State v. Harris

• Decision Date: 25 May 1915
• Docket Number: No. 18673.,18673.
• Citation: 177 S.W. 362
• Parties: STATE v. HARRIS.
• Court: Missouri Supreme Court

177 S.W. 362

STATE v. HARRIS.

No. 18673.

Supreme Court of Missouri, Division No. 2.

May 25, 1915.

Appeal from Criminal Court, Buchanan County; Thomas F. Ryan, Judge.

Thomas F. Harris was convicted of murder in the first degree, and he appeals. Affirmed.

Defendant, charged by information in the criminal court of Buchanan county with murder in the first degree, for that, as it was alleged, he had killed one Madeline Rowbotham, was convicted, and his punishment fixed at life imprisonment in the penitentiary. From this conviction, after the usual motion for a new trial, he has appealed.

The immediate facts of the homicide are as follows: Deceased was a young girl some 20 years of age. In January or February, 1912, she met the defendant, who was employed as a conductor by the Street Railway Company in St. Joseph, and from that time till her death she and defendant had been much in each other's companys On the day of the homicide, Sunday, July 13, 1913, several young people of about deceased's age arranged to go to Krug Park, a public park near St. Joseph, to spend the afternoon. The party consisted of deceased and Robert Melby, who were together, a young girl named Da Wyatt, and one Cecil Logan. They went to the park about 4 o'clock. During the day the defendant had talked several times with Mrs. Rowbotham, the mother of deceased, over the telephone, inquiring for the latter. Ho called the last time between 5 and 5:30 p. m., at which time Mrs. Rowbotham says the following conversation took place:

"He asked if Madeline was there, and I told him no. Then he said, `Does Madeline care anything for me?' and I said: `Mr. Harris, I can't tell you that. I can't answer that question.' Then he asked me where she had gone, and I told him she had gone out with some friends, and he said, `She has gone to Krug Park.' And I said: `No; she hasn't.' And he said: `Yes, she has gone to Krug Park.' And I said, `Well, if you know,' and thin he said he would likely call her up at 8 o'clock, `but I don't think she will be there.'"

As the party of which deceased was a member, were leaving the park about 6 o'clock, by way of the east entrance (where there are two stone columns standing on either side of the driveway and walk), they were stopped by the defendant who grabbed for deceased, saying that she had an engagement with him. She denied this, and pleaded with him to go away. Thereupon young Melby, who had never seen defendant before, undertook to remonstrate with him, and defendant struck him on the brim of his hat, throwing his kodak out of his hand and nearly knocking him down. Defendant and Melby then went aside, and defendant talked to Melby "in a very nice way," and asked to speak to deceased. The latter Ila the meantime had joined Cecil Logan and Da Wyatt a few feet away, and was talking to them very excitedly and wringing her hands, saying:

"I have told him to leave me alone. I have told him not to come out to the a house and he comes out when I don't know he is coming. He said I could not leave this park alive to-night. What will I do?"

Melby, at defendant's request, went to deceased and induced her to come to the place near the columns where defendant was standing, Melby going back and joining the others. Defendant and deceased, standing some 23 feet away and partly behind one of the stone gateposts, or columns, talked together some 8 or 10 minutes. The next thing the witnesses saw was deceased coming towards them with her throat cut and with her hand at her neck. All the witnesses saw or heard was the spurting of the blood. Deceased ran toward Melby and the others, who gave back as she approached. She had proceeded sonic thirty feet when she tell to the ground and expired almost instantly. Her head had almost been cut off, and her light dress was red with blood from top to bottom. Defendant was seen standing on the curbstone by the driveway wet with blood apparently unconcerned. After cutting deceased defendant then tried to cut his own throat with the razor, and when this was taken away from him, he took out his pocketknife and tried to cut his throat with that. He gave one of the bystanders the telephone number of the girl's mother and asked him to tell her mother what had happened. After trying to cut his throat with his knife he tried unsuccessfully to tear the veins and cords in his neck with his fingers.

