State v. Nocton

1. Criminal Practice: evidence: dying declakations. It is for the trial court to determine as a preliminary question whether ante mortem statements of the deceased person are admissible as dying declarations on a trial for murder. 2. ---: -. Such declarations may be admitted in evidence even without a formal statement of the declarant that he is without hope of recovery. 3. -: -: -. It is the impression of almost immediate-dissolution and not the rapid succession of death in point of fact that renders a dying declaration admissible in evidence. 4. -: MANSLAUGHTER: harmless error. Where a defendant has been convicted of murder in the second degree and the evidence sustains the verdict an instruction as to manslaughter in the third degree which is erroneous because there was no evidence of unintentional killing is harmless. 5. -¡.evidence: bribing witness. On a trial of two defendants-for murder it is competent to show that one of them who was indicted as an accomplice bribed witnesses to’ leave the state so as not to be present at his trial, where the court restricts the evidence to such-defendant. 6. -: -: self-serving statements. Defendant’s self-serving statements made on surrendering himself are inadmissible where-not a part of the res gestee. 7. -: -. Evidence that one of the defendants stated that his codefendant was going to take a gun and kill the deceased if he crossed him or said anything to him was admissible as against the-defendant making the statement. 8. -: -: threats. It was not error to exclude evidence as-to what deceased said about defendant just before the shooting, where it was not shown that it was in the nature of a thre.at. 9. -: -: error in trial court. One alleging error in the trial court must show it. 10. -:-. Where the brother of the deceased testified for the state that deceased never carried arms, it was not error to strike out-the answer to the question, "He did not need to carry a revolver, did he?” asked on cross-examination, especially when it was shown that deceased1 was a powerful man and quarrelsome when drinking. 11. -: competency of juror: affidavits. If the fact that a juror was a "good friend” of deceased were ground for disturbing a'ver-diet, affidavits which omit to show that defendant and his counsel did not know of such fact before the trial are fatally defective. 12. -: prejudice of juror: affidavits. Where there are conflicting affidavits as to the prejudice of a juror, the ruling of the trial-court will not be disturbed unless clearly erroneous.

Appeal from Jaclcson Criminal Court. — Hon. John W* Woffobd, Judge. Defendant was indicted for the crime of murder in the first degree, perpetrated by shooting with a revolver, Gerald Olune. Nora Jones, his paramour, was indicted as an accomplice in the crime. Though indicted and charged with murder in the first degree, the defendant Noeton, after being arraigned, with the assent of the prosecuting attorney, was permitted, with two sureties, to give bail in the sum of $1,0Q0 for his appearance at the next term of the court. Defendant-Jones was with the like assent also permitted to enter into personal recognizance of $1,000 for her appearance at the same time. Upon being tried Jones was acquitted, and Noeton, alias Leary was convicted of murder in the second degree; his punishment assessed at ten years’ imprisonment in the penitentiary, and he appeals to this court. On behalf of the state, the testimony shows that Nora Jones was a prostitute, with whom defendant James Noeton, alias Leary, was living in adultery. She also bestowed her favors on a single man, Gerald Olune, who lived about a block distant from Jones, with his mother. He was a young man some twenty-two years of age, of whom Noeton, alias Leary, was excessively jealous, and this jealousy produced frequent quarrels between Noeton and Nora, and he several times beat her because of dune’s clandestine attentions. Nora, however, persistently denied to defendant that there were any illicit relations between Olune and herself, but did not succeed in deceiving defendant, who from time to time made threats of killing Olune. These threats were fulfilled on the twenty-fifth of August, 1892, at about 8 o’clock in the evening. The Jones woman occupied rooms upstairs, over a store, on a public business street; there were two entrances thereto — one flight of stairs leading up from the public street, in front, and the other leading up from the rear toward the alley and ending directly opposite the front stairs, both stairways opening into a hallway, extending along the center of the building; at the foot of the rear stairs was a door, while the front stairway was open. All of the larger portion of the afternoon of the day mentioned, it appears from the evidence, defendant was watching the house where Jones lived. About 5 o’clock Clune called at the •house — the woman then being absent; defendant followed him upstairs and, while incensed and angered, concealed his purpose and feelings, and acted friendly toward Clune, and the two drank some beer together. Clune left, but defendant still kept up his watch on the premises, returning several times and remarking that he believed she was away somewhere with Clune, and making ugly threats when