The State v. Nelson
| Decision Date | 21 January 1896 |
| Parties | The State v. Nelson, Appellant |
| Court | Missouri Supreme Court |
Appeal from Marion Circuit Court. -- Hon. Reuben F. Roy, Judge.
Affirmed.
William R. Anderson and David Wallace for appellant.
An examination of the record in this case discloses the fact that no copy of the indictment was ever given or served on the defendant or furnished to him. This is a requirement of the statute that could not be waived by the accused. The evidence is not, as a matter of law, sufficient to authorize the verdict. The shooting of the deceased by the accused was the result of a sudden quarrel, during which there was no time for deliberation. The facts do not authorize a verdict of murder in the first degree. State v. Mitchell, 64 Mo. 191; State v. Dearing, 65 Mo. 530; State v Gassert, 4 Mo.App. 44. The record does not show whether the oath taken by the officer in charge of the jury was the special oath required by the statute or otherwise. The capacity of the infant Willie Stull as a witness was a question of fact which the judge determined upon the oral examination, which oral examination as embodied in the bill of exceptions, according to all recognized rules of law showed the witness to be incompetent. State v Scanlan, 58 Mo. 204. Believing that the evidence is not sufficient to authorize the verdict, and that the defendant was wrongly condemned to death, the court is respectfully asked, in addition to the above, to carefully examine all of the objections and reasons raised by the motions for new trial and in arrest of judgment, and reverse the judgment.
R. F. Walker, attorney general, J. O. Allison, prosecuting attorney, and H. C. Heather prosecuting attorney, for the state.
(1) It will be noticed from the reading of the motion for new trial, that no objections are made or preserved to any of the instructions given by the court; hence the defendant will not be heard to complain here, for the rule is now well established in this state that whatever errors may have occurred during the progress of the trial, must be called to the attention of the trial court in the motion for new trial, and thus give that court an opportunity to correct the same. State v. Fitzgerald, 130 Mo. 407; State v. Kaiser, 124 Mo. 664; State v. Gilmore, 110 Mo. 1; State v. Nelson, 101 Mo. 480; State v. Day, 100 Mo. 242. (2) It is charged in the motion for new trial that the court committed error in not giving the instructions required by law. It is presumed that defendant's counsel attempted to make the point that the court had failed to instruct the jury upon all questions of law arising in the case; however, this assignment of alleged errors will not be reviewed here for the reason that no exceptions were saved to the failure of the court to so instruct the jury until the motion for new trial was filed. This was too late. State v. Paxton, 126 Mo. 515; State v. Cantlin, 118 Mo. 111. (3) It is complained that the requirements of the statute that a certified copy of the indictment was not served upon the defendant, and for this reason this cause should be reversed. It will be seen from reading the record that the defendant was arraigned on the first day of September, 1893, and again arraigned on the twenty-seventh day of March, 1894. There appears in the record no demand for service of a copy of the indictment. This being true, it will be deemed waived in view of the fact that the defendant voluntarily entered his two pleas of not guilty without objection. State v. Green, 66 Mo. 631. He can not afterward complain that he was required to plead without a copy of the indictment. Lisle v. State, 6 Mo. 424. (4) No error was committed by the court in admitting testimony offered upon the part of the state. However that may be, the action of the court will not be reviewed, for the reason that proper objection was not made -- no reasons having been assigned. State v. Moore, 117 Mo. 401; State v. Hope, 100 Mo. 347; State v. Harlan, 130 Mo. 381. (5) The same may be said with reference to the dying declarations of the deceased. State v. Harlan, 130 Mo. 381; State v. Moore, 117 Mo. 401; State v. Hope, 100 Mo. 347. They were, however, admissible. The testimony shows conclusively that deceased was at the point of death and that he entertained a well-founded belief and conviction of immediate dissolution. State v. Wilson, 121 Mo. 537; State v. Nocton, 121 Mo. 434; State v. Johnson, 118 Mo. 491; State v. Welsor, 117 Mo. 570; State v. Umble, 115 Mo. 452; State v. Crabtree, 111 Mo. 136; State v. Turlington, 102 Mo. 642; State v. Elkins, 101 Mo. 351; State v. Wensell, 98 Mo. 139; State v. Rider, 90 Mo. 54; State v. Chambers, 87 Mo. 408; State v. Jefferson, 77 Mo. 551; State v. Kilgore, 70 Mo. 551; State v. Draper, 65 Mo. 355; 1 Greenlf. Ev., sec. 158. The dying declarations were of themselves proper. (6) The court very properly