State v. Nelson

• Decision Date: 26 November 1901
• Parties: STATE v. NELSON.<SMALL><SUP>1</SUP></SMALL>
• Court: Missouri Supreme Court

65 S.W. 749

166 Mo. 191

STATE v. NELSON.¹

Supreme Court of Missouri, Division No. 2.

November 26, 1901.

HOMICIDE — EVIDENCE — RES GESTÆ — ADMISSIBILITY AND RELEVANCY — JURY — TAKING OF OATH.

1. Defendant was a bartender in a saloon operated in connection with a hotel. At noon on the day of the killing two persons came to the saloon to get D., a guest at the hotel, to accompany them to another place. Defendant resented the implication that D. was not properly treated there, and in the discussion deceased, a former bartender of the saloon, came up and without provocation applied insulting language to defendant. A fight ensued; deceased striking defendant and throwing him to the floor. Deceased was beating defendant when bystanders separated them. There was evidence that defendant then ran deceased upstairs, and that deceased made threats against defendant's life. Deceased left, and defendant did not see him until 6 o'clock in the evening, when deceased came into the saloon, whereupon defendant accosted him, telling him to apologize, and, on his refusal, shot him. The evidence was conflicting whether deceased had assumed a threatening attitude just prior to the killing. Held, that details of the fight that occurred at noon were admissible as res gestæ.

2. The exclusion of such evidence was not cured by the admission of similar evidence in a deposition and the testimony of D., a confirmed opium eater, where the witnesses who could have testified to such facts were present at the trial.

3. Evidence of a difficulty the night previous between deceased, D., and two other persons was inadmissible, where defendant was not present and had no part in it.

4. In a prosecution for murder, a juror was asked on the voir dire if he would concur in a verdict of murder in the first degree, where justified by the law and evidence, and he stated that he was "opposed to capital punishment. If I took the oath I would follow my oath; but I have not taken the oath yet." He remained seated when the jury was asked to rise and be sworn, and refused to take the oath. He was ordered by the court to rise and to raise his hand, which he did. The record recites that the oath was administered to the jury as a whole. Held, that he was sworn and became a member of the jury.

Appeal from criminal court, Jackson county; Samuel Davis, Special Judge.

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

Hugh C. Brady, A. O. Harrison, and S. C. Price, for appellant. Edward C. Crow, Atty. Gen., for the State.

GANTT, J.

