ing been sick since about a month before Christmas. Old man Raphael kept chickens in the garret of his house, to which entrance was gained by means of a ladder from the yard. On the property next north of the Raphael lot a Bohemian tailor, named Rhomatka, and his family, resided; their house fronting on Tenth street alongside of the club building, and their yard extending back along the Raphael home. On the next lot immediately south of the Raphael lot a lady named Ulrick lived. The evidence tends to show that for some time preceding the homicide the defendant, Heusack, had not been on friendly terms with his father-in-law. About six months before he said in a conversation with Henry Bene, "My father-in-❘ law put my wife up so she won't give me no money, and I am going to kill the old son of a bitch one of these days." About two or three weeks before Raphael was killed, Herman Raphael, the grandson, saw the defendant at the Raphael home. On that day the defendant and old man Raphael had a quarrel. The defendant wanted to borrow some money, and Raphael refused to let him have it, and ordered him out of the house, saying in German, "Get out of my house, you damned old drunkard." At another time, about a month before the homicide, Herman complained to the defendant that his grandfather was quarreling with his grandmother, and the defendant said, "If the old son of a bitch was young, he would lick the out of him." On Wednesday morning, March 16, 1904, the day of the murder, Herman Raphael left home about a quarter of 7 and went to his work for the St. Louis Cordage Company, leaving his grandparents alone at their home, his grandfather being up and around, and his grandmother sick in bed. About 3:30 in the afternoon he heard his grandfather had been killed, and immediately returned to his home. The same morning Phillip Bernhard and one or two other members of the club were in the clubrooms, cleaning up the rooms, and making preparations for a box party to be given by the club the following Saturday night. Bernhard saw old man Raphael in the yard in the morning, and talked with him. He saw him again a second time about five minutes before 11 o'clock, as Bernhard was leaving the clubrooms for home, going out the back way to the alley. The defendant testified that he called at the Raphael home between 9 and 10 o'clock in the morning, then went home, and in about three-quarters of an hour returned. As Bernhard was leaving the premises about 11 o'clock, he met the defendant at the alley gate on his way to Raphael's the second time. The defendant asked Bernhard if the old man was home, and, being answered in the affirmative, he went in and Bernhard went home. Mrs. Rhomatka and her daughter-in-law were washing that day. About half past 11 in the morning, while hanging

The

out the clothes in the back yard, adjoining the Raphael home, Mrs. Rhomatka heard a voice coming from the kitchen of the Raphael home, which she understood to be hollering, "Henry, Henry, mamma, dead." This was repeated. She also heard a noise in the same place "just like something was scratching." She immediately called her husband, and he, his 17 year old son, Gus Rhomatka, and his daughter-in-law, Laura Rhomatka, all went out in the yard and listened. four Rhomatkas testified at the trial. The elder Rhomatka and his wife could not speak English, and testified through an interpreter. While there is a slight discrepancy as to the language they heard emanating from the kitchen, there is a substantial concurrence. Gus Rhomatka, who could speak and understand English, testified that the voice screamed, "Oh, mamma, oh mamma, I'm dead," and he also heard a noise "like with his feet kicking on the floor." The Rhomatka family had not lived there long, and was little acquainted with the Raphael family. They knew Mrs. Raphael was sick, and supposed from what they heard that she was dying. A little after 1 o'clock, the elder Rhomatka asked one of the three young men who were in the clubroom if he had heard that old lady Raphael was dead. Thereupon the young man requested Mr. Miller, one of their number, to go and see old Mr. Raphael. Miller knocked on the kitchen door, and, receiving no response, he opened the door, and saw the dead body of the old man lying on the kitchen floor in a pool of blood, a bloody hatchet lying by his side. Miller immediately told his companions, and the three re turned, and together witnessed the evidence of the crime. They found all the inner doors closed, and opened them. Then they gave the alarm, and notified the police.

When found, old man Raphael's body was lying with his face down, the right arm underneath and the left arm extending out with the hatchet across it, his head toward the door of the middle room. The hatchet, which had belonged to old man Raphael, was covered with blood. A chicken, killed by a cut in the back of the head, the way old man Raphael killed chickens, was found in the yard, and the knife with which the chicken was killed was found on the table on the porch, smeared with blood and feathers. The defendant testified on the witness stand that the old man told him when he was there that morning that he was going to kill a chicken.

