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ing been sick since about a month before out the clothes in the back yard, adjoining Christmas. old man Raphael kept chickens the Raphael home, Mrs. Rhomatka beard a in the garret of his house, to which entrance voice coming from the kitchen of the Rawas gained by means of a ladder from the phael home, which she understood to be holyard. On the property next north of the lering, "Henry, Henry, mamma, dead." This Raphael lot a Bohemian tailor, named Rho- was repeated. She also heard a noise in the matka, and his family, resided; their house same place “just like something was scratchfronting' on Tenth street alongside of the ing." She immediately called her husband, club building, and their yard extending back and he, his 17 year old son, Gus Rhomatka, along the Raphael home. On the next lot and his daughter-in-law, Laura Rhomatka, immediately south of the Raphael lot a lady all went out in the yard and listened. The named Ulrick lived. The evidence tends to i four Rhomatkas testified at the trial. The show that for some time preceding the homi- elder Rhomatka and his wife could not speak cide the defendant, Heusack, had not been English, and testified through an interpreter. on friendly terms with his father-in-law. While there is a slight discrepancy as to the About six months before he said in a con- language they heard emanating from the versation with Henry Bene, "My father-in- kitchen, there is a substantial concurrence. la put my wife up so she won't give me no Gus Rhomatka, who could speak and undermoney, and I am going to kill the old son stand English, testified that the voice screamof a bitch one of these days.” About two ed, “Oh, mamma, oh mamma, I'm dead," and or three weeks before Raphael was killed, he also heard a noise “like with his feet Herman Raphael, the grandson, saw the de- kicking on the floor.” The Rhomatka famfendant at the Raphael home. On that day ily had not lived there long, and was little the defendant and old man Raphael had a acquainted with the Raphael family. They quarrel. The defendant wanted to borrow knew Mrs. Raphael was sick, and supposed some money, and Raphael refused to let him from what they heard that she was dying. have it, and ordered him out of the house, A little after 1 o'clock, the elder Rhomatka saying in German, "Get out of my house, asked one of the three young men who were you damned old drunkard.” At another in the clubroom if he had heard that old lady time, about a month before the homicide, Raphael was dead. Thereupon the young Herman complained to the defendant that man requested Mr. Miller, one of their numhis grandfather was quarreling with his ber, to go and see old Mr. Raphael Miller grandmother, and the defendant said, “If knocked on the kitchen door, and, receiving the old son of a bitch was young, he would no response, he opened the door, and saw lick the out of him.” On Wednesday the dead body of the old man lying on the morning, March 16, 1904, the day of the kitchen floor in a pool of blood, a bloody murder, Herman Raphael left home about a hatchet lying by his side. Miller immediatequarter of 7 and went to his work for the ly told his companions, and the three re St. Louis Cordage Company, leaving his turned, and together witnessed the evidence gr dparents alone at their home, his grand- of the crime. They found all the inner father being up and around, and his grand- doors closed, and opened them. Then they mother sick in bed. About 3:30 in the aft- gave the alarm, and notified the police. ernoon he heard his grandfather had been When found, old man Raphael's body was killed, and immediately returned to his | lying with his face down, the right arm unhome. The same morning Phillip Bernhard derneath and the left arm extending out with and one or two other members of the club the hatchet across it, his head toward the were in the clubrooms, cleaning up the door of the middle room. The hatchet, rooms, and making preparations for a box which had belonged to old man Raphael, party to be given by the club the following was covered with blood. A chicken, killed Saturday night. Bernhard saw old man by a cut in the back of the head, the way Raphael in the yard in the morning, and talk- old man Raphael killed chickens, was found ed with him. He saw him again a second in the yard, and the knife with which the time about five minutes before 11 o'clock, as chicken was killed was found on the table Bernhard was leaving the clubrooms for on the porch, smeared with blood and feathhome, going out the back way to the alley. ers. The defendant testified on the witness The defendant testified that he called at the stand that the old man told him when he Raphael home between 9 and 10 o'clock in was there that morning that he was going the morning, then went home, and in about to kill a chicken. three-quarters of hour returned. As Dr. Gradwohl testified that he was conBernhard was leaving the premises about 11 nected with the coroner's office as post-moro'clock, he met the defendant at the alley tem physician. He performed the autopsy gate on his way to Raphael's the second on the body of August Raphael, the deceastime. The defendant asked Bernhard if the ed, on the 16th of March, 1904. That he old man was home, and, being answered in was a white man, and looked to be about the affirmative, he went in and Bernhard 70 years of age. The principal injuries were went home. Mrs. Rhomatka and her daugh- upon the head. Upon the back part of the ter-in-law were washing that day. About head were numerous cuts in the scalp-one half past 11 in the morning, while hanging that run from the top of the back part down