At the January term, 1900, of the criminal court of Jackson county, the defendant was indicted for murder in the first degree in the killing of one David Jones. The homicide occurred on the 2d day of January, 1900, at what is known as the "Star Saloon," on Union avenue, nearly opposite the Union Station, in Kansas City, Mo. As the indictment is in the usual and approved form, and is conceded to be sufficient, it is deemed unnecessary to reproduce it in full. The defendant was duly arraigned and pleaded not guilty. It appears he had been twice tried. There was a mistrial on the first trial. The facts in evidence on the last trial are substantially these: The defendant was a barkeeper at the Star saloon, and the deceased, Jones, had also been a barkeeper in the same saloon prior to the homicide, but was not at that time, but was boarding at the Adams House, a lodging house immediately above the said saloon. The evidence of the various witnesses is conflicting. The entrance to the saloon from the street is through a ticket broker's office in front. Opening from this office into the saloon are folding doors. Immediately in front of these folding doors, about four feet inside of the saloon, is a stationary screen about five feet wide. The doorway into the saloon is on the left as you go into the office. On the right side, and in the rear of the office, is a stairway leading to the hotel above. At the fifth step of this stairway are swinging doors, which, when shut, close this stairway passage. About noon of the day of the killing, Capt. Haley, of the Salvation Army, with Lieut. Burke, of the police, went into this ticket office to see a Mr. Dustin. The man Dustin was in Kansas City, as he testifies, to take treatment for the morphine habit, and Capt. Haley wanted him to come and stop at the Citadel, because he thought the surroundings and influences there would be better than at the Adams House, the hotel over this saloon, where he was then stopping. Jones, the deceased, was also stopping there. It appears that Dustin had been at the Adams House for some time, and was a frequenter of the Star saloon and a liberal patron of the bar. He had become acquainted, and more or less intimate, with the people about the hotel, office, and saloon. While Lieut. Burke was talking to Dustin, the defendant came and wanted to know what the police officer wanted with him, explaining that he was a friend of Dustin, and insisting that he (Dustin) had been well treated by everybody there. While these men were talking, Jones, the deceased, came up, and remarked to some one that it was not necessary for them to have anything to do with that son of a bitch, Nelson, and Nelson and deceased came near having a difficulty at that moment. The conversation between Burke, Haley, Dustin, and Ambs was continued at or near the swinging doors of the saloon, and deceased and defendant were standing back, when suddenly the others became aware of the fact that the deceased and the defendant were engaged in a fight, and in a few seconds they were on the floor, with the deceased on top of the defendant, striking and hitting him, and both men were very angry and very belligerent. Ambs and Haley and Burke interfered, and separated the men, and pulled Jones off of the defendant; and the testimony of the defendant's witnesses shows that at about this time Jones threatened that he would kill defendant, and the testimony for the state shows that as another bartender, Mr. Ward, assisted the defendant into the rear of the saloon to wash himself, defendant said he ought to kill the deceased. The court permitted the fact of this difficulty to be proven, but excluded evidence with reference to the circumstances and details of it. In this fight defendant was knocked down and beaten by deceased, and struck over the head, as defendant testifies, with a pair of brass knucks. The deceased was pulled off of defendant, and they were separated. Jones went up the stairs leading to the Adams House, and it is agreed that defendant went to the foot of the stairs, — some say up five steps, to the folding doors, — with a lemon squeezer in his hands. Defendant testifies that he went back to the bar after the fight, and Jones came in, still threatening, and he picked up the lemon squeezer and followed him out; Jones running up the stairway. Other testimony tends to show that Jones went up the stairway without going into the saloon. Several witnesses testify that, after defendant and deceased had been separated, deceased threatened to kill defendant before sundown, repeating the threat in other forms; that this threat was made in a loud voice, so that defendant could have heard it. There is also evidence of a previous threat by the deceased against defendant, and that this threat had been communicated to defendant. After this noon difficulty defendant went to his room on Wyandotte street, a half mile or more away from the Star saloon, and slept during the afternoon, returning to the saloon a few minutes before 6 o'clock, to go on duty again at that hour. When he came into the ticket office he was informed by Ambs that Mr. Dowling had told him to pay him off, and that his services were no longer needed. Ambs testifies that at this time defendant took his revolver out of his overcoat pocket, and, while holding it in his hand, said that, if the deceased did not apologize for the way he had talked to him, he would kill him. Defendant testifies that, having heard the threats of deceased against him, he put his revolver in his pocket after going home for the purpose of protecting himself against possible assault; that Ambs, when he told him he was discharged, asked for the key which he usually carried in his right-hand overcoat pocket; and that he took out the revolver and his handkerchief, put them in his left hand, and searched with his right hand in his pocket for the key, and failed to find it, — but denies making the threat testified to by Ambs. Defendant, after being paid off, had some conversation with Ambs to the effect that he thought he should have been paid for a week's work on being discharged without notice, but accepted the payment and invited Ambs to take a drink with him. He and Ambs went into the saloon; Ambs taking a cigar and defendant a drink of whisky. Ambs went back into the ticket office, leaving defendant still in the saloon. After taking his drink, defendant came into the ticket office, and, finding the key in his right-hand trousers pocket, gave it to Ambs; but Ambs' testimony is that he did not ask for the key at the time he told defendant that he was discharged, and only spoke of it after defendant came out of the saloon, following the cigar and the drink. Defendant went back into the saloon a few minutes later, and, while standing near the door, deceased came into the saloon, passed near defendant, made some remark to the porter, and went out. There was no hostile demonstration on the part of either defendant or deceased at that time, although defendant testifies that, when he saw in the mirror deceased coming in, he turned around, so as to face him. Shortly afterwards deceased came to the door of the saloon. Ambs testifies that, after going to the door of the saloon, deceased turned back into the office, and that defendant came and called him into the office. Defendant's testimony is that, upon seeing deceased come to the door, he went toward the door and...