*1 Stringеr, Appellant. 40747. 211 S. W. Jerene No. 925. Two, May 27,
Division Denied, Rehearing June appellant. Samuel Bicheson for *2 Kay, Harry if. At- Taylor, Attorney General, E. and Assistant
J. torney General, respondent.
[926] BARRETT, C. On Thursday, the 15th of August 1946, at morning, in appellant, eleven o the the with' attendance the ’clock. gave doctor, normal, ap- of a birth to a nine months male child. The pellant twenty-three years old, single girl, employed a a in shoe factory. in building She livеd with her sister a one-room on the bapks preparation in Potosi. had made of Britton Creek She baby’s daughter, birth and the who was a whatever for the doctor’s accouehement, brought father- in niirse and assisted her the clothes for daughter baby. leaving the stated that the As were she would baby appellant clothes but the said that she would not need leave the baby’s doctor asked for thе name When the' she answered them. requested say nothing he that about the had no name that it neighborhood discovered girl A little the that there baby’s birth. 2' building and o’clock walked in and asked baby in about a baby longer there, told her that the was no appellant it. The to see following Louis. given it to some friends St. On the that she had Saturday daughter again doctor and his called on baby and she told therii that she hаd to some people in St. afternoon the sheriff Louis. . and the prosecuting attorney baby. inquired about the She informed called them that she had of the nurse’s in Louis. friends St. The sheriff given it to did tell him insisted that she the truth. She then her believe attorney she prosecuting that tired of and the her the sheriff told move, baby had been bed wanted position'in wall, picked and when she up her and the to move lying between its accidentally dropped it on face on the floor and it diéd. she over I didn’t know what to do.” So, scared “I so within said: She baby out back birth, she took house its hours two along made a Neighbors search the creek bank weeds. in the hid found, newly baby. bones of a born The inference dogs had devoured the child. Upon a trial for murder the jury found her guilty of man- slaughter her punishment and assessed at five years day one .and penitentitiary.
The
admitted that she dropped the.baby
floor and that it died as
result
of the fall. Her defense was that
its, death was
the ad
excusable
But from
accidental —an
homicide.
facts and the
had made no
mitted
circumstances
she
preparation
birth,
it,
doctor
baby’s
did not want
clothes for
for the
asked
body (Annotation,
and her
of its
A.
birth
to conceal its
secretion
that,
jury
reasonably
could
intentionally,
R.
find
she
L.
voluntarily
willfully dropped
baby, thereby
causing
death,
its
voluntary
homicide or
A.,
Mo. R. S.
See.
being circumstantial,
the child’s homicidal death and some
criminality
one’s
in connection with
corpus
it—the
(State
delicti
*3
v. Hawkins,
(Mo.) 165
(2d)
S. W.
644, 646) may be inferred
—
from the
obvious motive in the
State
appellant’s
circumstances.
Smith,
279,
c.
(2d)
329 Mo. l.
l. c. 48.
one
sense a.
proper
voluntary manslaughter
оf
definition
unjustifiable,
is the
in
killing
excusable and intentional
of a
being
human
without delibera
tion, premeditation and malice.
Holliday,
398,
State v.
397,
353 Mo.
(2d)
553, 554;
S. W.
Stark, (Mo.)
State v.
1095,:
151 S.
(2d)W.
Hart,
State v.
argu
W.
386. It is
S.
able,
circumstances,
in the
that there was
support
sufficient evidence to
a.
