State v. Nugent

• Citation: 71 Mo. 136
• Parties: THE STATE v. NUGENT, Appellant.
• Decision Date: 31 October 1879
• Court: United States State Supreme Court of Missouri

71 Mo. 136

THE STATE

v.NUGENT, Appellant.

Supreme Court of Missouri.

October Term, 1879.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

F. D Turner for appellant.

1. The evidence of defendant's prior mistreatment of deceased should not have been admitted. U. S. v. Armstrong, 2 Curtis C. C. 446; U. S. v. Mingo, 2 Curtis C. C. 1; Com. v. Hawkins, 3 Gray 463; Green v. State, 13 Mo. 382; State v. Schoenwald, 31 Mo. 147; State v. Foster, 61 Mo. 552; State v. Underwood, 57 Mo. 45; State v. Lane, 64 Mo. 322; State v. Goetz, 34 Mo. 91; State v. Harrold, 38 Mo. 498; Farrer v. State, 2 Ohio St. 75; Barton v. State, 18 Ohio 224; Reg. v. Oddy, 1 Den. & Pearce Brit. Crown Cas. 266; Reg. v. Butler, 2 Car. & Kir. 221; State v. Daubert, 42 Mo. 246; Walker v. Com., 1 Leigh (Va.) 574; Shaffner v Com., 72 Pa. St. 65; Kinchelow v. State, 5 Humph. 9; State v Shuford, 69 N. C. 486; Wiley v. State, 3 Coldw. 372; Lightfoot v. People, 16 Mich. 507; Mason v. State, 42 Ala. 533; s c., 42 Ala. 543; U. S. v. Mitchell, 2 Dallas 357; Wharton Cr. Law, §§ 631, 632, 633, 634, 635, 650; State v. Roberts, 62 Mo. 388; Dyson v. State, 26 Miss 385; Hudson v. State, 3 Coldw. 361; State v. Creson, 38 Mo. 373; 3 Greenleaf Ev., §§ 25, 53; Com. v. Webster, 5 Cush. 325; People v. White, 14 Wend. 111; People v. Stout, 4 Park. Crim. R. 127; Reg. v. Dossett, 2 Car. & Kir. 306; 1 Phillips Evidence, (Cow. & Hill Ed.) 644; Roscoe Crim Ev. 92; State v. Keene, 50 Mo. 360; State v. Sloan, 47 Mo. 611; Rex v. Birdseye, 4 C. & P. 386; Starkie Evidence, 379; State v. Braunschweig, 38 Mo. 589; State v. Dominique, 30 Mo. 585; Reg. v. Voke, 1 R. & R. (Brit. Cr. Cas.) 531; 3 Russell Crimes, (9 Ed.) *289; Reg. v. Bailey, 2 Cox C. C. 311; Rex v. Mogg 4 C. & P. 364. State v. Rash, 12 Ired. 383; Stone v. State, 4 Humph. 27; Johnson v. State, 17 Ala. 619; People v. McCann, 3 Park. Cr. R. 272; People v. Williams, 3 Park. Cr. R. 84; 1 Chitty Cr. Law, § 564.

2. The court should have instructed the jury that the evidence of prior acts was admitted only for the purpose of proving intent. Com. v. Shepard, 1 Allen 575; Stout v.People, 4 Park. Cr. R. 132. State v. Watkins, 9 Conn. Shaffner v. State, 72 Pa. St. Rep. 63; State v. Hart, 66 Mo. 215; Leonard v. Smith, 11 Met. 332; King v. Grant, 3 Neville & Manning's Rep. 106; McTavish v. Carrol, 13 Md. 440; O'Brien v. Hilburn, 22 Texas 616; State v. Wadsworth, 30 Conn. 56; State v. Neville, 6 Jones 432; Henry v. Everts, 29 Cal. 610; King v. Faber,51 Pa. St. 387; Johnson v. Marshall, 34 Ala. 522.

3. The defendant should have been apprised, before the trial, of the names of the State's witnesses. Ray v. State, 1 Greene 316; Holbrook v. Nichol, 36 Ill. 161; Peers v. Davis, 29 Mo. 190; Graham & Wat. on New Trials, p. 952; Queen's case, 2 Brod. & Bing. 312; Ware v. Ware, 8 Me. 54; Wilson v. Clarke, 27 Miss. 270; Todd v. State, 25 Ind. 220; Keller v. Blasdel, 2 Nev. 162; Knox v. Bigelow, 15 Wis. 415; Morrow v. Hatfield, 6 Humph. 108; Stewart v. Durrett, 3 Monr. 113; Vannerson v. Pendleton, 8 S. & M. 452; Donnalien v. Lennox, 6 Dana 89; Price v. Ford, 7 Monroe 399; 18 Eng. L. & Eq., 105; Holmes v. McKinney, 4 Monr. 5.

4. The court erred in refusing and failing to instruct the jury as to the effect of a reasonable doubt as to the existence of deliberation or premeditation. Com. v. McKie, 1 Gray 61; State v. McCluer, 5 Nev. 132; Com. v. Kimball, 24 Pick. 366; West v. State, 1 Wis. 209; Henderson v. State, 14 Texas 514.

5. Evidence of defendant's good character was admitted; it was, therefore, the duty of the court to have instructed as to its legal effect. State v. Alexander, 66 Mo. 161; U. S. v. Roudenbush, 1 Baldwin 514; State v. McMurphy, 52 Mo. 251; State v. Matthews, 20 Mo. 55; 1 Wharton Cr. Law, § 643; 2 Starkie Ev., 472.

