State v. Henke
| Decision Date | 05 April 1926 |
| Docket Number | No. 26871.,26871. |
| Citation | 285 S.W. 392 |
| Parties | STATE v. HENKE. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.
Harry A. Henke was convicted of murder in the second degree, and he appeals. Affirmed.
A. E. L. Gardner, of Clayton, for appellant.
North T. Gentry, Atty. Gen., and Harry L. Thomas, Sp. Asst. Atty. Gen. (Robert A. Roessel, of St. Louis, of counsel), for the State.
Appellant was charged with murder in the first degree for the alleged killing of his wife. The jury found him guilty of murder in the second degree and assessed his punishment at imprisonment in the penitentiary for 20 years. He was sentenced upon such verdict and has appealed to this court.
As the evidence was wholly circumstantial and the chief contentions of appellant are that the evidence did not make a case for the jury and that the trial court should have instructed the jury to find appellant not guilty, the facts developed by the evidence should be fully stated in order to dispose of such contentions intelligently.
At about 6 o'clock p. m. July 11, 1924, appellant's wife, Marie Henke, was found dead in her bed. The cause of death was a blow on the head with some blunt instrument. There' was no direct proof concerning the identity of the person who caused her death. Appellant was 25 years old. His wife, to whom we will frequently refer as "deceased," was 24 years old. They had been married about 2 years. They lived at 1721 Beulah Place in Richmond Heights, St. Louis county, in the home owned by Joseph Yost. Mrs. Yost was the mother of deceased. Lucille, a 10 year old daughter of Yost and wife, lived with her parents. Edward Meister and wife also lived in the same house. Joseph Yost, the appellant, and the deceased worked in St. Louis. At the time in question Mrs. Yost, Lucille Yost, and Mrs. Meister were visiting in Seattle, Wash. Meister was a traveling salesman and was then in Cincinnati, Ohio. This left Joseph Yost, appellant, and his wife as the only occupants of the home on July 10th and 11th. The house was on the west side of the street, facing the east. Appellant and deceased occupied the southeast front bedroom on the second floor and Yost the southwest bedroom on the same floor. A small hall leading to the stairs connected these two rooms.
On the night of July 10th Mrs. Thompson, who lived directly across the street, and Mrs. Manahan, visited the Henkes. Mrs. Thompson went home about 10:20 p. m. About 10:30 p. m. appellant and the deceased accompanied Mrs. Manahan four or five blocks, where she boarded a street car to ride to her home. A pleasant evening bad been spent. Ice cream and cake were served. Joseph Yost was at home during the evening. After locking the rear door of the house, he had retired, while appellant and deceased were accompanying Mrs. Manahan to the street cat line. Two closets opening into the respective bedrooms separated the room occupied by Yost from the room occupied by appellant and his wife. Yost heard them return to the house, but did not hear them go up stairs. He left his door leading into the hall partly open. He heard nothing during the night. With the exception of appellant, Mrs. Manahan was the last person known to have seen Mrs. Henke alive.
On the morning of July 11th Yost arose at about 5:15 o'clock. As he passed down stairs he observed that the door to the Henke bedroom was open. He glanced in, but his view included only the lower end of the bed. He then saw the covered up forms of the lower limbs of two persons lying on the bed. He went downstairs, went out in the back yard, and attended to his chickens, returned to the house, hooked the rear screen door, prepared a frugal breakfast, including a pot of coffee, and left the house at about 6:15 a. m., leaving the front door open, but closed the screen on that door. Before he left the house he heard some one moving about upstairs in the hall described.
Appellant testified that he got up about 5:50 o'clock, dressed, went to the bathroom, shaved, and returned to the bedroom. Deceased was then awake and complained of feeling badly and announced that she would not go to work that day. She had not worked the previous day. She spoke of going to the home of Mr. and Mrs. Dunn in North St. Louis that evening. If she went, appellant expected to join her there. Appellant went downstairs and drank a cup of coffee, which he found already prepared. He then returned to the bedroom and kissed his wife good-bye and left the house at about 6:30 a. m. He closed and locked the front door when he left. In walking the four blocks to the street car line he was joined by and talked with one Doerbaum, who rode into the city on the same car with appellant, but sat in a different seat. Doerbaum testified to such meeting and the time thereof. Appellant arrived at his place of work at about 7:45 a. m., and punched the time clock, which registered the exact moment. He remained at his place of work all day and apparently performed the customary duties of his employment in the usual manner. He punched the time clock upon departing for home at the usual time. He arrived at home about 6:50 p. m.
