188 Mo. 304 | Mo. | 1905
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:
‘ ‘ The grand jurors of the State of Missouri, within and for the body of the city of St. Louis, now here in court, duly impaneled, sworn and charged, upon their oath present, that Lambert Niehaus on the twentieth day of December, in the year of our Lord, one thousand nine hundred and three, at the city of St. Louis aforesaid, with force and arms, in and upon one Thomas Fluegel, in the peace of the State then and there being, feloniously, wilfully, deliberately, premeditatedly and of his malice aforethought, did make an assault; and that the said Lambert Niehaus a certain pistol then and there charged with gunpowder and one leaden bullet, then and there feloniously, wilfully, deliberately, premeditatedly, and of his malice aforethought, did discharge and shoot off, to, at, against and upon the said Thomas Fluegel and that the said Lambert Niehaus with the leaden bullet aforesaid, out of the pistol aforesaid, then and there by the force of the gunpowder aforesaid, by the said Lambert Niehaus discharged and shot off, as aforesaid, then and there feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought, did strike, penetrate and wound the said Thomas Fluegel in and upon the head and body of the said Thomas Fluegel, giving to the said Thomas Flue-gel then and there, with fhe leaden bullet aforesaid, so as aforesaid discharged and. shot out of the pistol aforesaid by the said Lambert Niehaus in and upon the head and body of the said Thomas Fluegel, one
“And so the grand jurors aforesaid, upon their oath aforesaid, do say that the said Lambert Niehaus, the said Thomas Fluegel in the manner and form, and by the means aforesaid, feloniously, wilfully, deliberately, premeditatedly and of his malice aforethought, did kill and murder; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State.
“W. Scott Hancock,
“Assistant Circuit Attorney.”
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 comer, 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
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, “I am a murderer. I have done what I wanted to do. I have got you. ’ ’ 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.
William Nackenhorst, testifying in behalf of the State, stated: My name is William Nackenhorst; I live at 39 Barry street, and my work is granitoid maker; I know where Gus Bremer’s saloon is, it is at Tenth and Soulard in the city of St. Louis. I was there on the night of the twentieth of December; it was Sunday night; I had seen the defendant Niehaus once or twice before that night. I knew Thomas Flue-gel in his lifetime, and saw him there that night. I think it was about half past eleven, a quarter after or half past eleven that I saw him sitting asleep at the table. I saw Fluegel come in the saloon. I was standing at the bar as the defendant came in, my back was to the door; just as he closed the door I looked around;
Prank Reboe, another witness, testified to substantially the following state of facts: I live at 816 Soulard street and am a carpenter by occupation. I •was in Bremer’s saloon on the night of the twentieth and’saw the defendant Lambert Niehaus. I never saw the man before that evening. About a quarter to twelve that evening Pluegel was sitting there asleep at the table. I was sitting at the opposite table, I and Kohl. In came Niehaus there and opened the door, says nothing, pulled out a gun out of his overcoat pocket and shoots Mr. Pluegel, and, after he did that shooting, he walked, kind of .approaching Nackenhorst, and Nackenhorst. takes the gun away from him. Before he gave the gun to Nackenhorst he says, “Well, I am a murderer,” and he murmured something else. I thought he said, “I done what I wanted to.” Pluegel was lying with his head in his right hand on the table, like this, just before the shooting,, but after the shooting, for a couple of minutes afterwards, his head fell back, his hand still stayed on the table, the right hand was in his pocket. I didn’t notice that his hand was not in his pocket when he was asleep. After the shooting I looked at him, saw a little streak of blood on the right side of the head. After Fluegel was shot he did not- say anything, never moved
“Q. What is the character of the people who frequent that place, if you know?
“The State renews objection as immaterial; the character of the people frequenting that saloon has nothing to do with affairs between the defendant and Fluegel.
“The objection is sustained by. the court, to which ruling ‘of the court the defendant by his counsel then and there excepted at the time. ’ ’
Jacob Kress introduced by the State, testified substantially as follows: I live at 1701 South Tenth
Ed Bremer testified in this cause substantially as follows: My name is Ed Bremer. I stay with my brother at 923 Soulard. My brother, Gus Bremer, is proprietor of that saloon. I never saw Niehaus until the evening of the twentieth of December. I was assisting my brother in his business there. I was in the saloon that night about ten minutes before the shooting. When I came in I noticed Fluegel sleeping at the table on the west side of the saloon. He was sitting at the table. He had his hand leaning on the table, like holding his head. Niehaus came in and shot the fellow there, that was about all.