Dr. Gradwohl testified that he was connected with the coroner's office as post-mortem physician. He performed the autopsy on the body of August Raphael, the deceased, on the 16th of March, 1904. That he was a white man, and looked to be about 70 years of age. The principal injuries were upon the head. Upon the back part of the head were numerous cuts in the scalp-one that run from the top of the back part down

to the right side of the nape of the neck; another one run forward to the right ear, and another one which run to the left ear. Below these the skull was fractured. The back part of the skull was completely caved in, and the brain matter oozed out; and on the left temple a depressed fracture, as if It had been made by some round instrument like the head of a hammer, about two and a quarter inches in diameter; and from this point where the skull was fractured there were lines of fracture leading down to the base of the skull. There were several fingers fractured. The end of the little finger was broken, and the second bone of the second finger. From the character of the wounds, some of them were made with the sharp edge of a dull instrument. The man's death was caused by the fracture of the skull and hemorrhage into the brain. The back of the head was all caved in.

The defendant lived about 11 or 12 blocks from the Raphael home. He went to the Raphael home three times between 9 and 1 o'clock of that day. He testified that he had worked at the arsenal, and that he started for that point between 9 and 10 in the morning, and that his wife told him to stop on the way, and see how her mother was. He went to Raphael's, but did not go to the arsenal. He returned to his home, and in three-quarters of an hour, and after having had five or six drinks of liquor that morning, he again wanted to go to the arsenal, saying to his wife, "I must go to the arsenal to-day, because they are going to start up to-day, and I work there." At 11 o'clock Bernhard met defendant at the alley gate of the Raphael home. The defendant asked Bernhard, "How is the old man in there?" This time, he testified, he remained but a few minutes, but again he went home, and did not go to the arsenal. The third time, about 1 o'clock, he started for the arsenal again. Mrs. Ulrich saw him come down the alley, and when he got to the Raphael gate be stood there awhile and looked in. The defendant testified that his reason for calling on the Raphaels the third time on his way to the arsenal to work was to tell his mother-in-law "that we [meaning his wife and himself] intended to spend the afternoon there"; that when he went in the Raphael home the third time he entered by the front room, and told his mother-in-law that his wife would soon be down; that his motherin-law asked him to go in and see what the old man was doing, as she had not seen him for a long time; and that he went into the kitchen, saw the evidence of the crime, and ran back out of the house and home without ever telling any person of the crime, not even his mother-in-law. Then he said he told his wife what he had seen, and hurried back to the Raphael home, in advance of his wife. When defendant arrived at the Raphael bome the fourth time, he found a number of people gathered at the scene of the crime.

He first asked, "What the hell is the matter here?" and then told the people that he had been there twice that morning, and that "the old man was all right this morning." The police officers soon arrived at the scene. They discovered fresh blood spots on the defendant's ear, neck, cheek, between his fingers, and on his shoes. There is evidence that the defendant stepped in the blood on the floor after the arrival of the police, but the evidence further shows that at that time the blood had dried and stiffened, so that by stepping in it at that time it would not have made the spots upon the person and the shoes of defendant as found thereon. The defendant first denied that there was blood on him, and when they started to take his shoes off he wanted to rub his shoes on his leg. The officers asked the defendant many questions, his name, where he had been, who killed this man, how he got blood stains on his shoes, neck, and ear, to all of which, he either refused to answer or said, "You are smart and wise, go and find out," or "It's none of your business," or "Go find out; that is what you are paid for." The officers thereupon took the defendant in charge, and on the way to the police station Bernhard was in the patrol wagon with defendant, and defendant said to him: "Do not say anything. We will explain it down at the station. These fellows are so wise, let them find out."

At the close of the evidence for the state the defendant demurred to the evidence, which demurrer was overruled by the court, and defendant excepted, and thereupon the defendant went on the witness stand in his own behalf. In addition to the statements of his already noted as to his presence in the house of old man Raphael between 9 and 10 o'clock in the morning and about 10 or 15 minutes to 11, he says he went back to his father-in-law's about 1 o'clock, went into the front room, and saw the old lady first, and told her that her daughter, defendant's wife, would be down in a few minutes. The old lady said to him, "Come in, and see what the old man is doing." That he went into the kitchen, and saw the old man there, and walked up to him, and saw blood all around there, and "I got hold of him, and then I run out as fast as I could, and told my wife something had happened to papa down there. She grabbed a shawl and threw it over her head, and we both went down there. I talked with my father-inlaw nearly every day for the last six months. He always spoke German; called me Heinrich, the German for Henry. I never told Mr. Bene six months ago that I would kill my father-in-law some day, or words to that effect. Never made any threatening remarks of that kind. I heard Herman Raphael testify. Never told him that I would give my father-in-law a beating. My father-in-law and I were the best of friends. I cut my finger on Sunday morning, March

