State v. Nelson

• Decision Date: 17 November 1890
• Citation: State v. Nelson, 14 S.W. 712, 101 Mo. 464 (Mo. 1890)
• Parties: The State v. Nelson, Appellant
• Court: Missouri Supreme Court

14 S.W. 712

101 Mo. 464

The State v. Nelson, Appellant

Supreme Court of Missouri

November 17, 1890

Appeal from Platte Circuit Court. -- Hon. J. M. Sandusky, Judge.

Affirmed.

No brief for appellant.

John M Wood, Attorney General, for the State.

(1) It was not competent to prove that deceased said before his death that he did not want defendant prosecuted, as he himself was to blame. "In criminal prosecutions the state sustains no such relation to the party injured as will render his declarations admissible in evidence against the state." State v. Curtis, 70 Mo. 594. (2) The dying declarations were made in extremis and were properly admitted. State v. Chambers, 87 Mo. 406; State v. Johnson, 76 Mo. 121; State v. Kilgore, 70 Mo. 546; State v. Draper, 65 Mo. 335; State v Simmons, 50 Mo. 370; Whar. Cr. Ev., secs. 279, 282. (3) Evidence offered to show that Ferrill, one of the state's witnesses, was a rash, turbulent and dangerous man when in liquor was properly excluded. The witness was not a party to the difficulty, and could only be impeached as any other witness. (4) Testimony offered in rebuttal by the state, to show there were no scars or blood on defendant's face was properly received; he having offered evidence that such was the fact. (5) The fifth and sixth instructions for the state are sustained by the ninth and tenth approved in the case of State v. Gee, 85 Mo. 647. The ninth instruction for the state was approved in the same case.

OPINION

Black, J.

-- The defendant on Christmas day, the twenty-fifth of December, 1888, struck John Johnson on the head with an axe, inflicting a wound from which Johnson died on the twenty-seventh of the same month. Hence this indictment in the Platte circuit court for murder in the first degree, upon which the defendant was convicted of murder in the second degree and sentenced to twenty-five years' imprisonment.

On the day before mentioned the defendant went to his father's house in company with Ferrill and Burgess. At that place they met Hack Nelson -- as he is called in the record -- who was a brother of the defendant, and one Bias. The parties had been drinking before they assembled at the Nelson house, and while there they continued drinking until they were all under the influence of liquor. It seems that the defendant and his brother Hack got into a scuffle over a dog; and we next find the parties in the kitchen. Ferrill, the chief witness for the state, in substance, says: I saw Hack Nelson pick up a sugar-bowl and hit Burgess on the head; he then grabbed a butcher-knife and I caught him; he struggled to get loose and I threw him on the window and got the knife; he cursed, and threatened to strike me and told me to leave the house. The defendant then spoke up and ordered me to get out of there. I walked out, leaving defendant and his brother and the deceased in the kitchen, got on my horse and rode to Stafford's, which was about two hundred yards distant, taking the knife with me. I looked back and saw Hack Nelson in the yard with a plank in his hand. I went back and Hack came at me with the plank and I told him to keep his distance; I walked up toward the deceased and the defendant. Defendant had an axe drawn on the deceased, who was standing with his hands out talking with Charlie (defendant), as if he wanted to reason with him. I said to Johnson (deceased), "Let's go;" he turned his head around and looked back and saw the lick coming from Charlie in time to throw his head down and arm up; Charlie hit him on the right side of the head with the blade of the axe and he fell; Charlie then raised the axe as though he was going to hit me, and I went to the fence, jumped over into the road, and then saw Hack Nelson coming after me with the axe.

The physician who was called in says he found the deceased lying on the ground, twelve or fourteen feet from the porch; that there was a wound on the head, six inches long, an inch in depth and extending from the top of the head to the eye. There was another wound just above the eye, which appeared to have been made by a blunt instrument. The true bone of the arm, the ulna, was cut in two, one inch below the elbow joint. Other testimony for the state tends to show that deceased had nothing in his hands, and was killed while attempting to restore peace between the brothers.

The defendant, testifying in his own behalf, says Ferrill had the butcher-knife, and threatened to cut the heart out of Hack; that he went out of the kitchen to get the axe to drive Ferrill from his brother; that Johnson followed him out of the house; that he picked up the axe and started back, when Johnson struck him three times with a board. Says he told Johnson to quit, but Johnson paid no attention to what he said, and he then raised the axe to ward off the blows. Hack Nelson says he saw Johnson with something in his hand, drawn up, when his brother struck at Johnson.

The deceased, in his dying declarations, put in evidence by the state, stated that he did not hit defendant with a plank; that he had nothing to hit him with.

1. The defendant is not represented in this court. In examining the record, the first exception which we find is that concerning the evidence of Dr. Watson, who was called in immediately after the difficulty. He was asked by the defendant, on cross-examination, if the deceased at that time said he did not want defendant prosecuted. The state's objection to the question being sustained, the witness was...