State v. Barker

• Decision Date: 02 February 1909
• Citation: 115 S.W. 1102,216 Mo. 532
• Parties: STATE v. BARKER.
• Court: Missouri Supreme Court

115 S.W. 1102

216 Mo. 532

STATE v. BARKER.

Supreme Court of Missouri, Division No. 2.

February 2, 1909.

1. CRIMINAL LAW (§ 570)—CAPACITY TO OFFEND—PRESUMPTION—DEGREE OF PROOF.

One who has reached the years of discretion is presumed to be of sound mind and capable of committing crime, and, before insanity can be established as a defense, accused must rebut the presumption by evidence reasonably satisfying the jury of his insanity at the time of the offense, or that his mind was so diseased as to render him incapable of distinguishing between right and wrong respecting the act with which he is charged.

2. HOMICIDE (§ 237) — SANITY OF ACCUSED — DEGREE OF PROOF.

When the state shows an unlawful killing, it may rest upon the legal presumption of accused's sanity until he shows the contrary; but he need not establish his insanity beyond reasonable doubt, it being sufficient to reasonably satisfy the jury that it existed at the time of the offense.

3. HOMICIDE (§ 270) — ACCUSED'S SANITY — JURY QUESTION.

Whether one accused of murder was insane, held, under the evidence, a jury question.

4. CRIMINAL LAW (§ 829)—INSTRUCTIONS—INSANITY.

It was not reversible error to fail to instruct that if accused was insane shortly before the homicide the state must show that he committed the offense during a lucid interval, where accused did not request such instruction, though requested to suggest any omitted instruction, and where the court instructed fully on the insanity as a defense, and directed the jury to consider all the evidence, the homicide itself, the attending circumstances, accused's habits and conduct throughout his life, etc.

5. HOMICIDE (§ 340)—HARMLESS ERROR—INSTRUCTIONS.

Error in instructing on second-degree murder was harmless to accused, where he was convicted of the higher degree.

6. HOMICIDE (§ 309) — INSTRUCTIONS — MANSLAUGHTER.

Refusal to instruct on manslaughter was proper, where there was no evidence tending to show lawful or reasonable provocation for the homicide.

7. HOMICIDE (§ 237)—EVIDENCE—WEIGHT.

A finding that one accused of murder was not insane held not so contrary to the testimony as to show passion or prejudice.

Appeal from Circuit Court, Franklin County; Nick M. Bradley, Judge.

Charles Anderson Barker was convicted of murder in the first degree, and he appeals. Affirmed.

Jesse H. Schaper, for appellant. Herbert S. Hadley, Atty. Gen., and F. G. Ferris, Asst. Atty. Gen., for the State.

GANTT, P. J.

The defendant was indicted at the November term, 1907, of the Franklin county circuit court for the murder of Alfred Kopf, at the town of Pacific, on the 3d day of September, 1907. He was duly arraigned, and, upon a plea of not guilty and insanity, he was tried at the March term, 1908, convicted of murder in the first degree, and his punishment assessed at imprisonment for life in the penitentiary. He has appealed from that sentence.

