28 S.W. 182 (Mo. 1894), State v. Kaiser

Citation:28 S.W. 182, 124 Mo. 651
Opinion Judge:Gantt, P. J.
Party Name:The State v. Kaiser et al., Appellants
Attorney:Chester H. Krum and Andrew Duggan for appellants. R. F. Walker, Attorney General, C. O. Bishop and M. F. McDonald for the state.
Case Date:November 20, 1894
Court:Supreme Court of Missouri
 
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Page 182

28 S.W. 182 (Mo. 1894)

124 Mo. 651

The State

v.

Kaiser et al., Appellants

Supreme Court of Missouri, Second Division

November 20, 1894

Appeal from St. Louis Criminal Court. -- Hon. H. L. Edmunds, Judge.

Affirmed.

Chester H. Krum and Andrew Duggan for appellants.

(1) The verdict is so inconsistent, in view of the evidence on the part of the state, that it ought not to have been permitted to stand. It can only be explained upon the theory of passion or prejudice against the defendants who were found guilty. That a verdict based upon prejudice or passion, or one against which the evidence strongly preponderates, will not be permitted to stand, is a most familiar proposition in this state. Hipsley v. Railroad, 88 Mo. 348; Spohn v. Railroad, 87 Mo. 74; St. Louis v. Lannigan, 97 Mo. 75; Garrett v. Greenwell, 92 Mo. 120; Whitsett v. Ransom, 79 Mo. 258. (2) The evidence of the witness Von Phul as to a remark made to him by the Bogines woman on the night of the murder, admitted in rebuttal, was clearly incompetent. This evidence was introduced on the theory that it corroborated the witness Bogines. It related to a material feature of the case. Its admission was erroneous. State v. Day, 100 Mo. 248; State v. Walker, 78 Mo. 388; State v. Brown, 64 Mo. 371; Howell v. Howell, 37 Mo. 124; Brown v. Mooers, 6 Gray, 451; Anderson v. Railroad, 54 N.Y. 334; Lane v. Bryant, 9 Gray, 245; Railroad v. Van Steinburg, 17 Mich. 99; Williams v. Kelsey, 6 Ga. 365; Allen v. Denstone, 8 C. & P. 760. (3) Even more clearly erroneous than the action of the court in regard to the statement said to have been made by the Bogines woman on the night of the murder, was the admission of the evidence of Von Phul as to what occurred between himself and that woman at the police station after the murder and the arrest of the defendants. State v. Woolard, 111 Mo. 255; State v. Mahly, 68 Mo. 319; State v. Forsythe, 89 Mo. 672; State v. Kring, 64 Mo. 595; State v. Reilly, 4 Mo.App. 394; State v. Ramsey, 82 Mo. 139; State v. Underwood, 77 N.C. 502; State v. Smith, 75 N.C. 306; Ferguson v. State, 49 Ind. 33.

R. F. Walker, Attorney General, C. O. Bishop and M. F. McDonald for the state.

(1) The instructions given by the court are not open to review here. Although excepted to, no complaint is made of them in the motion for new trial. State v. Nelson, 101 Mo. 477. (2) The court did not err in admitting the testimony of Von Phul in rebuttal. 3 Rice's Evidence (Criminal), sec. 105; 1 Wharton's Law of Evidence, sec. 571; Harris on Identification, sec. 7. Pertinent evidence may be received at any time. The order in which evidence may be introduced is a matter of practice, largely within the discretion of the court. State v. Buchler, 103 Mo. 203. (3) Cries of bystanders while the thing is being done are original and not hearsay evidence, because part of the res gestoe. 3 Rice's Evidence (Criminal), sec. 80. (4) The judgment should not be reversed because of the alleged improper remarks of the prosecuting attorney.

OPINION

Page 183

[124 Mo. 654] Gantt, P. J.