13th, and if there was any blood on my person any place, the only way I can account for it is when I first went in there and tried to pick my father-in-law up." On cross-examination he stated he did not go to the arsenal, but went to Seventh street and Shenandoah. "Met a friend at Seventh, and got as far as Broadway, and I changed my mind, and went back home. Had a couple of drinks on my way back before I went home. Then I wanted to go back to the arsenal, and my wife did not want me to go out of the house, and I said, 'I must go to the arsenal to-day, because they are going to start up to-day.' I worked there. Then I went back to Raphael's the second time. I went down through the alley and into the house. Saw my father-in-law this time. He was in the middle room. I talked with him just a minute. Then I went back home. Did not go to the arsenal. It must have been 10 or 15 minutes to 11 when I got down there this time." Admits he saw Bernhard, and asked him, "How is the old man in there?" Bernhard said, "I do not know." That he just merely asked the question. He went on in, found the old man in there, and the old man told him he was going to kill a chicken, and he asked the old man if he wanted him to take it home, and he answered, "No, Emma would be down there pretty soon, and it will be too much trouble anyway." The defendant asked him to let him take the chicken home, the defendant's wife could fix it up better than he could, and the old man replied, "No, I will attend to it myself," to which defendant said "All right," and then went away. He says: "I guess I closed the door as I went out. I think the old man was in the kitchen. Bought some whisky that morning at Eighteenth and Geyer. I had taken about three or four drinks before I went down there the second time, about five or six drinks in all. Not of whisky. I drank two glasses of beer. Felt the effect of it, but not much." It was a little after 1 o'clock that he discovered the dead body of the old man. "I did not tell any person in the neighborhood when I discovered the old man with his brains knocked out. Did not call the police, or the tailor. I just run home. I did not tell the people there, when I came back, I had been there twice that morning. I did say, 'I saw the old man all right this morning.' Did not tell the officers, when they asked me how I got blood on my face and shoes, that it was none of their business. If I said that, I don't know it." He was asked if he had ever been convicted of a crime, and answered, "No, sir." His counsel objected to this question, and the court ruled he could answer. He then stated: "I was convicted here once in St. Louis, and then pardoned, for a misdemeanor. That was twenty-five or thirty years ago. I never was convicted in Arkansas. I do not know a man by the name of Jas. G. Senate."

Other facts and the objections to the instructions will be noted in the course of the opinion.

1. The heinousness of the crime of which the defendant was found guilty by the jury in the circuit court, and the gravity of the consequences to him alike call for the most serious consideration. The verdict is founded upon circumstantial evidence alone, and the law in such cases is that, in order to sustain a conviction, the facts and circumstances must be established beyond a reasonable doubt, and, when so established, should point so strongly to the guilt of the defendant as to exclude any other reasonable hypothesis. That old man August Raphael was murdered in his own home between the hours of 11 a. m. and 1 p. m. of the 16th of March, 1904, there cannot be, in view of the evidence in the case, a reasonable doubt. The character of the wounds and the nature of the instrument by which they were produced excludes all idea of selfdestruction; and, indeed, the able counsel for the defendant make no claim that the old gentleman came to his death by suicide, and the facts in evidence likewise forbid the conclusion that his death was the result of an accident or mishap. We have, then, the corpus delicti established beyond a reasonable doubt. It remains to be seen whether the evidence on behalf of the state established the criminal agency of the defendant in the perpetration of the crime, for, while it may be conceded that the old gentleman was murdered in his own home, and by a hatchet belonging to him, unless the evidence was such as to justify the jury in reaching the conclusion that the defendant was his murderer, then the conviction ought not to stand. Was there such a failure of testimony on the part of the state? When we consider the age of the deceased-an old man 77 years of age-and his simple life, residing alone with his aged wife and grandson, we naturally look for some motive in the perpetration of the crime. While a want of motive is no excuse for a crime when it is clearly established, it is often said that in a case depending mainly upon circumstantial evidence the want of a motive is an important consideration bearing upon the probability of guilt; but the investigation of human motives has found it to be a matter of great difficulty, and experience shows that aggravated crimes are sometimes committed from very slight causes, and often without any apparent or discoverable motive. The character, instincts, and intents of persons differ so much that what might be an adequate motive for one for a certain act would be none at all for another. In this case the prosecuting officer with commendable diligence brought before the jury all the facts and circumstances obtainable. From this evidence it appears that the old gentleman lived in his little home all alone with his sick wife and a grandson, about 17 years of

