State v. Bobbst

• Decision Date: 06 December 1916
• Docket Number: No. 19684.,19684.
• Citation: 269 Mo. 214,190 S.W. 257
• Parties: STATE v. BOBBST.
• Court: Missouri Supreme Court

190 S.W. 257

269 Mo. 214

STATE v. BOBBST.

No. 19684.

Supreme Court of Missouri, Division No. 2.

December 6, 1916.

Appeal from Circuit Court, St. Charles County; Edgar B. Woolfolk, Judge.

Harry M. Bobbst was convicted of murder in the first degree, and appeals. Affirmed.

Upon an indictment charging him with murder in the first degree for killing his wife, defendant was tried in the circuit court of St. Charles county, found guilty, and his punishment assessed at imprisonment in the penitentiary for life. Defendant has duly appealed.

The killing occurred about 4:30 a. m., November 10, 1914, at the home of defendant's wife, in the city of St. Charles. For several months prior thereto defendant and his wife were living apart, she, together with her daughter Beulah, and a young man named Henry, a boarder, occupied a three-room house in St. Charles.

It appears that the police of St. Charles held a warrant for defendant's arrest for peace disturbance, and for this reason he was living away from his family. Defendant's son, Eddie, 13 years old stayed with his father across the river most of the time.

Defendant had no regular occupation but made a little money gathering rags and old junk. He was a strong drinker, and spent most of his money in that way. Sometimes the neighbors across the river would give him something to eat, and sometimes his wife would go across the river and take him something to eat, and sometimes would take him whisky. Defendant, although he had no means of supporting his family, constantly demanded of them that they move across the river with him, and he told many of his associates across the river that if his wife did not come and live with him, he would kill her. In talking to others he would frequently charge his wife and daughters with being prostitutes, and complain because the boarder, Henry, remained at the house, stating that he was attempting to ruin his youngest daughter Beulah. He also accused his wife of having other men come to her house. It appears that the wife was a hard-working woman of good character, and that these charges were unfounded. About a week before the homicide, defendant and his wife were standing on the St. Charles bridge, and defendant was urging his wife to go back with him across the river. She refused, and defendant attempted to throw her off the bridge.

The 15 year old daughter was the only eyewitness to the homicide. She testified that about 1 o'clock a. m., on the night of the killing, defendant and his son Eddie came to the door and knocked. The deceased opened the door and let them in. Defendant then began to quarrel with the deceased over the fact that Mr. Henry was sleeping in an adjoining room with the door not locked. Defendant got in bed without removing his clothing, and it appeared that they quarreled more or less the remainder of the night. The defendant and his wife and the daughter Beulah and the son Eddie all occupied the same room. The defendant was drinking, but was not drunk. He drank some whisky during the night, but did not threaten to kill his wife that night. He did ask his wife to leave St. Charles and go away with him.

About 4:30 o'clock in the morning the daughter left the room to prepare breakfast, and the deceased started to accompany her, but was held by defendant. After the daughter left the room the defendant fastened the door from the inside by sticking his knife in the jamb. The deceased was heard to tell the defendant that she wanted to get breakfast because she "wanted to go to work for Bushman's," and the defendant replied that she "would not see Bushman's any more." About five minutes after the daughter left the room, she heard a shot and heard her mother scream. She immediately rushed back into the room. She reached the room just as the second shot was fired. She saw the defendant with one arm around the deceased, with a pistol in his hand pointed at the deceased. Defendant said nothing, but was gritting his teeth and pulling the trigger of the pistol. He fired five shots in all. The daughter grabbed the pistol and received one shot in her arm and leg. In the struggle that ensued the defendant received a wound from one of the bullets. The waist of the deceased was on fire, and she took a few steps and fell. The defendant ran from the room, and in a short time Henry, the boarder, ran out after him. Defendant went immediately to the home of his daughter and son-in-law and said to his daughter: "I want to get away. I don't want to die in this hole."

Shortly after this the defendant was found by the police under the floor of his son-in-law's house. He was brought out and placed under arrest. He had about a pint of whisky and three or four cartridges. At the time of his arrest, the son Eddie said to the defendant:

"Pa, I told you to leave that damn gun at home; if you had, you would not be in this trouble. I told you to leave it at home, and you paid no attention to me."

