State v. Butler

• Decision Date: 19 February 1913
• Citation: 153 S.W. 1042
• Parties: STATE v. BUTLER.
• Court: Missouri Supreme Court

153 S.W. 1042

STATE v. BUTLER.

Supreme Court of Missouri, Division No. 2.

February 19, 1913.

1. CRIMINAL LAW (§ 544) — EVIDENCE — TESTIMONY AT PRELIMINARY HEARING.

The transcript of the testimony of a witness at the preliminary hearing in a homicide case (Rev. St. 1909, §§ 5026, 5033, 5056) may, on the trial, be introduced by defendant, on a showing that the witness is out of the court's jurisdiction, the state having had an opportunity to cross-examine witness, the testimony being material, and there being no claim of the absence of witness being by procurement or at connivance of defendant; he having a right to waive his right of confrontation.

2. HOMICIDE (§ 309) — TRIAL — INSTRUCTIONS — DEGREES OF OFFENSE.

The evidence failing to disclose any provocation sufficient to reduce the offense to manslaughter, but the evidence of the state tending to prove murder, and that of defendant justifiable homicide, it was proper to refuse to instruct on manslaughter.

3. CRIMINAL LAW (§ 783½) — TRIAL — INSTRUCTIONS — WARNINGS.

Reference to a letter written by defendant, with suggestion to its contents having reflected on deceased's sister, having occurred in the testimony giving the conversation that took place at the time of the killing, defendant was entitled to an instruction calling attention to the fact that the letter was not in evidence, and that neither it, nor its suggested contents, should be considered in passing on the question of guilt or innocence.

4. CRIMINAL LAW (§ 829) — TRIAL — INSTRUCTIONS — REPETITION.

Refusal of instructions covered, so far as properly applicable to the case, by those given is not error.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

Albert G. Butler was convicted of murder, and appeals. Reversed and remanded.

Upon trial had in the circuit court of the city of St. Louis, defendant, under an information charging him with murder in the first degree, was convicted of murder in the second degree for the killing of Eugene Walsh on August 6, 1911, in said city, by shooting him with a pistol. The plea was self-defense. The punishment was assessed at ten years in the penitentiary, and by proper steps defendant brings the case here for review.

The evidence for the state tended to show that the deceased, Eugene Walsh, at the time of his death lived with his mother, younger brother, Joseph, and two younger sisters, at 7017 Bruno street, in the city of St. Louis. He was about 20 years of age, strong and muscular, and weighed about 180 pounds. Defendant was also a young man, and during the latter part of 1910 and early part of 1911 had roomed at the Walsh home, and had taken his meals at the Dion boarding house, No. 7145 McCausland avenue, about 150 feet northeast of the Walsh house. A small plot of ground, lying east of the Walsh house, and running up to the south side of the Dion house, and which adjoined on the northeast the intersection of two above-named streets, was vacant, so that the porch of the Dion house was in plain view from the Walsh house. During the time defendant roomed at the Walsh house he was attentive to Miss Nellie Walsh, sister of the deceased, taking her to church and places of entertainment. After defendant ceased rooming at the Walsh house, he went to North Carolina, and wrote several letters to deceased's sister; but apparently his suit did not meet with favor, and his letters were returned to him. He returned to St. Louis about July 25, 1911, and visited the Walsh house, and attempted to establish friendly relations with Miss Walsh, but was unsuccessful. Deceased, at or about that time, told defendant to stay away from the house and not bother them any more. Defendant never came to the house after that time till the day of the tragedy.

