State v. Kuehner

Norton, C. J.

The defendant was indicted at the October term, 1885, of the St. Louis criminal court, for murder in the first degree, for shooting and killing his wife, Helena Kuehner. At the March term, 1886, pf said •court, he was tried and convicted of murder in the first ■degree, and after making unsuccessful motions for new trial and in arrest, brings the case to this court by appeal, and among other errors assigned is the action of the court in allowing (over defendant’s objection) a petition for divorce, filed by the deceased against defendant, to be read as evidence to the jury. The petition contained ■charges against defendant (not necessary here to repeat) of the most damaging and prejudicial character, and, if true, showed him to be more of a beast than a man, and we are at a loss to perceive on what ground it was admitted as evidence, unless it is to be found in the following instruction given by the court:

“ The court instructs the jury that the petition in a ■suit for divorce, brought by Helena Kuehner, plaintiff, against Adam Kuehner, defendant, in the circuit court ■of the city of St. Louis, was permitted by the court to be read in evidence in this trial for the sole purpose of *196 showing the whole of the conversation alleged by Thomas J. Walsh, in his evidence in this trial, to have taken place between the said Thomas J. Walsh and the defendant, Adam Kuehner. And the court further instructs the jury that the allegations and statements set forth and contained in said petition are not evidence of their truth, and must not be considered by the jury as evidence proving, or tending to prove, the truth of the allegations and statements set forth and contained in said petitions.”

By reference to the evidence, as it is on the record, it appears that he testified that he was deputy sheriff, a!nd saw defendant on the morning of the thirtieth of May, 1885, at Padberg’s saloon, and served a copy of the petition for divorce brought against him by his wife. He states: “I read the petition to him and gave him a copy,” and, on being asked to go on and tell what occurred, he answered and said : “ After reading him the original and handing Mm a copy, he told me, in the presence of Padberg, that the matter would be settled that day, without any lawyers, and asked me to have a drink with him, and I took a drink and walked out.” He was then asked if that was the entire conversation, to which he answered “yes.” As Walsh had testified to the entire conversation had with defendant, the reasons given by the court, in its instruction, for admitting the evidence had no f dundation ; nor was any such reason given when- the evidence was received, but it was permitted to go to the jury with the full sanction of the court without restriction. While counsel for the state admits in his brief that the evidence was irrelevant, it is nevertheless insisted that the restriction put upon its consideration by the jury in the instruction cured the error in receiving it, and that defendant was not prejudiced.

When the charges made in the petition of the character hereinbefore stated are considered, its introduction as evidence was certainly prejudicial to defendant, and, as. *197 was affirmed in the case of State v. Hopper, 71 Mo. 425 , and re-affirmed in the case of State v. Fredericks, 85 Mo. 145 , an instruction to disregard evidence improperly admitted would not cure the error of admitting it, if it was of a character prejudicial to defendant.

The case in other respects seems to have been well enough tried, but for the error committed in the respect noted, the judgment is reversed, and the cause remanded, in which all concur.