State v. Heusack

• Decision Date: 16 May 1905
• Citation: 189 Mo. 295,88 S.W. 21
• Parties: STATE v. HEUSACK.
• Court: Missouri Supreme Court

88 S.W. 21

189 Mo. 295

STATE v. HEUSACK.

Supreme Court of Missouri, Division No. 2.

May 16, 1905.

1. HOMICIDE — CORPUS DELICTI.

On a prosecution for murder, evidence examined, and held to establish the corpus delicti.

2. SAME — IDENTITY OF MURDERER.

The evidence held sufficient to identify defendant as the murderer.

3. WITNESSES — COMPETENCY — CONVICTION OF CRIME.

Under Rev. St. 1899, § 4680, providing that any person who has been convicted of a criminal offense is, notwithstanding, a competent witness, but that the conviction may be proved to affect his credibility, proof of a former conviction for a misdemeanor is admissible.

4. CRIMINAL LAW — OTHER CRIMES.

Under Rev. St. 1899, § 4680, the state, on a prosecution for crime, was entitled to ask the defendant on cross-examination as to his previous conviction for crime in another state.

5. HOMICIDE — INSTRUCTIONS.

On a prosecution for homicide, where there were no eyewitnesses of the killing, and nothing to induce the jury to believe there were, an objection to a portion of a charge that it was not necessary to prove the defendant guilty by the testimony of "the" witnesses who may have seen the offense committed, on the ground that it was an implication that eyewitnesses saw the defendant commit the crime, but that in the case at bar it was not necessary to bring them into court, was hypercritical.

Appeal from St. Louis Circuit Court; Jesse A. McDonald, Judge.

Henry Heusack was convicted of murder in the first degree, and he appeals. Affirmed.

Chas. J. Maurer and Chas. P. Johnson, for appellant. H. S. Hadley, Atty. Gen., and John Kennish, Asst. Atty. Gen., for the State.

GANTT, J.

The defendant was indicted at the April term, 1904, of the circuit court of the city of St. Louis, for the murder in the first degree of August Raphael at said city on the 16th day of March, 1904. The cause was regularly assigned for trial to division No. 8 of said court. The defendant was formally arraigned upon said indictment, and entered a plea of not guilty thereto, and on the 10th day of May, 1904, was put upon his trial, and convicted of murder in the first degree. Motions for a new trial and in arrest of judgment were filed in due time, heard, and overruled, and exceptions properly saved, and from the judgment pronounced the defendant appealed to this court.