he left. Jones returned home about 7 o’clock and she had no sooner entered when defendant followed her up, breaking forth into great abuse of her because of his suspicions as to Clune,’s visits and attentions. During the quarrel he struck her and knocked .her down and then left. He went home and got the woman’s picture from his trunk to return to her, and then went to the shop where he worked and got her revolver, in order, as he says, to return that to her also; it was only partly' loaded, and he loaded the empty chambers and returned near to where Jones lived and continued his watch of the premises. About 8 o’clock young Clune went up to the rooms occupied by Jones, she having sent his young brother after him. The testimony on behalf of the state shows in substance that Clune arrived at the invitation of Jones, but had scarcely done so, when defendant, who it seems had been watching, went to the back stairway door and rapped. When Joiies inquired, who is that, Gallagher, a negro woman who worked for her, said to her, “Jim, you know who it is.” Thereupon Jones said to Clune, “Gerald, go down and open the door, I am afraid.” Upon this request, in his shirt sleeves, and without any arms, Clune went down the hack steps and opened the door, at which Jim Leary, alias Noeton, was standing, but Clune, as it seemed to a witness who stood in the hall only a few feet from the stairway-, did not go out of the back door, nor did the witness hear any noise below nor any blows struck, though she thinks she was in a position to have heard them. When Clune reached there, defendant, “Jim,” was heard to ask Clune, “Let me get my hat,” and Clune said, “Get your hat; I am not bothering you or your hat.” Just then four shots were fired in rapid succession, and Clune screamed out in agony at the first shot, when defendant said, “Squeal, you son of a bitch, I knew you would when you felt it.” Clune then staggered up the steps, coming backwards, as it appeared to the witness, and when he got to the top of the steps he fell, and asked witness to go for his mother and the priest. Some one came and asked who shot Clune and Jones instantly spoke up and said, “That nigger down there,” whereupon Gallagher, a negro woman ánd witness, said, “No, it was not the nigger, it was Jim Leary.” Jones denied making this statement, but the fact that Jones made it, was established by at least three witnesses. Immediately upon the shot being fired, smoke filled the hall so that it was impossible to see. There were three wounds on the body of the deceased, one on the right side about four inches from the backbone. The bullet which made this wound entered in the back on a level with the ninth rib; it cut that rib, went through the liver, entered the rib in front, passed through it and lodged in the vest pocket. The other wound was caused by a bullet which struck the right side of the back, went through and lodged in the left side, between two ribs and rather in front and caused inflamation of the left lung; and the third wound was in the right shoulder blade, having entered, it seems, in front, a little above the interior of the arm pit. Defendant, testifying in his own behalf, said: “I had been there that afternoon with Nora and had a fuss with her, not about Clune. I told her Clune was up there; she said he wasn’t. I said I knew better. She called me a liar and went to cursing me and,I slapped her. I was not jealous of Clune; I asked her where she had been; I said he was up there; she said no, she was arrested, and she said Clune was the cause of her being arrested shortly before that. It didn’t make any difference to me if he was around there. I can’t say that I lilted Mm to come and I can’t say that I disliked for him to come. * * * "When I found the back door locked and heard a man coming down stairs and he got to the door I found it was Clune, I did not haul off and shoot him. I say I shot him in self-defense. He turned ’round; I didn’t shoot him in the bach altogether. I didn’t see him have a weapon. I once saw him with a pistol; I don’t think he was in the habit of carrying a pistol. I did not intend to kill him when I shot him. I didn’t know what he might have done to-me if he got to kicking me. * * * I did not say after I shot him, ‘Squeal, you son of a bitch, I knew you would when you felt it.’ To the best of my knowledge, he was seven or eight feet out in the area way — perhaps not that far; about six feet; area way opens right up to the sky. Nothing above to keep the smoke from going up. Shot him seven' or eight feet from the door. ■ The smoke went into the hall. I did not know this man was not armed. I did not see that he had no arms on him. He made no threat that he was going to kill me; ive were good friends. Was three or four feet from him when I.shot him. I did not stop shooting, because I didn’t Tcnow but what he ivas coming toivard me. I was not shooting to kill; I shot to stop him. I fired other shots because I didn’t know whether the one shot would stop him. He had been shot before. I meant to be sure to stop him; I did not want to hill him. I shot all the loads quick. I 'kept shooting until he hallooed. I didn’t know if the first and second shot stopped him. I kept on until he hallooed. I did not want to