State v. Nickens

• Decision Date: 12 June 1894
• Citation: 27 S.W. 339,122 Mo. 607
• Parties: The State v. Nickens, Appellant
• Court: Missouri Supreme Court

27 S.W. 339

122 Mo. 607

The State v. Nickens, Appellant

Supreme Court of Missouri, Second Division

June 12, 1894

Appeal from St. Louis Criminal Court. -- Hon. H. L. Edmunds, Judge.

Affirmed.

McDonald & Howe for appellant.

(1) The court erred in refusing to allow the introduction of the city ordinance offered by the appellant. (2) The court committed error in addressing his remarks to the witnesses Summers and Hopkins while they were on the stand. (3) The court erred in refusing to instruct the jury upon the lower grade of assault to kill, under section 3490, Revised Statutes. (4) The court erred in failing to instruct the jury upon the good character of the accused. (5) The court erred in overruling appellant's motion for new trial. (6) The court erred in refusing to sign and allow appellant's bill of exceptions. Revised Ordinances, City of St. Louis, sec. 1428 p. 952; State v. Findlay, 101 Mo. 217; State v Hill, 91 Mo. 423; Suttie v. Aloe, 39 Mo.App 38; State v. Schloss, 90 Mo. 361; State v. Hroneck, 95 Mo. 79; State v. DeMosse, 98 Mo. 340; State v. Jones, 14 S.W. 947; Kelley's Crim. Law and Prac., sec. 441, p. 286; Revised Statutes, 1889, secs. 3637, 3643.

R. F. Walker, Attorney General, and C. O. Bishop for the state.

(1) The alleged newly discovered evidence was merely cumulative and hence constituted no ground for a new trial. Defendant did not file his own affidavit in support of the motion. State v. Welsor, 21 S.W. 443. (2) The motion for a new trial does not assign as a ground therefor the failure of the court to give instructions. (3) The evidence as to ordinance requiring a dramshop keeper to give a bond to conduct an orderly house was properly excluded. (4) Where the affidavits filed as to the correctness of the bill of exceptions are in conflict, the certificate of the trial judge that the bill is untrue should prevail. State v. Jones, 102 Mo. 305.

Burgess, J. Gantt, P. J., concurs. Sherwood, J., concurs, except on the point as to necessity of instruction on good character.

OPINION

Burgess, J.

From a conviction in the St. Louis criminal court, for an assault with intent to kill one Andrew Hopkins, on purpose and of his malice aforethought, defendant appeals. Defendant's punishment was fixed at two years' imprisonment in the penitentiary. After ineffectual motions for new trial and in arrest, he presented his bill of exceptions to the trial judge who refused to sign the same, and certified his refusal on the ground that it was untrue.

Defendant then presented a bill of exceptions signed by three bystanders which the judge refused to allow to be filed, and within five days defendant deposited his said bill of exceptions, supported by affidavits with the clerk of the court, and also within five days, the circuit attorney, representing the state, filed counter affidavits.

The difficulty occurred in a saloon of which defendant was manager. Both the defendant and Hopkins are negroes. On the evening of November 19, 1892, Hopkins, in company with one John Ray, went into the saloon, in which there were several persons, drank several times, when Hopkins commenced taking off the hats of some of those present, when defendant ordered him to desist, give the hats back, and then ordered him out of the saloon. Hopkins started to go out, when he was stopped by the defendant, who, about the same time, drew his pistol. Hopkins said, "You have got a gun, why don't you shoot?" Defendant then fired at Hopkins, the ball entering the right arm near the wrist and coming out near the elbow. When defendant was arrested a few minutes after the shooting, he stated that he had shot Hopkins for disturbing the peace and made the remark "God damn him, I wish I had killed him." No weapons were found upon Hopkins.

The theory of the defense was that of self-defense. Defendant admitted the shooting, testified in his own behalf that he was not personally acquainted with Hopkins; that Hopkins was under the influence of liquor, and drank two or three times in the saloon; he was very boisterous and noisy; that he pulled off the hats of two or three men, who raised quite a row about it. "I came out and told Hopkins to give the hats back to the boys, and keep quiet, whereupon he got mad and cursed me. Hopkins gave Brown his hat back, but refused to give McGee his, and somebody said to Hopkins, 'Slug him in the neck,' meaning McGee. Not wishing to have any trouble in there, I ordered Hopkins out of the saloon, and he turned to me with the left hand in his left hip pocket, and acted like he was going to draw a pistol, and said to me 'Damn you, you have got a gun, have you? Well, so have I, as big a gun as you have got, and damn you, shoot,' and was very threatening and acted like he was going to pull his pistol out, and I was afraid he was going to shoot me, and I shot first. I did not know the man; I saw he was under the influence of liquor, and when he pulled his hand back from his pocket I was afraid he would shoot me, and in order to be first, I shot him before he could get a chance to shoot me. He had started to back out of the saloon, but at the time he started to pull out his pistol he stopped and turned toward me, and when he ran his hand down in his hip pocket, before he could have time to draw his pistol, I shot."

Defendant proved a good character for peace and quiet. The court instructed for shooting with malice aforethought and on self-defense.

Upon the trial, defendant offered in evidence an ordinance of the city of St. Louis, in relation to dramshops for the purpose of showing that, before a license could be obtained for a dramshop, the applicant had to give a bond in the sum of $ 2,000 conditioned that he would keep an orderly house, etc., which the court, on objection of the state excluded, and this, it is insisted, was error. The ordinance was clearly inadmissible for any purpose, having no connection whatever with, or bearing upon, the case. The defendant had the same right without the ordinance...