The State v. Nettles
| Decision Date | 23 January 1900 |
| Parties | THE STATE v. NETTLES, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. John A. Talty Judge.
Affirmed.
Chas J. Maurer and Jno. L. Van Patton for appellant.
Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.
(1) The witnesses from whom the defendant intended to obtain this newly discovered evidence, did not make affidavit thereto but the defendant alone makes the affidavit. As to what the new witnesses would testify to, this does not satisfy the statute. The affidavit of the witness himself must be produced or his absence accounted for. State v. McLaughlin, 27 Mo. 111; State v. Musick, 101 Mo. 260; State v. Larrimore, 20 Mo. 425; State v. Ray, 53 Mo. 345. And besides the affidavit of the defendant, in which he sets up newly discovered evidence, shows that the evidence to be obtained is merely cumulative. For that reason the motion should not have been sustained. State v. Campbell, 115 Mo. 391; State v. Cantlin, 118 Mo. 100; State v. Burd, 115 Mo. 405. (2) Objection is made that certain witnesses were introduced and permitted to testify whose names were not indorsed on the indictment. Section 4097, R. S. 1889 has been frequently construed and it has been universally held that the statute reserves the right in the State to call witnesses whose names are not indorsed on the indictment. State v. Steifel, 106 Mo. 129; State v. O'Day, 89 Mo. 559; State v. Griffin, 87 Mo. 608. (3) The defendant on account of the introduction of witnesses whose names were not indorsed on the indictment, can not plead unexpected testimony of the State as ground of surprise and this is true, even where witnesses are sworn to testify at the trial who were not examined by the grand jury. State v. Childs, 10 Tex.App. 183; State v. McClary, 75 Ind. 260; State v. Evans, 13 Tex.App. 225; State v. Phillips, 91 Mo. 478; State v. Loehr, 93 Mo. 103.
The defendant was convicted in the circuit court of the city of St. Louis of murder in the first degree, and his punishment fixed at death, for having shot and killed with a pistol one Samuel W. Mann. He appeals.
Defendant is a negro, and had lived in St. Louis about two years at the time of the homicide. The deceased lived with his family at No. 4862 Old Manchester Road, and was engaged as conductor on a suburban street car line in said city. About six o'clock in the evening of July 4, 1898, he left Meramec Highlands, at which place his wife and two children boarded a car for the city, of which he was in charge as conductor. He went into the city as far as Sixth and Locust streets, which is the terminus of the line upon which he was engaged, where he remained until the regular time for him to go west. Mrs. Mann, the deceased's wife, occupied the second seat from the rear door on the left-hand side going west. The evidence is not clear as to when the defendant got on the car. Some time before they reached 28th street he was observed by Mrs. Mann, who testified that her attention was directed to him by his working with a broken seat on the car; that he was trying to make the back of the seat set up, but on account of its being broken it would not set in its place. The defendant occupied the seat directly opposite and across the aisle from Mrs. Mann. The deceased told the defendant to let the seat alone, that it was broken and that there were others unoccupied. The defendant got up and went to another seat which he occupied but a few minutes when he arose and drew a revolver from his pocket and flourished it two or three times in the air. There were, at the time, ten or twelve passengers aboard. The deceased told the defendant that he would either have to put his revolver in his pocket and behave himself or else leave the car. To this the defendant replied that he did not know whether he would or not. Deceased said he could not carry on in the car that way. Defendant then told deceased to give him back his fare. Deceased said the fare was "rung up" and he could not give it back, whereupon the defendant stepped towards the door in which the deceased stood and says, "Give me my fare." The deceased then gave him his fare and told him to get off, at the time stopping the car and motioning the motorman to come and assist him. The car was stopped and the motorman came back and assisted the conductor in putting the defendant off. They took hold of him and led him out of the car, off of the platform and on to the street. The car was stopped at the corner of 28th street and Franklin avenue. As soon as they had put the defendant off the car, he raised his revolver and fired. The deceased and the motorman started after him. They went but a few steps and stopped. As they turned to go back to the car the defendant again raised his revolver and fired twice. On reaching the steps at the rear end of the car deceased remarked to the motorman that he had been shot twice. One of the balls had taken effect just below the heart and lungs, severing two or three arteries. The other ball took effect in his right wrist. The deceased was taken from the street car to the Baptist Sanitarium, a short distance away, where he was kept until the following morning, when he died.
The defendant ran down the alley towards Linden street, where he boarded at 1326.
The evidence as to the identity of the defendant is clear and convincing. A number of witnesses who were on the car at the time, testified as to his committing the act.
The only defense set up is that of an alibi. Defendant claims to have left his boarding house in the middle of the afternoon of July 4th and gone with his landlord, Mitchell White, to Kirkwood where they attended a picnic, returning about 7 o'clock in the evening. From that time on until midnight, he remained either at his boarding house or his next door neighbor's. A number of witnesses were introduced who testified that the defendant was at or near his boarding house continuously from 7 o'clock in the evening until midnight, where he and his landlord, White, were arrested by a police officer.
The court instructed the jury upon murder in the first and second degrees and manslaughter in the fourth degree.
In the motion for a new trial many errors are assigned, which are without merit -- and only such as seem to be worthy of consideration will be further noticed, and the first of these is that the verdict of the jury is against the evidence. The only defense was that of an alibi, and upon this question the evidence was somewhat conflicting, but showed conclusively we think, that defendant was present at the time of the homicide, and did the shooting which caused the death of the deceased. The verdict was well warranted by the evidence, and under such circumstances it will not be...
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