kill him. I wanted to keep him from hurting me, that is all. I did not know that when I fired the first shot he had turned to leave. I couldn’t see him; the smoke was all in there. * * * I was down on my knee and foot when I shot. I believed he was going to kick me.” Defendant claimed to have a bruise on his face where Clune struck him, and Sherlock testified to an abrasion of the skin on defendant’s face, as if he had fallen or been struck. "William Crystle, a professional criminal, supported some of the statements of defendant as to the shooting and how it came about, etc. Jones also testified, supporting to some extent the testimony of defendant as to what occurred at the time Clune was shot; but she was not in sight of the parties, and not so close to them as was Gallagher, who was a disinterested witness. The state also showed that whatever, marks were on defendant’s face, were not caused by Clune, but by either scuffling with Jones or by running under a low shed in making his exit from the back yard, where the shooting occurred. Clune, shot as before stated on the twenty-fifth of August, 1892, made what is termed “a dying statement” on the first of September next thereafter, and died on the second day of November of the same year. As a basis for the introduction of a dying declaration made by Clune, the following testimony was introduced: It was shown that Dr. Griffin and some other doctors had told Clune, as he stated, that he could not possibly get-well. He said they, told Mm be could not possibly recover. Asked if he expected to die, he said yes. He said he did not expect to get well. ‘‘When I asked him, he said ‘How can I?’ He said nothing as to when he was going to die; the question was not asked him. He was so weak we simply asked him the necessary questions. He expressed no hope at all. The only response he made as to whether or not he expected to get well, was in the negative, he did not expect to get well. He was very weak; indeed the statement that he made was made between gasps, in answer to questions asked him. He seemed so weak, he just told the story and as he told it the words were put down. This paper dated the first of September, 1892, contains most of the statement but not what is said about the doctor; it contains what he said at that time about the shooting of himself by the defendant taken down as Clune stated it. It is exactly what he said after he stated his condition.” “I, Herald C. Clune, believing I am about to die make the following statement: I do not expect to get well. Jim Leary shot me. (Shot me over that Nora Jones woman, I guess.) I was standing at the back door. I started to go down stairs; he hallooed at me and told me to wait a minute, I had his hat; he said, fall, you son of a bitch, fall, and shot four times. I did not strike him. I shoved him, he was pretty full and fell over. He got up, looked around (as if he had lost something). (I thought he was going to pick up a rock.) I told him not to pick up any rock at me. He picked up a pistol from down among the cans and bricks and began shooting at me, he straightened himself first. I was standing on second Step from bottom of stairs. He was about six feet away from me. I did nothing after I pushed him, he fell over against some wash boilers and got up and commenced looking for the gun he had dropped. (I didn’t know he had a gun then, thought he was looking for a rock.) I made no move towards him while he was looking for the rocks. I never put my foot out of the hallway after I shoved him. I had no gun or anything in my hands. I shoved him with my open hand. “(Jerald Clune.” “Subscribed and sworn to before me this first day of September, 1892. M. H. Joyce, “Justice of the Peace.” The portions of the declaration in parentheses, were allowed to remain because counsel for defendant made no objection to those portions, but to the whole statement. The court thereupon admitted the declaration in evidence. Elston, who attended Clune from the time he was shot for some five or six weeks, testified: “I saw him from one to three times a day and frequently staid in the neighborhood there all night when he was in imminent danger of dying.” Other facts will be adverted to as occasion may arise. (1) The court erred in permitting the police officers who were witnesses, viz. -. Lieut. Boulware, Captain Elahive and Policemen Ryan and Marksberry, to testify as to defendant’s reputation for quarrelsomeness. First. Because theproperfoundationhad not been laid — the witnesses were not shown to be residents of the neighborhood where defendant lived, and, as such, acquainted with what his neighbors say of him. State v. Cox,, 67 Mo. 392; State v. Father, 96 Mo. 391; Wacl-dingham v. Rulett, 92 Mo. 533. Second. Impeaching evidence must be to Ms character for'truth and veracity or to his general moral character. State v. Grant, 79 Mo. 133; State v. Miller, 93 Mo. 270; State v. Rider, 95 Mo. 486; State v. Bay, 100 Mo. 242. (2) The so-called !