State v. Barutio

SHEEWOOD, J.- Oonyicted 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 yictim 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.” [253] 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 house where Henry Becker’s mother lived. Mrs. Becker aware that there had been a bout between her son Henry and defendant, and hearing defendant come cursing up the alley, ánd saying that he was “going to kill the black son of a b-,” she called Henry who, but a few feet away, came at his mother’s call, entered the house and slammed the door after him. Meanwile defendant came on up the alley to where Pete Opperman was sitting in a chair leaning up against Mrs. Becker’s house, and thrusting his revolver into Opperman’s face said, “Where is that black son of a--?” This question defendant repeated for three or four minutes. Opperman made no reply. It was then about 1:30 o’clock and a lamp had been lit in the front room, but had been moved into an adjoining room and the door being open the light shone through into the front room. The window in that room was raised, and the shutters closed, but a slat [254] bad broken and slipped down a little on tbe south shutter. F acing that open window and closed shutters, Henry Becker and his mother stood; at this juncture, defendant having ceased his passionate interrogations to Opperman, and being close by the .shutters mentioned, Henry Becker was heard to say, seemingly to his mother, “I won’t fight for your sake,” when defendant saying, “I will get the black son of a b-anyhow,” sprang towards the shutters and fired. Immediately an outcry as if from a person in great agony was heard in the house and from behind the shutters, and defendant exclaiming, “I got him anyhow,” turned and walked down the alley towards his home. The ball fired by defendant passed through the south shutter (the one on which the slat had slipped down) making a hole therein and entered Becker’s right eye destroying that organ, and passing on lodged in the muscles of the face immediately in front of the' right ear, and resulted in Becker’s death on the second day of September, 1896. Within about two hours after Becker was shot, defendant was brought to Becker’s bedside by two policemen for the purpose of identification. Becker’s mother sat by him on the bed. Being asked by the policeman “Is this the man that shot you?” Becker replied, “Yes, that is Frank Barutio that shot me.” Whereupon defendant said: - “I am sorry I did not kill the black son of a b-.” The court instructed on murder in the first and second degrees, and manslaughter in the fourth degree. These instructions follow stereotyped formulae as to these degrees of homicidal crime, and the instruction relating to manslaughter left it to the jury to say whether defendant at the time of the shooting, was under the influence of hot blood, produced by the blows given him by Becker, and whether sufficient time had elapsed for the blood to cool, etc. The objections raised by defendant in this court point solely to some of the instructions given by the trial court. It is asserted that that court should have instructed upon [255] manslaughter in the third degree as defined by section 3471, Revised Statutes 1889. That section declares: “The killing of another in a heat of passion without a design to effect death, by a dangerous weapon, in any case except such wherein the killing of another is justifiable or excusable, shall be deemed manslaughter in the third degree.” There was no basis on which to found such an instruction. All of the testimony, both on the part of the State and defendant, shows that defendant had “a design to effect death.” Worsted in a quarrel of his own seeking, in which he was the manifest aggressor, he rises from the ground, exclaiming, “I will fix him anyhow;” goes to his house, procures his revolver, comes up the alley, “breathing out threatenings and slaughter,” inquires for Becker, and as soon as he heard him speak the promise to his mother, “I won’t fight for your sake,” he springs towards the window from whence the sound proceeds, saying, “I will get the black son of a b-, anyhow,” fires the fatal shot and when an agonized shriek is heard in response to that shot, boastfully exclaims, “I got him, anyhow!” Not content with this exhibition of mortal hatred and malice, defendant two hours afterwards, when taken to the bedside of his fatally wounded victim, said in the presence of that victim’s mother, who sat on the bed beside him, “I am sorry.I did not kill the black son of a b-.” It is difficult to conceive of conduct more strongly expressive of the inner workings of “a heart regardless of social duty and fatally bent on mischief.” In short, if defendant’s words and their accompanying acts do not indicate express malice, do not proclaim a most cowardly and brutal murder, then our legal lexicographers will soon have to formulate a genesis of new definitions. The State v. Talmage, 107 Mo. 543, insofar as it gives support to defendant’s contention respecting section 3471 aforesaid, has been expressly overruled by State v. Pettit, 119 Mo. 410. The like line of remark is applicable to defendant’s second [256] contention in regard, to section 3477, Bevised Statutes 1889, which treats of manslaughter in the fourth degree; there are no facts in evidence which would warrant an instruction based on that section. The evidence has no tendency to show a reckless or culpably negligent discharge of defendant’s pistol such as is illustrated by the case of State v. Emery, 78 Mo. 77, and similar cases, but a deliberate discharge of that weapon in order to carry out the fell purpose defendant had predetermined. It is true an instruction was given upon manslaughter, but in my opinion no instruction should have been given for any lower grade than murder in the first degree. Defendant really established, by the facts in evidence, no more right to an instruction on manslaughter, than to instructions on self-defense, alibi or insanity. These views eliminate from consideration the sixth instruction which is asserted to be erroneous. But if an instruction in regard to “cooling time,” “hot blood,” etc., should have been given at all, the one given meets the requirements of our latest ruling on that subject. [State v. Grugin, 147 Mo. 39.] Consequent upon the .views aforesaid, judgment affirmed. All concur.