The State v. Barutio
| Decision Date | 21 February 1899 |
| Citation | 49 S.W. 1004,148 Mo. 249 |
| Parties | The State v. Barutio, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. P. R. Flitcraft Judge.
Affirmed.
Chas P. Johnson, W. F. Fitzgerald and Charles T. Noland for appellant.
(1) The court should have instructed the jury upon the third degree of manslaughter, as defined in section 3471, Revised Statutes 1889. There was evidence to sustain the theory that Barutio in a heat of passion produced by blows upon his face, without a design to effect death, fired his pistol (a dangerous weapon) toward a window, the shutters of which were closed, and, although not so intended, the result was the killing of Henry Becker. It was reversible error for the trial court to fail to instruct upon such theory of the case and the law governing it. State v. Talmage, 107 Mo. 569; State v. Wilson, 98 Mo. 449; State v. Elliott, 98 Mo. 150; State v. Gassert, 65 Mo. 352; State v. McKinzie, 102 Mo. 620; State v. Thomas, 78 Mo. 327. (2) It was error for the trial court to fail to instruct the jury as to manslaughter in the fourth degree as defined by section 3477, Revised Statutes 1889, inasmuch as there was evidence to sustain the theory that Barutio, in a heat of passion engendered by blows inflicted by Becker, procured a pistol and flourished it around in a reckless, dangerous and culpably negligent manner, and while so doing it was discharged, and Becker accidentally shot, from which wound he afterwards died. State v. Grote, 109 Mo. 345; State v. Morrison, 104 Mo. 638; State v. Henson, 106 Mo. 66; State v. Emery, 78 Mo. 77. (3) The sixth instruction given by the court is erroneous. It limits the jury, in determining whether a heat of passion aroused by blows has or has not passed away, to a question simply of "time." It tells the jury that even if a heat of passion was aroused by the blows yet if "there was sufficient time for the blood to cool before the shooting was done, then the offense is not manslaughter, but murder." State v. Grugin, 147 Mo. 39; Hurst v. State, 46 S.W. 635; State v. Woods, 97 Mo. 31; 1 Wharton, Crim. Law (9 Ed.), sec. 480; Wharton on Hom., sec. 449; Hurd v. People, 25 Mich. 405; State v. Moore, 69 N.C. 267.
Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.
(1) The only questions raised by the defendant in his brief have reference solely to the instructions given by the court. In this regard the court instructed the jury upon the question of murder in the first and second degrees and manslaughter in the fourth degree. The first proposition submitted, is that the court should have instructed upon manslaughter in the third degree as defined by section 3471, Revised Statutes 1889. Now it has been heretofore held by this court that by the plain provisions of this statute there can be no such thing as manslaughter in the third degree when the killing is intentional. State v. Pettit, 119 Mo. 410. (2) While the court instructed the jury upon the question of manslaughter in the fourth degree, yet it is insisted upon by the defense that an instruction should have been given upon this degree as defined by section 3477 inasmuch as there was evidence to sustain the theory that the defendant, in a heat of passion engendered by blows inflicted by the deceased, procured a pistol, flourished it around in a reckless, dangerous and culpably negligent manner and while so doing it was discharged and Becker accidently shot from which would he afterward died. In this particular we are unable to discover error for the reason that there is no evidence showing a negligent and reckless use of the deadly weapon, nor does it appear that there was an effort made upon the part of the defendant during the trial of the case to show that the act was committed accidentally. While the authorities submitted upon this proposition by defendant are well and good, yet they are not applicable to this case for the reason that defendant can not escape the natural and inevitable conclusion of the evidence and the effect which it must necessarily have had upon the judgment of the trial court in granting the instruction and of the jury in passing upon his guilt or innocence. It is true that when a defendant under the influence of a violent passion, with no intent to kill, draws a revolver and it is discharged, resulting in the killing of a person, it is manslaughter in the fourth degree. But the evidence here shows that the firing of the pistol was done with an intent to kill. The admitted fact upon the part of defendant's witnesses that defendant stood by the window and held his revolver, pointing towards it for a few minutes before he fired, is a matter that can not be disregarded by this court nor could it have been disregarded by the trial court or the jury in passing upon the issues involved and it is to be looked upon and considered as an index to defendant's actions during the conflict. The whole line of testimony shows a design and an intent upon the part of the defendant to take the life of the deceased. To make out a case of manslaughter in the fourth degree from culpable negligence in handling a pistol, as defined by section 3477, it must be shown that the killing was accidental, and that the defendant was guilty of culpable negligence. State v. Henson, 106 Mo. 66; State v. Morrison, 104 Mo. 638; State v. Emery, 78 Mo. 77.
Convicted of murder in the second degree and his punishment assessed at ten years in the penitentiary, and this under an indictment for murder in the first degree, defendant appeals to this court. Henry Becker, whose nick, or pet name was "Hense," was the victim of the fatal shot fired by defendant. On this last cited fact there is no dispute, nor is there any plea of self-defense in the case, nor any evidence to sustain such plea; so that the sole question presented to the lower court to try was the grade of homicide of which defendant should be found guilty.
The circumstances attendant on the homicide were in substance these: The defendant lived in the city of St. Louis on Gyer avenue, between Third and Fourth streets. Henry Becker lived with his mother and brother on Gyer avenue, across the alley from defendant's home. On the seventeenth day of August 1896, Henry Becker, Peter Opperman, Oscar Kuring, Paul Marty, Otto Wagner, George Humelson and Johnnie Becker were sitting in the alley which passed between the premises of the defendant and the home of deceased's mother. This was between 7 and 8 o'clock in the evening. They had been sitting there about fifteen minutes engaged in conversation about hauling coke. Peter Opperman had just made the remark that he could unload a car of coke in a day, when the defendant came through the alley from his stable near by and said to Opperman: "You've got a big mouth about work.' To this Opperman replied, "I have when I get paid for it." Defendant then stepped up to Henry Becker, to whom he had not spoken for two years, and said to him, "Do I owe you anything?" When the latter replied, "Not a cent." The defendant then asked, "Who do I owe anything to," and Becker answered, "Oscar Kuring you owe half a day." The defendant thereupon started toward Henry Becker, striking him on the head while he was sitting down, and he thereupon got up and stood for a few minutes guarding himself against the blows of the defendant. He finally knocked defendant down, who fell between a team of horses which belonged to the defendant and which were tied to a wagon near by. The defendant's sister-in-law came upon the scene of action and assisted him in getting up and as he was going towards his house he passed Henry Becker and said, "I will fix him, anyhow." Henry Becker stood on the sidewalk for about ten minutes; but meanwhile defendant having gone down to his house, some eighty feet distant, got his revolver and coming through his stable which sat upon an alley, he advanced up the alley towards the scene of the recent fight, where the parties were still in the alley and close to the...
To continue reading
Request your trial