145 Mo. 1 | Mo. | 1898
On an indictment for murder in the first degree defendant was convicted of murder in the second degree and sentenced to imprisonment in the penitentiary for ten years by the criminal court of Lafayette county.
The controlling facts may be briefly summarized. Amelia Bauerle was the granddaughter of Louis Bauerle and the niece of the defendant, Otto Bauerle. A short time prior to the death of Amelia Bauerle, on April 26,1896, her parents had moved from Lexington
The doctor testified that defendant was greatly alarmed or excited when he came for him and asked the doctor to hurry. Dr. Fulkerson reached the wounded woman in five minutes after defendant summoned him. His office was near. He did not recollect that the defendant was in the room after he arrived until she died. Mat Boldridge was in the room either when he got there or came in while he was there. On the Saturday evening previous to the homicide next morning, James Misner, a witness, testified
Mat Boldridge testified that he was a barber. His shop was located directly east of and adjoining the Bauerle house. A fence separated his lot from the Bauerle yard. There is a porch back of his building and one back of-the Bauerle building, about ten feet from the ground. He says: “Amelia Bauerle was killed on Sunday morning. I heard a pistol shot that morning about 9 o’clock; I was down in the barber shop. Just before that I heard a rumbling upstairs, and I thought it was my boys fighting and I grabbed up my rawhide and ran upstairs. Just after I heard that
Victor Dickerson: This shooting occurred one Sunday morning. I was standing on the corner of Main street when I heard the shot, and I went to Mr. Bauerle’s house with Mr. Clark and Mr. Otto Bauerle, defendant. Dr. Fulkerson was with the defendant, I close behind. I found the girl lying on the floor. There was in the room Mr. John Bauerle and his wife, Mr. Moore and his wife, defendant’s mother, Mr. Davis, Mr. Boldridge and -the girl. I picked up a revolver or pistol that was lying on the floor and laid
George Clark: I remember the shooting of Miss Amelia Bauerle on one Sunday morning. I was standing on the corner with Mr. Dickerson and went from there to the place where she was shot with Mr. Dickerson and Mr. Otto Bauerle, the defendant. When I got to the room I found Mr. Boldridge and a stranger there. The girl was lying on the floor; Dr. Fulkerson came in and asked me to cut her* clothes open, and I unbuttoned her wrapper and cut her corset off. I think this is the corset. The first words she said were, “Oh, I am so sick,” and then commenced vomiting a little, and then said, “Don’t cut me.” Then when we laid her on the bedshesaid, “Turn me over.” I was there possibly ten minutes and' she was not dead when I left. I seen the pistol just as Mr. Dickerson picked it up off of the floor.
Phillip Craig: At the time of the shooting I was living in Lexington. The shooting happened one' Sunday morning, between 9 and 10 o’clock. I was within two or three blocks of the building when it happened. I saw the defendant Bauerle that day,
Zach W. Wright: In 1896 I was sheriff of this county. ■ I remember the shooting of Amelia Bauerle. I was informed of the shooting about ten minutes after it happened, and I went to the room where the shooting had been done. Mr. Bauerle and defendant Bauerle were in the room, and the ladies about the place, Mrs. John Bauerle and Mrs. Moore, and D believe, Mr. Moore, Hisner and Dr. Fulkerson wei’e there. She was very near dead when I got there. I had the pistol in my hand and examined it at the time, but I did not bring it away with me. I do not think I ever got the pistol. The old gentlemen, Mr. Bauerle, said it was his pistol, that I could examine it, but he refused
J. M. Crowder: I remember hearing of this shooting; I was in the east end of town; I saw Otto Bauerle, the defendant, the Saturday evening before the shooting. Late that night I saw Amelia Bauerle, the deceased, down on Franklin street; she was with George Menaugh when I saw her; she was going home when I saw her the last time; she was with George Menaugh. Menaugh testified that he was with deceased Saturday till perhaps 11 o’clock and she was cheerful and apparently happy. Another witness saw her Sunday morning as she returned from market. She dropped her hat and he picked it up and handed it to her and she smiled and thanked him.
The defense was that deceased committed suicide. Mrs. John Bauerle testified that she reached her soon after she was shot and asked her how she was shot and she said she shot herself. John Bauerle also testified that he and his wife heard the shot and went at once and found her on the floor and the pistol lying there and she said she shot herself. No other witness however heard deceased make such a statement, though Mrs. John Bauerle says there were a dozen in the room at the time, and she spoke loud enough for them to hear her. Mr. Crenshaw, a druggist, testified he knew deceased; that a few days before her death she came to his drug store for morphine. He didn’t know for whom she bought it and did not say what quantity she obtained.
