State v. Butler

• Decision Date: 26 May 1914
• Docket Number: No. 18074.,18074.
• Citation: 258 Mo. 430,167 S.W. 509
• Parties: STATE v. BUTLER.
• Court: Missouri Supreme Court

167 S.W. 509

258 Mo. 430

STATE v. BUTLER.

No. 18074.

Supreme Court of Missouri, Division No. 2.

May 26, 1914.

1. CRIMINAL LAW (§ 361) — EVIDENCE — ADMISSIBILITY.

In a homicide case, a state's witness detailed the following conversation had with defendant immediately after the shooting: "What in the world did you shoot that man for?" to which defendant replied: "He was going to kill me." The witness then said, "He had no idea of hurting you," and defendant replied, "Lord, Lord, what have I done!" Held, that the statement of the witness, "He had no idea of hurting you," being a part of the conversation, was admissible as explaining the answer made thereto by defendant.

2. CRIMINAL LAW (§ 406) — EVIDENCE — ADMISSIONS.

Such statement and the answer thereto was admissible because in the nature of an accusation questioning defendant's right to shoot in self-defense, the probative weight of which was for the jury.

3. CRIMINAL LAW (§ 1144) — APPEAL AND ERROR — REVIEW — PRESUMPTIONS.

When the court freely sustained defendant's objection to remarks of counsel for the state, and instructed the jury that they must disregard the remarks, it will be assumed that the action of the court was sufficient to right the wrong, in the absence of any exception thereto by defendant.

4. CRIMINAL LAW (§ 1055) — APPEAL AND ERROR — ARGUMENT OF COUNSEL — EXCEPTIONS.

Where defendant does not except to the action of the trial court upon his objection as to remarks of the state's attorney, the remarks will not necessarily cause a reversal of the case.

5. CRIMINAL LAW (§ 723) — TRIAL — ARGUMENT OF COUNSEL.

Deceased, a young man, was the oldest child of his mother, and was the acting head of the family; the father living away from home. Just prior to the killing, defendant and deceased's sister were quarreling in the yard, during which the sister screamed and called defendant a liar, whereupon deceased rushed out of the house and was killed. The state's attorney in his argument said: "This young man, Walsh, a young man in the prime of life, the little father of the family, has given up his life for the good name of his family." Held, that the remarks did not exceed the bounds of legitimate argument.

Appeal from St. Louis Circuit Court, William M. Kinsey, Judge.

Albert G. Butler was convicted of murder in the second degree, and he appeals. Affirmed.

See, also, 247 Mo. 685, 153 S. W. 1042.

Frederick A. Mayhall and Fauntleroy, Cullen & Hay, all of St. Louis, for appellant. John T. Barker, Atty. Gen., and Thomas J. Higgs, Asst. Atty. Gen., for the State.

WILLIAMS, C.

On June 11, 1913, in the circuit court of the city of St. Louis, defendant was convicted of murder in the second degree, and his punishment assessed at 10 years in the penitentiary. This is the second appeal in the case. The judgment upon the first trial was, by this court, upon appeal, reversed on account of certain errors not now involved. The facts disclosed by the present record are, in substance, the same as disclosed by the record of the first trial, and are fully set forth in the former opinion by this court in 247 Mo. 685, 153 S. W. 1042. It is therefore unnecessary to restate the same here.

As grounds for a reversal of the present judgment, appellant contends that error was committed: (1) In the admission of certain testimony given by witness Mosby; (2) by improper remarks made by one of the state's counsel in making the closing argument to the jury.

I. Witness Mosby testified upon the part of the state that he saw the shooting and heard some quarreling between defendant and others in front of the Walsh home just prior to the shooting; that he walked down the sidewalk beyond the Walsh premises, and, upon hearing a "scream," turned around and looked back toward the Walsh home, and saw defendant walking backwards away from the Walsh home and saw deceased going toward defendant with one arm extended, but did not see the other hand; that when deceased had approached within four or five feet of defendant, defendant drew a revolver from his pocket and shot deceased. After the shot was fired, defendant ran diagonally across an adjoining lawn and down the street until he was stopped by a man named Brown. Mosby went up to where defendant was standing, and, in the language of the witness, the following occurred:

"When I first came up to him [defendant], I said, `What in the world did you shoot that man for?' and he said, `He was going to kill me.' I said, `He had no idea of hurting you,' and then he said, `Lord, Lord, what have I done!'"

Appellant objected to the admission in evidence of that portion of the conversation whereby witness told defendant that deceased had no idea of hurting defendant, on the ground that it was a conclusion or opinion on the part of the witness as to the conduct of the deceased. The court overruled the objection, and defendant saved an exception....