211 S.W.2d 925 | Mo. | 1948
Lead Opinion
On Thursday, the 15th of August 1946, at eleven o'clock in the morning, the appellant, with the attendance of a doctor, gave birth to a normal, nine months male child. The appellant was twenty-three years old, a single girl, employed in a shoe factory. She lived with her sister in a one-room building on the banks of Britton Creek in Potosi. She had made no preparation whatever for the baby's birth and the doctor's daughter, who was a nurse and assisted her father in the accouchement, brought clothes for the baby. As they were leaving the daughter stated that she would leave the baby clothes but the appellant said that she would not need them. When the doctor asked for the baby's name she answered that it had no name and requested that he say nothing about the baby's birth. A little girl in the neighborhood discovered that there was a baby in the building and about 2 o'clock walked in and asked to see it. The appellant told her that the baby was no longer there, that she had given it to some friends in St. Louis. On the following Saturday the doctor and his daughter again called on the appellant and she told them that she had given the baby to some people in St. Louis. In the afternoon the sheriff and the prosecuting attorney called and inquired about the baby. She informed them that she had given it to some friends of the nurse's in St. Louis. The sheriff did not believe her and insisted that she tell him the truth. She then told the sheriff and the prosecuting attorney that she tired of her position in the bed and wanted to move, that the baby had been lying between her and the wall, and when she picked it up to move over she accidentally dropped it on its face on the floor and it died. She said: "I was so scared I didn't know what to do." So, within two hours of its birth, she took the baby out back of the house and hid it in the weeds. Neighbors made a search along the creek bank *980 and found the bones of a newly born baby. The inference is that dogs had devoured the child.
[927] Upon a trial for murder the jury found her guilty of manslaughter and assessed her punishment at five years and one day in the penitentitiary.
[1] The appellant admitted that she dropped the baby on the floor and that it died as a result of the fall. Her defense was that its death was accidental — an excusable homicide. But from the admitted facts and the circumstances that she had made no preparation for the baby's birth, did not want any clothes for it, asked the doctor to conceal its birth and her secretion of its body (Annotation, 2 A.L.R. 1227) the jury could reasonably find that she intentionally, voluntarily and willfully dropped the baby, thereby causing its death, a voluntary homicide or manslaughter. Mo. R.S.A., Sec. 4382. The evidence being circumstantial, the child's homicidal death and someone's criminality in connection with it — the corpus delicti (State v. Hawkins, (Mo.) 165 S.W.2d 644, 646) — may be inferred from the appellant's obvious motive in the circumstances. State v. Smith, 329 Mo. l.c. 279, 44 S.W.2d l.c. 48. In one sense a proper definition of voluntary manslaughter is the unjustifiable, inexcusable and intentional killing of a human being without deliberation, premeditation and malice. State v. Holliday,
[2] Omitting the introduction, the information in this case charges that the appellant "on or about the fifteenth day of August, 1946, then and there, in and upon the body of a certain male child of tender age lately being born of the body of her, the said Jerene Stringer, the name of which infant child is unknown to your informant aforesaid, then and there being, feloniously, unlawfully, willfully, deliberately, premeditatedly, on purpose and of her malice aforethought, did make an assault on him, the said infant child aforesaid, in some way and manner and by some means, instruments and weapons to your informant unknown, did then and there feloniously, unlawfully, willfully, deliberately, premeditatedly, on purpose and of her malice aforethought, kill, murder and deprive of life so that he, the said infant child aforesaid, then and there died; and so your informant upon his oath aforesaid, does say that the said Jerene *981 Stringer, him, the said infant male child aforesaid, in some manner and way and by some means, instruments and weapons to your informant unknown, did then and there feloniously, unlawfully, willfully, deliberately, on purpose and of her malice aforethought at and in said County of Washington and State of Missouri, on or about the fifteenth day of August, 1946, kill and murder against the peace and dignity of the State."
A careful reading of the information reveals that it does not expressly charge "that the deceased was given a mortal wound by the defendant." It is urged therefore that the court erred in refusing to quash the information. Since there was no testimony directly concerning such a mortal wound it is claimed that there was no evidence of the appellant's criminal agency in connection with the death, consequently there was no proof of the corpus delicti and insufficient evidence to support either a conviction or a submission of manslaughter.
