State v. Hollenscheit

• Decision Date: 31 October 1875
• Citation: 61 Mo. 302
• Parties: STATE OF MISSOURI, Defendant in Error, v. HENRY HOLLENSCHEIT AND ANNA HOLLENSCHEIT, Plaintiffs in Error.
• Court: Missouri Supreme Court

61 Mo. 302

STATE OF MISSOURI, Defendant in Error,

v.HENRY HOLLENSCHEIT AND ANNA HOLLENSCHEIT, Plaintiffs in Error.

Supreme Court of Missouri.

October Term, 1875.

Error to Gasconade County Circuit Court.

Belch & Flanagan, for Plaintiffs in Error.

I. The court below erred in overruling the application for a continuance. This court will interfere with the action of the court below in overruling applications for continuance when the discretion of the lower court has been exercised unjustly and unsoundly. Such is the present case. (State vs. Klinger, 43 Mo., 127; see also, 6 Gill & Johns., 269; 6 Vt., 496; 3 Whart. Cr. Law., § 1027; Id., foot p. 109, and note; State vs. Stokes, 18 Ga., 17; Campbell vs. People 15 Ill., 17; State vs. Sloan, 47 Mo., 610; Cornelius vs. Comm., 15 B. Monr. 539.)

II. The court below erred in giving instructions Nos. 4, 6 and 7 for the State. Each instruction should have been on a separate and single count.

III. The court erred in refusing to give instructions Nos. 6 and 7, asked by the defendant. These instructions required the jury to find that Anna Hollenscheit knew of the intention of the husband to commit the homicide at the time she is alleged to have assisted and abetted him. (1 Whart. Cr. Law, foot p 135, § 120.)

IV. The court rendered an erroneous judgment. “When several defendants are jointly tried, the punishment of each in case of conviction, must be separately assessed.” (Wagn. Stat., 1107.) The court did not comply with the requirement of the statute in rendering its judgment. The punishment, which was death, should have been assessed against each separately. (36 Ga., 234.)

John A. Hockaday, Attorney General, with Rudolph Hirzel, Prosecuting Attorney of Gasconade, for Defendants in Error.

I. One continuance had been already granted on application of defendants, and under those circumstances it rests entirely in the sound discretion of the court to grant or overrule the application. (State vs. Klinger, 43 Mo., 127; Frederick vs. Price, 46 Mo., 24; State vs. Burns, 54 Mo., 274; State vs. Lange, 59 Mo., 418.)

The facts stated are insufficient to entitle defendants to a continuance. There was no diligence shown by defendants in efforts to procure the witness, nor does it appear that there was any injustice done to defendants by the overruling of the said application. (State vs. Hays, 24 Mo., 369; State vs. Klinger, supra; State vs. Shaw, 39 Mo., 90; State vs. Benton, 31 Mo., 462; State vs. Murphy, 46 Mo., 430; State vs. Lange, supra.)

II. Instruction number nine defines the charge in the indictment against H. Hollenscheit, as principal, and Anna Hollenscheit, as an accomplice, and is correctly stated. (State vs. Jennings, 18 Mo., 435; State vs. Ross, 24 Mo., 483; see also, Green vs. State, 13 Mo., 392.)

III. Instruction number fourteen states the value and weight of defendants' admissions and confessions, as repeatedly laid down by the court. (Green vs. State, supra; State vs. Carlisle, 57 Mo., 104.)

WAGNER, Judge, delivered the opinion of the court.

At the July special term of the Gasconade circuit court, convened under the provisions of the statute for trying the prisoners, they being at that time in jail, the defendant. Henry Hollenscheit, was indicted for murder in the first degree, in killing one Alband; and his wife Anna was also included in the indictment as being present, aiding and abetting and assisting him. Upon their application, a continuance was granted till the November term of the court, and at that term they filed their affidavit and application for a second continuance, which was overruled, and this refusal to further continue the case constitutes the first error complained of. It was stated in the affidavit that defendants could not safely proceed to trial, on account of the absence of Charles Schumaker, who was a material witness, and that the facts which they expected to prove by him, could not be proved by any other witness that was present or could be procured at that term of the court; that although every effort had been made by defendants, they could not learn that Schumaker knew of the existence of the facts they expected to prove by him, until the term of the court then pending; that Schumaker did not reside in the county, but that he removed therefrom, and lived in some part of Kansas, and that the place of his residence was not known, although diligent inquiry was made for him; that defendants expected to prove by him that Alband, the deceased, told him, that he, Alband, intended to leave his wife, who was the daughter of defendants, and then living with them, and that he intended to get the defendants in the house and kill them before he left.

It is hardly necessary to repeat what has been so frequently declared, that this court will not interfere with the discretionary power exercised by the trial court in refusing continuances, unless it clearly appears that the power has been exercised unjustly or oppressively.

As far as obtaining the personal presence of Schumaker was concerned, no diligence appears to have been used. The record shows that at the coroner's inquest, a Mr. Schumaker was present, who is presumed to be the same person, and no effort was made to procure his evidence after that, when he was still in the county, and it is not shown at what period he removed to Kansas. But it is alleged that defendants were not aware that Schumaker knew the facts they expected to prove by him, till the November term of the court, at which they were arraigned. There is something about this palpably inconsistent. They admit that they had no communication with Schumaker, and did not even know where he was, and that they possessed no knowledge of the facts, previous to the time of the sitting of the court. There is no indication as to how they came in possession of the fact, or whether their information was entitled to any credit whatever. Under all the circumstances we cannot say that the court abused its discretion in overruling the application.

The only other objections made to the ruling of the court relate to giving and refusing instructions. Defendants excepted to instructions numbered one, four, six, nine, eleven and fourteen, given on behalf of the State.

The first instruction merely states what is set out in the indictment, charging the defendants with the offense, and requires no particular notice. The fourth instruction tells the jury that if they believe from the evidence, that the defendant, Henry, killed Alband in malice, with a club or a stick, or any instrument likely to produce death or great bodily harm, or by throwing him out of the window upon the ground or rocks, or by either of those means, in the manner charged in the indictment, and that at any time before the killing, however short, he premeditated the same, and that such killing was wilfully, deliberately and maliciously done, then the defendant was guilty of murder in the first degree. The sixth instruction, in effect, was, that if the jury believed from the evidence that the defendant, Henry, wilfully, deliberately and premeditatedly, on purpose and of his malice aforethought, killed Alband by striking and beating him with a club or any blunt instrument in and upon his head and face, thereby causing mortal wounds, of which he died, or by throwing him, said Alband, out of a window upon the hard ground and rocks below, causing one mortal wound upon the back part of his head, or by any or all of the means aforesaid, in the manner and form as charged in the indictment, then the said Henry is guilty of murder in the first degree.

The ninth instruction merely states that the defendant, Henry, is charged as the principal in doing the killing, and...