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to the right side of the nape of the neck; He first asked, "What the hell is the matanother one run forward to the right ear, ter here?” and then told the people that he ad another one which run to the left ear. had been there twice that morning, and that Below these the skull was fractured. The “the old man was all right this morning." back part of the skull was completely caved The police officers soon arrived at the scene, 1, and the brain matter oozed out; and on They discovered fresh blood spots on the the left temple a depressed fracture, as if defendant's ear, neck, cheek, between his it had been made by some round instrument fingers, and on his shoes. There is evidence like the bead of a hammer, about two and that the defendant stepped in the blood on a quarter inches in diameter; and from this the floor after the arrival of the police, but point where the skull was fractured there the evidence further shows that at that Fere lines of fracture leading down to the time the blood had dried and stiffened, so base of the skull. There were several fin- that by stepping in it at that time it would gas fractured. The end of the little finger not have made the spots upon the person and was broken, and the second bone of the sec- the shoes of defendant as found thereon. oud finger. From the character of the The defendant first denied that there was Founds, some of them were made with the blood on him, and when they started to take sharp edge of a dull instrument. The man's his shoes off he wanted to rub his shoes on death was caused by the fracture of the his leg. The officers asked the defendant skull and hemorrhage into the brain. The many questions, his name, where he had been, back of the head was all caved in.

who killed this man, how he got blood stains The defendant lived about 11 or 12 blocks on his shoes, neck, and ear, to all of which, from the Raphael home. He went to the he either refused to answer or said, "You Rapbael home three times between 9 and are smart and wise, go and find out,” or “It's 1 o'clock of that day. He testified that he none of your business," or "Go find out; had worked at the arsenal, and that he that is what you are paid for." The officers started for that point between 9 and 10 in thereupon took the defendant in charge, and the morning, and that his wife told him to on the way to the police station Bernhard stop on the way, and see how her mother was in the patrol wagon with defendant, and was. He went to Raphael's, but did not go defendant said to him: “Do not say any. to the arsenal. He returned to his home, thing. We will explain it down at the staand in three-quarters of an hour, and after tion. These fellows are so wise, let them baring bad five or six drinks of liquor that find out." morning, he again wanted to go to the ar- At the close of the evidence for the state senal, saying to his wife, “I must go to the the defendant demurred to the evidence, arsenal to-day, because they are going to start which demurrer was overruled by the court, up to-day, and I work there." At 11 o'clock and defendant excepted, and thereupon the Bernhard met defendant at the alley gate defendant went on the witness stand in his of the Raphael bome. The defendant asked own behalf. In addition to the statements Bernhard, "How is the old man in there?"' of bis already noted as to his presence in This time, he testified, he remained but a the house of old man Raphael between 9 and few minutes, but again he went home, and 10 o'clock in the morning and about 10 or did not go to the arsenal. The third time, 15 minutes to 11, he says he went back to about 1 o'clock, he started for the arsenal his father-in-law's about 1 o'clock, went into again. Mrs. Ulrich saw him come down the the front room, and saw the old lady first, alley, and when he got to the Raphael gate and told her that her daughter, defendant's be stood there awhile and looked in. The wife, would be down in a few minutes. The defendant testified that his reason for calling old lady said to him, “Come in, and see on the Raphaels the third time on his way what the old man is doing.” That he went to the arsenal to work was to tell his moth- into the kitchen, and saw the old man there, er-in-law "that we (meaning his wife and and walked up to him, and saw blood all himself] intended to spend the afternoon around there, and "I got hold of him, and there”; that when he went in the Raphael then I run out as fast as I could, and told bome the third time he entered by the front my wife something had happened to papa room, and told his mother-in-law that his down there. She grabbed a shawl and wife would soon be down; that his mother- threw it over her head, and we both went in-law asked him to go in and see what the down there. I talked with my father-inold man was doing, as she bad not seen him law nearly every day for the last six months. for a long time; and that he went into the He always spoke German; called me Heinkitchen, saw the evidence of the crime, and rich, the German for Henry. I never told ran back out of the house and home without Mr. Bene six months ago that I would kill erer telling any person of the crime, not even my father-in-law some day, or words to his mother-in-law. Then he said he told his that effect. Never made any threatening wife what he had seen, and hurried back to remarks of that kind. I heard Herman Rathe Raphael home, in advance of his wife. phael testify. Never told him that I would When defendant arrived at the Raphael give my father-in-law a beating. My fabome the fourth time, he found a number ther-in-law and I were the best of friends. of people gathered at the scene of the crime. I cut my finger on Sunday morning, March 13th, and if there was any blood on my Other facts and the objections to the inperson any place, the only way I can ac- structions will be noted in the course of the count for it is when I first went in there and opinion, tried to pick my father-in-law up.” On 1. The heinousness of the crime of whicb cross-examination he stated he did not go to the defendant was found guilty by the jury the arsenal, but went to Seventh street and in the circuit court, and the gravity of the Shenandoah. "Met a friend at Seventh, and consequences to him alike call for the most got as far as Broadway, and I changed my serious consideration. The verdict is foundmind, and went back home. Had a couple ed upon circumstantial evidence alone, and of drinks on my way back before I went the law in such cases is that, in order to home. Then I wanted to go back to the sustain a conviction, the facts and circumarsenal, and my wife did not want me to go stances must be established beyond a reaout of the house, and I said, 'I must go to sonable doubt, and, when so established, the arsenal to-day, because they are going should point so strongly to the guilt of the to start up to-day. I worked there. Then defendant as to exclude any other reasonI went back to Raphael's the second time. able hypothesis. That old man August RaI went down through the alley and into the plael was murdered in his own home behouse. Saw my father-in-law this time. He tween the hours of 11 a. m. and 1 p. m. of was in the middle room. I talked with him the 16th of March, 1904, there cannot be, in just a minute. Then I went back home. view of the evidence in the case, a reasonDid not go to the arsenal. It must have able doubt. The character of the wounds been 10 or 15 minutes to 11 when I got down and the nature of the instrument by which there this time." Admits he saw Bern- they were produced excludes all idea of selfbard, and asked him, “How is the old man in destruction; and, indeed, the able counsel there?" Bernhard said, "I do not know." for the defendant make no claim that the That he just merely asked the question. He old gentleman came to his death by suicide, went on in, found the old man in there, and and the facts in evidence likewise forbid the the old man told him he was going to kill a conclusion that his death was the result of chicken, and he asked the old man if he an accident or mishap. We have, then, the wanted him to take it home, and he an. corpus delicti established beyond a reasonswered, “No, Emma would be down there able doubt. It remains to be seen whether pretty soon, and it will be too much trouble the evidence on behalf of the state estab anyway." The defendant asked him to let lished the criminal agency of the defendant him take the chicken home, the defendant's in the perpetration of the crime, for, wbile wife could fix it up better than he could, it may be conceded that the old gentleman and the old man replied, “No, I will attend was murdered in his own home, and by a to it myself," to which defendant said "All hatchet belonging to him, unless the evi. right," and then went away. He says: “I dence was such as to justify the jury in guess I closed the door as I went out. I reaching the conclusion that the defendant think the old man was in the kitchen, was his murderer, then the conviction ought Bought some whisky that morning at Eight

