State v. Nerzinger

• Decision Date: 18 May 1909
• Citation: 119 S.W. 379,220 Mo. 36
• Parties: STATE v. NERZINGER.
• Court: Missouri Supreme Court

119 S.W. 379

220 Mo. 36

STATE v. NERZINGER.

Supreme Court of Missouri, Division No. 2.

May 18, 1909.

1. MAYHEM (§ 4) — INDICTMENT — SUFFICIENCY.

Rev. St. 1899, § 1846 (Ann. St. 1906, p. 1276), provides that "every person who shall on purpose and of malice aforethought * * * put out the eye * * * of any person with intent to kill, maim, or disfigure such person, shall be guilty of mayhem," etc. An indictment charged that defendant, "with force and arms, in and upon one L. W., feloniously, willfully, on purpose, and of his malice aforethought did make an assault, and the said A. N. (the defendant) with a large quantity of sulphuric acid then and there, feloniously, willfully, on purpose and of his malice aforethought, did put out the eyes of the said L. W. by then and there burning the said eyes of said L. W. with said sulphuric acid, with the intent then and there, her, the said L. W. feloniously, willfully, on purpose, and of his malice aforethought, to maim and disfigure; against the peace and dignity of the state." Held, that the indictment sufficiently advised defendant of the charge, and was not subject to objection in that it did not allege that the thing done was done feloniously, nor because it neither described the character of the acid, nor stated how it was used, whether by throwing it into her face or throwing her into the acid.

2. CRIMINAL LAW (§ 784)—INSTRUCTIONS— CIRCUMSTANTIAL EVIDENCE.

It is only when the state relies on circumstantial evidence alone that an instruction thereon should be given.

3. CRIMINAL LAW (§ 784)—INSTRUCTIONS— CIRCUMSTANTIAL EVIDENCE.

In a prosecution for mayhem by putting out a woman's eyes with sulphuric acid, she and her companion, who were the only eye-witnesses to the crime, identified defendant as the man who threw the acid, and there was no attempt to assail their general reputation, but it was insisted that her evidence was impeached by the doctor and druggist, who were at once called in, and who testified that she and her companion both stated that they did not know who threw the acid. It appeared, however, that on the way to the hospital, or after reaching there, she told the doctor to arrest defendant, and it was on her information that it was done. Held, that she and her companion were not impeached, so as to render proper an instruction on circumstantial evidence, which should only be given where the state relies on circumstantial evidence alone.

4. CRIMINAL LAW (§ 1173)—APPEAL AND ERROR — HARMLESS ERROR — REFUSAL OF INSTRUCTIONS.

There was no prejudice to defendant in refusing to instruct on circumstantial evidence, where the court fully instructed the jury on reasonable doubt.

5. CRIMINAL LAW (§ 789)—INSTRUCTIONS— REASONABLE DOUBT.

An instruction that the jury should acquit if, on a consideration of all the evidence, they have a reasonable doubt of defendant's guilt, but that a doubt, to authorize an acquittal on that ground, ought to be a substantial doubt touching the defendant's guilt, and not a mere possibility of his innocence, embodies the true doctrine as to reasonable doubt.

6. CRIMINAL LAW (§ 805)—INSTRUCTIONS— ADHERENCE TO APPROVED FORMS.

Circuit courts ought to adhere to instructions that have received the approval of the Supreme Court, and not attempt definitions which add nothing to the meaning of well-understood terms.

7. CRIMINAL LAW (§ 1172)—APPEAL—HARMLESS ERROR—INSTRUCTIONS.

In addition to an instruction which embodied the true doctrine as to reasonable doubt, the court instructed that a reasonable doubt is one based on reason and which is reasonable in view of all the evidence, and that if, after an impartial consideration of all the evidence, the jury could candidly say that they were not satisfied of the defendant's guilt, they had a reasonable doubt, but that if, after such consideration, they could truthfully say that they had an abiding conviction of defendant's guilt, such as they would be willing to act on in the more weighty matters as to their own affairs, then they had no reasonable doubt. Held, that this last instruction was entirely unnecessary, but that it was not prejudicial to defendant.

8. MAYHEM (§ 6)—TRIAL—INSTRUCTIONS.

An instruction in an action for mayhem required the jury to find that defendant, beyond a reasonable doubt, feloniously, on purpose, and of his malice aforethought, made an assault on the complaining witness with the intent then and there to maim and disfigure her, and in pursuance of such intent, did then and there wrongfully and with malice aforethought cast and throw into her eyes a quantity of sulphuric acid, and that by reason thereof her eyes were destroyed or burned out. Held, that this was entirely correct, without being qualified so as to require the jury to find that the acid was of a character reasonably calculated to produce that result, and that defendant knew it.

