The State v. Bobbst
| Citation | 190 S.W. 257,269 Mo. 214 |
| Parties | THE STATE v. HARRY N. BOBBST, Appellant |
| Decision Date | 06 December 1916 |
| Court | United States State Supreme Court of Missouri |
Appeal from St. Charles Circuit Court. -- Hon. Edgar B. Woolfolk Judge.
Affirmed.
B. H Dyer and Rosenberger & Dowell for appellant.
(1) The action of the court in setting this cause down for trial in the absence of the defendant necessitates a reversal. State v. Warner, 165 Mo. 399. (2) The court erred in assuming in the State's instructions numbers one to fifteen inclusive that the defendant admitted the fact of having shot and killed his wife. (3) In State's instruction number three the court erred in its definition of the word "deliberately," and in further instructing the jury that in this case there is no evidence tending to show the existence of sudden passion engendered by lawful or some just cause of provocation. (4) The court erred in not defining what was meant by the word "drunkenness" as used in all the instructions. (5) The court erred in refusing to give to the jury defendant's instruction number P, being a cautionary instruction on the question of statements made by him. (6) The court erred in refusing to give to the jury defendant's instruction on the presumption of continued insanity. State v. Lowe, 93 Mo. 547: State v. Wade, 161 Mo. 441; Buford v Grueber, 223 Mo. 231.
John T. Barker, Attorney-General, and Lee B. Ewing, Assistant Attorney-General, for the State; James P. Kem, of counsel.
(1) The appellant cannot now complain because he was not present in the court room when his cause was set for trial, for the reason that he made no request to be present. State v. Miller, 191 Mo. 587; State v. Taylor, 171 Mo. 465. (2) The court did not err in sustaining a peremptory challenge to juryman Hyppolyte Hunn, for no question as to the qualification of this juror can be raised in this court, as no proper challenge appears to have been made. State v. Taylor, 134 Mo. 109; State v. Allbright, 144 Mo. 638; State v. Dyer, 139 Mo. 199; State v. Evans, 161 Mo. 95; State v. Wooley, 216 Mo. 620. The correct rule as to the qualification of jurors, as laid down by statute and in the decisions of this court, was followed by the trial court. Sec. 5220, R. S. 1909; State v. Cunningham, 100 Mo. 382; State v. Core, 70 Mo. 491; State v. Barton, 71 Mo. 288; State v. Farrow, 74 Mo. 531; State v. Sykes, 191 Mo. 62; State v. Myers, 198 Mo. 225; State v. Bobbitt, 215 Mo. 10; State v. Vickers, 209 Mo. 12. (3) There is nothing in the testimony or conduct of John Miller, as a juryman or as a witness, to justify the interference of this court. State v. Phillips, 117 Mo. 389; State v. Gonce, 87 Mo. 627; State v. Nocton, 121 Mo. 537. (4) The court did not err in failing to instruct on murder in the second degree. State v. Harris, 177 S.W. 362; State v. Paulsgrove, 203 Mo. 193; State v. Wilson, 88 Mo. 15; State v. Ross, 24 Mo. 489; State v. Sassaman, 214 Mo. 695. (5) The court did not err in failing to define the term "drunkenness" in its instructions. (6) The court did not err in refusing to give defendant's instruction numbered "P." State v. Henderson, 186 Mo. 473; State v. Floyd, 15 Mo. 349.
Upon an indictment charging him with murder in the first degree for killing his wife, defendant was tried in the circuit court of St. Charles County, found guilty and his punishment assessed at imprisonment in the penitentiary for life. Defendant has duly appealed.
The killing occurred about 4:30 a. m., November 10, 1914, at the home of defendant's wife, in the city of St. Charles. For several months prior thereto defendant and his wife were living apart. She, together with her daughter Beulah, and a young man named Henry, a boarder, occupied a three-room house in St. Charles.
It appears that the police of St. Charles held a warrant for defendant's arrest for peace disturbance and for this reason he was living away from his family. Defendant's son, Eddie, thirteen years old, stayed with his father across the river most of the time.