not to stand. Was there such a failure of eenth and Geyer. I had taken about three testimony on the part of the state? When or four drinks before I went down there the we consider the age of the deceased-an old second time, about five or six drinks in all. man 77 years of age—and his simple life, Not of whisky. I drank two glasses of beer. | residing alone with his aged wife and grandFelt the effect of it, but not much." It was son, we naturally look for some motive in the a little after 1 o'clock that he discovered the perpetration of the crime. While a want of dead body of the old man. “I did not tell inotire is no excuse for a crime when it is any person in the neighborhood when I dis- clearly established, it is often said that in a covered the old man with his brains knocked case depending mainly upon circumstantial out. Did not call the police, or the tailor. evidence the want of a motive is an imI just run home. I did not tell the people portant consideration bearing upon the probthere, when I came back, I had been there ability of guilt; but the investigation of butwice that morning. I did say, 'I saw the man motives has found it to be a matter of old man all right this morning. Did not great difficulty, and experience shows that tell the officers, when they asked me how I aggravated crimes are sometimes committed got blood on my face and shoes, that it was from very slight causes, and often without none of their business. If I said that, I any apparent or discoverable motive. The don't know it." He was asked if he had character, instincts, and intents of persons ever been convicted of a crime, and answer- differ so much that what might be an adeed, "No, sir." His counsel objected to this quate motive for one for a certain act would question, and the court ruled he could an- be none at all for another. In this case the Swer. He then stated: “I was convicted prosecuting officer with commendable dilihere once in St. Louis, and then pardoned, gence brought before the jury all the facts for a misdemeanor. That was twenty-five and circumstances obtainable. From this or thirty years ago. I never was convicted evidence it appears that the old gentleman in Arkansas. I do not know a man by the lived in his little home all alone with his l'ame of Jas. G. Senate."

sick wife and a grandson, about 17 years of

age. The evidence discloses beyond a peradrenture of a doubt that this grandson did Dot commit the crime, because he left home early that morning, and his grandfather was seen alive up to about 11 o'clock, and this boş 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 tad some two or three weeks, prior to the tomicide 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 inonths 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 mones, 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 bimself and bis movements on that day were Tery 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 seed 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 #ben, 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 bad 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 three times? 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 bis 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 bad arrived at the house, and in this