‘dying declaration” of deceased was improperly admitted. The statement was made seven days after the shooting, on September 1,1892, and deceased lived thereafter until November 2,1892. That deceased said “that he could not get well and was going to die” is not sufficient. The statement must be made “in apprehension of immediate and pending dissolution.” State v. Simon, 50 Mo. 370; State v. McCanon, 51 Mo. 160; State v. Draper, 65 Mo. 339; State v. Kilgore, 70 Mo. 546; State v. Johnson, 76 Mo. 124; State v. Chambers, 87 Mo. 406; State v. Partlow, 90 Mo. 608; State v. Nelson, 101 Mo. 468; State v. Turlington, 102 Mo. 656; People v. Davis, 56 N. Y. 95; Seott v. People, 63 Ill. 508; People v. Knapp, 26 Mich. 112, (3) The ■question put to James Clune, the brother of deceased, was material and proper and should have been allowed. (4) The question put to the colored woman, Lizzie Gallagher, as to whether she remembered how she testified before the justice was material and should have allowed. State v. Reed, 89 Mo. 168; Pechv. Ritchey, 66 Mol 114. (5) The questions asked of the witness Lizzie Gallagher as to efforts on the part of Nora Jones to get her to leave the state and the reasons why she wanted the witness to go away were 'highly improper, and should not have been allowed. (6) Defendant’s objection to the question asked by the state of the witness Lizzie Gallagher as to conversations with defendant’s brother should have been sustained. The court instructed the jury to disregard this evidence, but it was error to admit it and the giving of the instruction did not cure that error. State v. Kirchner, 93 Mo. 193; State v. Jaeger, 66 Mo. 174. (7) The jailor, Sherlock, •should have been permitted to state what injuries he ■observed on defendant’s person and what defendant .stated to him immediately after the shooting, when defendant came into the station, gave up the pistol, and surrendered himself to the police. Qanter v. State, 21 ;S. W. Rep. (Tex. Grim. App.) 255. (8) The statement made by Clune just as he started to go down to ■open the door for defendant was material and should have been allowed. If it was a threat, as we contend it was, then it was admissible to show who was the ■aggressor, in view of the plea of self-defense. State v. Flldns, 101 Mo. 334. It was mateidal and competent .as part of the 'res gestee. Ibid. (9) Defendant’s motion for a new trial ought to have been sustained. (1) The indictment is drawn under section 3459, Revised Statutes, 1889. (2) The first six instructions given for the state are in form repeatedly approved by this court. “Heat of passion” as defined in instruction number 6 is literally taken from State v. Jones, 78 Mo. 281. Instruction number 8, upon murder in the first degree, is in the approved form. State v. Smith, 114 Mo. 415. Instruction number 9, upon murder in the second degree, has been repeatedly approved. State v. Stephens, 96 Mo. 646; State v. Flliott, 98 Mo. 158; State v. McKenzie, 102 Mo. 630. Instruction number 10, upon manslaughter in the third degree, is in language repeatedly approved. State v. Peake, 85 Mo. 192; State v. Thomas, 78 Mo. 338; State v. Woods, 97 Mo. 34; State v. Talmage, 102 Mo. 543. Instruction number 11, upon manslaughter in the fourth degree, is in the approved form. State v. Van-.sant, 80 Mo. 68; State v. Filis, 74 Mo. 215; State v. Hides, 92 Mo. 439; State v. Gee, 85 Mo. 649. Instruction number 12, upon the intentional use of a deadly weapon, was properly given and is in proper form. State v. Tabor, 95 Mo. 591; State v. Talbott, 73 Mo. 347. Instruction number 13, upon self-defense, was the counterpart of the one given for defendant, and was correctly given from the state’s standpoint, and has been repeatedly approved. State v. Ricler, 95 Mo. 482. Instruction number 14 was most favorable to defendant; as to' the evidence concerning certain efforts of defendant’s brother to induce one of the state’s witnesses to absent hei’self at the time the evidence was introduced, no objection was made by defendant, and not until it was all in; hence no error was committed by its admission; yet the court then, at the time, stated that the evidence was incompetent and that the court would instruct the jury to disregard it, which was properly done in this instruction. State v. Blan, 69 Mo. 324; State v. Hopper, 71 Mo. 429. (3) The last instruction given by the court upon its own motion, in behalf of defendant, fully covered defendant’s theory of self-defense, and is taken literally from State v. Gee, 85. Mo. 650; State v. Parker, 106 Mo. 224; State v. Berkley, 109 Mo. 676. (4) “Where a competent question is at first excluded, but upon further examination the defendant receives the full benefit of the excluded question, he has no cause for complaint.” State v. Sansone, 22 S. W. Rep. (Mo.) 617. (5) The deceased, Gerald Clune, was certainly in extremis when his dying statement was taken, and knew it, and believed he was about to die. He had received necessarily fatal wounds, having been shot through the liver, and blood poisoning having. already set in from this and other wounds. Under all the decisions the dying declaration was without question admissible. State v. Wens ell, 98 Mo. 139; State v. Elkins, 101 Mo. 350; State v. Chambers, 87 Mo. 408; State v. Nelson, 101 Mo. 468; State v. Kilgore, 70 Mo. 551. The length of time which elapses between the declarations and the death does not affect the admissibility of the declarations. State v. Wensell, 98 Mo. loe. cit. 146; State v. Kilgore, 70 Mo. loe. cit. 553, and cases cited.