age. The evidence discloses beyond a peradventure of a doubt that this grandson did not commit the crime, because he left home early that morning, and his grandfather was seen alive up to about 11 o'clock, and this boy during all that time was engaged in his work with the cordage company, and was there when notified of his grandfather's death. There is nowhere in the whole record any suggestion of any ill will harbored against the old man by any other person than the defendant. The defendant was his son-in-law, and the evidence tends to show that he was addicted to the use of liquor, and that he was more or less thriftless, and had some two or three weeks, prior to the homicide endeavored to borrow some money from the old gentleman, and the old gentleman told him that he did not have any money, and told him "to get out of the yard." Some six months before the homicide the witness Bene testified that the defendant told him that his father-in-law had put his wife up so she would not give him any money, and that he was going to kill the old son of a bitch one of these days. At another time, and about a month before the old man was killed, Herman, the grandson, complained to the defendant that his grandfather was quarreling with his grandmother, and the defendant said, "If the old son of a bitch was young, I would lick him." From these expressions it appears that there was a bad feeling on the part of the defendant toward the old man. The evidence tends strongly to show that after the old man refused to loan money to the defendant, the defendant ceased to visit him; at least he was not known to the neighbors who lived immediately adjoining the old couple. On the day of the homicide it appears that the defendant made three distinct trips to the Raphael home alone. His account of himself and his movements on that day were very unsatisfactory. He started out on each occasion, he says, to go to the arsenal to go to work, and each time landed at the Raphael home, and admits that he never succeeded in reaching the arsenal, although there was nothing to hinder him in so doing. Certain it is that he was the last man seen to go to the Raphael home, and that but a few minutes before the murder must have occurred, keeping in mind the time when he was last seen to go into the Raphael home. The evidence places him there when the Rhomatka family were directed by the voice calling out "Mamma, mamma, I am dead," or "Henry, Henry, mamma, dead," and heard sounds of heavy stamping, and as if some one was scratching within the kitchen. When there is added to the admitted proximity of the defendant to the scene of the tragedy the blood stains on the lobe of the ear, and on his face, hands, and shoes, and the strange story of the defendant that when, at the request of the old lady, he went to the kitchen to see the old gentleman,

and discovered him murdered, he ran out of the house 11 blocks away to his own home without giving any alarm to any of the neighbors or police officers, and without even notifying the wife of the deceased. But this is not all. His conduct and actions when he returned the fourth time to the Raphael home, and found there the neighbors, who had gone, as they supposed to the assistance of the old man, because they believed his wife was dead, was strongly indicative of guilt. According to his own testimony he had been in this house, and knew that his father-in-law lay murdered therein, and yet upon his arrival at the house this time be greeted the assembled neighbors with the query, "What the hell is the matter here?" He then told the people that he had been there twice that morning, and that the old man was all right then. If innocent, and he had discovered the murder of his father-inlaw, a natural sense of horror would have indicated that he should have at once given the alarm to the neighbors, and called the officers of the law to ferret out the murderer. If innocent, why ask what was the matter there, when he saw that the neighbors had discovered the murder of the old man, and were there to render what aid they could to the hapless old wife? If innocent, why should he have dissembled, and stated that he had been there only twice that forenoon, when in fact he had been there threetimes? The presence of fresh blood stains. on the defendant's ear, neck, cheek, fingers, and shoes were physical facts entirely consistent with the theory of the state that he himself was the perpetrator of this murder. If, as the facts tend to indicate, he slew the old man with the hatchet which was there in the kitchen, and which bore the signs of blood and hair upon it, nothing would have been more natural than that the blood from the old man's wounds in the head would have spurted on his face, neck, and hands as he stood close enough with the shorthandled hatchet to inflict the murderous wounds in the head. Unsatisfactory in the extreme was his explanation to the officers of the presence of this blood on his face, ear, and neck. He showed a cut on his right hand, which he said he had received on the previous Sunday, which the officer testified looked like an old cut. His effort to remove the blood from his shoes by attempting to rub his shoes against his pants when the officer started to take his shoes off of him evinced a purpose of obliterating the damning evidence against him, and he betrayed his appreciation of the weight of this evidence when he charged the officers then and there with trying to put up a job on him, because they were endeavoring to preserve the blood stains on the shoes just as they appeared when they arrested him. It was also very significant that he should step into the blood of the murdered man after the officers had arrived at the house, and in this

