State v. Tomasitz

• Decision Date: 17 May 1898
• Parties: STATE v. TOMASITZ.
• Court: Missouri Supreme Court

45 S.W. 1106

144 Mo. 86

STATE v. TOMASITZ.

Supreme Court of Missouri, Division No. 2.

May 17, 1898.

CRIMINAL LAW — NEWLY-DISCOVERED EVIDENCE — NEW TRIAL — MURDER — INSTRUCTIONS — APPEAL.

1. A motion for new trial, based on newly-discovered evidence, was properly overruled, where the motion was not supported by the affidavit of the defendant, setting forth the evidence, when it came to his knowledge, and the name of the witness, nor the affidavit of the witness giving the facts to which he would testify.

2. On a trial for murder in the first degree, it is not error for the court to fail to instruct on murder in the second degree, when there is no evidence warranting such an instruction.

3. The failure to give an instruction cannot be reviewed, where the record does not show that such instruction was asked, or that the attention of the court was called thereto.

4. A motion for new trial, based upon the court's refusal to sustain a challenge to a juror, without naming the juror, is too general.

5. Although the evidence is conflicting, if the verdict is amply supported by the testimony, it will not be disturbed.

Appeal from St. Louis circuit court; William Zachritz, Judge.

John Tomasitz was convicted of murder in the first degree, and he appeals. Affirmed.

John C. Robertson, for appellant. Edward C. Crow, Atty. Gen., Sam B. Jeffries, Asst. Atty. Gen., and W. W. Graves, for the State.

BURGESS, J.

Defendant was convicted in the circuit court of the city of St. Louis of murder in the first degree, and his punishment fixed accordingly, for having shot to death with a pistol at said city, on the 6th day of April, 1897, one Annie Rausch. He appealed. The defense was insanity.

The facts in this case show that the defendant had been a suitor of the deceased for about a year before the homicide, and, according to his statements, they were engaged to be married. She lived with her father, August Herman Rausch, at 2314 Scott avenue, in said city. Her father had requested defendant to stop calling upon her. On the evening of April 6, 1897, defendant took the deceased to the house of a lady friend. Mrs. Anna Hohenadle, who resided on Papin street. They arrived there a little before 6 o'clock. When they arrived at Mrs. Hohenadle's she opened the door, and let them in, and defendant walked on through the front room, and into another room. Deceased stopped in the front room. When defendant went into the second room, he opened a bureau drawer, from which he took a pistol belonging to the husband of Mrs. Hohenadle, and was about to put it in his pocket, but she took it away from him. Deceased then ran out at the front door, and defendant ran after her, overtook and brought her back to the house. Mrs. Hohenadle then admitted deceased, but refused to let the defendant come into the house. Mrs. Hohenadle then went to her kitchen, and shortly thereafter deceased went into the kitchen where she was, and a few minutes still later defendant went around to the kitchen also. He was then crying. Mrs. Hohenadle testified that she then locked the door to keep him out; that shortly after 6 o'clock her husband came home; that the defendant was still on the outside crying, and wanted to come in; that he said he wanted to see his girl, and kept crying; that her husband permitted the defendant to come into the house; that after he came in he was sitting upon the deceased's lap, crying; that while so situated he asked her if she would marry him; that deceased told him that he must go away, and did not answer him; that they remained in the house about an hour; that deceased asked witness to take her home, and witness told her that she would after supper; that after supper was over she and the deceased started for the home of deceased, and defendant followed; that she was on the outside of the walk, the deceased in the middle, and the defendant on the inside; that in this manner they walked until they reached Twenty-First street; that defendant said very little. "He only cried." Upon reaching Twenty-Second street, he asked deceased if she would marry him. She said, "No." He then asked her if he could go into the house with her, and she said, "No," and said that she would have him arrested. He said, "That's the last night of us both," and then shot. The girl ran across the street, and fell. The defendant, after shooting the girl, ran away. Upon cross-examination, this witness said that when defendant was getting her husband's revolver his eyes looked wild, and he looked like he was very much excited; that he had a wild expression about him when he came back to her house; that the residence of deceased was on Scott avenue, and the residence of the witness on Papin street; that the defendant looked different that evening from what he did at other times; that "he was kind of wild looking." Defendant fired three shots. The first shot was fired at deceased when within one foot of her. It entered to the left of the spinal column, about in the region of the tenth dorsal vertebra, and entered the spinal column, producing cerebro spinal meningitis. When the bullet struck deceased she fell on the...