State v. Nelson

• Decision Date: 10 May 1904
• Parties: STATE v. NELSON.
• Court: Missouri Supreme Court

80 S.W. 947

181 Mo. 340

STATE v. NELSON.

Supreme Court of Missouri, Division No. 2.

May 10, 1904.

MURDER — INDICTMENT — SUFFICIENCY — TRIAL — REMARKS OF COURT.

1. An indictment for murder which charged that "N. * * * a certain revolving pistol, which was then and there loaded with gunpowder and leaden bullets, and by him, the said N., in his hands * * * held, did * * * discharge and shoot off at, upon, and against him, the said J., and him, the said J., with the leaden bullets aforesaid, out of the pistol aforesaid * * * by the said N. shot off and discharged as aforesaid, then and there * * * did strike, penetrate, and wound the said J. in and upon the body of him, the said J., * * * giving to the said J., with the leaden bullets aforesaid, so as aforesaid discharged and shot off, out of the pistol aforesaid, by the said N., one mortal wound," was not fatally defective on the ground that it alleged that deceased shot himself.

2. The jury in a murder case had been out two days and one night, and, on being called into court without having reached an agreement, the judge stated that it appeared that this was the third trial of the case; that it was to the interest of everybody concerned, including defendant, that the matter should be settled; that the jury ought to make an effort to get together and make a verdict. Held prejudicial error, as having a tendency to cause the surrender of the free judgment of a part of the jurors.

Appeal from Criminal Court, Jackson County; Samuel Davis, Special Judge.

Joseph Nelson was convicted of murder, and appeals. Reversed.

See 65 S. W. 749.

W. F. Riggs, L. C. Boyle, Jas. Garner, Ralph Latshaw, and T. E. Burroughs, for appellant. The Attorney General and C. D. Corum, for the State.

FOX, J.

The indictment in this case was found by a grand jury of Jackson county, Mo., and was filed in said criminal court on the 5th day of January, 1900. At the January term of said court, 1903, defendant was tried and convicted of murder in the second degree upon such indictment, and punishment assessed at 10 years in the State Penitentiary. Motions for new trial and in arrest of judgment were duly filed, and, being overruled by the court, defendant prosecutes his appeal to this court, and the record is now before us for review.

This prosecution and conviction are predicated upon an indictment in the following form: "State of Missouri, County of Jackson — ss.: In the Criminal Court of Jackson County, Missouri, at Kansas City, Mo., January Term, A. D. 1900. The grand jurors for the state of Missouri, within and for the body of the county of Jackson, upon their oath present that Joseph Nelson, late of the county aforesaid, on the 2d day of January, 1900, at the county of Jackson, state of Missouri, in and upon one David Jones, then and there being, feloniously, willfully, deliberately, premeditatedly, on purpose, and of his malice aforethought, did make an assault, and a certain revolving pistol, which was then and there loaded with gunpowder and leaden bullets, and by him, the said Joseph Nelson, in his hands then and there had and held, he, the said Joseph Nelson, did then and there feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought, discharge and shoot off at, upon, and against him, the said David Jones, and him, the said David Jones, with the leaden bullets aforesaid, out of the pistol aforesaid, then and there, by force of the gunpowder aforesaid, by the said Joseph Nelson shot off and discharged as aforesaid, then and there feloniously, willfully, deliberately, premeditatedly, on purpose, and of his malice aforethought, did strike, penetrate, and wound the said David Jones in and upon the body of him, the said David Jones, thus and thereby then and there, feloniously, willfully, deliberately, premeditatedly, on purpose, and of his malice aforethought, giving to him, the said David Jones, with the leaden bullets aforesaid, so as aforesaid discharged and shot off out of the pistol aforesaid by the said Joseph Nelson, one mortal wound, of which said mortal wound the said David Jones from the 2d day of January in the year aforesaid until the 2d day of January in the year aforesaid did languish, and languishing did live, on which said 2d day in the year aforesaid the said David Jones, at the county of Jackson and state of Missouri, of the mortal wound aforesaid died; and so the grand jurors aforesaid do say that the said Joseph Nelson him, the said David Jones, at the county and state aforesaid, in the manner and by the means aforesaid, feloniously, willfully, deliberately, premeditatedly, on purpose, and of his malice aforethought, did kill and murder; against the peace and dignity of the state."

This is the second appeal in this cause, and it is conceded by appellant, as well as the state, that the facts developed in the trial of this cause are substantially the same as they appear in the record of the former appeal; hence it can serve no useful purpose to burden this opinion with a restatement of the facts. See State v. Nelson, 166 Mo. 191, 65 S. W. 749, 89 Am. St. Rep. 681. The facts, in connection with the action of the court during the progress of the trial, will be given proper attention in the course of the opinion.

Opinion.

This appeal presents two propositions for solution: First, it is urged that the indictment is fatally defective, and charges no offense against the laws of this state; second, that the statements or remarks of the trial court to the jury in respect to their duty in reaching a verdict constituted prejudicial error which warrants the reversal of the judgment.

Upon the former appeal the validity of the indictment was not called in question. However, this court held it was sufficient. Upon this appeal it is earnestly urged that the indictment is fatally defective and fails to charge any offense against the laws of the state. We have carefully considered the views expressed by counsel for appellant upon this proposition, have read and considered the allegations in the indictment with a marked...