State v. Kaiser

• Decision Date: 20 November 1894
• Citation: 28 S.W. 182,124 Mo. 651
• Parties: STATE v. KAISER et al.
• Court: Missouri Supreme Court

28 S.W. 182

124 Mo. 651

STATE v. KAISER et al.

Supreme Court of Missouri, Division No. 2.

November 20, 1894.

PROSECUTION FOR MURDER — RES GESTAE — EVIDENCE AS TO IDENTITY — MISSTATEMENT BY COUNSEL — ACQUITTAL OF JOINT DEFENDANT.

1. Instructions as to which no complaint was made in the motion for new trial are not reviewable in the supreme court.

2. Where three defendants were jointly charged with murder, it was competent for the jury to convict two and acquit the third.

3. On a trial for murder, the exclamation of horror of a person made on the spot, in the presence of the victim, and while the assailants were just leaving their victim, and were yet in sight, and when the witness who heard the exclamation, the person who made it, the dying man, and the fleeing assailants were all within 50 feet of each other, is admissible as a part of the res gestae.

4. Where a witness for the state, in giving his reasons for saying that B. was the woman he met on the night of the homicide, disclosed on cross-examination that B. had afterwards picked him out from a number of men as the man she met on that night, and the defense insisted that the fact of such selection was witness' sole reason for saying she was the woman whom he met, it was not error to permit the witness to state that he was convinced that she was the woman by her manner of identifying him, and to testify fully as to such identification.

5. Counsel for the state, in his argument, stated that "S. said that in the station he picked out defendant; that by his size and everything he was the man." The court corrected him, saying that "S. said defendant resembled the man," and counsel submitted to the court's version of the testimony. In fact, S. had said, after minutely describing the man, that he "would not swear defendant was the man, but he resembled him." Held, that there was no ground for reversal.

Appeal from St. Louis criminal court; Henry L. Edmunds, Judge.

Henry Kaiser and Jacob Henze were convicted of murder in the first degree, and appeal. Affirmed.

The defendants, Kaiser and Henze, were jointly indicted with Charles McDonnell at the March term, 1893, of the St. Louis criminal court, for the murder of Edwin E. Brown, in the city of St. Louis, on March 2, 1893. A motion to quash was overruled. The prisoners were duly arraigned at the May term, 1893, and the cause continued to the July term, at which they were jointly tried, and Kaiser and Henze convicted of murder in the first degree, and McDonnell acquitted. Motions for new trial and in arrest were duly entered and overruled, and the defendants sentenced at the November term, 1893, from which they appeal. The testimony for the state tended to show that Edwin E. Brown was a live-stock commission merchant, residing at No. 3119a Morgan street, St. Louis. He had resided there since June 1, 1892. On the night of March 2, 1893 (on which day a primary election had been held), at or near 10 o'clock, he was violently assaulted by three men on Franklin avenue, near Garrison avenue (about a block and a half from his residence), and died within an hour. A valuable gold watch, containing a likeness of his little dead son, was missing from his person, and was never recovered. The autopsy showed that death was caused by internal hemorrhage, due to the rupture of blood vessels in the abdomen, the result of external violence. Deceased was about 5 feet 10 inches in height, weighed 230 pounds, and was abnormally fat in the abdominal muscles. The principal eye-witnesses of the assault were three negro women, — Carrie Chapman, Betty Robinson, and Annie Boghines. The former two were domestics living with families in the west end, and were returning from church in company; the latter kept furnished rooms at 873 North Eighth street, and had been spending the evening visiting her husband, who worked for the Lindell Railroad Company. There had been a drizzling rain during the afternoon and up to about 8 o'clock, but it had cleared off afterwards; the streets were wet and muddy. The place where the struggle occurred was at the entrance of the driveway of Mr. Niedringhaus' residence, leading into a yard at the rear of which was a stable, standing on Bell street. Below the stable was a swinging electric light, and there was another electric light on Franklin avenue, both of which cast a strong light over the yard and avenue. The uniform testimony of the witnesses is that this double light was brilliant, and not dim. The clothes taken from the body of deceased when conveyed home were muddy; "there was a patch of mud along the right vest pocket, and down along the right leg; the patch along the abdomen looked like it might have been a kick."

