State v. Noeninger

• Decision Date: 02 February 1892
• Parties: The State v. Noeninger et al., Appellants
• Court: Missouri Supreme Court

18 S.W. 990

108 Mo. 166

The State v. Noeninger et al., Appellants

Supreme Court of Missouri, Second Division

February 2, 1892

Appeal from Cape Girardeau Circuit Court. -- Hon. H. C. O'Bryan Judge.

Affirmed.

Wilson Cramer for appellants.

(1) It was competent for defendants to show, as they offered to do that immediately after the shooting the prosecuting witness Walls had a knife in his hand, and that he then made statements concerning what had just transpired inside of the house. (2) The third instruction for the state is clearly erroneous, at least as to the defendant, Hermann Noeninger. According to its direction he is to be convicted if the jury "believe that the shot was fired at Walls as a means of ejecting Walls from the house of Noeninger, and not in the necessary defense of their persons from the infliction of great bodily harm then impending at the hands of Walls" without regard to any knowledge on his part of his son's intention to shoot, and though he did not direct, command or procure the shooting to be done. (3) The fourth instruction on behalf of the state is a direct challenge by the court of the truthfulness of defendants. "While defendants are competent witnesses in their own behalf, yet, in determining the credibility of their testimony, the jury may take into consideration," etc. (4) The court erred in not instructing the jury on the facts shown by the evidence of the defendant, Robert Noeninger, who says he did not shoot at Walls, but fired over his head to frighten him. (5) Defendant, Hermann Noeninger, was entitled to the instruction asked by him, and the court erred in refusing to give it. State v. Cox, 65 Mo. 29; State v. Hickman, 95 Mo 322; Whar. Crim. Ev. [8 Ed.] sec. 440.

John M. Wood, Attorney General, for the State.

(1) No exceptions were saved to the admission of evidence on the part of the state, and the only exception to the rejection of evidence offered by defendant was as to what was done and said by Walls outside of the saloon after the difficulty was over, and also as to whether or not he had the knife in his hand. This testimony was properly rejected, as it was no part of the res gestae. State v. Brown, 64 Mo. 367. (2) The instructions given in this case on the part of the state and for the defendant properly declared the law on all of the issues in the cause, and no error was committed in refusing the other instructions asked by defendant. (3) The bill of exceptions must be excluded from consideration. "After the extended time has expired the court cannot properly make a further order of extension." Nor had it any authority to permit the bill to be filed as on a prior date, with or without the consent of the opposing counsel. State v. Hill, 98 Mo. 570. (4) The indictment properly charges the offense, and the judgment should be affirmed.

OPINION

Thomas, J.

Defendants, who are father and son, were indicted at the August term, 1887, of the circuit court of Cape Girardeau county, under section 1262, Revised Statutes, 1879, for a felonious assault with a pistol on one William Walls, the son Robert being charged as principal, and Hermann, the father, with being present, aiding and abetting his son in the commission of the offense. The defendants were convicted and each sentenced to pay a fine of $ 100, and the case is before us on appeal.

Hermann Noeninger was the owner of a saloon, and his son Robert was his bar-keeper. On the evening of August 7, 1887, the prosecuting witness, Wm. Walls, and several others went into the saloon and were drinking when an altercation arose between Walls and defendant, Hermann Noeninger, who thereupon ordered Walls to leave the house, which he did not do. The evidence on the part of the state tends to prove that defendant Robert at the time of the altercation was behind the bar, while his father and Walls were in the room outside of the bar. A few words passed between Walls and Hermann Noeninger, when the latter called to his son to shoot Walls, whereupon Robert got a pistol and fired at Walls but missed him and then snapped the pistol two or three times. Walls went out immediately after the firing of the pistol. Walls testified that he had no knife or weapon in his hand at the time and was making no demonstration to fight.

Defendants' version of this affair is that Walls and others were making a great deal of noise in the saloon and that defendant, Hermann Noeninger, requested them several times to keep quiet, and finally told them if they did not do so they would have to get out; that Walls, who seemed to be the leader, refused to go, and became defiant, and with an open knife in his hand stepped towards defendant, Hermann Noeninger, who was backing away from him towards the open end of the counter; that as he was retreating from Walls he called to his son, who was behind the bar, to hand him the revolver, but that the son, instead of so doing, picked up the revolver and fired over Walls' head, the ball entering the west wall of the room about nine feet from the floor.

The court in its instructions defined the offense with which defendants were charged and told the jury what facts it was necessary to find in order to convict them under sections 1262 and 1263, Revised Statutes, 1879, and authorized an acquittal on the ground of self-defense.

I. The third instruction given by the court in substance told the jury that while defendants had the right to order Walls to leave the saloon and to employ such reasonable force as was necessary to eject him, yet they were not authorized to use a deadly weapon to accomplish this object, and that if the shot was fired as a means of ejecting Walls and not in the necessary defense of their persons from the infliction of great bodily harm then impending at the hands of Walls, they should convict defendants. The specific objection to this instruction is that according to its direction Hermann Noeninger might be convicted if the jury believe that the shot was fired at Walls as a means of ejecting him and not in the necessary defense of their persons, without regard to any knowledge on his part of his son's intention to shoot, and though he did not direct, command or procure the...