On Sunday afternoon, August 6, 1911, at about 12:30 o'clock, Mrs. Walsh, mother of the deceased, saw defendant standing on the Dion porch, and directed her son Joe to go over and tell defendant to come to the Walsh house. Joe immediately went over to the Dion house and called to defendant to come down into the yard. Defendant accepted the invitation, and Joe asked him what he meant by making false statements in a letter to Frazier about his sister. Defendant denied making any false statements, but said that everything in the letter was true. Then Joe Walsh asked defendant to go over to the Walsh house and prove the statements of the letter in the presence of his sister. About that time Frazier, who was a boarder at the Dion house and a roomer at the Walsh house, came out of the Dion house, and the three walked together over to the Walsh house, stopping in the yard in front of the porch. About this time two other young men, Medley and Maher, came up, and were standing in the yard near the other persons. Mrs. Walsh stood in the front door as they came up, and called her daughter Nellie, and both came out on the front porch. Defendant said, "Nellie, don't have any hard feelings toward me." She replied, "I hate you." Defendant then said, "You know we were engaged for over 12 months." She denied this, and Joe interrupted the conversation by saying to the defendant that what they wanted to know was whether the statements made in the letter were true. Defendant turned towards Nellie, and said, "You unfolded it, and showed me all." Nellie screamed, and said it was a lie. When she screamed, defendant retreated towards the street by walking backwards, going in a southeasterly direction. At this time the deceased, who had been upstairs taking a bath, came down, and rushed out on the porch towards defendant, ordering him off the premises. Deceased was dressed in an undershirt and trousers and shoes, without sox, and was holding his trousers with one hand and motioning towards defendant with the other. Defendant continued backing away from the premises, and deceased continued walking towards him. When defendant had retreated a distance of 20 or 25 feet, and deceased had approached to within about 4 feet of him, with his arm and hand extended towards defendant, the latter drew a revolver and fired one shot. The bullet struck the deceased in the forehead, penetrating the brain, and causing instant death. Deceased's face was considerably powder burned, indicating close proximity to the pistol when it was fired. When deceased was shot he fell forward on his hands and knees, falling on the cinder sidewalk southeast of the Walsh residence. Defendant was arrested shortly after the shooting.

The testimony for the defense contradicted the state's evidence as to the position of some of the persons at the scene of the shooting, and also as to the demeanor of the deceased as he approached defendant just before the shooting. Defendant testified that on Saturday evening, the day before the tragedy, in the presence of himself Mrs. Walsh, and James McHugh, out near a swing on the vacant lot, the deceased told him that the next time he saw him he was going to brain him. Mrs. Walsh testified that she did not hear deceased make the threat. The other living witness, McHugh, was not presented at the trial. McHugh's brother testified that the absent witness was then living in Cincinnati or in Alabama. Defendant's subpœnas for witness McHugh were returned non est. This witness testified at the preliminary hearing before the committing magistrate that he heard deceased make the threat. A transcript of this evidence, showing that the witness had been cross-examined by the state, and the authenticity of which was admitted by the state, was, after showing first being of above facts, offered in evidence by defendant; but the offer was refused, and defendant saved an exception. Defendant further testified: That when Joe Walsh came to invite him down to the Walsh house, just prior to the shooting, he said, "I am going to break your damned head for the letters you wrote about my sister," but that later, and before going down to the Walsh house, Joe assured defendant that there would be no trouble if he went with him. That after the conversation with Joe Walsh and Nellie Walsh, at the front porch, the deceased, Joe Walsh, Frazier, and Medley, all started towards him, uttering threats of violence, and that he retreated, saying to them: "Stand back. Don't come near me." That when he reached the sidewalk he heard some one rushing upon him, and that he then turned and saw deceased rushing at him, "in a violent and desperate way," with one hand upraised, reaching for him, and the other concealed behind his body. He called out to deceased: "You have gone far enough. Stand back." But deceased continued towards him, and he then fired his pistol at deceased to stop the threatened attack; he believing that deceased would kill him.

Several witnesses testified that defendant bore a good reputation as a peaceable and law-abiding citizen in the community in which he lived.

Defendant complains of the rulings of the court (1) in refusing to admit the testimony of witness McHugh, given at the preliminary hearing; (2) in failing to instruct on manslaughter in the fourth degree; (3) in refusing certain instructions asked by defendant.

F. A. Mayhall and Barclay, Fauntleroy, Cullen & Orthwein, all of St. Louis,...