William H. McGee details the occurrence as follows : My name is William H. 'McGee. I live at 1516 South Tenth street. I am a broom-maker by trade. I did not know the defendant at that time. I knew Thomas Fluegel by seeing him as a waiter at the Hall. I was at Bremer’s saloon on Sunday night at the time of the shooting, on the night of the twentieth of December. On Sunday evening about twenty minutes to twelve, between twenty-five and fifteen minutes to twelve, this gentleman came in the door, walked about two feet in front of this Thomas Fluegel, pulled out his gun and shot him, and just after the shot, he said, “I have got you.” Mr. Nackenhorst walked up to
Philip Kohl, 'another witness, testified as follows: I live at 2106 South Ninth street. I am a gravel worker. I was in the saloon of Gfus Bremer’s at Tenth and Soulard street on the night of the twentieth of December when Tom Pluegel was shot. I knew Tom Pluegel, had known him about ten years. I do not know exactly what time it was when Pluegel came in. I think he took a glass of beer, if I am not mistaken, then he went over to his chair, sat down and went to sleep. I know the defendant, Niehaus. I was in the saloon when Niehaus came in that night. I was sitting along side of Pluegel, that is, he was sitting along side of me. He was .sitting back with his right hand in his pocket, kind of leaning back, his other hand kind of leaning on the table, like this, sound asleep. I was sitting there talking to Rehoe. He was sitting next to me. Directly I heard the door slam; just as it did, I looked sideways, towards Pluegel, seen the flash of a gun; just then he shot him; so he walked over about half ways towards the door and Nackenhorst ran out half way between the bar and Pluegel, and says to him, “Give me that gun,” or something to that effect. He just handed him the gun and made the remark, * ‘ I am a murderer.” After the shot was fired, Pluegel was sitting there just as he was when he was asleep. He never moved after he was shot. About ten or fifteen
Malcolm Young, also a witness for tbe State, testifled: My name is Malcolm Young. I am a police officer. On tbe night of tbe twentieth of December, 1903, I was called to tbe saloon of Gus Bremer, about eleven-forty-five p. m. I saw tbe defendant there at that time and took him into custody. I saw Fluegel there. He was sitting in a chair, about half bent over, at tbe southwest corner of tbe room. Tbe chair was near tbe door; probably three or four feet from.tbe door. He was on tbe south side of tbe table facing tbe east, bis elbows apparently leaning over on tbe table.
Lambert Niehaus, in his own behalf, testified substantially as follows: My name is Lambert Niehaus. I was born in St. Louis and am forty-two years old. I learned the trade of stove-moulder. Immediately before the twentieth of December I was employed on a boat out of Cairo on the Mississippi' river. I knew Fluegel in his lifetime; he was my brother-in-law; married my sister about twenty years ago. My sister died last July or August. I was in the city of St. Louis at that time; worked at the World’s Fair grounds. I did not board with Fluegel at.that time, but I did before that. I was at Fluegel’s at the time she was buried. Stayed there two nights during the week.
“Q. Did your brother at that time make any threatening remarks towards you, and if so, what were they?
“Mr. Bishop: I object to any controversy, any trouble, unless the foundation is laid for it. The circumstances that have developed so far in regard to this shooting — a man goes into a saloon and shoots another while apparently unconscious—
“Objection sustained by the court.
“The Court: The reason for sustaining the objection at this time is that there is no evidence of anything indicating self-defense in the case. This testimony is not competent unless some action on the part of the deceased—
“To which ruling defendant, by counsel, then and there excepted at the time.”
££Mr. Bishop: I object to any testimony of his 'drinking or not drinking at all, anything of the kind as wholly irrelevant and immaterial. The ydtness was there at half past eleven, shooting in that saloon.
‘£ The Court: I do not see how it can become material.
££To which ruling of the court the defendant, by his counsel, then and there excepted at the time.”
I went there Sunday night, the night of the twentieth, the night of the killing; I was intoxicated, drinking; I went there to see him about the children.
££Q. Why did you go there to see him about the children ?
££The State objects to the question as immaterial, which objection is sustained by the court. To which ruling defendant, by his counsel, then and there excepted at the time.”
When I went in there, at the door, Fluegel started to raise up out of the chair. He certainly was awake. He made as though going to hit me with the chair or something. He started to pick up the chair; he did not say nothing. Then I shot him when he picked up the chair. I went in there to see him about the children; that was my intention, I didn’t go in there for the purpose of doing him any harm. When he picked up the chair he tried to get up; he acknowledged me when I came in, looked around and started to get up.
“Mr. Bishop: I object to that and ask it to be stricken out.
‘ ‘ The Court: It will be stricken out.
“Mr. Porter: We offer it as to what leads up to the difficulty between the defendant and the deceased.
“To which ruling of the court in striking out the answer above, defendant by his counsel then and there excepted at the time.”
On that occasion he was hugging this woman that night. He said he would put carbolic acid in my beer.
‘ ‘ Q. Did you at any time hear of his making any remark about giving you a black pill? A. Yes, sir.