9. CRIMINAL LAW (§ 761) — PROVINCE OF JURY—INVASION BY INSTRUCTIONS.

In a prosecution for mayhem, an instruction told the jury that if they found from the evidence that defendant knowingly and willfully threw sulphuric acid, a corrosive substance, into the face of the prosecuting witness without just cause or provocation, then, unless the facts and circumstances in the case satisfied them to the contrary, the law would presume, and they might so find, that such assault was made with malice aforethought and with intent to destroy her eyes, and that the law presumes that a person intends the natural and probable consequence of his own act. Held, that this did not invade the province of the jury in telling them that sulphuric acid was a corrosive substance, but, on the contrary, left it to the jury to find that it was such a substance.

10. CRIMINAL LAW (§ 761)—INSTRUCTIONS— DECLARING FACT COMMONLY KNOWN.

No error would be committed by the court in stating to the jury a material fact as to the nature of a substance which is a matter of common knowledge, of which the courts as well as juries take notice.

11. CRIMINAL LAW (§ 304) — EVIDENCE — JUDICIAL NOTICE — MATTERS OF COMMON KNOWLEDGE.

Courts as well as juries take cognizance of such matters as are of common knowledge and pertain to the experience of almost every man's daily life, and courts do not require proof that fire will burn, or powder explode, or gas illuminate, or that many other processes in nature and art produce certain known effects; and nothing is more definitely settled in common experience than that sulphuric acid is corrosive.

Appeal from St. Louis Circuit Court; Hugo Muench, Judge.

Albert Nerzinger was convicted of mayhem, and he appeals. Affirmed.

Thomas B. Harvey, for appellant. E. W. Major, Atty. Gen., and Jas. T. Blair, Asst. Atty. Gen., for the State.

GANTT, P. J.

On the 8th day of July, 1907, the circuit attorney of the city of St. Louis filed in the office of the clerk of the circuit court the following information:

"State of Missouri, City of St. Louis—ss.: Circuit Court of City of St. Louis, June Term, 1907. Richard M. Johnson, assistant circuit attorney, in and for the city of St. Louis aforesaid, within and for the body of the city of St. Louis, on behalf of the state of Missouri, upon his official oath, information makes as follows: That Albert Nerzinger, on the ninth day of June, in the year of our Lord one thousand nine hundred and seven, at the city of St. Louis aforesaid, with force and arms, in and upon one Lena Wunsch feloniously, willfully, on purpose and of his malice aforethought did make an assault; and the said Albert Nerzinger, with a large quantity of sulphuric acid, then and there feloniously, willfully, on purpose, and of his malice aforethought did put out the eyes of the said Lena Wunsch, by then and there burning the said eyes of the said Lena Wunsch with said sulphuric acid, with the intent then and there, her, the said Lena Wunsch, feloniously, willfully, on purpose, and of his malice aforethought to maim and disfigure; against the peace and dignity of the state. Rich M. Johnson, Assistant Circuit Attorney.

"State of Missouri, City of St. Louis—ss.: Richard M. Johnson, being duly sworn, upon his oath, says that the statements made in the foregoing information are true. Rich M. Johnson.

"Subscribed and sworn to before me this 8th day of July, 1907. Adolph Nast, Clerk of the Circuit Court, City of St. Louis (for Criminal Causes). [Seal.]"

The defendant was arrested and duly arraigned, and entered his plea of not guilty. The cause was then continued to the October term, 1907, and thereat the defendant, by leave of court, withdrew his plea of not guilty and filed a motion to quash the information. The motion to quash the information was overruled, and the defendant was rearraigned and again pleaded not guilty. At the same term the cause was tried to the jury, and the defendant was found guilty, and his punishment assessed at 20 years in the penitentiary. In due time he filed his motion for a new trial and in arrest of judgment, which was overruled, and he has appealed to this court.

The evidence on the part of the state in substance tended to prove that on the evening of Sunday, June 9, 1907, Mrs. Lena Wunsch visited Kaiser's Garden, in the city of St. Louis. About 8:30 p. m. of that evening she left the garden with an acquaintance of hers by the name of Lautenschlager, and proceeded toward Grand avenue, intending there to take the Grand avenue car. Her home was at 3113 South Ninth street, in the city of St. Louis. As Mrs. Wunsch and her escort arrived at the alley running south from Osceola street between Grand avenue and Thirteenth street, the defendant, Albert C. Nerzinger, partially emerged from the alley and threw sulphuric acid upon Mrs. Wunsch, entirely destroying her eyesight, and seriously burning her face, neck, and upper part of her body. The injury was so severe that the woman's eyeballs dropped from their sockets about three weeks later.

Both Lautenschlager and Mrs. Wunsch identified the...