Several witnesses were called to testify as to the general character of James Misner for truth and veracity and they stated his reputation was bad in that regard. Several other witnesses testified to seeing defendant in the yard soon after the shot was fired coming
I. It may be stated in the outset that this homicide presents some very unusual features. If the defendant is guilty as the jury by their verdict asserts he is, it was a most unnatural crime. The defendant was the uncle of the deceased. She was a brother’s daughter under the care and protection of his father and naturally and justly was entitled to look to defendant also as her protector. They were members of the same family, living under the same roof. The record does not disclose to us some facts which the jury probably observed. The age of the defendant does not appear in the proofs and we have none of his personal characteristics in evidence. Whether the intimacy which the record discloses was a natural andlegitimate one, springing from the ties of blood between uncle and niece, or grew out of unnatural relations, we can not know nor surmise. The jury may have drawn some inferences which we can not. On the other hand the great preponderance of the evidence shows no motive whatever for suicide. The deceased was apparently happy and cheerful on the evening prior and the morning of her death. Various grounds for reversal are urged and the nature of the charge and the earnestness of the counsel challenge a most careful investigation. The indictment was
Only one juror was challenged and this brings us to a consideration of the first exception in the trial. It is charged that the court erred in excusing H. E. Kleinschmidt from the panel of forty. It is not insisted that the panel of forty finally obtained were not entirely qualified but that the defendant was entitled to have Kleinschmidt retained on the panel. The juror was informed that the State expected to substantiate the charge in the indictment by circumstantial evidence, and was asked by the prosecuting attorney if his opinions were such as to preclude his finding the defendant guilty upon circumstantial evidence alone, in a case where the punishment would be death. He answered he was opposed to capital punishment on circumstantial evidence. Upon further examination and cross-examination he still asserted that he was opposed to capital punishment on circumstantial evidence, but there might be an exceptional case where he could do so, but as a general proposition he would not convict on that character of evidence. Being pressed to say that if the evidence convinced him of defendant’s guilt beyond a reasonable doubt, whether he could or would not convict, he answered “Well, I believe I could, but I would have to admit it would take a great deal of it and would have to be very strong. ” Upon this showing the court excused him. This juror was in the presence of the court. It observed his manner, and probably living in the same county he was known to the judge, and a wise discretion was necessarily lodged with the judge in excusing him. Whether the juror stood indifferent between the State and the defendant was a fact which the court under our laws was required to determine and his finding will not be disturbed unless manifest error appears. State v. Williamson, 106 Mo. 162. We think the court very properly excused the juror, even from
II. The court instructed the jury that there was no direct evidence of defendant’s guilt, and then instructed them of its own motion as follows on circumstantial evidence:
“3. Evidence is of two kinds, direct and circumstantial. Direct evidence is when a witness testifies directly of his own knowledge of the main fact or facts to be proven. Circumstantial evidence is proof of certain facts and circumstances in a certain case from •which the jury may infer other and connected facts which usually and reasonably follow, according to the common experience of mankind. Crime may be proven by circumstantial evidence, as well as by direct testimony of eyewitnesses; but the facts and circumstances in evidence should be consistent with each other and with the guilt of defendant, and inconsistent with any reasonable theory of defendant’s innocence.”
Eor the defendant it gave the following:
“3. The court instructs the jury that the guilt of defendant can not be presumed, but must be proven either by direct or circumstantial evidence, and the court instructs you that there is no direct evidence of the guilt of the defendant in this case. Before you can convict the defendant on circumstantial evidence alone, the facts and circumstances must' all form a complete chain, and all point to his guilt, and must be irreconcilable with any reasonable theory of his innocence, and before the jury can convict the defendant on circumstantial evidence alone, the' circumstances must not only be consistent with his guilt and point directly thereto, but must be absolutely inconsistent Avith any unreasonable theory of his innocence.
*17 “4. The court instructs the jury that circumstantial evidence should always be cautiously considered, and to warrant a conviction it must be such as to produce in the minds of the jury that certainty of guilt that a discreet man would be willing to act upon in his own grave and important concerns. Such evidence is not sufficient for conviction unless it excludes every reasonable theory consistent with the defendant’s innocence. If the jury are not satisfied of the guilt of the defendant beyond a reasonable doubt, the defendant ought to be acquitted, although the unfavorable circumstances, if any, have not been disproven or explained.”
That these instructions were' in perfect harmony and as favorable as the law would justify does not admit of argument. Certainly defendant has no reason to complain of the burden placed upon the State. The point made by the learned counsel that they are in conflict can not be sustained.
III. The court gave ample instructions of its own motion, but the defendant requested ten prepared by his counsel, and of these the court gave eight and refused two. One of those refused had been given in full by the court in its own instruction as to the credibility of witnesses. The ninth was properly refused because it assumed that the only evidence of the commission of a crime was that deceased came to her death suddenly. The court had already instructed the jury in the fullest manner that unless they found and believed from .the evidence beyond a reasonable doubt that defendant had shot and killed deceased willfully, premeditatedly, deliberately and of his malice aforethought they must acquit him, but in' addition to that the court had instructed the jury that if they believed deceased committed suicide they would acquit defendant; that if the State had shown no motive on the part of defendant to
No further instructions could have aided the jury, and no error was committed in refusing them, however correct they might have been, abstractly considered.