“Q. State when he said that? A. He said that he had a notion to go and get them, give them to me; and the two of them heard it together.
“Q. What did you understand by the remark?
“Mr. Bishop: I object to what he understood by it.
“The objection was sustained by the court. To which ruling of the court, defendant by his counsel then and there excepted at the time.”
I had trouble with him several times, years back. Someone came to tell me about his going with that other woman.
‘ ‘ Q. Did you have any trouble with him before he made that remark, in regard to his conduct towards his wife and children?
“State objects as leading.
“Sustained by the court. To which ruling of the
Fluegel told me, “You cannot tell me a thing about them children. I will knock your God damn head off. ’ ’ About three years ago- he threw me down the steps, cut my wrist here with'a butcher knife. We got into trouble, he asked me if I had any money. I told him I had a little; he asked me to give it to him. I would not do it, then he struck me and threw me down the stairs.
“Q. On the occasion when you had the conversation with the deceased, Fluegel, when he said he would knock your head off, I will ask you to state again what .the subject of the conversation was, what led up to his saying he would knock your head off?
“Mr. Bishop: I object to that as he has already given his version of it.. The objection is sustained by the court. Defendant excepts.”
Cross-examination: I am forty-two years of age. My sister, Fluegel’s wife, was older than I am, three or four years. Fluegel was forty-nine or fifty at the time of his death. I learned the trade of stove-moulder, but I have not been following it lately. I worked at Filley’s Foundry, Twenty-first and Market streets, twelve or fourteen years ago. I do not know that that foundry has not run for over twenty years.
‘ ‘ Q. After you quit stove moulding, what did you do?
“Mr. Porter: I object, as it was not entered upon in the examination in chief.
‘ ‘ Mr. Bishop: I want to show his story is untrue. I want to cross-examine him.
“Mr. Porter: I object to showing consecutively what the defendant has done for the past year. ,
‘ ‘ The Court: To know where he was.
“To which ruling of the court defendant by his counsel then and there excepted at the time. ’ ’
On the night of the twentieth of December last, I
¿ÍQ. What motion did he make to indicate it? A. The way he looked at me I had an idea he was going to pick the chair up. I had my pistol in my coat pocket when I went in there. He was not looking at me when I shot him; he saw me and started to get up. When I fired, he was about in this position, one hand on the table, the other on the arm of the chair about to rise. I had time enough to get the pistol, level it at him and •fire before he left the chair. I made a short statement before the coroner on the twenty-second day of December, the Tuesday after the shooting. I made it voluntarily.
“Q. You did not say a word there about this man rising from his chair, starting to rise from his chair, did you? A. Just simply told them I shot him on account of these childr'en.
“Q. You did not say a word there about this man rising from his chair, starting to rise from his chair, did you? A. No, sir, I never said a word about that.
“Q. How long had you been carrying a pistol?
“The Court: Not generally ‘a pistol.’
“ Q. I will say that pistol the pistol you used on that occasion?
“Defendant’s counsel object to the question as immaterial, which objection is overruled by the court. Defendant excepts.
“A. I have been carrying that about three months. ’ ’
Defendant introduced testimony as to his good reputation. One of the witnesses testifying for defendant, after giving testimony as to his good reputation, stated that he was at the house when deceased’s wife was lying dead. This witness stated that he had heard the deceased at that time make a remark that he would like to give that man, referring to the defendant, a black pill.
At the close of all the evidence, the court instructed the jury upon murder of the first degree, self-defense, upon the subject of reasonable doubt, and good character, fully covering every feature of the case to which the testimony was applicable. The case was submitted to the jury and they returned a verdict Qf guilty of murder of the first degree.
Sentence and judgment were entered in accordance with the verdict, from which judgment the defendant prosecuted this appeal, and the cause is now before us for consideration.
OPINION.
The record in this cause presents for our consideration a very serious as well as an important case. Its importance does not arise from any complicated legal propositions, presented in the record, but from tbe nature and character of the charge with which we are to deal, and the realization of the fact that the life of a citizen is involved.
1. That the indictment only charges the defendant with manslaughter, and fails to properly charge him with murder of the first degree, of which offense the defendant was convicted.
2. That the trial court committed error in refusing the request of appellant praying it to instruct the jury upon the law as to murder of the second degree.
3. That the court at the trial of this cause admitted illegal and incompetent evidence offered by the State and excluded legal and competent evidence offered by the defendant.
Upon the first proposition, in which the validity of the indictment is challenged, counsel for appellant does not direct our attention specifically to any defects of the indictment upon which his contention is predicated. From the cases cited to support the assignment of error, it must be inferred that the complaint of appellant is directed to the concluding paragraph of the indictment. Our attention is directed' to the cases of State v. Cook, 170 Mo. 210; State v. Furgerson, 152 Mo. 98; and State v. Meyers, 99 Mo. 115, as maintaining the contention that the indictment in this cause simply charges manslaughter and not murder. An examination of the cases cited disclose that the defects in the indictments in those cases consisted of the omission of the proper and essential allegations in concluding the indictment, that is, “that the grand jurors aforesaid, upon their oaths aforesaid, do say, ’ ’ etc. An inspection of the indictment in this case makes it apparent that no such .omission was made as in the cases cited by counsel for appellant.
