Bischoff v. Commonwealth

• Decision Date: 25 September 1906
• Citation: Bischoff v. Commonwealth, 123 Ky. 340, 96 S.W. 538 (Ky. Ct. App. 1906)
• Parties: BISCHOFF v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

96 S.W. 538

123 Ky. 340

BISCHOFF v. COMMONWEALTH.

Court of Appeals of Kentucky.

September 25, 1906

Appeal from Circuit Court, Jefferson County, Criminal Division.

"To be officially reported."

Jacob Bischoff was convicted of murder, and he appeals.Affirmed.

Edwards & Ogden, for appellant.

N. B Hays, Atty. Gen., and C. H. Morris, for the Commonwealth.

SETTLE J.

By this appeal the reversal of a verdict and judgment of the Jefferson circuit court, criminal division, convicting appellant of the murder of his wife and fixing his punishment at death, is sought, the trial having followed by some months the return of an indictment by the grand jury, charging him with the crime.Appellant's motion for a new trial in the lower court was based on numerous grounds, but those relied on for a reversal of the judgment may be included on two propositions; that is, appellant contends (1) that the judgment should be reversed because the record fails to show that the appellant's plea was stated to the jury, after it was sworn and when the indictment was read, or at all; (2) because of the admission by the trial court of incompetent evidence.

The crime with which appellant is charged, according to the evidence, was committed under circumstances of extreme brutality.While his wife, Julia Bischoff, was engaged with Mrs. Derne in carrying coal into the house of Mrs. Delkan, a sister of Mrs. Bischoff, appellant came from a nearby alley and approaching her, said: "You son of a bitch, I got you just where I want you," at the same time firing his pistol at her.The wife then ran from the pavement into the street, he continuing to shoot at her until she fell dead on the pavement to which she had returned.There were five shots, all of which took effect upon the person of Mrs Bischoff, three of them entering the heart.Immediately after firing the last shot, appellant said to his wife: "You son of a bitch, you want a divorce, I give it to you," thereby disclosing the motive for the crime.He then reloaded his pistol, and attempted to make his escape, but was overtaken by two policemen, at one of whom he shot twice, before submitting to arrest.It appears from the evidence that appellant's wife had a few days before the homicide, instituted against him, in the Jefferson circuit court, a suit for divorce; that he was a man of violent and ungovernable temper, had frequently assaulted and beaten his wife, and threatened to kill her, saying on more than one occasion in connection with such threats, "I will do it, and I will get as clear as a whistle."Only a few days before she was killed, Mrs. Bischoff, on account of a beating received at the hands of her husband, left his home, and went to that of her sister, Mrs. Delkan, on Clay street in the city of Louisville, in front of which the homicide occurred.

The only defense interposed by appellant on the trial was that he was insane at the time he killed his wife, and by reason thereof not responsible for the crime.A great deal of evidence was introduced through members of his family and others, in the effort to prove that a year or more previous to the homicide, appellant in a collision between his market wagon and a street car, was thrown to the street and received a cut on his forehead and bruises on other parts of his body; that the hurts thus received required the care of a physician, and confined him to his bed or room for several days; that his condition of mind was not the same after he received these injuries as before, and later became so unsound that he was incapacitated for his usual occupation, which was that of a market gardener; that he became peculiar in his ways and violent toward his family, and that his unsoundness of mind also manifested itself in irrational conversation and by such conduct as getting on his knees in bed at night, and sometimes under the bed, and doing other things equally unusual.Three physicians, Drs. Pope, Boggess and Samuels, the first an alienist of prominence, were introduced for appellant.One of them knew him before he was hurt in the collision with the street car.The other two became acquainted with him after his incarceration in jail for the murder of his wife, and their examination of him was made only a few days before the trial.Two of these medical experts, from the examination they had made of appellant, and in answer to certain questions hypothecated upon the character of the injuries he received in the car collision, particularly the wound on the forehead, and his subsequent peculiarities of conduct, expressed the opinion that he was of unsound mind.The third physician, though inclined upon the same hypotheses to think him of unsound mind, did not freely commit himself to that opinion.On the other hand, there were several witnesses introduced for the commonwealth who testified, in substance, that appellant is an illiterate man of violent temper, uncouth manners, and harsh in his bearing towards his family, but that they did not regard him a person of unsound mind, nor had they discovered that his conduct after the collision of his wagon with the street car differed from what it had been before.In their opinion he had attended to his market garden and business affairs after that occurrence and down to the death of his wife, as he had done before.One of the witnesses, Maj. R. C. Davis, was the attorney of appellant in the divorce suit brought by his wife and had acted as his attorney in other matters in previous years.Appellant frequently went to see Davis, and consulted him as to the preparation of his defense in the divorce case.Maj. Davis testified that he did not think appellant a man of a high order of intelligence, but had seen no change in his mind after the collision with the car, except on one occasion when he called at his office while in a state of intoxication, seeing which, witness told him to leave, and return when he got sober.Appellant took his advice and left, but later returned to the office sober, and in his usual condition of mind.Another witness, Charles Veling, a deputy county court clerk, testified, that by request of appellant's attorney he called at the jail to take his acknowledgement to a deed; that upon meeting him he read him the deed and asked him if he understood it, appellant replied that he did, and upon being told to sign it, said he was nervous, and requested Veling to write his name and let him make his mark, but this being declined he wrote his own name, in German, to the instrument, and immediately thereafter duly acknowledged it.Veling further testified that appellant seemed to understand the transaction, and talked and acted intelligently while he was with him.Three physicians were introduced in rebuttal by the commonwealth, and interrogated as to the condition of appellant's mind.Two of them, Drs. Marshall and Rapp, said they were called to see him when he was hurt by the car.They dressed his wounds, and Dr. Marshall, after attending him about 10 days, discharged him as well.The wounds, they testified, consisted of a cut on the head and bruises on the hip and leg.None of them were dangerous; the cut on the head went through the skin of the forehead, but did not wound or fracture the skull bone, or affect the brain.On cross-examination these two physicians were asked if it was possible that the cut in the forehead could affect appellant's mind.In reply they were unwilling to say such a result was not possible, but thought it very improbable.No discovery was ever made by them that appellant's brain was affected by his wounds, or information given them by his family, that there was any change in his mind.Dr. Rapp also visited appellant in jail, to collect of him a surgical bill for attending him, as stated.Appellant had previously obtained of witness a statement of the account, for use in settling with the street railway company.Appellant said to Dr. Rapp in jail, that he remembered the bill, that he had given his wife the money to pay it and supposed she had done so, but as she had not, the doctor could get it by calling on his lawyer.In this interview the witness saw nothing in the conversation or conduct of appellant to indicate unsoundness of mind.Dr. Garvin, the third physician, introduced for the prosecution, is jail physician for Jefferson county.He testified that he had seen appellant three or four times each week since his incarceration in jail and had often prescribed for him for nervousness and probably other ordinary ailments, but he had never seen any evidence of his being of unsound mind.

It will be observed from the foregoing synopsis of the evidence, that the question of whether or not appellant was so unsound of mind at the time he killed his wife as to make homicide excusable in law, was fully gone into upon the trial.The testimony was conflicting, but the issue having been decided by the jury, under proper instructions,...