deceased was a negro man. There was some evidence that, after defendant had shot and killed deceased, he walked out of the dining room through the front room and into the street; that there was some blood on his forehead. There was also evidence that there was a contused wound on his forehead after he was arrested and placed in jail. Other facts may be noted in the course of the opinion.

J. J. Cope, Wm. P. Elmer, and L. Judson, for appellant. Edward C. Crow, Atty. Gen., Sam. B. Jeffries, and Jerry M. Jeffries, for the State.

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