A short time after the defendant was arrested he told his son-in-law that if he (the son-in-law) had not kept the deceased from coming across the river, "possibly it would never have happened."

The wife was taken to the hospital, but died in a few hours from the effects of the bullet wounds. A short time before her death she stated to the people attending her that she had been shot by her husband; and before she was taken to the hospital, and while she was at her home, she reached under her pillow and took out a pistol, and said that was the gun the defendant used in shooting her. She handed this pistol to the doctor. It was identified and introduced in evidence at the trial.

The attending physician testified that there were three bullet wounds on the deceased's body, and that death was due to an internal hemorrhage caused by the bullet wounds.

The evidence on the part of the defense did not undertake to deny the killing, but tended to show that appellant was insane at the time the act was committed. The evidence in this regard tended to show that defendant's father "was never considered very bright" and was peculiar; that defendant's mother 35 years ago took to her bed because her husband would not build the kind of a house she wanted, and had remained in bed ever since; that defendant had been guilty of petty thievery all his life, and had associated with negroes and was frequently seen drinking alcohol and other liquor in alleys and saloons. The children in St. Charles called him "Oats" because it was rumored that at one time he sold oats and put sand in them. In reply to this epithet he would run after children with a club. Some of the witnesses testified that he looked like a "tough" man; that he would stand around the street apparently "not caring whether he stayed in this world or not"; that he quarreled with his bedridden mother and would talk to himself and cry and walk around at night; that he was a heavy drinker; that he wrongfully accused his wife of being intimate with other men. About ten nonexpert witnesses testified that in their opinion he was insane, or a person of unsound mind, and could not distinguish between right and wrong.

Dr. J. O. Hudson, of Montgomery City, Mo., testified that he had known the Bobbst family since 1877, and that in that year he was called to see defendant's mother, who had been in bed several years; that he advised that she be taken out of bed and into the yard, and that after lying outside a while she went back into the house and went to bed again, and has been there ever since; that defendant's father was a man of low mental caliber, filthy, of low morals, and a kleptomaniac; that the defendant was a moral degenerate; that he associated with negroes; became intoxicated, and had the reputation of being a thief; that during the summer previous to the tragedy defendant came to his house at Montgomery City and told him all of his daughters were prostitutes, and cried and became hysterical. After this occurred, defendant's wife brought defendant to the doctor's office, at Montgomery City, for consultation; that upon examining defendant he found him very nervous, and that while examining him he had a convulsion and could not talk for awhile. The doctor said that it was a form of insanity and advised that defendant be taken where he could get proper diet. The doctor further testified that, in his opinion, the defendant did not have sufficient mind to distinguish between right and wrong. Two other physicians examined appellant while he was awaiting trial, and gave it as their opinion that his mind was unsound, and that he was not able to distinguish right from wrong.

In rebuttal the state offered evidence tending to show defendant's sanity. Dr. Strumberg examined the defendant while he was in jail, and gave it as his opinion that the defendant had sufficient mind to know right from wrong. In addition to this the state called over 40 nonexpert witnesses, persons who had known him before and up to the time of the tragedy, all of whom testified that in their opinion appellant had sufficient mind to know right from wrong, and to know that he would be punished if he killed a person. One witness said he was "shrewd and foxy in his dealings," another that he never saw anything peculiar about him, and another that he was "anything else but crazy."

B. H. Dyer, of St. Charles, and Rosenberger & Dowell, of Montgomery City, for appellant. John T. Barker, Atty. Gen., and Lee B. Ewing, Asst. Atty. Gen. (James P. Kem, of Kansas City, of counsel), for the State.

WILLIAMS, C. (after stating the facts as above).

I. It is contended that the case must be reversed because the defendant was not present in court on March 2, 1915, when the case was set for trial. We are unable to agree with this contention. In the case of State v. Warner, 165 Mo. 399, 65 S. W. 584, 88 Am. St. Rep. 422, relied upon by appellant, the court refused the defendant's request to be present in court for the purpose of challenging the array of...