State v. Erb

• Decision Date: 31 October 1881
• Citation: 74 Mo. 199
• Parties: THE STATE, Appellant, v. ERB.
• Court: Missouri Supreme Court

74 Mo. 199

THE STATE, Appellant,

v.ERB.

Supreme Court of Missouri.

October Term, 1881.

Appeal from St. Louis Court of Appeals.

REVERSED.

D. H. McIntyre, Attorney General, for the State.

Allen & Coste for respondent.

NORTON, J.

The defendant, William Henry Erb, was indicted in the St. Louis criminal court on the 2nd of July, 1879, for murder in the first degree for the homicide of his divorced wife, Rose Mion, alias Aglae Rosalie Erb, on the 19th day of June, 1879. He was arraigned at the same term and pleaded guilty, which the court refused to accept, and ordered the plea of “not guilty” to be entered. After several continuances, the cause came on for trial at the March term, 1880, and defendant was convicted of murder in the first degree, as charged in the indictment. After an unsuccessful motion for a new trial, he made an application for an appeal to the St. Louis court of appeals, which was granted. That court reversed the judgment of the criminal court, whereupon the circuit attorney for the State appealed the case to this court.

The principal objections made by defendant's counsel, in their motion for a new trial, are to the action of the court giving certain instructions on its own motion, and refusing others asked by defendant; in admitting improper and illegal testimony for the State, and excluding competent and legal testimony for the defendant, and the action of the court in refusing to instruct the jury to disregard certain alleged improper statements made by the circuit attorney in his address to the jury.

The facts disclosed by the evidence on the part of the State to establish the corpus delicti are that the defendant, having heard that the deceased, who had been divorced from him for some years, was about to marry again, went to his home, procured a knife and proceeded to the house of deceased, where she was engaged in washing, and asked her “if that was true,” to which deceased made no response, whereupon defendant stabbed her twice in the back, the knife penetrating the left ventricle of the heart, and inflicting a wound of which she immediately died; that defendant, after committing the homicide, threw the knife, with which he inflicted the wound, into the vault of a water-closet, and walked away up Spruce street, and upon being arrested said he did not cut any woman; that about three hours after his arrest, upon being asked why he killed his wife, he answered: “Who said I killed her?” and upon being told ““your little daughter said so,” replied that: “She can't say so; I have not seen my wife for over a year. I never had such a knife.” On the morning after the homicide defendant said there was no use in denying the killing; that his wife had not treated him well; had once put him in the workhouse; that he had been told, the afternoon of the homicide, that she was going to marry somebody, and he made up his mind, while sitting on the stone, to get his knife; that he then went home and got it; that he then went to his wife's house and entered the front door and met his little girl and asked her where her mother was, and, upon being told that she was in the yard, he went into the yard and saw his wife at a wash-tub, and asked her if that was true, meaning if she intended to marry, and upon receiving no reply, defendant said he “then gave it to her” and “threw it away,” meaning the knife, and then went up Spruce street to Fourth street. These facts sufficiently characterize the brutal nature of the act, and viewing the homicide in the light of them alone, they unquestionably establish the crime of murder in the first degree.

The only defense relied upon at the trial was that of insanity. This defense was sought to be established by showing that defendant had been addicted to strong drink for a number of years; that previous to 1865 he lived in Paducah, Kentucky, and while there had drunk to such excess as to produce on several occasions delirium tremens; that he had attempted, while in Kentucky, on one occasion, to jump out of a two-story window, on another occasion to poison himself, and on another attempted to kill a man with a knife, which he was trying to take from him; that when sober he was peaceable and quiet; when drunk, dangerous and quarrelsome; that he removed to St. Louis in 1865, where he continued his habit of drinking. As to the extent to which he indulged in this habit after his removal to St. Louis the evidence is conflicting, some of the witnesses stating that he indulged in it in 1876 to such an extent that he became very much depraved and on the verge of delirium tremens, on which occasion he cut his wrist and said he was going to kill himself; that in 1878 he was prostrated from the heat; that about that time and afterwards he would not rest well of a night, would often be restless and complain of headache and burning sensation in his stomach, and request not to be left alone at night. All the witnesses concur in saying that during his residence in St. Louis he was never unwell except as above stated, and never unable to attend to business, though during the time he was often drunk. As to the condition of defendant at the time the homicide was committed, all the witnesses who saw him immediately after the occurrence concur in saying that he was not drunk, but appeared to be sober, his own admission being that he had drunk twice on the day of the homicide. Upon the close of the evidence, defendant's counsel put a hypothetical case to a physician who was an admitted expert on the question of insanity, to which the physician answered “that he would call it simply a case of alcoholism; that he could not define it as a case of insanity; that the case put was one where the responsibility of the individual is modified by the condition of his mind. This modified responsibility is all I could predicate of this case. It would come under the head of nervous cases where an individual, though sane, would be less responsible than many who are insane.” The State also put a hypothetical case to another physician, also an expert, embodying substantially the same facts, who answered “that he saw no insanity in the case.”

1. INSANITY AS A DEFENSE TO HOMICIDE.

The defendant asked nine instructions, of which the court gave numbers one and seven, and refused the others, and in so doing it is insisted by counsel that the court committed error. Instruction number two, which was refused, asked the court to direct the jury in substance that if they believed defendant, at the time of committing the homicide, was incapable of distinguishing right from wrong, or of exercising control or will power over his actions, or was unconscious at times of the nature of the crime he was about to commit, they would find defendant not guilty. In an...