State v. Kodat

• Decision Date: 12 November 1900
• Citation: 59 S.W. 73,158 Mo. 125
• Parties: STATE v. KODAT.
• Court: Missouri Supreme Court

59 S.W. 73

158 Mo. 125

STATE v. KODAT.

Supreme Court of Missouri, Division No. 2.

November 12, 1900.

CRIMINAL LAW — HOMICIDE — ASSAULT WITH INTENT TO KILL — EVIDENCE — WITNESSES — COMPETENCY OF DIVORCED WIFE TO TESTIFY AGAINST HUSBAND.

1. Defendant had a quarrel with his wife in prosecuting witness' presence, and she told him that he ought to be ashamed of himself. Defendant

left, saying: "I'll fix you. I don't know whether you will be living tomorrow night, yet," — and in about 15 minutes returned with a pistol. Witness then told defendant's wife that she was afraid and wished to go home, but the wife, seeing the pistol, told her to come back, and they both began running back in the yard. Defendant fired at them, the ball passing through witness' dress. Held sufficient to sustain a conviction of assault with intent to kill.

2. Under Rev. St. 1889, § 4218, providing that the wife may be a witness for the husband in a criminal prosecution, but not against him, a wife cannot testify to statements made by her husband regarding the commission of the crime, though after such statements have been made she has been divorced.

3. Under Rev. St. 1889, § 4218, providing that husband and wife may testify for each other in a criminal prosecution, but not against each other, a wife cannot testify as to the fact which constitutes the offense with which her husband is charged, though she has been since divorced.

Appeal from St. Louis circuit court; Selden P. Spencer, Judge.

Adolph Kodat was convicted of an assault with intent to kill, and he appeals. Reversed.

Bishop & Rollins, for appellant. The Attorney General and Sam B. Jeffries, for the State.

GANTT, P. J.

The defendant was indicted in the circuit court of the city of St. Louis, duly arraigned, tried, and convicted of an assault with intent to kill Mrs. Josephine Kretsch, on or about the 22d day of October, 1899, in the city of St. Louis. The indictment was in the ordinary form, and amply sufficient. No error has been discovered in the record proper, and none pointed out by the defendant. Indeed, he has no counsel in this court. The instructions were such as have been approved again and again by this court. In the motion for new trial we note that complaint is made of the refusal of certain instructions prayed by defendant. No such instructions have been incorporated in the bill of exceptions, and, as a matter of course, the propriety of refusing them is not before us. The evidence fairly establishes the following facts: The defendant and his wife had separated; she living at No. 1921 South Broadway, St. Louis, and he at a place several blocks distant. She was living in the same house with one ____ Stussel, the father of her illegitimate child. This child was 5 months old when she married the defendant. In November following the commission of the crime with which defendant is charged, and before the trial, she procured a divorce from the defendant and married Stussel. On the evening of October 22d the prosecuting witness, Josephine Kretsch, was at the house of Mrs. Kodat, making her a visit. They were sitting outside of the house when the defendant came up and called out to his wife, "Hello, whore! I want my furniture," to which the wife replied, "You can't have any furniture until after the divorce case." The child, who was then 18 months old, was with its mother, and he kicked the child, and called it a bastard and a son of a bitch. Upon this Mrs. Kodat called upon her husband to fight her, and not the child, and she took hold of him and kicked him. Mrs. Kretsch in the meantime had told the defendant that he ought to be ashamed of himself, and one John Holup, the landlord of the place, ordered defendant to leave the premises. The defendant said: "I'll fix you. I don't know whether you will be living tomorrow night, yet,"—and went away, and in about 15 minutes returned with a pistol in his hand. Mrs. Kretsch then told Mrs. Kodat that she was afraid and wished to go home; but Mrs. Kodat, seeing the pistol in the defendant's hand, told her to go back, and they both began running back in the yard. The defendant fired after them, the ball passing through Mrs. Kretsch's dress. This is, in substance, the story of the shooting and the circumstances connected with it, as told by witnesses Josephine Kretsch, Mary Stussel, and John Holup; the narration of each witness, of course, being slightly different from the others in some of the details, but all corresponding in substance and in all the main facts. Frank Kretsch was the only witness who testified on behalf of the defendant. He was the husband of the prosecuting witness, but was not living with her. He swore that his wife's reputation for truth and veracity was bad. He was not present at the shooting, and knew nothing about it. Defendant did not testify. The evidence, if believed by the jury, was sufficient to convict defendant of having made an assault with a deadly weapon, with intent to kill.

The remaining assignment of error presents a point never directly adjudicated by this court, so...