manner account for the blood upon his person. But unfortunately for him, and fortunately for the state, the blood had then become so dry and stiff that it would no longer spatter when he stepped in it and produce the blood spots which the officer described as splashes, and not thick, congealed blood. But the most unnatural feature in defendant's conduct was the manner in which he treated the officers when they were inquiring for evidence upon which to apprehend the murderer of his father-in-law. Instead of gladly rendering any and all assistance to enable them to ascertain who the murderer was, and willingly giving them all the information as to his relation to the old man, and when he had last seen him alive, and under what circumstances, strange enough he answered them, "You are smart and wise; go and find out who murdered him," and to another, "It is none of your business," and still to another, "Go find out; that is what you are paid for." Nor did he cease at this. As he rode to the police station with young Bernhard he cautioned him to say nothing, saying, "These fellows are so wise, let them find out." These expressions to the officers have none of the earmarks of innocence. They disclose none of that natural anxiety to discover the murderer of his wife's father, whose cruel taking off would have aroused a natural desire on his part to see the murderer caught and punished; on the contrary, evinced a mind and heart devoid of natural affection, and insensible to the enormity of the crime that had been committed. Doubtless it appeared to the jury that these speeches sprang from the sense of guilt and a desire to thwart the discovery of the murderer, and that one related as the defendant was to this old man, who could indulge in such conduct toward the officers of the law, would have had little hesitation in doing the murder himself if an opportunity presented itself. He utterly and insolently refused to render any assistance toward the apprehension of the guilty party, and obstructed every effort of the officers in their investigation. With this array of facts and circumstances before them, and with the additional advantage of seeing and observing the witnesses and their manner of testifying, it cannot be said that the jury were not authorized to find a state of facts beyond a reasonable doubt which were not only consistent with and attended with all reasonable certainty to point to the defendant as the person who killed August Raphael; and when such a state of evidence appears it is not the province of this court to substitute its judgment for that of the jury and direct an acquittal. On the contrary, the rule is too well established to require a citation of authorities that if there is substantial evidence to uphold the verdict, this court will not interfere with it.

2. Among other errors assigned, defendant complains of the cross-examination of the de

fendant. In his cross-examination counsel for the state inquired of defendant, "Have you ever been convicted of a crime?" to which the defendant answered: "I was convicted here once in St. Louis of a misdemeanor, and was pardoned. That was twenty-five. or thirty years ago. Q. Have you ever been convicted but that once? A. That is all. Q. Were you ever convicted in Arkansas? A. No, sir. Q. Did you ever know a man in Arkansas by the name of Jas. G. Senate? A. No, sir. Q. Were you in Arkansas about '86? Counsel for the Defendant: I object to that question as being incompetent and immaterial. It throws no light on this transaction at all. The Court: I do not know the purpose of it. Counsel for the State: The purpose of it is to continue on the question I asked him about this man Senate, and with reference to that conviction I asked him about in Arkansas. The Court: He may answer the question"-to which ruling the defendant duly excepted. It is insisted that this examination was highly prejudicial, and that the explanation of its purpose was but a clever charging that the accused was convicted in Arkansas. In connection with this assignment the defendant complains of instruction No. 6, which reads: "You are further instructed that you are to consider the evidence which was introduced tending to prove that the defendant was previously convicted of a criminal offense solely for the purpose of discrediting defendant as a witness, and you are not to consider that evidence as bearing upon the question of his guilt of the crime charged in the indictment herein. And you should not permit that evidence to influence you against defendant." It is urged that the effect of this instruction was to cause the jury to believe the defendant had been convicted of a criminal offense in Arkansas, when in truth there was no evidence offered to prove that he was thus convicted. There was no error in permitting the state to inquire of the defendant, after he had become a witness in his own behalf, whether he had ever been convicted of a criminal offense. Section 4680, Rev. St. 1899, expressly provides that such conviction may be proved to affect his credibility by his own crossexamination. And it was ruled in this court in State v. Blitz, 171 Mo., loc. cit. 540, 71 S. W. 1027, that a conviction of a misdemeanor might be shown in this manner, as well as of felony. And that ruling was approved in State v. Thornhill, 174 Mo. 370, 74 S. W. 832. Now, in this case the question sought to elicit proof of a prior conviction resulted in showing the defendant had been convicted of a misdemeanor in St. Louis some 25 years before the trial. All questions as to the conviction in Arkansas were answered in the negative, and no attempt was made to contradict the defendant as to them. The state had the right to ask the question, and, having received an unfavorable answer, its tendency was to injure the state, and establish there had