State v. Nenninger

• Citation: 188 S.W.2d 56,354 Mo. 53
• Decision Date: 11 June 1945
• Docket Number: 39395
• Parties: State v. William Nenninger, Appellant
• Court: Missouri Supreme Court

188 S.W.2d 56

354 Mo. 53

State v. William Nenninger, Appellant

No. 39395

Supreme Court of Missouri

June 11, 1945

Appeal from Bollinger Circuit Court; Hon. Norwin D. Houser Judge.

Affirmed.

Homer F. Williams and Rush H. Limbaugh for appellant.

(1) Where self-defense is relied on by the defendant, evidence that the defendant knew that the deceased was in the habit of carrying concealed weapons is admissible, and it was error for the court to exclude from the consideration of the jury the statement by the defendant's counsel as to what the evidence would be in that respect, even though the evidence on the point was subsequently admitted. 2 Wigmore on Evidence (3 Ed.), sec. 246 (f), p. 53. (2) In admitting, over objections of the defendant, evidence of the so-called dying declaration of the deceased the court erred for the reasons that such evidence did not conform to the following rules The declaration was not restricted to the identification of the accused and the deceased and to the act of killing and the circumstances immediately attending such act and forming a part of the res gestae. State v. Hughes, 125 S.W.2d 66; State v. Strawther, 116 S.W.2d 133; State v. Matthews, 111 S.W.2d 62; State v Peak, 292 Mo. 249, 237 S.W. 466; State v. Wilkes, 278 Mo. 481, 213 S.W. 118; State v. Colvin, 226 Mo. 446, 126 S.W. 448. (3) A part of the declaration referred to a period prior to the homicide. State v. Kunkel, 289 S.W. 865; State v. Clift, 285 S.W. 706; State v. Wilkes, 278 Mo. 481, 213 S.W. 118; State v. Parker, 172 Mo. 191, 72 S.W. 650. (4) There was no showing by the witness who testified as to the dying declaration that deceased was conscious of approaching death. 5 Wigmore on Evidence (3 Ed.), secs. 1439, 1442, pp. 232-240; State v. Hughes, 125 S.W.2d 66; State v. Strawther, 116 S.W.2d 133; State v. Clift, 285 S.W. 706; State v. Colvin, 226 Mo. 446, 126 S.W. 448. (5) Nor was there evidence that at the time this declaration was made hope of recovery had been abandoned. Wigmore on Evidence (3 Ed.), secs. 1439, 1442, pp. 232-240; State v. Custer, 80 S.W.2d 176; State v. Simon, 50 Mo. 370. (6) There was no showing that when the declaration was made every motive to falsehood was silenced and the mind was induced by the most powerful consideration to speak the truth. 5 Wigmore on Evidence (3 Ed.), sec. 1443, pp. 241-242; State v. Custer, 80 S.W.2d 176; State v. Simon, 50 Mo. 370. (7) The declaration was rendered incompetent because it was shown that it was not a relation of facts connected with the shooting but it was an expression of strong feelings of hatred and revenge and was irrelevant and prejudicial. 1 Wharton's Criminal Evidence (11 Ed.), sec. 226, p. 269; 5 Wigmore on Evidence (3 Ed.), sec. 1443, p. 241. (8) The declaration was made by deceased when removed from the scene of the incident which is supposed to have produced it and after a long interval had elapsed. State v. Reeves, 195 S.W. 1027; State v. McKenzie, 228 Mo. 385, 128 S.W. 948; State v. Kelleher, 201 Mo. 614, 100 S.W. 470. (9) The court erroneously admitted the declarations without submitting to the jury by proper instruction the question as to whether the declaration was in fact made. State v. Hendricks, 172 Mo. 654, 63 S.W. 194. (10) The court erroneously decided as a matter of law that the evidence was admissible as a dying declaration, and did not leave to the jury by proper instruction the question as to whether there was a sense of impending death on the part of the deceased at the time the declaration was made. State v. Custer, 80 S.W.2d 176; State v. Vansant, 80 Mo. 67; State v. Hughes, 125 S.W.2d 66. (11) The court erred in admitting in evidence the hat of the deceased. The hat offered in evidence was not identified as the hat that was worn by the deceased at the time of the shooting. It was merely shown to be the deceased's hat. (12) Even if it had been shown to be the hat worn by the deceased at the time of the homicide it would not have been admissible because it would have served no useful purpose in proving or disproving any fact in the case. State v. Hughes, 125 S.W.2d 66; State v. Sterling, 72 S.W.2d 70; State v. Clough, 38 S.W.2d 36; State v. Rennison, 306 Mo. 473, 267 S.W. 850; State v. Creed, 299 Mo. 307, 252 S.W. 678. (13) The criminal docket of justice of the peace Rader showing prior criminal offenses of the deceased was improperly excluded because it was in contradiction of the testimony that the deceased had a good reputation and it was in support of the good faith of the defendant in undertaking to have the deceased taken into custody before he made his threatened attack on the defendant. 2 Wigmore on Evidence (3 Ed.), secs. 244-248, pp. 41-65. (14) The action of the court in giving an instruction on manslaughter was reversible error. Although it is the duty of the court to instruct upon every phase of the case warranted by the evidence, it is error for the court to instruct upon any grade of offense not authorized by the evidence. State v. Punshan, 124 Mo. 448, 27 S.W. 1111; State v. Herrell, 97 Mo. 105, 10 S.W. 387. (15) Under this general rule this court has held that a charge on the law of manslaughter is erroneous in the absence of evidence warranting it. State v. Brown, 145 Mo. 680, 47 S.W. 789; State v. Lewis, 118 Mo. 79, 23 S.W. 1082. (16) There was no evidence of personal violence or a direct and actual battery by the deceased upon the defendant, and in the absence of such evidence the defendant could not have been guilty of manslaughter, and it was error to instruct on manslaughter. State v. Bongard, 51 S.W.2d 84; State v. Perno, 23 S.W.2d 87; State v. Stewart, 278 Mo. 177, 212 S.W. 853; State v. Barrett, 240 Mo. 161, 144 S.W. 485; State v. Sharp, 233 Mo. 269, 135 S.W. 488; State v. McKenzie, 228 Mo. 385, 128 S.W. 948; State v. Gordon, 191 Mo. 114, 89 S.W. 1025; State v. Starr, 38 Mo. 270. (17) The fact that the instruction for manslaughter authorized a conviction for a lesser offense than that which the evidence showed defendant may have been guilty of, if guilty at all, was not harmless error inasmuch as the jury may not have been able under the evidence to find the defendant guilty at all of the higher grade of offense, and the instruction given was so confusing as to leave the jury in doubt as to what it could do. State v. Davis, 12 S.W.2d 426. (18) The case should be reversed because of misconduct on the part of the jury and the sheriff during the trial. The general rule is that separation of a jury during the progress of a trial and before the jury retires to deliberate requires a new trial unless the State affirmatively shows that the jurors were not subject to improper influence. State v. Dodson, 338 Mo. 846, 92 S.W.2d 614; State v. McGee, 336 Mo. 1082, 83 S.W.2d 98. (19) Although the evidence by the State on the motion for a new trial was offered for the purpose of showing that the jurors were not improperly influenced when they were on the fox hunt, that evidence does show that they were subject to improper influence in that they went on a mission for their amusement, entertainment and enjoyment in company with the sheriff who was active in selecting the jury, who directed their movements while on the hunt and brought them into the presence of others, thus placing them in a position where they were subject to improper influences whether such influences were exercised over them or not. It is contrary to the whole spirit of the law for the determination of the question of the guilt or innocence of any defendant to be entrusted to those who would thus hazard it. State v. McGee, 336 Mo. 1082, 83 S.W.2d 98; State v. Schaeffer, 172 Mo. 335, 72 S.W. 518.

