State v. Mowry

• Citation: 37 Kan. 369,15 P. 282
• Parties: THE STATE OF KANSAS v. HENRY MOWRY
• Decision Date: 08 October 1887
• Court: United States State Supreme Court of Kansas

15 P. 282

37 Kan. 369

THE STATE OF KANSAS v. HENRY MOWRY

Supreme Court of Kansas

October 8, 1887

Appeal from Cowley District Court.

PROSECUTION for murder in the first degree. The defendant, Henry Mowry was charged with the unlawful, willful, deliberate and premeditated killing of James P. Smith, in Cowley county Kansas, on the 21st day of August, 1885. Trial at the April Term, 1886, of the district court, and conviction of the crime as charged. The defense interposed was insanity and self-defense. New trial denied; judgment in accordance with the verdict. The defendant appeals. The opinion contains a sufficient statement of the facts.

Judgment affirmed.

Jennings & Troup, and W. E. Stanley, for appellant; Irwin Taylor of counsel.

C. L. Swarts, county attorney, for The State; Henry Asp, of counsel.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

At the April term, 1886, of the district court of Cowley county, Henry Mowry was prosecuted and convicted for the murder of James P. Smith. He seeks a reversal on the alleged insufficiency of the evidence and supposed errors in charging the jury. It is conceded that he shot and killed Smith on the afternoon of April 21, 1886; but he defended on the ground that he was insane and irresponsible. There is testimony that in December, 1884, he began boarding at the house of O. F. Godfrey, his partner in business, whose family consisted of himself, his wife and two children. While. boarding there he became enamored with Mrs. Godfrey, and frequently declared his love for her. She listened to his protestations of love for some time without informing her husband; but later she discouraged his attentions, and requested him to remain away from the house. He then became moody and morose, and declared that it was more than he could bear to be separated from her. About this time he had an interview with his mother, who testified that he was then in great distress of mind because of the cold treatment received from Mrs. Godfrey. He declared his affection for her, stating that she encouraged his attentions at first, and that he had had illicit connection with her, and was the father of her infant child, but that now she repulsed him, and he begged his mother to intercede with Mrs. Godfrey to allow him to continue his visits at her house. On the morning of August 21, 1885, the day that Smith was killed, he called on Mrs. Godfrey and again begged her to renew her former relations with him, but she refused, and stated that she would inform Mr. Godfrey of his conduct toward her. He then asked if anything occurred by which she should be without home, friends, or money, she would call upon him; and inquired if she would marry him in case anything should happen to Mr. Godfrey. She told him she would not, and he said, "That settles it; we can't be friends any longer," and left the house. Later in the day he returned to the house and found Mrs. Godfrey alone, when he demanded to know whether she intended to tell Mr. Godfrey upon him as she had threatened to do. She informed him that she would, and he replied that he would just as soon shoot her, and he thought he would do it before night. He had a shotgun with him, and during the parley pointed it at her. She ordered him to leave the house, saying that she would call her son Frank and send him for her husband, and she followed him out of the house and did call her son and directed him to go and bring his father. After leaving the house he met Mr. Godfrey and informed him that he had had trouble with his wife, and that she had a story to tell him; to go down to the house and hear it; and he asked him if he would promise to come back and hear his side of the story. This was agreed to by Mr. Godfrey, who immediately went to the house and had an interview with his wife, and returned to the hotel, where he again met Mowry. Mowry inquired if Mrs. Godfrey had told her story, and Mr. Godfrey replied that she had, and informed him that he could not come to the house again. Mowry then insisted that he should listen to his story, stating to Godfrey that the youngest child was his, and that he was going to have it; that he would spend every dollar he had on earth, but that he would ruin the family or have that child. Godfrey left him at once and returned to his home, and had been there but a short time when he discovered Mowry coming towards the house with a shotgun in his hand. Godfrey immediately took his gun and went to the front door, and as Mowry started through the gate towards the house he ordered him to go. Mowry said, "I don't have to," and stepped back into the street. At this time Mrs. Godfrey ran in front of her husband, who pushed her aside, and Mowry then raised his gun and fired two shots through a window in that part of the house to which Mrs. Godfrey had been pushed. Mrs. Godfrey ran and called some workmen, who were engaged upon a building near by, for help. Mowry immediately started away from the house, reloading his gun as he went. He was pursued by a large number of persons who were in the vicinity. Smith, the deceased, was in the lead of those in pursuit of Mowry, and gained on him as they ran. When Smith came up within about fifteen feet, Mowry turned with his gun and ordered Smith to halt, which he momentarily did. Mowry ran on again, followed by Smith, when he turned, brought his gun up, and halted Smith a second time. There was only a brief halt, for Mowry made another dash to escape, but was still pursued by Smith, who was closing in on him, when Mowry turned and a third time ordered him to stop, and almost at the same time fired at Smith, discharging a load of shot into his face and neck. Some one near by came up where Smith fell, and the only words he was heard to utter were, "Catch that man;" and he died within a few minutes after he was shot. Mowry was pursued until he was captured, but not until he had shot another of his pursuers. There is testimony that after his capture he stated that he shot at Mrs. Godfrey, and supposed he had killed her; and further, when told that he had killed Smith, he said that he was sorry he shot him; that he had told him three times to stop and he would not do it, when he shot him, and that he would do the same thing again.

It is insisted by counsel for the appellant, that his conduct toward Mrs Godfrey, and his acts immediately before and after the homicide, are evidence of insanity. They offered testimony tending to show that about the time of the homicide he acted differently from what he had before, in this, that he was moody and morose, restless at night, and absentminded in the daytime, complaining of pain in his head, and on several occasions becoming excited, when he would yell, cry, laugh and sob by turns; breaking furniture and threatening to injure and kill those who were his friends, and that these and other incidents, all of which have not been mentioned, show unsoundness of mind. Some of the medical experts expressed the opinion that a person acting in the manner in which Mowry was represented to have acted, must have been insane, and some of them characterized it as epileptic mania. On the other side, it is insisted that there was a complete failure to support the plea of insanity; that his conduct showed an infatuation, illicit and without hope; that when he was repulsed by Mrs. Godfrey he schemed to separate her from her husband by telling him that she was unfaithful to him, and that he was not the father of the infant child; and also by threatening to ruin the family, if the child was not given up; and that his purpose was further disclosed when he asked her to be his wife in case of Godfrey's death. There is testimony that he purchased a bottle of liquor shortly before the shooting, and several of the witnesses say that he appeared to be drinking and drunk upon that day. It is claimed that partial intoxication accounts for some of his strange and unusual actions, and that when his relations with Mrs. Godfrey had been exposed, and he had failed to intimidate Godfrey and cause him to part from his wife, he then drank liquor to nerve him for what he was about to undertake, deliberately secured a gun, loaded it, and provided himself with ammunition, and called at Godfrey's house for the purpose of killing Mrs. Godfrey, and sought to carry out that purpose by shooting into the room where he supposed her...