permitted Willie Stull to testify, as is shown by the qualifying examination of this witness, which shows the clear and just impression of all the facts of which he testified; in fact, from reading the testimony it is evident that he was remarkably bright and intelligent and understood clearly what matters he was testifying to. The capability of the witness to testify was a matter within the discretion of the trial court, and will not be reviewed here unless that discretion has been abused. State v. Doyle, 107 Mo. 42; Ridenhour v. Railroad, 102 Mo. 270; State v. Scanlan, 58 Mo. 204. (7) It is alleged as one of the errors said to have been committed, that the officer who took charge of the jury upon the trial here was not sworn as the law requires. Reference to the record, page 24, will show the falsity of this statement, which recites that upon the conclusion of the argument that the oath required by section 4210 of the Revised Statutes was administered to the sheriff and his deputies. Inasmuch as allegations in motions for new trial and in arrest do not prove themselves, this assignment of error should be adjudged against the appellant. State v. Foster, 115 Mo. 448.
John Nelson and his wife Lavina were jointly indicted for the murder of John Stull in Ralls county on the fifth day of August, 1893; John was charged as principal and Lavina as accessory, and the killing to have been done by shooting with a revolver.
The indictment, unobjectionable in form, was found at the August term, 1893, of the Ralls circuit court, and at that term defendants were arraigned, but the cause was continued till the March term, 1894, because of want of time to try the same. At that term, on the application of Lavina, a severance was granted, and the court ordered the cause set down for the second Monday in July, 1894. When that time arrived, John applied for and obtained a change of venue to Marion county. At the September term, 1894, a mistrial occurred, and the cause went over to the April term, 1895, when the cause was again tried, resulting in a conviction of murder in the first degree, and from this conviction and sentence and judgment accordingly defendant has appealed to this court.
The following evidence in substance was adduced at the trial: John Stull, the deceased, was, at the time of his death, living about one hundred yards south of Salt River Switch, a station or stopping place on the St. Louis & Hannibal railroad, about three miles north of New London and six miles south of Hannibal, in Ralls county, Missouri. The railroad at this point runs in a northerly and southerly direction, and the Hannibal and New London public road crosses the railroad at Salt River Switch, having at this point a northeasterly and southwesterly direction. John Stull's house was a small box house, one room below and a half story above, and a small shed room adjoining below, in which was stored at that time a lot of wheat in sacks. This house faced and was situated east of the railroad right of way; the railroad fence making the yard fence on the west side of Stull's yard, the house being about eighteen feet from the railroad fence at the nearest point. In the railroad fence, which was wire, there was a gap, some of the wires being partly drawn through, so persons could pass going in and out of Stull's yard. The railroad grade or dump at this point opposite Stull's house is about ten feet high. His family consisted of his old mother, Mrs. Hughes, fifty-six years old, quite feeble and nearly blind, and his daughter Mary, about fourteen years of age, who at that time was on her way home from a neighbor's house, where she had been at work, and his son Willie, about seven years of age, at this time; his wife having been dead for several years. Here John Stull had lived for several years, working hard to make an honest living for himself and helpless family, always bearing the name of an honest, upright, and peaceable old citizen.
John Nelson, the defendant, and his wife, Lavina Nelson, in the spring of 1893, located at Salt River Switch, and pitched their tent about three hundred and sixty feet south of John Stull's house and a little west of the railroad grade. Not long after, the defendant's stepfather, Samuel Minor and his wife, who was defendant's mother, came in a covered wagon and stopped their wagon right by the defendant's tent, in which wagon old man Minor and his wife lived and slept, cooking their meals on Nelson's stove and eating them off of his table for awhile, but finally John Nelson and his wife fell out with his old mother, and would not let her cook on their stove, nor eat on their table; she was neglected generally, and being taken sick in the covered wagon, received no attention nor consideration whatever at the hands of John Nelson and his wife, and finally they pulled the wagon with the old...
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