State v. Constitino

• Decision Date: 06 January 1916
• Docket Number: No. 19012.,19012.
• Citation: 181 S.W. 1155
• Parties: STATE v. CONSTITINO.
• Court: Missouri Supreme Court

181 S.W. 1155

STATE v. CONSTITINO.

No. 19012.

Supreme Court of Missouri, Division No. 2.

January 6, 1916.

Appeal from Criminal Court, Jackson County; Ralph S. Latshaw, Judge.

John Constitino was convicted of murder in the second degree, and he appeals. Reversed, and cause remanded.

Boyle & Howell, Joseph S. Brooks, and George L. Boyle, all of Kansas City, for appellant. John T. Barker, Atty. Gen. (Kenneth C. Sears, of Jefferson City, of counsel), for the State.

WILLIAMS, C.

Upon an information charging him with murder in the second degree, defendant was tried in the criminal court of Jackson county, Mo., found guilty, and his punishment assessed at 15 years in the penitentiary. Defendant appeals.

The evidence upon the part of the state tends to establish the following facts: The killing occurred between 11 and 12 o'clock on the night of September 17, 1914, near Fourteenth and Tracy streets, Kansas City, Mo. On the night in question a dance was held at Twelfth and Tracy streets, attended, among others, by Rolly Sharp, Louie Medow, Harry Wilson, George Kyle (the deceased), Ethel Bender, Ruth Yeo, and the defendant. The dance closed about 11:30 p. m., at which time the two girls started to the home of Ruth Yeo, walking south on Tracy street. Deceased and Wilson overtook them a short distance from the dance hall and gained permission to escort them home, and they proceeded down the street, the deceased and Ethel Bender in front. After they had gone a distance of about two blocks, they heard two persons running up from behind and whistling as if to attract attention. In a short time these two persons, who were Rolly Sharp and the defendant, caught up with the two couples and passed Wilson and the Yeo girl, and were in the act of passing deceased and the Bender girl, when the deceased said to them, "Where is your little redheaded friend?" Defendant replied, "He is my brother; what are you going to do about it?" or, "I am his brother; I will take it up." Whereupon deceased said, "If I hurt anything, I will apologize," and defendant said, "Apologize nothing." Thereupon defendant struck deceased in the face. Deceased returned the blow, and then ran out into the street, defendant following him. While the back of deceased was turned, defendant "made a pass" at him, and cut through the deceased's coat. Out in the street, they continued to fight a few minutes, when the deceased was seen to stoop over and run away. It developed later that the deceased had received a stab wound in the adominal region which later proved fatal. After deceased ran away defendant ran by Wilson and cut him on the hip, and Wilson thereupon ran south and caught up with the deceased and assisted in taking him to the hospital, where he later died. Defendant walked down the street a short distance and whistled, and the four or five other young men came up to him, and he said, "I ripped him," and the defendant "took his knife, this way, through his fingers, and then closed it with the resulting noise which indicated that it was a spring knife." The evidence tended to show that deceased was unarmed. Two or three minutes after the fight Miss Bender heard the defendant say, "I cut him; I cut the s____ of a b____ right where he won't try that trick again; I cut him in the belly."

The following portion of the dying declaration of the deceased was read in evidence:

"I, George Kyle, realizing that I am about to die, and having given up all hope of recovery, make this my dying declaration. My name is George Kyle, and I live at 4100 McGee street. Then he struck me with a knife in the abdomen on the right side. Only one of the fellows struck me. I don't know the name of the fellow who cut me, but he was kind of low and heavy, smooth face, hair as black as coal, real short. I know him when I see him, and have for about two or three weeks. I have seen him there at Twelfth and Tracy, and saw him at the New Casino Monday night between Eleventh and Twelfth on Broadway. I think he is an Italian. I think the fellow with him was an Italian. He was a little taller than the other fellow, brown suit and brown hat. The man who stabbed me had on a blue serge suit, and one tooth out in front. Both of these fellows were young looking; may have been 21 or 22. I never tried to strike either one of these fellows until the fellow who stabbed me struck at me. When he first struck at me I struck back; about two blows passed back and forth; then he stabbed me. This statement is true, so help me God. George Kyle. Witnesses: W. H. Wiebold, C. H. Chick, Virgil Yates, and A. R. Welch, M. D."

After defendant's evidence was in, the court permitted the state to introduce another part of the dying declaration of the deceased in which he stated that he did not have "a knife nor a weapon of any kind" when he was stabbed.

The evidence upon the part of the defense tended to show that, at the dance a slight misunderstanding arose between the deceased and Louie Medow concerning which one should dance with Miss Bender. After the dance was over the defendant, with Medow, Rolly Sharp, and three other boys, went to a nearby saloon, and in a short time young Yeo came into the saloon and told Medow that deceased challenged him to come out and fight. The crowd in the saloon wanted to see a fight, and they urged Medow to go out and fight the deceased, but Medow refused to do so. After remaining in the saloon about 15 minutes, the crowd of seven young men started south on Tracy street. At this time the two couple above referred to were about three-fourths of a block down the street. All but two or three of the crowd of young men lived in the opposite direction from that in which they were going. The evidence tended to show that defendant was going with Rolly Sharp to the Yeo home to get a pair of shoes left there by Sharp. Sharp and the defendant were ahead of the other boys, and at the time they caught up with the two couple they were about half a block ahead of the five other young men. As the crowd of young men were going down the street, the two couple in advance were seen to stop a time or two and look around. When Sharp and the defendant overtook the girls and their escorts, they started around them single file, Sharp in front, at which time deceased made the remark about the red-headed boy, referring to Medow. This remark was addressed to Sharp, who replied, "Huh?" Thereupon defendant stepped up and said, "He is my brother; what is the matter?" Whereupon deceased replied, "You are a liar; you know he isn't your brother." Kyle, the deceased, then buttoned his coat and stepped back and struck the defendant. Defendant backed into the street, and Sharp turned and whistled to the crowd up the street, and when he turned back again the fight was over, and deceased was running down the street.

The defendant testified in his own behalf. It appears that he was the only Italian in the crowd of boys. According to his testimony, he replied to the deceased, "What is the trouble? He is my brother; if he did anything to you, I will fix it up." That while he was making the above remark deceased prepared himself, and then, "He didn't give me a chance to say anything; he came out and cut me." "So I jumped back, just accidentally far enough; if I hadn't went back so far he might have cut my throat. Then I rushed into the middle of the street; then I lost my head; got my knife. He came to me, and I saw I couldn't get away. I went to him at the same time; then I ran. I didn't know even that I had cut him. I didn't know what I...