State v. Nocton

• Citation: 26 S.W. 551,121 Mo. 537
• Parties: The State v. Nocton, Appellant
• Decision Date: 08 May 1894
• Court: United States State Supreme Court of Missouri

26 S.W. 551

121 Mo. 537

The State v. Nocton, Appellant

Supreme Court of Missouri, Second Division

May 8, 1894

[Copyrighted Material Omitted]

Appeal from Jackson Criminal Court. -- Hon. John W. Wofford, Judge.

Defendant was indicted for the crime of murder in the first degree perpetrated by shooting with a revolver, Gerald Clune. Nora Jones, his paramour, was indicted as an accomplice in the crime. Though indicted and charged with murder in the first degree, the defendant Nocton, after being arraigned, with the assent of the prosecuting attorney, was permitted, with two sureties to give bail in the sum of $ 1,000 for his appearance at the next term of the court. Defendant Jones was with the like assent also permitted to enter into personal recognizance of $ 1,000 for her appearance at the same time. Upon being tried Jones was acquitted, and Nocton, alias Leary was convicted of murder in the second degree; his punishment assessed at ten years' imprisonment in the penitentiary and he appeals to this court.

On behalf of the state, the testimony shows that Nora Jones was a prostitute, with whom defendant James Nocton, alias Leary was living in adultery. She also bestowed her favors on a single man, Gerald Clune, who lived about a block distant from Jones, with his mother. He was a young man some twenty-two years of age, of whom Nocton, alias Leary, was excessively jealous, and this jealousy produced frequent quarrels between Nocton and Nora, and he several times beat her because of Clune's clandestine attentions. Nora, however, persistently denied to defendant that there were any illicit relations between Clune and herself, but did not succeed in deceiving defendant, who from time to time made threats of killing Clune.

These threats were fulfilled on the twenty-fifth of August, 1892, at about 8 o'clock in the evening. The Jones woman occupied rooms upstairs, over a store, on a public business street; there were two entrances thereto -- one flight of stairs leading up from the public street, in front, and the other leading up from the rear toward the alley and ending directly opposite the front stairs, both stairways opening into a hallway, extending along the center of the building; at the foot of the rear stairs was a door, while the front stairway was open. All of the larger portion of the afternoon of the day mentioned, it appears from the evidence, defendant was watching the house where Jones lived. About 5 o'clock Clune called at the house -- the woman then being absent; defendant followed him upstairs and, while incensed and angered, concealed his purpose and feelings, and acted friendly toward Clune, and the two drank some beer together. Clune left, but defendant still kept up his watch on the premises, returning several times and remarking that he believed she was away somewhere with Clune, and making ugly threats when he left. Jones returned home about 7 o'clock and she had no sooner entered when defendant followed her up, breaking forth into great abuse of her because of his suspicions as to Clune's visits and attentions. During the quarrel he struck her and knocked her down and then left. He went home and got the woman's picture from his trunk to return to her, and then went to the shop where he worked and got her revolver, in order, as he says, to return that to her also; it was only partly loaded, and he loaded the empty chambers and returned near to where Jones lived and continued his watch of the premises.

About 8 o'clock young Clune went up to the rooms occupied by Jones, she having sent his young brother after him. The testimony on behalf of the state shows in substance that Clune arrived at the invitation of Jones, but had scarcely done so, when defendant, who it seems had been watching, went to the back stairway door and rapped. When Jones inquired, who is that, Gallagher, a negro woman who worked for her, said to her, "Jim, you know who it is." Thereupon Jones said to Clune, "Gerald, go down and open the door, I am afraid." Upon this request, in his shirt sleeves, and without any arms, Clune went down the back steps and opened the door, at which Jim Leary, alias Nocton, was standing, but Clune, as it seemed to a witness who stood in the hall only a few feet from the stairway, did not go out of the back door, nor did the witness hear any noise below nor any blows struck, though she thinks she was in a position to have heard them. When Clune reached there, defendant, "Jim," was heard to ask Clune, "Let me get my hat," and Clune said, "Get your hat; I am not bothering you or your hat." Just then four shots were fired in rapid succession, and Clune screamed out in agony at the first shot, when defendant said, "Squeal, you son of a bitch, I knew you would when you felt it."