6. Defendant's motion for a discharge should have been granted. Robinson v. State, 12 Mo. 595; State v. Huting, 21 Mo. 475; Com. v. Sheriff, 16 Serg. & R. 304; Com. v. Phillips, 16 Mass. 423. Reg. v. Fuller, 9 C. & P. 35; Ex parte Stanley, 4 Nev. 113; Campbell v. State, 11 Ga. 365; Cooley Const. Lim., 311; Rex v. Beardmore, 7 C. & P. 497; Req. v. Bridgman, 1 Car. & Marsh. 153; Com. v. Prophet, 1 Browne 135.

J. L. Smith, Attorney-General, for the State.

1. The defendant was not entitled to be discharged. Nixon v. State, 2 Sm. & Marsh. 497; Ex parte Stanley, 4 Nev. 116; Ex parte Donaldson, 44 Mo. 149.

2. The evidence of defendant's abuse of deceased, and of his previous attempts to kill her, was properly admitted. Wharton Crim. Law, §§ 635, 636, 639, 640, 647, 647a; Wharton Hom., §§ 701, 725; 2 Russell Crimes, (9 Ed.) 288, 289; Rex. v. Voke, Russ. & R. 531; Reg. v. Weeks, Leigh & Cave 18; Reg. v. Roebuck, 36 Eng. L. & Eq. 631; Com. v. Bradford, 126 Mass. 42; State v. Rash, 12 Ired. 382; Johnson v. State, 17 Ala. 618; McCann v. People, 3 Park. Cr. R. 272; Stone v. State, 4 Humph. 27; People v. Stout, 4 Park. Cr. R. 71; Dunn v. State, 2 Ark. 229; State v. Watkins, 9 Conn. 47; State v. Green, 35 Conn. 203; Bottomley v. U. S., 1 Story C. C. 135; State v. Raymond, 20 Iowa 582.

3. There was no surprise. State v. Rogers, 37 Mo. 367; Matthews v. Allaire, 11 N. J. L. 242; R. R. Co. v. Vosburgh, 45 Ill. 311; Peers v. Davis. 29 Mo. 184; Boyce v. Mooney, 40 Mo. 104; 3 Gra. & Wat. New Tr., 875, 876, 877.

HENRY, J.

The defendant was indicted for the murder of his wife, and a trial at the November term, 1878, of the St. Louis criminal court resulted in his conviction of murder of the first degree; and from the judgment he appealed to the St. Louis court of appeals, which affirmed the judgment, and he has appealed to this court.

Appellant assigns as error: First, The admission of illegal and incompetent testimony on the part of the State. Second, The failure of the court to confine the testimony complained of, by instruction, to the object for which the court admitted it, viz: to prove intent. Third, The failure of the court to grant a new trial on the ground of surprise. Fourth, The refusal of the court to grant a new trial on account of improper conduct of the circuit attorney in his closing address to the jury. Fifth, The refusal of the court to give instructions asked by defendant, with respect to a reasonable doubt as to the existence of deliberation or premeditation. Sixth, The failure of the court to instruct the jury as to the legal effect of evidence introduced by defendant to establish his general reputation as a peaceable and quiet citizen. Seventh, The refusal by the court to grant defendant's motion to be discharged, for reasons in the motion assigned.

1. CRIMINAL LAW; evidence of another offense, when admissible: murder.

The testimony for the State proved that defendant killed his wife by shooting her with a pistol, on the 20th day of August, 1876. Elizabeth Kerr, a witness for the State, heard a shot, and children screaming, and went to Nugent's house, saw Nugent with a pistol in his hand near the little porch outside his house. His daughter, about fifteen years of age, came out of the house and said: “Pa, you killed ma.” He said, “I know I did, and I am glad of it, and she is gone and I am willing to go.” Witness then stated that there were bruises on the person of the deceased, other than the wound inflicted by the pistol ball. Mrs. Woehler testified that she heard the shot, heard quarreling between defendant and deceased; that defendant said he wanted something to eat, and deceased said she had nothing for him; and defendant said he would shoot her; then his daughter came and screamed, “You have killed ma.” He replied, “I know I did, and that is what I wanted to do.” Witness heard defendant twice say he would shoot his wife, and heard the pistol shot immediately after he last said it. The testimony of Charlotte Ickeworth, Caroline Meinhold and Henry Woehler, was about the same as that of Mrs. Woehler.

The State then introduced evidence tending to show that within sixty days preceding the homicide, the defendant frequently mistreated his wife, at one time driving her from the house and shooting at her; at another striking her with a poker; at another cutting her with a knife; also evidence of a threat that he would kill her, to all of which defendant objected, and now contends that it was inadmissible, on the ground that when the intention appears from the facts and circumstances of the transaction itself, evidence of other facts wholly disconnected with the charge for which the defendant is on trial, cannot be introduced against him. In support of this proposition he cites many cases and elementary works to show, what is not controverted, that the law infers malice from the act of killing. It does not, however, infer murder in the first degree from an intentional killing. The common law presumed from an intentional killing, murder; but under our statute establishing two degrees of murder, if nothing but the intentional killing appears, it is murder in the second degree. The defendant was indicted for murder of the first degree, and the State had the right to introduce any evidence to show that the killing was of that degree. You cannot infer the guilt of a person of a felony he is charged with from proof of his guilt of some other distinct crime, even of the same nature. But in the People v. Stout, 4 Park. Crim. Rep. 127, relied upon by defendant's counsel, the court remarked: “It is important not to confound the principle upon which these two classes rest; on the one hand it is admissible to produce evidence of a distinct crime to prove the scienter, or to make out the res gestae, or to exhibit a chain of circumstantial evidence of guilt in respect to the act charged; on the other hand, it is necessary strictly to limit the evidence to these exceptions, and to exclude it when it does not legitimately fall within its scope.”

Another author cited by counsel for the prisoner, says “Perhaps the following sentence expresses the doctrine in as distinct and express terms and outline as can well be employed: It is, though...