State v. Bowenkamp

• Decision Date: 05 June 1931
• Docket Number: 30986
• Citation: 39 S.W.2d 753
• Parties: STATE v. BOWENKAMP
• Court: Missouri Supreme Court

39 S.W.2d 753

STATE v. BOWENKAMP

No. 30986

Supreme Court of Missouri, Second Division

June 5, 1931

H. H Blair and Louis A. McKeown, both of St. Louis, for appellant.

Stratton Shartel, Atty. Gen., and Denton Dunn, Asst. Atty. Gen., for the State.

OPINION

WESTHUES, C.

Defendant was convicted of murder in the second degree. The jury assessed her punishment at ten years in the penitentiary. Motion for a new trial was overruled, and the defendant sentenced. She appeals.

Defendant and the deceased, her common-law husband, had lived together for fifteen years. Their lives, according to the state's and defendant's evidence, had certainly not been a bed of roses. Frequent quarrels were related. The police were often called to put an end to the disturbances. The quarrels at times culminated in fights. In these physical combats razors, iron pipes, clothes props, and other weapons were used with telling effect. Each bore scars as a result of these struggles. Both drank heavily.

According to the defendant's testimony, deceased came home on the evening of October 1, 1929, with a pint of alcohol. This was mixed with an equal amount of water. They had nothing to eat. From following events it is evident that both had plenty to drink. Defendant testified that deceased soon began to argue and quarrel. This continued all through the night and up to the time of the homicide, about 1:30 p. m., October 2d. Some time during the night, according to defendant, she told deceased she was tired of his conduct, and was going to send him to an observation ward. Deceased then struck her in the mouth, cutting her lip and causing it to bleed profusely. She went to a neighbor, washed her face and hands, and returned to her house, and the quarreling was resumed. Defendant's version of what occurred at the time of homicide is, that she repeated what she had said to deceased during the night, that is, she told deceased she was going to call the police and have him sent to an observation ward. Deceased then picked up a chair and attempted to strike her. Feeling and believing her life to be in danger, she grabbed a paring knife from a nearby table, and stabbed deceased in self-defense. Deceased dropped the chair and fell to the floor. He died almost instantly; the knife having perforated blood vessels and the left lung. Defendant then left to find the officers. She told them what had happened. The officers went to the house, found deceased lying on his back dead. A bottle of buttermilk and a glass were standing on a table nearby.

There is a sharp conflict in the testimony of the officers and defendant as to what was said by defendant at that time. According to Officer Mikush, defendant informed him what she had done, and also said: ' 'Well, Mikush you won't have to come down here any more' I said 'No I don't think so either, I knew this was coming sooner or later' She said, 'I know you did, but I am going to save you a lot of trouble now.' ''

Mikush further testified that when he arrived at the house he found deceased's body and placed a towel over his face. Mikush also testified as follows:

'Q. At the time you put the towel on his face, did she say anything at that time? A. I believe she said 'Well, good-bye you old son of a b -- , I will see you in hell' or something to that effect. * * *

'Q. After she made that statement what did she then do? A. I told her to come out side with me and we would wait for the wagon.

'Q. What did she do? A. She came on out with me, and by that time there was a couple of people out there, and she said, 'Come on and look at that old son of a b -- , he won't bother you he is dead,' and then they said, 'Is he dead?' And I said, 'Yes, he is dead' And she called me aside and said, 'Say, Mikush, do me a favor will you?' I said, 'What is that? Turn you loose.' And she said, 'No, put a bullet between my eyes and I will beat him to it' And I said, 'No, I can't do that; the best I can do is to lock you up.' ''

James W. Larison, a merchant, testified that deceased came to his store on October 2d, after 1 o'clock p. m., about thirty or forty minutes before the patrol wagon arrived, and purchased a bottle of buttermilk and some matches. Defendant testified that she did not see the buttermilk on the table, nor did she notice that deceased went to the store. Defendant also denied making the statements attributed to her in the testimony of Officer Mikush.

Only four assignments of error are preserved in the motion for a new trial.

Defendant contends the trial court erred in instructing the jury on second degree murder; the evidence being insufficient to support such a charge.

The court instructed the jury on manslaughter as well as second degree murder. We deem the evidence amply sufficient to sustain a verdict of murder in the second degree. The jury had a right to take into consideration all of the facts and circumstances in evidence, and were not bound to take defendant's version of the affair as true. It is evident from the testimony that deceased was stabbed within a very short time after returning with the buttermilk. This is inconsistent with defendant's testimony. Then, too, the remarks made by defendant with reference to the deceased shortly after the homicide, as related by Officer Mikush, may have led the jury to believe that the stabbing was prompted by malice, and not self-defense.

Defendant also asserts that the court erred in admitting evidence of previous threats made by defendant against deceased. They were clearly admissible in this case to show the true relation between the parties, their feeling toward each other, and the intent of the defendant in stabbing deceased. The particular objection made was that the threats were too remote. This contention is without merit. The threats and quarrels, according to the evidence, were at frequent intervals, and continued up to the date of the homicide. The court admitted threats made...