Defendant was treated for his wounds in a hospital, and while convalescing and while under guard he said, to quote the testimony of one Graybill, who had him in charge as his guard, and who was a witness in the case, that he (defendant) had killed the girl and was glad of it; that he had arranged to kill her a Sunday or two before when they went to a lake and went out in a boat, but that she "begged him out of it," and that he killed her to keep any other son of a bitch from getting her.

Touching the circumstances occurring at the immediate moment of the killing, defendant on his part offered no countervailing proof. His defense was that of insanity, and upon this issue of his alleged want of mental responsibility much evidence, both lay and expert, was offered in his behalf. Contradicting this, considerable evidence in rebuttal was offered by the state of both expert and lay witnesses, tending to prove that defendant was not insane. Since, as we shall reiterate when we come to express an opinion herein, there was substantial testimony of sanity and of legal responsibility for this most heinous crime, it is well settled that the question was one peculiarly for the jury and not one for us, there being upon both sides much credible evidence favoring either view. It would subserve no useful purpose; would add naught to jurisprudence, and but serve to take up space if we were to set out even the substance of the voluminous testimony upon opposing sides which was offered upon this point; therefore we refrain.

Touching the relation subsisting between defendant and deceased, it was shown that defendant, who was about 29 years of age and who was at the time of the homicide, and who had been for some 10 years, a resident of St. Joseph, had been for a long time engaged to be married to deceased; that he had been calling upon her and in her company frequently for some 18 months before he killed her. Letters of an affectionate nature from deceased to defendant, dated only some two weeks prior to the homicide, were offered, thus corroborating strongly the fact of a prior subsisting engagement between defendant and deceased. The state showed, however, that only some three or four days before the occurrence of the homicide defendant had brought to a jeweler a diamond ring (inferably an engagement ring) and asked the jeweler to put the diamond into a shirt stud, stating that it had brought him bad luck.

Such other facts as may serve to illustrate and make clear the points which we have found it necessary to discuss in the subjoined opinion will be, adverted to therein.

W. B. Norris, of St. Joseph, M. G. Moran, and Phil. A. Slattery, both of St. Joseph, for appellant. John T. Barker, Atty. Gen. (James P. Kern, of Kansas City, of counsel), for the State.

PARIS, P. J. (after stating the facts as above).

Defendant bases his strenuously urged right to a reversal of this case upon three alleged grounds, to wit: (a) Error in permitting Dr. Woodson and Dr. Dunsmore to testify for the state that, from the hypothetical question asked them and from their own examination of him, defendant was, in the opinion of these witnesses, sane; (b) that it was error to refuse to instruct on murder in the second degree, on the theory that in the absence of proof as to the manner in which a homicide is perpetrated, the presumption arises as a matter of law that such killing is murder in the second degree only; and (c) that the court erred in refusing to give instruction A requested by defendant. We will look to these insistences in their order.

I. The facts as to the testimony of both Dr. Woodson and Dr. Dunsmore are similar, and the identical objection was made to the testimony of each of them. This objection was specifically that "a hypothetical question cannot be combined with a physical examination;" that the two "must be kept separate" —meaning, we take it, that if a hypothetical question be asked of an expert medical witness who has happened to examine the person about whom he is purposing to testify, such witness may not be allowed to give an opinion of the insanity in issue, which is based both upon the hypothetical question and upon the actual examination so made by such expert. We are cited by counsel to the case of State v. Welsor, 117 Mo. loc. cit. 581, 21 S. W. 445, as sustaining this contention. We do not think the above case sustains the broad position taken by counsel. While it is rather loosely stated in the last case supra that the action of the trial court in sustaining an objection to a question which contained this vice was proper, yet the reason given for this ruling does not sustain, in any degree, the position taken by defendant in the instant case; for the learned judge in his...