IV. The court gave the following instruction:
“The court instructs the jury that if you believe and find from the evidence in this cause, beyond a reasonable doubt, that the defendant, at the county of Lafayette and State of Missiouri, on or about the 26th day of April, 1896, willfully, premeditatedly and of his malice aforethought shot and killed one Amelia Bauerle, but without deliberation, you will find the defendant guilty of murder in the second degree and will assess his punishment at imprisonment in the penitentiary for a term of not less than ten years.”
Y. But it is evident that the learned counsel for defendant bases his right to a reversal upon . two grounds: First, conceding the truth of all the testimony, still the admitted circumstances are insufficient to sustain a conviction, and, secondly, that though the evidence was sufficient if true to justify a verdict, that evidence was so thoroughly impeached that it must be disregarded by this court as unworthy of credence. Regarding the first of these propositions as the most important in this case, let us see upon what the verdict rests. Upon a charge of murder, the State produced evidence tending to prove that on the Saturday previous to the shooting next morning the defendant and deceased were seen together in the alley m the rear of their residence. Deceased had gone in search of defendant, and as they returned defendant had the appearance of being very angry and as they passed the witness, defendant said to deceased “I’ll soon get rid of you.” The evidence also tended to prove that on the same day deceased had stood at the back gate and conversed with a negro man named Yinegar; that defendant came up, and either pulled or compelled deceased to go in, and reproved the negro for having the impudence to talk to a white woman. Sunday morning about nine o’clock the defendant was sitting upon the back porch of the Bauerle residence, the home of deceased and himself, apparently cleaning or loading a pistol, and while thus engaged the deceased came upon the porch, and a conversation occurred
To the suggestion of suicide the jury might have well responded that the finding of the pistol on the floor was inconclusive. It could have been thrown there by defendant as easily as by deceased. The powder burns on her clothing demonstrated that the pistol was near her body when fired, but it was plain that in a personal struggle her assailant was also very near to her. While the law presumes the defendant innocent, there is also a strong presumption against suicide, and while this presumption does, not overcome the presumption of innocence the jury as rational men are not expected to disregard it.
Finally, we have the case of a man struggling with a young woman. He is shown by positive evidence to have had a pistol in his hands when the difficulty begins; there is no evidence that she ever had a pistol in her possession save that it was found in the room where she was found wounded and helpless. Were the jury to infer that a young woman apparently happy and with no motive for self-destruction, wrenched that revolver from the man with whom she was struggling, and shot herself or were they justifiable in finding that the revolver remained in the hands where last seen; that the struggle was not an amicable one from the character of the epithet she had applied to him, and that being naturally the stronger, he had kept the pistol in his hands, and by his criminal agency it was fired at her, and produced her death in pursuance of the threat of the day previous to get rid of her? Were the jury not justified in believing that there was something unnatural in her uncle rushing off and leaving her dying without summoning her other relations in the same house? If
This brings us to the contention' of the learned counsel for defendant that this court should reject in toio the evidence of the negro man, Misuer. To do so this court must invade the province not only of the trial jury who heard this man testify, observed his demeanor, and were far more capable.of .correctly weighing his evidence than .this court can possibly be, but we must override the opinion of the learned judge of the criminal court, who also heard his testimony. Upon what grounds are we to do this? Upon the assertion of others who, after the trial, make affidavits that his testimony was false? Here again, it must be remembered the trial judge who passed upon these impeaching affidavits lived in Lexington where the impeaching witnesses also lived, and by his finding, he virtually certifies that in his opinion their evidence did not justify him in granting a new trial. But there is another most potent consideration. This record does not disclose any interest that MisnCr had which would lead
It remains only to examine the motion for new trial on the ground of newly discovered evidence. The affidavits of Kirk Wilson and Mary Wilson simply relate conversations with deceased as to her intention to commit suicide and show that their said evidence would be incompetent and inadmissible on a new trial. Amelia Bauerle was not a party to the record and these statements being neither a part of the res gestae, nor dying declarations would be clearly inadmissible. McMillen v. State, 13 Mo. 31; State v. Nocton, 121 Mo. 537; State v. Punshon, 124 Mo. 457. And her supposed threats, being unaccompanied by any attempt to carry them into execution, were equally incompetent on that ground. State v. Fitzgerald, 130 Mo. 407.
The affidavits of Williams and Johnson simply impeach Misner’s testimony given on the trial and as such are no grounds for new trial, besides being flatly contradicted by the affidavit of the barkeeper at Samuelson’s saloon. The affidavit of Grates is alike insufficient for the same reason to justify a court in granting a new trial on the ground of newly discovered evidence.
Upon a full review of the case we find no reversible erro.r in the record and the judgment of the criminal court of Lafayette county is affirmed.