The statements of counsel show no difference as to the substantial facts. The evidence on the part of the state tended to prove that about 6 o'clock in the morning of the 3d of September, 1907, defendant was seen leaving the home of Mr. Lynde, in the town of Pacific. As he passed from the gate he threw away a sandwich. He went on in the direction of Mr. Busse's place, where soon thereafter he arrived. He applied to Mr. Busse, who was in the house alone at the time, and asked for a lunch, and was granted the privilege of entering the house and washing his face. He had some conversation with Mr. Busse, in which he said he was hunting work. He desired the privilege of heating some water with which to wash his shirt, and was directed by Mr. Busse to a creek where he could do his washing. He also inquired the road to Labadie. Mr. Busse testified that his conversation was sensible. After wiping his face and hands, he sat at the window looking into a pocket mirror and picking at his face. He went out of the house a few minutes later. Mr. Busse afterwards saw him sitting in the road, looking at his glass and picking his face. Defendant sat in the road there for some time, and then he walked further up the road, where he entered a patch of weeds by the roadside, in which he lay down and thus concealed himself from view. About that time Harry Knapp, to whom some lady in the neighborhood had complained that defendant had made a disturbance or was exciting fear, came to Mr. Busse's house and inquired as to where defendant might be found. Mr. Busse being somewhat deaf, Mr. Knapp talked in a loud tone. As Mr. Knapp told Mr. Busse that he had telephoned for the city marshal, the defendant arose in the weeds, looked around and lay down again, which act in a short time defendant repeated. Knapp started away, but soon returned to Busse's place with Deputy Marshal Albert Kopf, who at the time was acting marshal. When about 30 feet from defendant, Knapp stopped and pointed out defendant's hiding place to Kopf. As Kopf approached defendant, the defendant arose, drawing his revolver as he did so, and quickly fired a shot at Kopf, which struck Kopf in the breast. Kopf, on seeing defendant draw his revolver, also drew a revolver and fired twice at defendant immediately after defendant had shot. Kopf turned, reeled, and staggered a few feet and fell. Defendant in the meantime was working with his revolver, which seemed to be out of order. Knapp ran and telephoned for a doctor, and, returning, found Kopf mortally wounded, lying upon his face by the road. Dr. McNay, responding to the call to attend Kopf, went in a buggy, in company with Mr. Blees, toward the scene of the tragedy. As they were on their way, and opposite Dr. McNay's residence, they saw the defendant approaching the street in the distance, bareheaded and bleeding, and carrying a pistol. Blees informed the doctor that defendant was the man who had shot Kopf. The doctor ran into his house, and immediately returned to the buggy with his shotgun. In the meantime, defendant stopped to examine his revolver, and then proceeded to the buggy, where Blees said to him, "Hello! have you been in a scrap?" and defendant replied, "Yes, a fellow hit me with an iron bar." Upon being asked by Blees where it happened, defendant pointed back to the westward. Defendant watched the doctor's house, and, as the doctor emerged therefrom with a gun, he ran across the street and took position behind a maple tree. Dr. McNay and Mr. Blees both called to him, telling him to come out from behind the tree and drop his revolver and he would not be harmed. This demand and assurance was repeated several times, but defendant gave it no heed. As defendant stuck his hand around the tree, as if to get a shot at the doctor, the doctor fired a load from his shotgun at defendant's hand, which knocked defendant's revolver out of his hand, throwing it several feet away from the tree. Again commanded to come out from behind the tree, the defendant refused again. Defendant quickly made a dive for his revolver; Dr. McNay at the same time attempted to shoot the other barrel of his shotgun at defendant, but failed in doing so, because he pulled the wrong trigger. The doctor then shot the defendant in the face as he was taking aim at the doctor from behind the tree. Defendant fell, and the doctor noticing that he was not killed, proceeded in his buggy to the place where Marshal Kopf fell. During the duel between the doctor and the defendant no word was spoken by the defendant. The doctor, however, testified that he was acting like he knew what he was doing. Dr. McNay found Kopf suffering from a bullet wound, of which he died four days later. When defendant was arrested and searched, which was a very short time after the shooting, there was found upon his person a map, a purse, and an old pocketknife. In his clothing on one side was a gun pocket, and he also was carrying 38 shells. On the way to the calaboose, J. W. Placher had a conversation with defendant, in which, as he testified, defendant gave intelligent and responsive answers to his questions. As to this conversation, Mr. Placher was corroborated by Mr. Souders, who testified that defendant said that he fired the first shot, and he only fired one shot because his gun would not work. Defendant further said that the marshal's first shot missed him, and the second shot hit him in the mouth. Dr. Booth also heard and participated in the conversation above referred to. Dr. Booth said, as he noticed the formation of defendant's head, he made the remark, "That fellow would shoot a man for fun," whereupon the defendant said, "I did not shoot the marshal for fun, but I had to shoot him." Defendant also told Dr. Booth that there was a bullet in his mouth, which could be removed easily.

Dr. Lynde and his wife recognized the defendant as the man who had appeared at their door at about 6 o'clock on the morning of the tragedy and received from Mrs. Lynde a sandwich and a glass of milk. He drank the milk, started away without thanking the lady for her kindness, and threw away the sandwich as he came upon the street. Mr. Moore testified that he heard defendant in conversation with Dr. Booth, just after the arrest, say that his name was Charles Anderson, and that his home was Washington, D. C. Mr. Moore said that he seemed to be morose.

The defendant introduced in evidence records of the Supreme Court of the District of Columbia to prove that Charles Barker, the father of the defendant, was on the 18th day of May, 1889, by a jury, declared to be a lunatic and of unsound mind, so that he had not capacity sufficient for the government of himself and his property. The depositions of defendant's mother and four other witnesses of Washington, D. C., were read in evidence, all being to the effect that defendant as a child was always hard to manage, and that he would fall into a rage upon the slightest word of reprimand. He surrounded himself in his room with means of defense and escape. Sometimes he slept in the day and...