State v. Butler, 258 Mo. 430

State v. Butler

258 Mo. 430 | Mo. | 1914

WILLIAMS, C. —

On June 11, 1913, in the circuit court of the city of St. Louis, defendant' was convicted of murder in the second degree and his punishment assessed at ten years in the penitentiary. This is the second appeal in the case. The judgment upon the first trial was, by this court, upon appeal, reversed, on account of certain errors not now involved. The facts disclosed by the present record are in substance the same as disclosed by the record of the first trial and áre fully set forth in the former opinion by this court in 247 Mo. 685. It is, therefore, unnecessary to restate the same here.

As grounds for a reversal of the present judgment, appellant contends that error was committed-: (1) in the admission of certain testimony given by witness Mosby; (2) .by improper remarks made by one of the State’s counsel in making the closing argument to the jury.

*436Homicide: Evidence: Defendant’s Reply to Accusation by Bystander, *435I. Witness Mosby testified upon the part of the State that he saw the shooting and heard some quar*436reling between defendant and others in front of the Walsh home just prior to the shooting; that he walked down the sidewalk beyond the Walsh premises and upon hearing a “scream” turned around and looked back toward the Walsh home and saw defendant walking backwards away from the Walsh home and saw deceased going toward defendant with one arm extended, but did not see the other hand; that when deceased had approached within four or five feet of defendant, defendant drew a revolver from his pocket and shot deceased. After the shot was fired, defendant ran diagonally across an adjoining lawn and down the street until he was stopped by a man named Brown. Mosby went up to where defendant was standing and, in the language of the witness, the following occurred: ‘ ‘ When I first came up to him (defendant), I said, ‘What in the world did you shoot that man for?’ and he said, ‘He was going to kill me!’ I said, ‘He had no idea of hurting you,’ and then he said, ‘Lord, Lord, what have I done.’ ”

Appellant objected to the admission in evidence of that portion of the conversation whereby witness told defendant that deceased had no idea of hurting defendant, on the ground that it was a conclusion or opinion on the part of the witness as to the conduct of the deceased. The court overruled the objection and defendant saved-an exception. The court did not commit error in admitting this evidence. It was a part of the conversation had with the defendant and what the witness said was admissible as explaining the answer made thereto by the defendant. [State v. Talmage, 107 Mo. 543.] Furthermore, at the time of the occurrence of the conversation detailed in evidence, defendant was not under arrest or restraint and hence the accusation made against him, together with defendant’s silence, demeanor, or answer made by him, other than a denial of the charge or accusation, were prop*437erly admissible as evidence, the probative weight and effect of the same to be determined by the jury. [State v. Swisher, 186 Mo. 1; State v. Hill, 134 Mo. 663; State v. Lovell, 235 Mo. 343.]

It is further claimed by appellant, however, that the statement made by witness Mosby was not such a statement as called for any reply upon the part of defendant. We are unable to agree with this contention. The. statement was in the nature of ¿n accusation in that it, in effect, questioned defendant’s right to shoot in self-defense; furthermore, defendant did make reply thereto.

^counsel II.. Appellant, at three different times, objected to remarks made by one of the State’s attorneys in his argument to the jury and further requested G0ixrt to reprimand counsel and to instruct the jury to disregard said remarks in their consideration of the case. On two of these occasions, the court fully sustained appellant’s objection and instructed the jury that they must disregard the remarks made. Appellant made no further request nor saved any exception on the ground that the action of the court was not sufficient to right the wrong. It is, therefore, to be assumed that appellant considered the action of the court sufficient in that regard. We have reached the same conclusion. Furthermore, absent such objection and exception, it is the well-established general rule that the remarks of the attorney will not necessarily cause a reversal of the case. [State v. McMullin, 170 Mo. 608; State v. Phillips, 233 Mo. 299; State v. Souva, 234 Mo. 566; State v. Rasco, 239 Mo. 535; State v. Wana, 245 Mo. 558.]

The remarks and conduct of the attorney in the present case were not of such character as to call for the application of the rule applied in the recent case of State v. Webb, 254 Mo. 414.

*438On the other occasion the court overruled appellant’s objection and request concerning the remarks made by State’s counsel. The remarks to which reference is here made were as follows: “This young-man, Walsh, a young man in the prime of life, the little father of that family, has- given up his life for the good name of his family.” The evidence showed that the deceased was the oldest child of Mrs. Walsh and was the acting head of the family — ;the father of the family living away from home. The evidence further showed that on this Sunday afternoon, just prior to the killing, a quarrel was in progress in the Walsh yard between defendant and other members of the Walsh family and that during this quarrel deceased’s sister screamed and called defendant a liar and that, immediately thereafter, deceased came rushing out of the house, evidently as a protector of the family, and lost his life while advancing toward defendant. Under such facts, the above remarks did not exceed the bounds of legitimate argument.

The foregoing are the only points urged by appellant in his brief, but we have carefully reviewed the entire record in the case and fail to find any matter of error which should call for a reversal of the judgment. It is therefore ordered that the judgment be affirmed.

Roy, G., concurs. PER CURIAM. —

The foregoing opinion of Williams, C., is adopted as the opinion of the court.

Walker, P. J., and Brown, J., concur; Faris, J., not sitting.