Defendant had no regular occupation, but made a little money gathering rags and old junk. He was a strong drinker and spent most of his money in that way. Sometimes the neighbors across the river would give him something to eat and sometimes his wife would go across the river and take him something to eat and sometimes would take him whisky. Defendant, although he had no means of supporting his family, constantly demanded of them that they move across the river with him and he told many of his associates across the river that if his wife did not come and live with him he would kill her. In talking to others he would frequently charge his wife and daughters with being prostitutes and complain because the boarder, Henry, remained at the house, stating that he was attempting to ruin his youngest daughter Beulah. He also accused his wife of having other men come to her house. It appears that the wife was a hard-working woman of good character and that these charges were unfounded. About a week before the homicide, appellant and his wife were standing on the St. Charles bridge and defendant was urging his wife to go back with him across the river. She refused and defendant attempted to throw her off the bridge.
The fifteen-year-old daughter was the only eye-witness to the homicide. She testified that about one o'clock a. m., on the night of the killing, defendant and his son Eddie came to the door and knocked. The deceased opened the door and let them in. Defendant then began to quarrel with the deceased over the fact that Mr. Henry was sleeping in an adjoining room with the door not locked. Defendant got in bed without removing his clothing and it appeared that they quarreled more or less the remainder of the night. The defendant and his wife and the daughter Beulah and the son Eddie all occupied the same room. The defendant was drinking, but was not drunk. He drank some whisky during the night, but did not threaten to kill his wife that night. He did ask his wife to leave St. Charles and go away with him.
About 4:30 o'clock in the morning the daughter left the room to prepare breakfast, and the deceased started to accompany her, but was held by defendant. After the daughter left the room the defendant fastened the door from the inside by sticking his knife in the jamb. The deceased was heard to tell the defendant that she wanted to get breakfast, because she "wanted to go to work for Bushman's," and the defendant replied that she "would not see Bushman's any more." About five minutes after the daughter left the room, she heard a shot and heard her mother scream. She immediately rushed back into the room. She reached the room just as the second shot was fired. She saw the defendant with one arm around the deceased, with a pistol in his hand pointed at the deceased. Defendant said nothing, but was gritting his teeth and pulling the trigger of the pistol. He fired five shots in all. The daughter grabbed the pistol and received one shot in her arm and leg. In the struggle that ensued the defendant received a wound from one of the bullets. The waist of the deceased was on fire and she took a few steps and fell. The defendant ran from the room, and in a short time, Henry, the boarder, ran out after him. Defendant went immediately to the home of his daughter and son-in-law and said to his daughter,
Shortly after this the defendant was found by the police under the floor of his son-in-law's house. He was brought out and placed under arrest. He had about a pint of whisky and three or four cartridges. At the time of his arrest, the son Eddie said to the defendant: A short time after the defendant was arrested he told his son-in-law that if he (the son-in-law) had not kept the deceased from coming across the river, "possibly it would never have happened."
The wife was taken to the hospital, but died in a few hours from the effects of the bullet wounds. A short time before her death she stated to the people attending her that she had been shot by her husband; and before she was taken to the hospital and while she was at her home, she reached under her pillow and took out a pistol and said that was the gun the defendant used in shooting her. She handed this pistol to the doctor. It was identified and introduced in evidence at the trial.
The attending physician testified that there were three bullet wounds on the deceased's body and that death was due to an internal hemorrhage caused by the bullet wounds.
The evidence on the part of the defense did not undertake to deny the killing, but tended to show that appellant was insane at the time the act was committed. The evidence in this regard tended to show that defendant's father "was never considered very bright" and was peculiar; that defendant's mother thirty-five years ago took to her bed because her husband would not build the kind of a house she wanted and had remained in bed ever since; that defendant had been guilty of petty thievery all his life and had associated with negroes and was frequently seen drinking alcohol and other liquor in alleys and saloons. The children in St. Charles called him "Oats," because it was rumored that at one time he sold oats and put sand in them. In reply to this epithet he would run after children with a club. Some of the witnesses testified that he looked like a "tough" man; that he would stand around the street apparently "not caring whether he stayed in this world or not;" that he quarreled with his bed-ridden mother and would talk...
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