The defendants, Kaiser and Henze, were jointly indicted with Charles McDonnell at the March term, 1893, of the St. Louis criminal court, for the murder of Edwin E. Brown, in the city of St. Louis, on March 2, 1893. A motion to quash was overruled. The prisoners were duly arraigned at the May term, 1893, and the cause continued to the July term, at which they were jointly tried, and Kaiser and Henze convicted of murder in the first degree, and McDonnell acquitted. Motions for new trial and in arrest were duly entered and overruled, and the defendants sentenced at the November term, 1893, from which they appeal.

The testimony for the state tended to show that Edwin E. Brown was a live stock commission merchant, residing at number 3119A Morgan street, St. Louis. He had resided there since June 1, 1892. On the night of March 2, 1893 (on which day a primary election had been held), at or near 10 o'clock, he was violently assaulted by three men on Franklin avenue, near Garrison avenue (about a block and a half from his residence), and died within an hour; a valuable gold watch containing a likeness of his little dead son, was missing from his person and was never recovered. The autopsy showed that death was caused by internal hemorrhage, due to the rupture of blood vessels in the abdomen, the result of external violence. Deceased was about five feet ten inches in height, weighed two hundred and thirty pounds, and was abnormally fat in the abdominal muscles. The principal eyewitnesses of the assault were three negro women -- Carrie Chapman, Betty Robinson and Annie Bogines. The former two were domestics living with families in the West end, and were returning from church in company; the latter kept furnished rooms at 873 North Eighth street, [124 Mo. 655] and had been spending the evening visiting her husband, who worked for the Lindell railroad company.

There had been a drizzling rain during the afternoon and up to about 8 o'clock, but it had cleared off afterward; the streets were wet and muddy. The place where the struggle occurred was at the entrance of the driveway of Mr. Niedringhaus' residence, leading into a yard, at the rear of which was a stable, standing on Bell street; below the stable was a swinging electric light, and there was another electric light on Franklin avenue, both of which cast a strong light over the yard and avenue. The uniform testimony of the witnesses is that this double light was brilliant, and not dim. The clothes taken from the body of deceased when conveyed home were muddy; "there was a patch of mud along the right vest pocket, and down along the right leg; the patch along the abdomen looked like it might have been a kick."

The testimony of Carrie Chapman was that she and Bettie Robinson were going west on Franklin avenue; they heard a noise and saw three men meet one man, "and that they all got into a huddle together, and they stopped and said something, * * * and the three commenced pounding the man they met, saying something to him, hitting, jerked him around and hit him, and one of them got him by the neck and choked him, * * * and he kind of made a funny noise (a guttural sound), and then they struck him and he fell to the pavement; * * * when they got to the drive they throwed him off after they got him in the drive, * * * and one, the big man (identified by her as defendant Kaiser), got on him with his knee. * * * They were trying to go through him all the time -- trying to go through his pockets; * * * I was right in the middle of where there is a vacant place; there is a curb comes up -- I was standing [124 Mo. 656] there leaning on my umbrella; I wasn't but a little piece away; * * * I seen them trying to go through his pockets. After a while two of them ran off, and then the big, tall one (Kaiser) stood on him with his knees, * * * on his stomach; * * * the man couldn't holler -- only made a funny noise. * * * The two that first ran off told him to come on, that the cops would be there directly, so he jumped off and ran. Instead of running across where they did, he jumped up the carriage drive and then turned around and ran a step or two on the pavement, and shot off toward Garrison avenue and Morgan, and the man was still down. The man who was last on him ran across Franklin avenue, and one of the electric cars got in front of him; he ran behind the car. * * * The tallest man (Kaiser) had him by the throat with one hand, and he was on him with his knee, and was trying to go through his pockets; he was trying to get him to give something up, and the others, because he wouldn't give it up, were hitting him; they were all going through his pockets; I don't know what was said there, only I could hear them talking and asking him to give something up, and he wouldn't give it up; and when he wouldn't give it up they just kept punching him; they had him so tight he couldn't holler at all; I got a good look at the three men; them is the very three (pointing out the three defendants on trial). I have not one bit of doubt about it. After they ran away Mr. Brown tried to get up; he...

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