J. E. Taylor, Attorney General, and W. Brady Duncan, Assistant Attorney General, for respondent.

(1) Assignments general in character will not be considered on review by appellate court. Sec. 4125, R.S. 1939; State v Kennon, 123 S.W.2d 46; State v. Brown, 165 S.W.2d 420; State v. Kelly, 107 S.W.2d 19. (2) The court did not err in giving instruction on manslaughter. Secs. 3952, 4844, R.S. 1939; State v. Kimbrough, 350 Mo. 609, 166 S.W.2d 1077; State v. Reagan, 108 S.W.2d 391; State v. Gadwood, 342 Mo. 466, 116 S.W.2d 42; State v. Huett, 340 Mo. 934, 104 S.W.2d 252; State v. Bird, 286 Mo. 593, 228 S.W. 751. (3) Assignments of error not raised in defendant's motion for new trial will not be considered on appeal. Sec. 4125, R.S. 1939; State v. Kenyon, 343 Mo. 1168, 126 S.W.2d 245; State v. Mason, 339 Mo. 874, 98 S.W.2d 574. (4) The court did not commit reversible error in sustaining objection to defendant's opening statement concerning allegation deceased carried knucks. State v. Stogsdill, 324 Mo. 105, 23 S.W.2d 22; State v. Buckner, 80 S.W.2d 167; State v. Davis, 267 S.W. 838; State v. Curtner, 262 Mo. 214, 170 S.W. 1141. (5) The court did not err in permitting witness to testify as to dying declarations of deceased, because the proper foundation for its admission had been established. State v. Flinn, 96 S.W.2d 506; State v. Davis, 337 Mo. 411, 84 S.W.2d 930; State v. Logan, 344 Mo. 351, 126 S.W.2d 256; 122 A.L.R. 417; State v. Strawther, 342 Mo. 618, 116 S.W.2d 133; State v. Hughes, 344 Mo. 116, 125 S.W.2d 66. (6) The court did not commit error in connection with testimony of witness Henry Holweg ("Don't let him get by with this.") State v. Perriman, 180 S.W.2d 668; State v. Varnon, 174 S.W.2d 146; State v. King, 342 Mo. 975, 119 S.W.2d 277; State v. Sherry, 64 S.W.2d 238. (7) The court did not err in admitting in evidence the hat belonging to deceased, found on premises of defendant. State v. Lewis, 137 S.W.2d 465; State v. Shawley, 334 Mo. 352, 67 S.W.2d 74; State v. Hamilton, 340 Mo. 768, 102 S.W.2d 642; State v. Evans, 334 Mo. 914, 68 S.W.2d 705; State v. Bird, 286 Mo. 593, ...