State v. Barutio

• Decision Date: 21 February 1899
• Citation: 49 S.W. 1004,148 Mo. 249
• Parties: STATE v. BARUTIO.
• Court: Missouri Supreme Court

49 S.W. 1004

148 Mo. 249

STATE v. BARUTIO.

Supreme Court of Missouri, Division No. 2.

February 21, 1899.

MANSLAUGHTER — INSTRUCTIONS.

An instruction, under Rev. St. 1889, § 3471, declaring the killing of another in a heat of passion, "without a design to effect death," to be manslaughter in the third degree, is not called for, where defendant, worsted in a quarrel of his own seeking, in which he was the manifest aggressor, rose with the exclamation, "I will fix him anyhow!" went to his house, got a revolver, returned making threats, shot towards the window from which he heard deceased promise his mother he would not fight, and, on hearing a scream, exclaimed, "I got him anyhow," and, when taken to his bed, said he was sorry he had not killed him.

Appeal from St. Louis circuit court; P. R. Flitcraft, Judge.

Frank Barutio was convicted of murder, and appeals. Affirmed.

Chas. P. Johnson, W. F. Fitzgerald, and Chas. T. Noland, for appellant. Edward C. Crow, Atty. Gen., and Sam B. Jeffries, Asst. Atty. Gen., for the State.

SHERWOOD, J.

Convicted of murder in the second degree, and his punishment assessed at 10 years in the penitentiary, and this under an indictment for murder in the first degree, defendant appeals to this court. Henry Becker, whose nick or pet name was "Hense," was the victim of the fatal shot fired by defendant. On this last-cited fact there is no dispute, nor is there any plea of self-defense in the case, nor any evidence to sustain such plea; so that the sole question presented to the lower court to try was the grade of homicide of which defendant should be found guilty.

The circumstances attendant on the homicide were, in substance, these: The defendant lived in the city of St. Louis, on Gyer avenue, between Third and Fourth streets. Henry Becker lived with his mother and brother on Gyer avenue, across the alley from defendant's home. On the 17th day of August, 1896, Henry Becker, Peter Opperman, Oscar Kuring, Paul Marty, Otto Wagner, George Humelson, and Johnnie Becker were sitting in the alley which passed between the premises of the defendant and the home of deceased's mother. This was between 7 and 8 o'clock in the evening. They had been sitting there about 15 minutes, engaged in conversation about hauling coke. Peter Opperman had just made the remark that he could unload a car of coke in a day, when the defendant came through the alley from his stable near by, and said to Opperman, "You've got a big mouth about work." To this Opperman replied, "I have when I get paid for it." Defendant then stepped up to Henry Becker, to whom he had not spoken for two years, and said to him, "Do I owe you anything?" when the latter replied, "Not a cent." The defendant then asked, "Who do I owe anything to?" and Becker answered, "Oscar Kuring you owe half a day." The defendant thereupon started towards Henry Becker, striking him on the head while he was sitting down; and he thereupon got up, and stood for a few minutes guarding himself against the blows of the defendant. He finally knocked defendant down, who fell between a team of horses which belonged to the defendant, and which were tied to a wagon near by. The defendant's sister-in-law came upon the scene of action, and assisted him in getting up, and, as he was going towards his house, he passed Henry Becker, and said, "I will fix him anyhow!" Henry Becker stood on the sidewalk for about 10 minutes; but meanwhile defendant, having gone down to his house, some 80 feet distant, got his revolver, and coming through his stable, which sat upon an alley, he advanced up the alley towards the scene of the recent fight, where the parties were still in the alley, and close to the house where Henry Becker's mother lived. Mrs. Becker, aware that there had been a bout between her son Henry and defendant, and hearing defendant come cursing up the alley, and saying that he was "going to kill the black son of a b____," called Henry, who, but a few feet away, came at his mother's call, entered the house, and slammed the door after him. Meanwhile defendant came on up the alley to where Pete Opperman was sitting, in a chair leaning up against Mrs. Becker's house, and, thrusting his revolver into Opperman's face, said, "Where is that black son of a b____?" This question defendant repeated for three or four minutes. Opperman made no reply. It was then about 7:30 o'clock, and a lamp had been lit in the front room, but had been moved into an adjoining room, and, the door being open, the light shone through into the front room. The window in that room was raised, and the shutters closed, but a slat had broken...