The State v. Butler

• Decision Date: 19 February 1913
• Citation: 153 S.W. 1042,247 Mo. 685
• Parties: THE STATE v. ALBERT G. BUTLER, Appellant
• Court: Missouri Supreme Court

153 S.W. 1042

247 Mo. 685

THE STATE v. ALBERT G. BUTLER, Appellant

Supreme Court of Missouri, Second Division

February 19, 1913

Appeal from St. Louis City Circuit Court. -- Hon. Wilson A. Taylor Judge.

Reversed and remanded.

Frederick A. Mayhall and Barclay, Fauntleroy, Cullen & Orthwein for appellant.

(1) The court erred in holding the testimony of the absent witness given on the preliminary hearing, was inadmissible. When a witness is absent from the jurisdiction of the court the testimony of such witness given on the same issue before the court holding the preliminary examination is admissible when offered by the defendant. Greenleaf on Evidence (16 Ed.) secs. 163-166; 2 Wigmore on Evidence, secs. 1364, 1375, 1401; 5 Ency. of Evidence, 314, 883; State v. Riddle, 179 Mo. 297; State v. Rose, 92 Mo. 201; State v. Nicholas, 149 Mo.App. 126; State v. Brown, 132 N.W. 862. This testimony being offered by the defendant no question is presented involving the constitutional rights of the defendant. The offer of this testimony presents substantially the same question as if the defendant had taken depositions and offered to read them. Ex parte Wellborn, 237 Mo. 297; R.S. 1909, secs. 5173, 297; State v. Dusenberry, 112 Mo. 292; People v. Bird, 64 P. 260; State v. Nicholas, 149 Mo.App. 126; Wigmore on Ev., sec. 1401b. The rule in regard to the admission of evidence given at a previous trial is the same in civil and criminal cases when the evidence is offered by the defendant. U. S. v. McComb, 5 McLean, 286; Parks v. Commonwealth, 63 S.E. 463; Wigmore on Ev., sec. 1401b. It has been ruled by nearly all the appellate courts in this State that testimony given on a former trial in a civil case may be received if the witness is out of the jurisdiction of the court, or cannot be found after diligent search. Scovell v. Railroad, 94 Mo. 86; Wine Co. v. Weippert, 14 Mo.App. 485; Franklin v. Gummersell, 11 Mo.App. 314. The celebrated cases cited below are not in point on the proposition which we present, because in each instance the testimony was offered by the State and not by the defendant, and the question of constitutional right of the defendant was the question which controlled each decision. State v. McO'Blenis, 24 Mo. 402; State v. Baker, 24 Mo. 437; State v. Houser, 26 Mo. 440; State v. Moore, 156 Mo. 40. (2) The court erred in refusing to instruct the jury that they might find the defendant guilty of manslaughter in the fourth degree. The jury returned a verdict assessing the punishment of defendant at ten years, the lowest possible punishment for murder in the second degree. Therefore, the failure of the court to instruct on manslaughter in the fourth degree is directly presented by the record in this case. The defendant specifically requested the court to instruct on manslaughter in the fourth degree and saved an exception because the court failed and refused to do so. We insist that the following principles of law are applicable to this point: (a) Where several persons act together in ill-will toward another, insulting language or conduct addressed to him by one of them is properly regarded as the act of all. Willis v. State, 90 S.W. 1100. (b) In this State it has been held that opprobrious words in connection with vexatious acts and conduct are sufficient provocation to reduce a resultant killing from murder to manslaughter if they are of such character as to excite the passions of the mass of men so as to enthrall their reason. State v. Garrison, 147 Mo. 548; State v. Grugin, 147 Mo. 39; State v. Hudspeth, 150 Mo. 12. (c) An assault too slight in itself to be of sufficient provocation may become such by being coupled with insulting words. State v. Elliott, 98 Mo. 150; State v. Howard, 102 Mo. 142; State v. Hudspeth, 150 Mo. 12; Burley v. Menefee, 129 Mo.App. 518. (d) An apparent attempt to make a deadly assault or an assault with a deadly weapon in connection with previous threats to kill, known to the person threatened, is sufficient to require a charge of manslaughter where he kills a person apparently about to attack him. State v. Heath, 221 Mo. 559; Johnson v. State, 22 Tex.App. 206; Silgar v. People, 107 Ill. 563; People v. Palmer, 96 Mich. 580; Stacy v. State, 86 S.W. 327; Swain v. State, 86 S.W. 335; Thompson v. State, 32 Tex. Crim. Rep. 1; State v. Clay, 201 Mo. 679. (e) There may be an assault without personal injury if any unlawful attempt is coupled with the present ability to commit a violent injury, and this although the assailant failed to commit the injury intended. Smith v. Smith, 33 A. 441; Mailand v. Mailand, 86 S.W. 445; Bishop v. Ranney, 7 A. 220; State v. Smith, 80 Mo. 516; Norris v. Whyte, 158 Mo. 20; 1 Words & Phrases, "Assault."

Elliott W. Major, Attorney-General, and Charles G. Revelle, Assistant Attorney-General, for the State.

The noted case of State v. McO'Blenis, 24 Mo. 402, held that the deposition of a witness taken at a preliminary examination before a committing magistrate in the presence of the accused, may be received in evidence on the trial upon the proof of the death of such witness. This decision is cited with approval in State v. Moore, 156 Mo. 210, and the parallel cases of State v. Houser, 26 Mo. 431, and State v. Harman, 27 Mo. 27, are also cited. From the Missouri decisions we conclude that the rule is well stated in State v. Nicholas, 149 Mo.App. 127, where it is said: "The question in this State was settled in the affirmative that such evidence is competent only when the witness is dead, and in the negative that the evidence is incompetent when the witness is living, although beyond the jurisdiction of the State." Appellant contends that the rule did not apply to evidence offered by the defendant, because the constitutional right that accused may be confronted by the witnesses against him does not arise. But this contention is contrary to the holding in State v. Rose, 92 Mo. 201.

WILLIAMS, C. Roy, C., concurs.

OPINION

WILLIAMS, C. --

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 twenty years of age, strong and muscular, and weighed about one hundred and eighty 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 the 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 16, 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 Frazer 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 Frazer, 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 twelve 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...