The State v. Niehaus
| Decision Date | 16 May 1905 |
| Citation | 87 S.W. 473,188 Mo. 304 |
| Parties | THE STATE v. NIEHAUS, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Daniel G. Taylor Judge.
Affirmed.
John A Porter for appellant.
(1) The indictment in this case charges the defendant with manslaughter and not with murder. There is nothing in this case to sustain the judgment. State v. Cook, 170 Mo 210; State v. Ferguson, 152 Mo. 98; State v. Sanders, 158 Mo. 610; State v. Myers, 99 Mo. 115; 3 Chitty's Criminal Law, 750; Wharton on Homicide, sec. 49. (2) Defendant prayed the court for an instruction on murder in the second degree. The court should have instructed on a lower grade of homicide than murder in the first degree. There was no evidence in this case that the act causing the death was premeditated. Where the evidence is such that the jury may convict of murder in the first degree or murder in the second degree, it is the duty of the court to give suitable instructions as to each grade. Failure to do this is a fatal error. State v. Robinson, 73 Mo. 306; State v. Curtis, 70 Mo. 594; State v. Anderson, 86 Mo. 310. If defendant had passion or excitement of mind, produced by some just cause of provocation, a murder under such passion, provocation or excitement was murder in the second degree. State v. Curtis, 70 Mo. 594; State v. Ellis, 74 Mo. 207. (3) The court erred in refusing to allow defendant to testify as to his motive in going to the place of the homicide, and why he went there to see the deceased. State v. Banks, 73 Mo. 592.
Herbert S. Hadley, Attorney-General, and John Kennish, Assistant Attorney-General, for the State.
(1) The evidence is sufficient to support the verdict. Six witnesses testified that while the deceased was sitting in the chair sleeping the defendant entered the saloon and fatally shot him; that the deceased did not move or change his position, either before or after the shot was fired; that the defendant said at the time, "I am a murderer." "I have done what I wanted to." "If there is substantial evidence tending to show defendant's guilt, the sufficiency of the evidence to support the verdict will not be considered by the appellate court." State v. DeWitt, 152 Mo. 76; State v. Williams, 149 Mo. 496; State v. Frank, 159 Mo. 535. (2) The court submitted the case to the jury upon instructions on murder in the first degree, self-defense and reasonable doubt; and properly refused to instruct on murder in the second degree. There is not one word of evidence in the record to show the provocation or heat of passion necessary to reduce the grade of the crime to murder in the second degree. State v. Ellis, 74 Mo. 207; State v. Ferguson, 162 Mo. 668; State v. Tettaton, 159 Mo. 354; State v. Kotovsky, 74 Mo. 249; State v. Reed, 162 Mo. 312. (3) The court did not commit error in admitting or excluding evidence over defendant's objection. In the cross-examination of witness Reboe, defendant asked a question as to the character of the people who frequented the saloon in which the homicide occurred. An objection to this question was sustained and defendant excepted. This evidence was clearly inadmissible. An objection by the State to evidence of threats by the deceased against the defendant was sustained on the ground that there was no evidence of an assault by the deceased. Such evidence of threats was afterwards admitted, and therefore defendant cannot complain. Several objections were made and sustained to evidence offered by the defense, such as that defendant was intoxicated, as to defendant's reputation for industry, to all of which, we contend, objections were properly sustained. It was not error to exclude evidence as to defendant's reputation for industry. State v. Anslinger, 171 Mo. 600. Drunkenness is no excuse or justification for crime. State v. Kindred, 148 Mo. 270; State v. Harlow, 21 Mo. 446; State v. Ramsey, 82 Mo. 133. A homicide can not be justified by the previous threats of the deceased, unaccompanied by any hostile demonstrations at the time of the killing. State v. Rider, 95 Mo. 474; State v. Harris, 59 Mo. 550; State v. Brown, 63 Mo. 439.
This is an appeal by the defendant from a judgment of conviction of murder of the first degree in the circuit court of the city of St. Louis. The indictment upon which defendant was placed upon trial, omitting caption, charged the offense as follows:
Upon this charge as presented in the indictment, and after being duly arraigned and entering his plea of not guilty, the defendant was at the April term, 1904, of the said circuit court of the city of St. Louis, put upon his trial on the charge contained in the indictment.
The facts developed upon the trial were substantially the following:
Bremer's saloon is located at the northeast corner of Tenth and Soulard streets in the city of St. Louis. The front door of the saloon is on the northwest corner, there being a "cut off" on said corner so that the door fronts on both streets. On the west side of the saloon, from the door back, are a number of small tables along the wall. The bar is opposite these tables and on the east side of the room.
Thomas Fluegel, the deceased, was a brother-in-law of the defendant. About four months before the homicide, Fluegel's wife died. The defendant left the city of St. Louis soon after his sister's death and returned about a week before the homicide. The defendant seemed to have a grievance against Fluegel, growing out of their relationship, and on Saturday afternoon, the day before the homicide, went to Bremer's saloon somewhat under the influence of liquor, and asked, "Does Tom Fluegel hang out here?" On being answered that Fluegel came there once in a great while, he made the remark that he would get him.
On Sunday night, the twentieth day of December, 1903, between half past eleven and twelve o'clock, several persons were in Bremer's saloon, some of them at the bar and others sitting at the tables on the west side of the room. Thomas Fluegel entered the saloon that night, about a quarter past or half past eleven, and sat down in a chair on the south side of the table next to the front door, being about four or five feet back from the door. In a short time Fluegel went to sleep and was sitting in the chair with his left arm on the table, resting the left side of his head upon his left hand, and with his right hand in his pocket. In that position Fluegel was sleeping when between half past eleven and twelve o'clock the defendant came in the saloon, opening the door with his left hand. Immediately upon entering he saw Fluegel and drawing a pistol from his overcoat pocket, turned to the west and shot Fluegel in the head. At the time he fired he was about four feet from his victim. The bullet entered about half an inch above the right ear, and coursing downwards and backwards lodged in the base of the brain. But one shot was fired and the wound was necessarily fatal. Indeed, when Fluegel was shot, he continued in the same position as though still sleeping and never moved afterwards.
The defendant, after firing the shot, turned toward the bar and handed his pistol to William Nackenhorst, saying as he did so, After his arrest he told the officer that the cause of the shooting was family troubles.
That we may fully appreciate the nature and character of the killing and the manner in which it was done, we here reproduce substantially the testimony of the witnesses.
Dr. H. F. Hochdoerfer testified substantially as follows: I am a physician and surgeon by...
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