The State v. Schaefer

• Decision Date: 16 May 1893
• Citation: 22 S.W. 447,116 Mo. 96
• Parties: The State v. Schaefer, Appellant
• Court: Missouri Supreme Court

22 S.W. 447

116 Mo. 96

The State v. Schaefer, Appellant

Supreme Court of Missouri, Second Division

May 16, 1893

Appeal from St. Louis Criminal Court. -- Hon. James C. Normile Judge.

Affirmed.

Dodge & Mulvihill for appellant.

(1) The verdict of the jury is greatly against the weight of the evidence. There was no testimony in rebuttal. State v Carver, 30 P. 315 (Ore.) ; State v. Lowe, 93 Mo. 547; State v. Nelson, 98 Mo. 415; Green v State, 20 S.W. 712; McLeod v. State, 20 S.W. 749. (2) The affidavits were admissible to correct a mistake on part of the jury, and must be considered by court, and given such weight and credence as seems just and equitable. Crawford v. State, 2 Yerger (Tenn.) 60; State v. McNamara, 100 Mo. 100; Wade v. Ordway, 1 Baxter (Tenn.) 229; Broty v. State, 4 Yerger (Tenn.) 114; Roeder v. Studt, 12 Mo.App. 566; Hudson v. State, 9 Yerger (Tenn.) 408; Bennett v. Baker, 1 Hun 395; Elledge v. Todd, 1 Hun 43; Moffett v. Bowman, 6 Grattan, 219; Wright v. Tel. Co., 20 Iowa 195. (3) The court erred in not fully instructing the jury on the law as applicable to the case. In this case the burden of proof was on the state to show a lucid interval. Habitual, permanent or chronic state of insanity being shown to exist, its continued existence will be presumed, and the burden of establishing a subsequent lucid interval at the time of the act, either civil or criminal, being done, rests on the state. State v. Lowe, 93 Mo. 547, and cases cited; McLeod v. State, 20 S.W. 749, and cases cited; State v. Klinger, 43 Mo. Mo. 127; Chamberlayne's Best's Evidence, sec. 405; Menkins v. Lightner, 18 Ill. 282; Fisher v. People, 23 Ill. 283; Trish v. Newell, 62 Ill. 196; Titcomb v. Vantyle, 84 Ill. 371; Guild v. Hull, 127 Ill. 523.

R. F. Walker, Attorney General, and C. O. Bishop for the state.

(1) The evidence presented but two theories; either a killing in cold blood, or the act of a madman wholly irresponsible. Both were presented to the jury in instructions which have received the unqualified approval of this court since its organization. (2) The alleged newly discovered evidence is merely cumulative, and is not supported by the affidavit of the newly discovered witness himself. State v. Ray, 53 Mo. 345; State v. Welsor (Mo.) decided February 14 (not yet reported). Nor by defendant's affidavit. State v. McLaughlin, 27 Mo. 111. (3) Jurors will not be permitted to impeach their own verdicts. State v. Branstetter, 65 Mo. 149; State v. Shock, 68 Mo. 552; State v. McNamara, 100 Mo. 100; State v. Rush, 95 Mo. 199. (4) Affidavits of counsel, or other persons, of the misconduct of the jury, upon information derived from particular jurors, will not be heard to impeach the verdict. Thompson and Merriam on Juries, sec. 445; State v. Dieckmann, 11 Mo.App. 538; affirmed, S. C., 75 Mo. 570; State v. Rush, 95 Mo. 199; State v. Dunn, 80 Mo. 681; State v. Cooper, 85 Mo. 256.

OPINION

Burgess, J.

Upon an indictment for murder in the first degree the defendant was convicted at the May term, 1891, of the St. Louis criminal court, and is now under sentence of death. He was charged with having, in the city of St. Louis, on September 21, 1890, shot and killed one Henry Grattan, with a pistol. The defense was insanity.

The testimony on behalf of the state was substantially as follows: Deceased was twenty-one years of age and a painter by trade. On the day of the homicide (Sunday), at about 6:30 o'clock in the evening, deceased and one Bentley went to defendant's residence. The three had been together during the afternoon and had made an engagement to go in company to a theatre that night. Defendant lived with his father and mother upon the second floor of a tenement building. Their apartments opened upon a rear porch overlooking a court or yard, to which access was had from the street through a covered hallway, a narrow passage between and under adjacent buildings. Bentley and Grattan entered this hallway, passed through into the yard and to the stairway leading to Schaefer's rooms. They called out, "O, George!" "O, George!" Defendant came out on the porch and looked over. As he did so, the other young men, supposing he would immediately join them, started back through the hallway to the street and reached the sidewalk, but had hardly done so when defendant stepped briskly from the hallway and raising his hand, with a pistol in it, shot Grattan through the head. Bentley cried out: "Schaefer, you son of a bitch, you have killed Henry Grattan." Defendant ran back into the hallway, while Grattan fell upon the pavement without a word and expired.

