State v. Bauerle

• Decision Date: 31 May 1898
• Citation: 46 S.W. 609,145 Mo. 1
• Parties: STATE v. BAUERLE.
• Court: Missouri Supreme Court

46 S.W. 609

145 Mo. 1

STATE v. BAUERLE.

Supreme Court of Missouri, Division No. 2.

May 31, 1898.

JUROR — COMPETENCY — CRIMINAL LAW — INSTRUCTIONS — HOMICIDE — EVIDENCE — REVIEW ON APPEAL — CREDIBILITY OF WITNESS — NEW TRIAL.

1. Where a juror upon his voir dire stated that he was opposed to capital punishment on circumstantial evidence, and, on being asked, if the evidence convinced him of defendant's guilt beyond a reasonable doubt, whether he could, or would not, convict, answered, "I believe I could, but I would have to admit it would take a great deal of it, and would have to be very strong," it is not error to excuse him.

2. It is within the discretion of the court to excuse a juror for cause, and its action will not be disturbed on appeal unless manifest error occurs.

3. Where a court has fully instructed the jury on a point, it is not error to refuse further instructions asked upon that point, however correct.

4. An instruction that if the jury believe from the evidence beyond a reasonable doubt that defendant willfully, premeditatedly, and of his malice aforethought shot and killed decedent, but without deliberation, they should convict of murder in the second degree, is correct, and not misleading.

5. Evidence showed that deceased was living with her grandfather and defendant, her uncle; that, the day before the killing, he was seen quarreling with her, and stated, "I'll soon get rid of you"; that next morning, while defendant was on the porch of the house, cleaning or loading a pistol, deceased came there, and their conversation led to a scuffle; that she called defendant a liar, and retreated into the house, followed by him; soon a scuffle was heard in the house, followed by a shot, from the effects of which decedent died; that defendant, without calling other members of the family, went for a physician, stating that, on hearing the shot, he rushed into the room, and found her with the pistol at her side; that after the physician arrived, and asked, "What did she do it with?" defendant reached for the pistol, and said, "Here's what she done it with." There was no motive for suicide, and defendant's statements as to his whereabouts were conflicting. Held sufficient to support a verdict of guilty.

6. The supreme court, in considering whether evidence supports a conviction, will not reject testimony of a material witness, whose general reputation for truth is impeached by affidavits in support of a new trial, which has been denied by the trial judge.

7. A court is not bound to reject the testimony of a witness whose general reputation for truth is impugned, where the witness occupies an independent, disinterested position between the parties, and his evidence corresponds and is consistent with the controlling facts of the case.

8. A new trial will not be granted on the ground of newly-discovered evidence where the evidence is incompetent or for the purpose of impeachment.

Appeal from criminal court, Lafayette county; John E. Ryland, Judge.

Otto Bauerle was convicted of murder in the second degree, and he appeals. Affirmed.

John Welborn and John S. Blackwell & Son, for appellant. Edward C. Crow, Atty. Gen., for the State.

GANTT, P. J.