Appellant testified that he telephoned to his home at about 12:30 p. m. He received no response and called up the office of the Standard Oil Company, where his wife worked, and found that she had not gone to work. He then called up Mrs. Thompson, who lived across the street, and asked her if she had seen his wife, and was informed that she had not seen her. She stepped to her front porch and looked across the street at appellant's request. She then reported that everything was locked up over at his house. Appellant produced witnesses who corroborated his testimony as to his act of calling up some one and getting no answer and calling up some one else, and also that some one called up the Standard Oil Company and asked if deceased had come to work. These witnesses fixed the time of such calls at approximately the time fixed by the appellant. Mrs. Thompson testified that she received the call from appellant about 8:30 a. m. and not during the noon hour. There was evidence that she had made statements tending to show that her telephone conversation with appellant took place about noon. The purpose of the telephone call to his wife, as stated by appellant, was to learn whether she intended going to the Dunns in North St. Louis that evening. In that event, he planned to join her there before going home. It does not appear that appellant called any more. He apparently assumed that his wife had abandoned the visit. Hence he came directly home, where he claimed first to have learned of his wife's death. The theory of the state is that the telephone calls were not in good faith, but were made by appellant for the purpose of manufacturing evidence in his own behalf by creating an inference that he had no knowledge that anything had happened to his wife.
When Joseph Yost returned home at about 5:50 o'clock in the evening, he found the front door locked and was required to open the door with his key. He passed through the house and laid down some packages he had brought home. He discovered that the rear screen door was unlocked. He went out and fed his chickens and called to Mrs. Henke, thinking she was in the back yard. He returned to the house and went up stairs to change his clothes. As he came to the top of the stairs he looked into the Henke bedroom and saw the room was in great disorder and went in. Articles had been dumped out of a cedar chest and dresser and chifforobe drawers into a pile onto the floor. He saw his stepdaughter, the deceased, lying in bed apparently asleep. Referring to the appearance of robbery in the room, he said: "Well, they got us at last." When he got no response from Mrs. Henke, he raised the bed cover and took hold of her and discovered that she was dead.
Yost immediately gave the alarm and neighbors, officers, and physicians arrived promptly. The coroner, Dr. Bracy, arrived at about 6:30 p. m. He found that deceased's skull had been crushed by a blow delivered by some blunt instrument. All of the body, except the neck, was perfectly stiff. From his experience as a physician and as coroner for 10 years Dr. Bracy testified that in his judgment deceased had been dead from 12 to 14 hours at the time he first examined the body. The death blow had been inflicted by a heavy Stillson wrench, which was found upon the floor of the bedroom. The wrench had blood and hair upon it. The body had apparently lain on the floor for some time, as a large pool of coagulated blood was found there with hair stuck in it. The body also appeared to have been washed, encased in a clean nightgown and laid on the bed upon clean sheets, which did not appear to have been slept upon. Clean pillowslips had been placed upon the four pillows and these had been placed, two on each side of deceased's head, in such manner as to conceal the wound on her head. Considerable blood had flowed from the head wound after the body was placed on the bed and had soaked the bed and mattress beneath and had run through upon the floor below.
The wrench, with which the fatal blow had apparently been inflicted, was a tool which usually rested on the floor of the rear vestibule leading out from the kitchen to the back yard, where it was used as a door stop. Yost testified that he did not see the wrench in its accustomed place before he went to work that morning. However, witnesses were introduced by appellant whose testimony tended to show that Yost had said that he saw the wrench in its accustomed place in the vestibule that morning before he went to work.
Witness Maloney testified that, on the evening when the body was discovered, he observed that the alarm clock in appellant's bedroom had stopped at 2:45 o'clock. He examined it then. The clock was offered in evidence after said witness testified that it was in the same...
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