It appeared that defendant was very fond of the theater and of sensational literature, and had written the draft of a play involving an abduction, robbery, murder, and the accusation and acquittal of an innocent party. He wished to produce this play, act one of the parts, and had solicited the co-operation of Bentley and Grattan and a third young man named Griffin. He had read the play to them, designated their parts and given them some articles for "makeup," to Griffin a pistol and a wig or false beard, and to Bentley and Grattan each a dirk or dagger. The young men had sold the weapons because (as they said) they were afraid of being arrested for carrying them. This was known to defendant on the day of the homicide.

One witness for the state (Keough) testified that when Schaefer was called he came out upon the porch and looked over (the balustrade) to where Bentley and Grattan stood, and then went back into the house before going down stairs; that he raised the pistol and shot Grattan without a word, and then ran back through the hall-way. About an hour and a half after the shooting defendant was brought to the police station by a man, supposed at that time to be his father, and surrendered to the officers.

The testimony on the part of the defense tended to show that defendant had received some injury on the head in childhood; had differed somewhat from other children; when at school, though proficient in other branches, "lacked judgment" in mathematics; was given to the reading of "wild west" literature, and full of the idea of becoming an Indian brave; was fond of the theater, devoted a good deal of his time to the elaboration of his play; claimed to possess some magical powers for raising the devil; sometimes arrayed himself in wild west costume, with high boots, and let his hair grow long; it was claimed that he had at one time been addicted to self-abuse, but there was no evidence of it other than his own statement that he had consulted a physician for it and been cured. It was shown that defendant had worked very steadily at his trade for several years, earned fair wages, and was a competent mechanic in his particular line of work.

The father of defendant testified in his behalf regarding his conduct and conversation preceding the shooting, and as the controversy in this appeal is mainly over this testimony, it is here set out at some length:

Joseph Schaefer, father of the defendant, stated that he lived at 1116 Cass avenue for about fourteen years; that his former occupation was that of a painter; that he was at home on the evening of September 21, 1890, and that George came home about six P. M. and ate supper with himself and wife. "After supper, and while I was eating yet, he was singing and we were enjoying ourselves right nice. While eating I heard some whistles, and afterwards I heard some names called. I don't hear good as I am deaf in my left ear. As soon as they hollored out at him I heard my wife say, 'George, they don't mean you, they mean George Geiss on the third floor; don't you go down.' The hollering was kept up and my wife went out on the porch, and when she came in I heard the gate slam, and my wife said, 'Oh, my God, now they have taken that foolish boy away.' He went down; I did not see him going down. He always lived with my wife and myself; he was over twenty years old.

"Q. Were you of the opinion that George was of unsound mind? A. Well, yes, sir.

"By the Court. What peculiarities of his have you noticed upon which you base your opinion? A. Well, all the time wild talk and wild actions; then of course we had to take him almost like a child.

"Q. Do you know whether or not he (George) was addicted to the habit of self-abuse? A. I did not know it at the time, but I found it out afterwards. I found it out after he went to doctoring for it. He was being treated by a physician, and I found it out.

"Q. Can you tell us of anything else he would indulge in that led you to believe he was out of his mind? A. Well, I noticed him at first when he -- about the hair; he didn't want to have hair on his eyebrows, and he went to pull it out, and he wanted to get the hair out all together; he didn't want to have no beard on; he talked queerly; get up on a chair and say, that is just the size he want to be, just like the shadow; he wanted nine foot; and then he talk like he wanted to build castles and buy O'Fallon Park, and build a castle on it; he want to buy the Visitation convent and build a big college, and then to learn the doctors.

"He wanted to build a big college, and a hospital where the Visitation convent is, and to endow it with about one million, or one and one-half millions to run it. He want to cure all sickness, leprosy, and all sickness that was going on. He wanted to learn the doctors to treat all those, and then get medicine out. He was going to teach the doctors himself. When he was vexed he was wild all the time then.

"He wanted to unite all the Indians, north and south, altogether against the whites, to kill the whites; that the white race was no good; that the Indians would not molest or tease anybody. He all the time, whatever plan he had, he all the time...