On an indictment for murder in the first degree, defendant was convicted of murder in the second degree, and sentenced to imprisonment in the penitentiary for 10 years by the criminal court of Lafayette county. The controlling facts may be briefly summarized: Amelia Bauerle was the granddaughter of Louis Bauerle, and the niece of the defendant, Otto Bauerle. A short time prior to the death of Amelia Bauerle, on April 26, 1896, her parents had removed from Lexington, in this state, to some place in the state of New York, and left the girl with her grandfather, in Lexington. The old gentleman lived in the second story of a brick building on Main street, which he owned. On Sunday morning, April 26, 1896, a pistol was discharged in the apartments in which Amelia lived; and her uncle John Bauerle and his wife (who ran a restaurant in the west room on the ground floor of his father's said building), and others in the neighborhood, ran upstairs, and found Amelia lying on the floor, and a pistol lying by her side. Dr. P. S. Fulkerson was summoned at once by the defendant, Otto Bauerle, and found Amelia lying on the floor, very pale and pulseless. She lived about 30 minutes after he reached her. He found a gunshot wound in the pit of her stomach. Dr. Emmett Fulkerson was coroner at that time. They made a post mortem examination, and found the ball resting on the spinal column. It had entered about the center of the pit of the stomach, and ranged a little upward and to the left. They removed the ball, and found some large blood vessel had been cut, and a large hemorrhage had ensued. Dr. Fulkerson testified she never spoke but once after he reached her, and that was simply to say very indistinctly, "Turn me over." The wound and copious hemorrhage caused her death. Her clothing was powder-burnt. The doctor testified that defendant was greatly alarmed or excited when he came for him, and asked the doctor to hurry. Dr. Fulkerson reached the wounded woman in five minutes after defendant summoned him. His office was near. He did not recollect that the defendant was in the room after he arrived, until she died. Mat Boldridge was in the room either when he got there, or came in while he was there. On the Saturday evening previous to the homicide, next morning, James Misner, a witness, testified he saw the defendant and the deceased in the alley in the rear of the Bauerle building. Deceased had just inquired of witness where defendant was, and about that time or soon after they passed the witness, and, as they did so, defendant said to deceased, "I'll soon get rid of you." He seemed very angry. On the same day, another witness, Vinegar, testified that he saw defendant and deceased together at the back gate of the Bauerle lot. Defendant took hold of deceased, and they went into the back yard. On Sunday morning, Vinegar was in the alley, and heard the shot fired which killed Amelia. He testifies he went at once to the Bauerle house. When he reached there, he saw John Bauerle, the uncle of deceased, and brother of defendant, going up the steps out of his restaurant, and saw defendant go out of the hall into the kitchen, and sit down by the window. He saw Mr. Clark, the city marshal, and Mr. Dickerson, up there. Misner also testified that he was employed to clean up a saloon near by, and that on Sunday morning, after cleaning the saloon, he came down the alley, and went in back of Mr. Hearle's and into the yard, to a water-closet. Hearle's lot joins Bauerle's, and is separated by a fence. There is a back porch to Bauerle's house, seven or eight feet from the ground. He says, from where he stood in the back yard, nothing prevented his seeing on Bauerle's porch. He then details what he saw and heard in these words: "When I went out of the back yard of Mr. Hearle, Mr. Bauerle, the defendant, was sitting on the back porch, and had a pistol in his hand. I thought he was loading or greasing it; I don't know which. He was sitting on the southwest corner of the porch. He had the pistol in his left hand. With the other hand he was doing something; I don't know whether he was loading it or greasing it. He was sitting down when I first saw him. A little while after that, this girl came out, with something in her hand; I don't know whether it was a rag or what. This girl was Amelia Bauerle. She came out of the house. She came out of a hallway onto the porch, and, when she came out, she said something to him; I don't know exactly what she said; and he jumped up, and they got to scuffling, and I heard her say, `You are a liar!' to him, and he went up to her on the porch. I could not see exactly what he did with the pistol. She pulled loose from him, and went back into the house. He went on in behind her. I could not see which hand he held the pistol in as he went in. I did not see the pistol while they were scuffling. He went right in after her, as quick as she went in. I did not know exactly where the pistol was fired, but I thought it was fired in the direction of the house or over that way. I was not certain, and I looked over in the yard, and I did not see anybody in the yard; so I went to go out the back way, and look in the gate, and I seen everybody going along, coming to that yard; and I turned round, and went to the back up there, and the gate was locked. It was about three or four minutes after defendant went into the room or house that I heard the pistol shot. I saw no one come down and enter the back yard from the house after the young lady went in." Mat Boldridge testified that he was a barber. His shop was located directly east of and adjoining the Bauerle house. A fence separated his lot from the Bauerle yard. There is a porch back of his building, and one back of the Bauerle building, about 10 feet from the ground. He says: "Amelia Bauerle was killed on Sunday morning. I heard a pistol shot that morning, about 9 o'clock. I was down in the barber shop. Just before that, I heard a rumbling upstairs; and I thought it was my boys fighting, and I grabbed up my raw hide, and ran upstairs. Just after I heard that rumbling, I heard the pistol shot, or about the same time. I then looked at once over the Bauerle back fence, and I saw Mr. John Bauerle and the ladies belonging to the house, Mrs. Bauerle and Mrs. Moore, and Mrs. Bauerle again. A man by the name of Davis, from Oklahoma, was with me; and he got over the back fence, and went over there, and I went round to the gate, and up the steps behind him. He was just a few feet ahead of me when he went into the house. From the time I heard the pistol shot to the time I was in the house was about two minutes and a half; and in the room I found Mrs. John Bauerle and Mr. John Bauerle and the old lady Bauerle and this man Davis and...