The State v. Henke

• Citation: 285 S.W. 392,313 Mo. 615
• Parties: THE STATE v. HARRY A. HENKE, Appellant
• Decision Date: 05 April 1926
• Court: United States State Supreme Court of Missouri

285 S.W. 392

313 Mo. 615

THE STATE v. HARRY A. HENKE, Appellant

Supreme Court of Missouri

April 5, 1926

Appeal from St. Louis County Circuit Court; Hon. John W McElhinney, Judge.

Affirmed.

A E. L. Gardner for appellant.

(1) The evidence is insufficient to support the verdict of the jury and to authorize the conviction of defendant of murder in the second degree, and the instruction directing the acquittal of the defendant of the charge against him, in the nature of a demurrer offered and requested by the defendant at the close of the State's case, should have been given. State v Crabtree, 170 Mo. 657; State v. Gordon, 199 Mo. 596; State v. Francis, 199 Mo. 693; State v. Bass, 251 Mo. 107; State v. Johnson, 209 Mo. 357; State v. Scott, 177 Mo. 673; State v. King, 174 Mo. 662; State v. Frisby, 204 S.W. 3; State v. Larkin and Harris, 250 Mo. 234. (2) The conduct of the special prosecutor was highly reprehensible and prejudicial, not only in constantly exhibiting to the jury a blood-stained garment found upon the deceased after the murder, but the blood-stained sheets and pillow cases whereon she lay when found, and also the skull of the deceased. State v. Pearson, 270 S.W. 347. (3) The action of the prosecuting attorney and special prosecutor in requiring the sheriff to call, within the hearing of the jury as well as outside the jury room, the name of Marie Burke, was highly prejudicial and was done merely to impress the jury that Marie Burke was a paramour of defendant, when, in fact, no such person had been subpoenaed by the State and no such person was known to be in attendance at the trial of the case. State v. Burns, 228 S.W. 768; State v. Lasson, 292 Mo. 168. (4) The court erred in permitting the special prosecutor, over the objection of defendant, to argue to the jury that defendant was guilty of the crime of adultery, as a motive for the crime charged against the defendant, when there was no evidence in the case authorizing such an argument. State v. Lasson, 292 Mo. 172. (5) The failure by the State to show motive on the part of defendant to commit the crime charged against him authorizes his acquittal. State v. Francis, 199 Mo. 671; State v. Wheaton, 221 S.W. 26.

North T. Gentry , Attorney-General, and Harry L. Thomas, Special Assistant Attorney-General, for respondent; Robert A. Roessel of counsel.

(1) The corpus delicti was clearly proven. The dead woman was found under circumstances which indicated most clearly that she had met her death by a murderous weapon in the hands of some person. State v. Hall, 231 S.W. 1004; State v. Cox, 264 Mo. 408; State v. Schyhart, 199 S.W. 211. Circumstantial evidence is sufficient to support a conviction for murder. State v. Concelia, 250 Mo. 411; State v. Barrington, 198 Mo. 110. There are no hard and fast rules as to the sufficiency of the evidence to support a conviction as in the present case, but each case must be determined in the light of its own facts. State v. Bowman, 294 Mo. 259. The evidence was sufficient. State v. Barrington, 198 Mo. 110; State v. Hall, 231 S.W. 1001; State v. Poor, 228 S.W. 812; State v. Concelia, 250 Mo. 411; State v. Bowman, 294 Mo. 245. The body was carefully laid out upon the bed with the instrument with which she was evidently murdered by her side. If the deceased was killed in the house by one unfamiliar with the neighborhood, the act would be characterized by haste and her body would have been found where she was felled. State v. Wheaton, 221 S.W. 31. (2) The record shows the skull of deceased was introduced in evidence without objection or exception, and if exhibited in the final argument no objection thereto was made. State v. Lloyd, 263 S.W. 214. (3) Articles found in search of defendant's house during his absence were admissible and were competent evidence to show blood stains on garments shown by evidence to be the defendant's. State v. Hall, 231 S.W. 1004. Further, the bloody clothing admitted in evidence was not objected to for the reason now assigned, and no objection was made to the exhibition of such articles if they were exhibited in final argument. Objection made related only to the circumstances under which these articles were found. (4) Appellant's assignment of error in permitting the calling in court of the name of an absent witness is not for review, there being no objection made or exception saved in this regard. (5) It was not improper for counsel to suggest the defendant guilty of adultery, there being competent evidence from which this conclusion might reasonably be drawn. Conclusions in accord with the evidence and to be reasonably inferred therefrom, may be stated. State v. Peak, 292 Mo. 249; State v. Gallagher, 222 S.W. 468. (6) The good reputation of the defendant for being a man of good habits having been placed in issue, it was proper for the prosecuting attorney to inquire if the witness knew of the defendant's association with other women. State v. Cooper, 271 S.W. 472; State v. Gurnee, 274 S.W. 60. (7) There was no request for such an instruction or objection or exception to the failure of the court to so instruct. Further, there was no evidence to support such an instruction, the final argument upon which the claim for such an instruction is now based not being made until after the jury was instructed. State v. Boston, 256 S.W. 744; State v. Burrell, 298 Mo. 672; State v. Harp, 267 S.W. 846. (8) The unsworn statement alleging newly-discovered evidence was insufficient. State v. Nickens, 122 Mo. 607; State v. Smith, 247 S.W. 157; State v. Whitsett, 232 Mo. 511; State v. Estes, 209 Mo. 288; State v. Church, 199 Mo. 605; State v. Speritus, 191 Mo. 24; Mahany v. Rys. Co., 286 Mo. 601; State v. Emmons, 285 Mo. 54; State v. Hewitt, 259 S.W. 782; State v. Wilson, 223 Mo. 173; State v. Flutcher, 166 Mo. 582; State v. Neasby, 188 Mo. 467; State v. Bowman, 161 Mo. 88; State v. Walker, 232 Mo. 252; State v. McCullough, 171 Mo. 571. The trial court must have found, from all the evidence, that the newly-discovered evidence would not probably cause a different result and the finding upon this point is largely a question for the trial court. Where there is not a probability of a different finding, the refusal to grant a new trial upon newly-discovered evidence is not error. State v. Smith, 247 S.W. 158; State v. Finn, 199 Mo. 597; State v. Rippey, 228 Mo. 342; State v. McLaughlin, 27 Mo. 111. Further, the newly-discovered evidence, as outlined by affidavits filed, was either pure hearsay or of an impeaching nature.