The evidence upon which the verdict and judgment are based was circumstantial, and tended to prove the following facts: August Raphael was murdered in his own home at No. 2213 South Tenth street, in the city of St. Louis, between the hours of 11 a. m. and 1 p. m. on the 16th day of March, 1904. He was then 77 years of age, and his family, residing with him at that time, consisted of his wife 83 years of age, and their grandson, Herman Raphael, about the age of 17 years. The defendant, Henry Heusack, was the son-in-law of Raphael and his wife, and lived with his wife and son at No. 1759 South Eighteenth street, in said city. Heusack was addicted to the excessive use of intoxicating liquor, and was somewhat under its influence on the day of the homicide. The house in which Raphael lived was located on the west end of a lot 25 feet wide and extending from Tenth street on the east to the alley on the west. The alley runs north and south, and connects with Ann avenue on the north and Shenandoah street on the south. On the east end of said lot, fronting on Tenth street, there was a building covering the full width of the lot, consisting of three rooms. This building was owned by Raphael, the deceased, and was rented and occupied by a club of 12 or 15 young men, who met there for social purposes two or three evenings each week. The Raphael home fronted on the alley, and to the west. It was a one-story house, with a basement. The basement was not occupied by the Raphael family. They lived in the first story, consisting of three rooms; the front room being next to the alley, a door opening from it to the middle room on the east, and a door from the middle room east to the kitchen. The kitchen and a kind of porch outside formed the east end of the Raphael home. Between this east end of the Raphael home and the west end of the building used by the club there was an open space from 30 to 50 feet in length. But in this space there was a shed on the south, and an ash box, used as a flower bed, on the north; so that there was not much open space left. This space is referred to by the witness as the yard. There was a fence on the north side of this property. Entering the Raphael house from the alley (which was the only way it could be reached from the outside save by going through the club-rooms) there were four or five steps up to what was called a "gangway" or "aisle." This gangway was about four feet wide, extending along between the house and the fence on the north side. There was an outer door to the front room on the east, and another outer door on the north of the kitchen along this gangway. The gangway led from the alley back to the yard, and the members of the club sometimes passed back and forth by that way. There was a door in the partition between the kitchen and the middle room, and another from the middle to the front room. In the northwest corner of the front room there was a bed, in which the old lady, Mrs. Raphael, was lying sick, having been sick since about a month before Christmas. Old man Raphael kept chickens in the garret of his house, to which entrance was gained by means of a ladder from the yard. On the property next north of the Raphael lot a Bohemian tailor, named Rhomatka, and his family, resided; their house fronting on Tenth street alongside of the club building, and their yard extending back along the Raphael home. On the next lot immediately south of the Raphael lot a lady named Ulrick lived. The evidence tends to show that for some time preceding the homicide the defendant, Heusack, had not been on friendly terms with his father-in-law. About six months before he said in a conversation with Henry Bene, "My father-in-law put my wife up so she won't give me no money, and I am going to kill the old son of a bitch one of these days." About two or three weeks before Raphael was killed, Herman Raphael, the grandson, saw the defendant at the Raphael home. On that day the defendant and old man Raphael had a quarrel. The defendant wanted to borrow some money, and Raphael refused to let him have it, and ordered him out of the house, saying in German, "Get out of my house, you damned old drunkard." At another time, about a month before the homicide, Herman complained to the defendant that his grandfather was quarreling with his grandmother, and the defendant said, "If the old son of a bitch was young, he would lick the ____ out of him." On Wednesday morning, March 16, 1904, the day of the murder, Herman Raphael left home about a quarter of 7 and went to his work for the St. Louis Cordage Company, leaving his grandparents alone at their home, his grandfather being up and around, and his grandmother sick in bed. About 3:30 in the afternoon he heard his grandfather had been killed, and immediately returned to his home. The same morning Phillip Bernhard and one or two other members of the club were in the clubrooms, cleaning up the rooms, and making preparations for a box party to be given by the club the following Saturday night. Bernhard saw old man Raphael in the yard in the morning, and talked with him. He saw him again a second time about five minutes before 11 o'clock, as Bernhard was leaving the clubrooms for home, going out the back way to the alley. The defendant testified that he called at the Raphael home between 9 and 10 o'clock in the morning, then went home, and in about three-quarters of an hour returned. As Bernhard was leaving the premises about 11 o'clock, he met the defendant at the alley gate on his way to Raphael's the second time. The defendant asked Bernhard if the old man was home, and, being answered in the affirmative, he went in and Bernhard went home. Mrs. Rhomatka and her daughter-in-law were washing that day. About half past 11 in the morning, while hanging out the clothes in the back yard, adjoining the Raphael home, Mrs. Rhomatka heard a voice coming from the kitchen of the Raphael home, which she understood to be hollering, "Henry, Henry, mamma, dead." This was repeated. She also heard a noise in the same place "just like something was scratching." She immediately called her husband, and he, his 17 year old son, Gus Rhomatka, and his daughter-in-law, Laura Rhomatka, all went out in the yard and listened. The four Rhomatkas testified at the trial. The elder Rhomatkas and his wife could not speak English, and testified through an interpreter. While there is a slight discrepancy as to the language they heard emanating from the kitchen, there is a substantial concurrence. Gus Rhomatka, who could speak and understand English, testified that the voice screamed, "Oh, mamma, oh mamma, I'm dead," and he also heard a noise "like with his feet kicking on the floor." The Rhomatka family had not lived there long, and was little acquainted with the Raphael family. They knew Mrs. Raphael was sick, and supposed from what they heard that she was dying. A little after 1 o'clock, the elder Rhomatka asked one of the three young men who were in the clubroom if he had heard that old lady Raphael was dead. Thereupon the young man requested Mr. Miller, one of their number, to go and see old Mr. Raphael. Miller knocked on the kitchen door, and, receiving no response, he opened the door, and saw the dead body of the old man lying on the kitchen floor in a pool of blood, a bloody hatchet lying by his side. Miller immediately told his companions, and the three returned, and together witnessed the evidence of the crime. They found all the inner doors closed, and opened them. They they gave the alarm, and notified the police.

When found, old man Raphael's body was lying with his face down,...