State v. Nelson
| Decision Date | 22 December 1925 |
| Docket Number | 26198 |
| Parties | STATE v. NELSON |
| Court | Missouri Supreme Court |
John J Brennan, of Webster Groves, and John R. Davis, of St. Louis (Paul Armand Richards, of St. Louis, of counsel), for appellant.
Robert W. Otto, Atty. Gen., and Harry L. Thomas, Sp. Asst. Atty Gen., for the State.
The appellant and Thomas Beck were jointly charged by indictment in the circuit court of the city of St. Louis with the murder of one Louis Cieff in May, 1921. A severance was granted and the case was continued from time to time until February, 1924, when a trial to a jury was had, the appellant convicted, and his punishment assessed at imprisonment in the penitentiary for life. From this judgment he appeals.
In May, 1921, police officers were called to a room on South Sixteenth street in the city of St. Louis, where they found Louis Cieff, the occupant, lying on the floor in an unconscious condition. He had a number of wounds on his head and neck which had the appearance of having been inflicted with some sharp-edged tool or instrument. A hatchet was found under a pillow. The bed was bloody and the room was in disorder. Cieff was removed to a hospital, where he expired when taken to the emergency room. The post mortem showed numerous deep cuts upon his head, producing fractures of the skull and cranial hemorrhage. These wounds were shown to have caused his death. On September 3, 1921, or about 31/2 months after the murder, the appellant was arrested in the city of St. Louis. When apprehended he was asked by an officer if he knew why he was arrested, and he replied: 'Yes; for killing Louis Cieff.' He later made two confessions, one at the holdover, and the other at the office of the circuit attorney. It is not contended that these confessions were not voluntary. The one introduced in evidence, after much oral testimony, was in effect as follows:
'My name is William Nelson. I am also known as 'Bill Williams' I am 52 years of age, born in Illinois, married and reside with my wife, Alice Nelson, at 312 Convent street.
'On about May 14, 1921, Thomas Beck, of the city of St. Louis, and myself, talked about one Louis Ziff having a lot of money in his possession. On that date, in the nighttime, while Tom Beck and I were standing at Fifteenth and Walnut streets in the city of St. Louis, both being broke, I said to Beck, 'Tom, by God, we are broke! ' He said, 'By God, let's go get it! ' I understood him to mean we were to go to Ziff's place and rob him. Each night after that we loafed around town, but did nothing until May 17, 1921, when we met at Fifteenth and Walnut streets, and in the course of our conversation I said, 'Well, the old man has the stuff' Tom Beck said, 'By God, we'll go get it; we'll get the money, or kill him' I said, 'All right; here goes nothing' We walked from Fifteenth and Walnut streets to Ziff's place, and about 10:30 o'clock in the morning we went into the front door, which was open, and walked to Ziff's bedroom. He was standing near his bed. Ziff said, 'Well, boys, what do you want?' I said, 'We want some money' Tom Beck said, 'By God, we are going to have it, or we're going to kill you' I said, 'Yes; we are going to have it' Ziff said, 'I ain't got no money' I said, 'You're a damn liar; we'll have it, or kill you' Tom Beck said, 'Yes; we're going to have it' Ziff then threw up his hands, and Tom Beck reached over and struck him a blow on the jaw, which knocked him on the bed. Ziff said, 'I ain't got no money; don't hit me any more' I said, 'You're a liar; you have' I then picked up a hatchet, which was lying behind the stove, and hit Ziff on the head twice while he was lying on the bed. Ziff said, 'Boys, don't hit me any more' Beck said, 'Give me the hatchet, and I will hit him once' Tom Beck then struck him on the head with the hatchet. After I had hit Ziff twice and Beck hit him once with the hatchet, I reached up on the mantle piece and got $ 20, which was underneath a paper. Beck got $ 10, which was underneath a paper on the stove. After we had got this money, we looked at Ziff, and Beck said, 'He's dead; let's go' After this we walked out of the door. Beck and I then went down the street to Mike's saloon and each got a drink. I paid for them with some of the money I got from Ziff. Beck and I had a couple glasses of beer. Beck and I then went out of the front door of Mike's place, and I said to Beck, 'Well, so long; I got to leave you' He said, 'I will see you later' I then went across to East St. Louis, Ill., and caught a freight train, and beat my way to Carbondale, Ill.'
Witnesses present when the defendant dictated the confession to the stenographer testified that he named the deceased as 'Louis Cieff' and not 'Louis Ziff.'
The defendant offered but one witness, a Dr. William Nelson, a specialist in nervous diseases, and an employee of the city of St. Louis, who testified that his examination of the defendant, on February 7, 1924, indicated that he was of limited mentality and unable at times, when his consciousness was lessened, to distinguish between right and wrong, and that in view of such limitations he was, or is, at such times, not responsible for his acts, his mentality being that of a child of about the age of 8 years; that, however, he was not insane in the ordinary interpretation of that word.
I. The appellant contends that he is entitled to a discharge on account of the failure of the state to bring him to trial within the time required by law. This contention has especial reference to section 4040, R. S. 1919, with the modification placed thereon by the succeeding section 4043. The latter extends the time within which one accused of crime may be tried in counties having more than two regular terms of court each year, and which have jurisdiction of criminal cases. The city of St. Louis is within this class. In such jurisdictions one accused of a crime is entitled, under the sections designated, to a trial within three terms after the indictment was found, unless the delay in the trial was caused by some act of the accused which tolled the statute; the reason of the law being that, if the accused is ready and willing to put himself upon the country in answer to the charge preferred against him, he shall not be deprived of a speedy trial on account of the laches of the state. What constitutes laches within the meaning of these sections and the correlative section, 4041, has frequently been judicially determined. Paraphrasing the very excellent definition from our own cases of laches, as more particularly applicable to equitable proceedings, but which nevertheless is not inappropriate here, it consists in the failure on the part of the state to do that which in justice it should do in the prosecution of the accused to afford him such a speedy hearing and determination of the charge against him as is accorded by the Constitution. Troll, Adm'r, v. St. Louis, 257 Mo. 626, 168 S.W. 167. Mindful of the rights of the accused, and also of those of the public, this court has held that, in considering whether a defendant is entitled to a discharge under these statutes, the bar cannot be invoked where the continuances were made by the court on its own motion; and, if the phrase 'on its own motion' were not a sufficient statement of the reason for same, the presumption would nevertheless obtain that the state was in no manner responsible for the delay in the trial thus occasioned. State v. Marshall, 115 Mo. 383, 22 S.W. 452. Likewise, when a record shows a continuance, in the absence of any proof to the contrary, it will be presumed to have been granted on grounds authorized by the statute. State v. Haines, 160 Mo. 555, 61 S.W. 621. Inability of a court to try a case, not alone on account of a 'want of time' as stated in the statute, but for other equally substantial reasons, such as the illness of the judge or the failure of a jury to agree at the last term prescribed in the statute, will not authorize a discharge; nor is a special called term, which makes no mention of the case against the accused, to be counted as one of the terms specified in the statute. State v. Huting, 21 Mo. 464. By parity of reasoning, a continuance by the parties or on the application of the state with the consent of the accused will toll the statute. If otherwise construed, the bar of the statute would not be based upon the laches of the state, as was contemplated in its enactment, but upon an agreement...
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