OPINION

Blair, J.

Appellant was charged with murder in the first degree for the alleged killing of his wife. The jury found him guilty of murder in the second degree and assessed his punishment at imprisonment in the penitentiary for twenty years. He was sentenced upon such verdict and has appealed to this court.

As the evidence was wholly circumstantial and the chief contentions of appellant are that the evidence did not make a case for the jury and that the trial court should have instructed the jury to find appellant not guilty, the facts developed by the evidence should be fully stated in order to dispose of such contentions intelligently.

At about six o'clock P. M., July 11, 1924, appellant's wife, Marie Henke, was found dead in her bed. The cause of death was a blow on the head with some blunt instrument. There was no direct proof concerning the identity of the person who caused her death. Appellant was twenty-five years old. His wife, to whom we will frequently refer as "deceased," was twenty-four years old. They had been married about two years. They lived at 1721 Beulah Place in Richmond Heights, St. Louis County, in the home owned by Joseph Yost. Mrs. Yost was the mother of deceased. Lucille, a ten-year-old daughter of Yost and wife, lived with her parents. Edward Meister and wife also lived in the same house. Joseph Yost, the appellant and the deceased worked in St. Louis. At the time in question, Mrs. Yost, Lucille Yost and Mrs. Meister were visiting in Seattle, Washington. Meister was a traveling salesman and was then in Cincinnati, Ohio. This left Joseph Yost, appellant and his wife as the only occupants of the home on July 10th and 11th. The house was on the west side of the street, facing the east. Appellant and deceased occupied the southeast front bedroom on the second floor and Yost the southwest bedroom on the same floor. A small hall leading to the stairs connected these two rooms.

On the night of July 10th Mrs. Thompson, who lived directly across the street, and Mrs. Manahan visited the Henkes. Mrs. Thompson went home about 10:20 P. M. About 10:30 P. M., appellant and the deceased accompanied Mrs. Manahan four or five blocks, where she boarded a street car to ride to her home. A pleasant evening had been spent. Ice cream and cake were served. Joseph Yost was at home during the evening. After locking the rear door of the house, he had retired while appellant and deceased were accompanying Mrs. Manahan to the street-car line.

Two closets opening into the respective bedrooms separated the room occupied by Yost from the room occupied by appellant and his wife. Yost heard them return to the house, but did not hear them go upstairs. He left his door leading into the hall partly open. He heard nothing during the night. With the exception of appellant, Mrs. Manahan was the last person known to have seen Mrs. Henke alive.

On the morning of July 11th Yost arose at about 5:15 o'clock. As he passed down stairs he observed that the door to the Henke bedroom was open. He glanced in, but his view included only the lower end of the bed. He then saw the covered-up forms of the lower limbs of two persons lying on the bed. He went down stairs, went out in the back yard and attended to his...