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manner account for the blood upon his per- fendant. In his cross-examination consel son. But unfortunately for him, and for- for the state inquired of defendant, "Dave tunately for the state, the blood had then you ever been convicted of a crime? become so dry and stiff that it would no which the defendant answered: “I was

CODlonger spatter when he stepped in it and victed here once in St. Louis of a misdem

eanproduce the blood spots which the officer or, and was pardoned. That was twenty

-five described as splashes, and not thick, congeal- or thirty years ago. Q. Have you ever been ed blood. But the most unnatural feature in convicted but that once? A. That is all. Au defendant's conduct was the manner in Were you ever convicted in Arkansas ? A. which he treated the officers when they were No, sir. Q. Did you ever know a man in inquiring for evidence upon which to appre- Arkansas by the name of Jas. G. Senate? A. hend the murderer of his father-in-law. In- No, sir. Q. Were you in Arkansas about stead of gladly rendering any and all assist- '86? Counsel for the Defendant: I object ance to enable them to ascertain who the to that question as being incompetent and murderer was, and willingly giving them all immaterial. It throws no light on this transthe information as to his relation to the old action at all. The Court: I do not know the man, and when he had last seen him alive, purpose of it.' Counsel for the State: The and under what circumstances, strange purpose of it is to continue on the question I enough he answered them, “You are smart asked him about this man Senate, and with and wise; go and find out who murdered reference to that conviction I asked hini him," and to another, “It is none of your about in Arkansas. The Court: He may anbusiness," and still to another, “Go find out; swer the question"—to which ruling the dethat is what you are paid for." Nor did he fendant duly excepted. It is insisted that cease at this. As he rode to the police sta- this examination was highly prejudicial, and tion with young Bernhard he cautioned him that the explanation of its purpose was but to say nothing, saying, “These fellows are so a clever charging that the accused was conwise, let them find out." These expressions victed in Arkansas. In connection with this to the officers have none of the earmarks of assignment the defendant complains of ininnocence. They disclose none of that nat- struction No. 6, which reads: "You are furural anxiety to discover the murderer of his ther instructed that you are to consider the wife's father, whose cruel taking off would evidence which was introduced tending to have aroused a natural desire on his part to prove that the defendant was previously consee the murderer caught and punished; on victed of a criminal offense solely for the purthe contrary, evinced a mind and heart de- pose of discrediting defendant as a witness, void of natural affection, and insensible to and you are not to consider that evidence as the enormity of the crime that had been bearing upon the question of his guilt of the committed. Doubtless it appeared to the crime charged in the indictment herein. And jury that these speeches sprang from the you should not permit that evidence to insense of guilt and a desire to thwart the

fluence you against defendant." It is urged discovery of the murderer, and that one re- that the effect of this instruction was to lated as the defendant was to this old man, cause the jury to believe the defendant had who could indulge in such conduct toward been convicted of a criminal offense in Arkanthe officers of the law, would have had lit- sas, when in truth there was no evidence of tle hesitation in doing the murder himself fered to prove that he was thus convicted. if an opportunity presented itself. He utter- There was no error in permitting the state ly and insolently refused to render any as- to inquire of the defendant, after he had sistance toward the apprehension of the guil- become a witness in his own behalf, whether ty party, and obstructed every effort of the he had ever been convicted of a criminal of. officers in their investigation. With this fense. Section 4680, Rev. St. 1899, expressly array of facts and circumstances before provides that such conviction may be proved them, and with the additional advantage of to affect his credibility by his own crossseeing and observing the witnesses and their examination. And it was ruled in this court manner of testifying, it cannot be said that in State v. Blitz, 171 Mo., loc. cit. 540, 71 S. the jury were not authorized to find a state W. 1027, that a conviction of a misdemeanor of facts beyond a reasonable doubt which might be shown in this manner, as well as of were not only consistent with and attended felony. And that ruling was approved in with all reasonable certainty to point to the State v. Thornhill, 174 Mo. 370, 74 S. W. 832. defendant as the person who killed August | Now, in this case the question sought to elicit Raphael; and when such a state of evidence proof of a prior conviction resulted in showappears it is not the province of this court ing the defendant had been convicted of a misto substitute its judgment for that of the demeanor in St. Louis some 25 years before jury and direct an acquittal. On the con- the trial. All questions as to the conviction trary, the rule is too well established to re- in Arkansas were answered in the negative, quire a citation of authorities that if there and no attempt was made to contradict the is substantial evidence to uphold the ver- defendant as to them. The state had the dict, this court will not interfere with it. right to ask the question, and, having receiv.

2. Among other errors assigned, defendant ed an unfavorable answer, its tendency was complains of the cross-examination of the de- to injure the state, and establish there had

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