The testimony of Carrie Chapman was that she and Betty Robinson were going west on Franklin avenue; they heard a noise, and saw three men meet one man, "and that they all got into a huddle together, and they stopped and said something, * * * and the three commenced pounding the man they met, saying something to him, hitting, jerked him around and hit him, and one of them got him by the neck and choked him, * * * and he kind of made a funny noise [a guttural sound], and then they struck him, and he fell to the pavement. * * * When they got to the drive, they throwed him off, after they got him in the drive, * * * and one, the big man [identified by her as defendant Kaiser] got on him with his knee. * * * They were trying to go through him all the time, — trying to go through his pockets. * * * I was right in the middle of where there is a vacant place; there is a curb comes up. I was standing there, leaning on my umbrella. I wasn't but a little piece away. * * * I seen them trying to go through his pockets. After a while, two of them ran off, and then the big tall one [Kaiser] stood on him with his knees * * * on his stomach. * * * The man couldn't holler, — only made a funny noise. * * * The two that first ran off told him to come on; that the cops would be there directly, — so he jumped off and ran. Instead of running across where they did, he jumped up the carriage drive, and then turned around and ran a step or two on the pavement, and shot off toward Garrison avenue and Morgan; and the man was still down. The man who was last on him ran across Franklin avenue, and one of the electric cars got in front of him. He ran behind the car. * * * The tallest man [Kaiser] had him by the throat with one hand, and he was on him with his knee, and was trying to go through his pockets. He was trying to get him to give something up, and the others, because he wouldn't give it up, were hitting him. They were all going through his pockets. I don't know what was said there, only I could hear them talking and asking him to give something up, and he wouldn't give it up. And when he wouldn't give it up, they just kept punching him. They had him so tight he couldn't holler at all. I got a good look at the three men. Them is the very three [pointing out the three defendants on trial]. I have not one bit of doubt about it. After they ran away, Mr. Brown tried to get up. He was so weak he couldn't hardly get his hand up, and then he fell, and said, `O, them scoundrels is got my watch, with my dead boy's picture in it!' And then he hollered, just as loud as he could holler, `Police!' By this time there was a little crowd got on down, and there was two men raised him up, * * * and I went home. * * * I got a good look at their faces, and I saw them at the station house afterwards, and identified them as the same ones. * * * The light was good. There are trees there, but there were no leaves on them. * * * The two electric lights shone straight across the yard."

Betty Robinson gave evidence that she was with the preceding witness, walking at their usual gait, until they reached Niedringhaus' place. "I looked up and saw these men. There were four. It seems that they had just stepped a little this side of the steps, and they commenced tussling, and then the man commenced making a noise like he was choked, and they were chunking him and beating him, hitting him, and pulling at him. I went over to the other side of the street. When they got to the drive, they knocked him almost down, and then they pushed him and got him against a post there. They seemed to be all of them over him, and I couldn't see just what they were doing. They were talking to him, saying something, but I couldn't say what it was. The man was going, `Oh! Oh! Oh!' He couldn't holler distinct. He was just like anybody can't holler if they are choked. * * * He didn't seem like he could say anything. * * * They broke and ran, and the tallest one [Kaiser], he kind of run over towards me, and then he ran up, and the car kind of cut him off, and he crossed over near me. I couldn't say whether the other two defendants are the other two men. Couldn't see them distinctly. They look like the men. * * * I got a good look at the man that crossed over near me. * * * The electric light was very bright, — light enough for me to distinguish a man's features. I got a good look at him. * * * When he started to go across the street to go behind the car, the light was shining right in his face."

The other negro woman, Annie Boghines, testified subsequently as follows: "I was walking on the street [Franklin avenue]. I noticed in front of me two colored women, and one white gentleman walking just a little piece ahead of them. In a few moments, I saw the gentlemen coming across Franklin avenue on Garrison, cross over on Garrison, and turned down like they was facing me. In a moment's time they passed Niedringhaus' front door. They met this man, that was in front of the colored woman, and one of them mentioned money, — `Money or life.' They commenced a tight scrimmage right there. * * * So this man sitting right there [Henze], he fired off and struck Mr. Brown over the eye. There was something shined or bright in his hand. I couldn't say whether it was a...