The form of the indictment in this cause has uniformly met the approval of this court, and the conclusion wherein it is alleged, “And so the grand jurors aforesaid, upon their oath aforesaid, do say that the said Lambert Niehaus, the said Thomas Fluegel in the
It is' next insisted that the refusal of the court to instruct the jury upon murder of the second degree, constitutes error. We are unable to give our assent to this contention; in fact, we cannot do so unless we are willing to ignore the uniform expressions of this court upon the subject of instructions from its earliest history to the present time.
It is fundamental that instructions must be predicated upon the facts developed at the trial, and it has been repeatedly ruled by this court in cases of this character, that the instructions to the jury by the trial court should be confined to those grades of the offense to which the testimony in the cause is applicable.
The grave, and serious consequences resulting from the charge and conviction of the offense presented in this record, have led us to a very careful consideration of the testimony upon which this judgment rests, as disclosed by the record. A careful analysis of it discloses an entire absence of even a scintilla of evidence which would have warranted the court in submitting to the jury, by instructions, any lesser grade of the offense than the one of which he was convicted.
To reduce a homicide from murder of the first degree to murder of the second degree or to manslaughter, there must be some conduct or action on the part of the deceased reasonably calculated to arouse passion on the part of the slayer. There is absolutely no evidence disclosed in the record before us which, in any manner, indicated at the time of the homicide such lawful, reasonable or just provocation as would reduce the grade of the offense from murder of the first to murder
The testimony of the defendant indicates no passion whatever and his testimony fails to show a single utterance on the part of the deceased, at the time of the killing, which was calculated to arouse in the defendant any sort of heat of passion; in fact, the defendant does not claim that the deceased said anything to him at the time he shot him.
There was no error in refusing the request of defendant to instruct the jury upon murder of the second degree.
This' leads us to the only remaining question presented by counsel for appellant; that is, as to the erroneous admission and exclusion of evidence during the progress of the trial. Upon this question, we have undertaken to indicate substantially the action of the court during the progress of the trial, in respect to its rulings upon the admission and exclusion of evidence. A careful consideration of the disclosures of the record convince us that there is no merit in the contention that either incompetent evidence was admitted or that- competent evidence was excluded upon the trial of this cause. In fact, the record discloses that great latitude was allowed the defendant and the rules of evidence liberally construed in his interest in the presentation of his defense to this grave charge preferred against him. The testimony excluded by the court, such as the defendant’s reputation for industry, his being intoxicated, certain incidents occurring, months before at the time of the death of the wife of deceased, the character of the people who frequented the saloon where the homicide was committed, and other incidents, absolutely furnished no defense to the charge against the defendant, neither did it tend to prove or disprove any of the
We have thus reviewed the suggestions of error made by the appellant. It is seldom a record reaches this court about which so little complaint can be made. There were six witnesses present at the shooting of Thomas Fluegel, which resulted in his death, and their testimony is in perfect harmony upon the material details as to how this tragedy occurred. The substance of the testimony of all these witnesses may well be embraced in the simple statement “that defendant walked into the saloon of Mr. Bremer and found the deceased sitting by a table asleep, and without a murmer or utterance of any kind on the part of the deceased, shot him to his death.” If the testimony of these six witnesses are to be believed, and none of them were impeached, then there is no escape from the conclusion that this was wilful and deliberate murder, without the slightest provocation.
The defendant testifies in his own behalf, and while Ms version of the killing contradicts all the other witnesses, yet it must be confessed that, giving Ms testimony full force and its broadest scope, there is still a very narrow margin upon which to predicate an instruction of self-defense. However, he was given the full benefit of such defense, which at least serves to emphasize the fair and impartial trial awarded the defendant, as is fully disclosed by the record.
It can serve no useful purpose to reproduce the instructions given by the court upon the trial of this cause; however, we have not been unmindful in giving them proper attention and careful consideration. They are such as have repeatedly met the approval of tMs court. They were extremely favorable to the defendant, fairly and fully presenting every legal aspect of the case to which the testimony was applicable, and there is no legal ground upon which any complaint against them can properly rest.
Tbe jury beard tbe testimony in tbis cause. It was tbeir province to determine tbe guilt or innocence of tbe defendant; tbeir finding is fully supported by tbe evidence, and there is nothing left for tbis court to do except to follow tbe law, which results in tbe affirmance of tbe judgment, and tbe order that tbe sentence of tbe law be executed.