As we have indicated, the admitted facts and the circumstantial evidence permit all the inferences necessary to support a submission and conviction of manslaughter unless the elements insisted upon by the appellant are absent and essential to the charge and conviction. The trial court also submitted whether the appellant was guilty of first or second degree murder and whether the child's death was accidental as the appellant claimed but the jury disregarded [928] these instructions and found her guilty of manslaughter. It is possible that this latter fact alone is a sufficient answer today to the appellant's assignments of error in this respect. Since this court has held in State v. Sundheimer,
In State v. Green,
The underlying and really basic reasons for the enforcement of the extremely technical requirements of common law indictments and informations have often been noted and we indicate them but briefly. At common law all felonies, particularly all homicides, were punishable by death. 1 Stephen, History Of The Criminal Law Of England, p. 487; 1 Hale, Pleas of The Crown, p. 351. There were the attendant consequences of attainder, forfeiture of property and corruption of blood. 2 Coke Upon Littleton, 391b. Of necessity some palliatives to these severe judgments and their consequences had to be invented. "Undoubtedly, the merciful inclination of the judges in favor of life accounts for a large part of the purely technical requirements in the old indictments. The technical rules served a justifiable and even necessary purpose in restraining the brutal severity of the criminal law a century (and a half) ago." 10 Har. L.R. 98, 101 (1897). (See also the notes in 39 U. Mo. B. 37 and 30 Jour. Crim. L. Crim., p. 135 and a comparison of the indictment as it was in [929] State v. Barrington,
The conviction here is of manslaughter and what we have said does not necessarily mean that the rules are to be relaxed completely or that the cases noted must necessarily be overruled in toto. "Since the common law prevails in this jurisdiction, indictments and informations charging felonies must conform to the common law rules of pleading by which great strictness and technical accuracy are exacted." State v. Anderson,
The information under consideration does not charge in specific terms that the child "was given a mortal wound by the defendant." For the purposes of this appeal it may be assumed that it is not good as a charge of murder in the first or second degree but it may nevertheless *984
be sufficient as a charge of manslaughter and if so will support the submission if the evidence justifies it as we have indicated. State v. Colvin,
[3] This brings us to the problem of whether certain evidence was admissible and if not whether its admission prevented a fair trial and was therefore unjustly prejudicial to the rights of the accused. The facts and circumstances noted were established by the testimony of two neighbors and the little girl, by the doctor and his daughter and by the sheriff and the prosecuting attorney. In addition to these witnesses the state produced the Coroner of Washington County, Dr. Dempsey. When he was first offered as a witness defense counsel inquired as to the purpose of his testimony and the prosecutor said: "The purpose of the inquiry is to show there was never any report made by the defendant to thecoroner of the county; Washington County, Missouri, of thedeath of this baby." When defense counsel objected to this offer the court expressed the opinion that the state could show that the witness was the Coroner and then inquire whether anyone had reported the death to him. This question was then asked: "Has anyone made a report to you since August 15, 1946, on August 15 or since that time, with regard to the death of a male child that was born to Jerene Stringer?" The answer was "No, I did not receive any official notice."
The state contends in any event that the evidence could not have been prejudicial to the accused and was therefore harmless error. *985 It is contended that no jury would be influenced against the accused merely because the coroner said that no one had reported the death in question to him. In this connection it is argued that the jury could not have considered the failure of the defendant to report the death to the coroner as of any consequence because they would be unaware of the duty to report a death to the coroner.
However, from the prosecuting attorney's initial statement and from the context it is plain that the purpose of the testimony was to show that the accused had not reported the child's death to the coroner. He was finally permitted to say that no one had officially reported the death to him, but of what consequence could that fact have been unless it meant that the appellant had not reported it? In the second place, the argument erroneously assumes that there was some legal duty on the general public and particularly upon the accused to report the child's death to the coroner. An examination of the statutes does not reveal any such general public duty. Mo. R.S.A., Secs. 9767, 13227-13268, 14839. The statute requiring the coroner to summon a jury "so soon as he shall be notified of the dead body of any person, supposed to have come to his death by violence or casualty," (Mo. R.S.A., Sec. 13231) does not necessarily impose any such specific duty upon an accused or, for that matter, upon the general public.
But irrespective of any duty on the part of the general public it is certain that there was no statutory duty on the accused to report the child's death to the coroner and the meritorious question is whether the plain inference that there was such a duty was unfairly prejudicial in the circumstances of this trial. As we have pointed out, the evidence to show that the appellant intentionally killed the child was wholly circumstantial. There was the fact of no preparation for the baby's birth, her desire to conceal its birth and its identity and finally her concealment of its body. 26 Am. Jur., Secs. 302, 475. Any circumstance, including the desire to elude discovery, reasonably pointing to the defendant's guilt was admissible against her. 1 Wharton, Criminal Evidence, Sec. 299, p. 395. But here her failure to report the child's death to the coroner is not necessarily inconsistent with her innocence. In some instances failure to report a death might be a most cogent circumstance pointing to guilt. For example, in Hedger v. [931] State,
She was under no statutory duty to do so and there was no compulsion, in the circumstances, for her reporting it to the coroner. Had he talked to her in his official capacity as the sheriff and the prosecuting attorney did, or even as a friend, there might then have been some reason for her divulging the child's death. But here there was no duty or circumstance compelling a voluntary report by the accused to the coroner in any capacity. The evidence was circumstantial, no preparation, secrecy and hiding the body, and in addition to these circumstances the state added the circumstance of her failure to report the death to the coroner. In arriving at her intention the jury may have considered and weighed against her the additional fact and circumstance that she had not reported the child's death to the coroner. No one knows what force and weight the jury may have attributed to the office and functions of coroner and the failure of the accused to voluntarily report this instance to him. The testimony of the coroner was prejudicial and in the circumstances of this case infringed the appellant's right to a fair trial, a conviction upon only those circumstances from which it was a fair and reasonable inference that she intentionally killed the child.
Because of the unfairly harmful effect of the introduction of this evidence the judgment is reversed and the cause remanded.Westhues and Bohling, CC., concur
Addendum
The foregoing opinion by BARRETT, C., is adopted as the opinion of the court. All concur except Tipton, P.J., not sitting.