Clune then staggered up the steps, coming backwards, as it appeared to the witness, and when he got to the top of the steps he fell, and asked witness to go for his mother and the priest. Some one came and asked who shot Clune and Jones instantly spoke up and said, "that nigger down there," whereupon Gallagher, a negro woman and witness, said, "No, it was not the nigger, it was Jim Leary." Jones denied making this statement, but the fact that Jones made it, was established by at least three witnesses. Immediately upon the shot being fired, smoke filled the hall so that it was impossible to see. There were three wounds on the body of the deceased, one on the right side about four inches from the backbone. The bullet which made this wound entered in the back on a level with the ninth rib; it cut that rib, went through the liver, entered the rib in front, passed through it and lodged in the vest pocket. The other wound was caused by a bullet which struck the right side of the back, went through and lodged in the left side, between two ribs and rather in front and caused inflammation of the left lung; and the third wound was in the right shoulder blade, having entered, it seems, in front, a little above the interior of the arm pit.

Defendant, testifying in his own behalf, said: "I had been there that afternoon with Nora and had a fuss with her, not about Clune. I told her Clune was up there; she said he wasn't. I said I knew better. She called me a liar and went to cursing me and I slapped her. I was not jealous of Clune; I asked her where she had been; I said he was up there; she said no, she was arrested, and she said Clune was the cause of her being arrested shortly before that. It didn't make any difference to me if he was around there. I can't say that I liked him to come and I can't say that I disliked for him to come. * * * When I found the back door locked and heard a man coming down stairs and he got to the door I found it was Clune, I did not haul off and shoot him. I say I shot him in self-defense. He turned 'round; I didn't shoot him in the back altogether. I didn't see him have a weapon. I once saw him with a pistol; I don't think he was in the habit of carrying a pistol. I did not intend to kill him when I shot him. I didn't know what he might have done to me if he got to kicking me. * * * I did not say after I shot him, 'Squeal, you son of a bitch, I knew you would when you felt it.' To the best of my knowledge, he was seven or eight feet out in the area way -- perhaps not that far; about six feet; area way opens right up to the sky. Nothing above to keep the smoke from going up. Shot him seven or eight feet from the door. The smoke went into the hall. I did not know this man was not armed. I did not see that he had no arms on him. He made no threat that he was going to kill me; we were good friends. Was three or four feet from him when I shot him. I did not stop shooting, because I didn't know but what he was coming toward me. I was not shooting to kill; I shot to stop him. I fired other shots because I didn't know whether the one shot would stop him. He had been shot before. I meant to be sure to stop him; I did not want to kill him. I shot all the loads quick. I kept shooting until he hallooed. I didn't know if the first and second shot stopped him. I kept on until he hallooed. I did not want to kill him. I wanted to keep him from hurting me, that is all. I did not know that when I fired the first shot he had turned to leave. I couldn't see him; the smoke was all in there. * * * I was down on my knee and foot when I shot. I believed he was going to kick me."

Defendant claimed to have a bruise on his face where Clune struck him, and Sherlock testified to an abrasion of the skin on defendant's face, as if he had fallen or been struck. William Crystle, a professional criminal, supported some of the statements of defendant as to the shooting and how it came about, etc. Jones also testified, supporting to some extent the testimony of defendant as to what occurred at the time Clune was shot; but she was not in sight of the parties, and not so close to them as was Gallagher, who was a disinterested witness. The state also showed that whatever marks were on defendant's face, were not caused by Clune, but by either scuffling with Jones or by running under a low shed in making his exit from the back yard, where the shooting occurred.

Clune, shot as before stated on the twenty-fifth of August, 1892, made what is termed "a dying statement" on the first of September next thereafter, and died on the second day of November of the same year.

As a basis for the introduction of a dying declaration made by Clune, the following testimony was introduced: It was shown that Dr. Griffin and some other doctors had told Clune, as he stated, that he could not possibly get well. He said they told him he could not possibly recover. Asked if he expected to die, he said yes. He said he did not expect to get well. "When I asked him, he said 'How can I?' He...