degree (State
conviction of murder in the second
Cade,
(2d) 82)
34 W.
though
even
an
may
homicide
intentional
manslaughter
be
v. Gadwood,
Omitting introduction, the information in charges this case that the appellant “on or about the day fifteenth of August, 1946, there, then and in and upоn body of a certain male child of . age lately tender being born body her, the said Jerene Stringer, the name of which infant is your child unknown to inform aforesaid, being, ant then and feloniously, there unlawfully, willfully, deliberately, premeditatedly, on purpose of her malice afore and. thought, did'make an assault on infant’ aforesaid, child .said ’ way by in some and manner and some means, . and instruments your weapons.to unknown, informant did then and there feloniously, willfully, unlawfully, deliberately, premeditatedly, purpose aforethought, kill, of her malice deprive murder and of life he, so that aforesaid, infant child the said then and died; there your, and so upon aforesaid, his say oath does informant, the said Jerene Stringer, him, manner aforesaid, the said in some infant male child way your in by means, weapons instruments and unknown, unlawfully, will feloniously, formant did then and there fully,- deliberately,- aforethought at purpose on' and of her malice County Washington Missouri,1 said on or about and State of day August, 1946, against peace fifteenth kill murder dignity of the-State.”
A reading careful ex- does not information reveals that it pressly-charge “that the deceased was a mortal wound urged refusing defendant.” It is therefore that the court erred quash dirеctly testimony the information. Since ’there was concerning such a mortal wound it is claimed no evi- that there was appellant’s agency the-death, dence of the criminal in connection with consequently proof corpus there was no .of the delicti and insufficient support evidence to either a conviction or a of man- submission slaughter. indicated,
As we have the admitted fаcts and the circumstantial permit all necessary support submission inferences manslaughter unless the elements insisted conviction are absent and essential to and convic tion. appellant’ guilty The trial court also submitted whether the of first or second murder and whether the child’s death*was these accidental as the instructions and found claimed but the her. guilty jury disregarded -It possible today this lattеr answer fact alone is sufficient appellant’s assignments respect.’ of error in this Since this court Sundheimer, 52, however, has held W. 6 S. manslaughter indictment or information for contain must all allegations necessary murder, essential and to a *4 except -malice, of deliberation, premeditatiou elements and the fact manslaughter only may convicted of be she was not sufficient In distinguish upon. this and the cases relied that case the court indictment, “Perhaps, phraseology if we consider of the said: solely merely, popular significance employed, of the terms and may import express” necessary be deemed to elementé charged The court conceded that indictment ‘‘ slay by kill Singer, that the defendant did William said then gun whereby a discharging upon head, and there in and his face and ’ nevertheless, injuries death,' but, he received such as to cause his clearly distinctly state the indictment did not court held that constituting offense because “this-last express the facts expressly say death, allegation omits that the so caused fails and ” ensued, by. injuries, required, then and and this is . said there 585, Green, 304, Mo. 20 W. In v. 111 S. the court said: “The Chitty form for this indictment is found in 3 (proper) On Criminal 752, and in ‘d’ the Law, pages lаys- 750 and note learned author 982 down, always be death that ‘the word strike should inserted where ’ ’’ having alle by violence, indictment, caused omitted this and the . gation Brown, 454, c. substance, 168 Mo. l. was bad In State v.
68 was held bad W., 569, S. l. c. first count of an indictment “ said ‘thereby giving to him the because it did not.use the words Lacking thése George import. L. Richardson’ or words similar words, directly George L. Richardson charge this count does ” 261, Williams, ‘given’ a v. mortal wound. In State Chitty and held 83 S. W. the court followed and State Green charge “'‘a an failed to felonious information insufficient because it These striking, penetrating wounding the said Clark.’” Johnson, Mo. 90 S. W. cases were followed State v. 191 Birks, In State v. 97 W. information S. charge held to be insufficient Marion- Thomas because ‘‘It fails to given by alleged a mortal wound reason assault of the him gun. words, following charging with the of the other ‘thereby shooting gun, a the words at said Thomas with .assault ’ giving wound, or Thomas, the said Marion one mortal words entirely leaving import, omitted, similar are without shooting gun connection between the at the deceased with the quotation and the the mortal wound.” underscored The infliction of necessity allegation. cases, is the reason for the These representative large number, which of a all are were instances- of first present or Up second murder. been dis .to tinguished, technically, distinguishing times in the' several but cases Kenyon, a there was a of mortal wound. State Mo. 343 Ballance, 126 W. really underlying The basic reasons for the enforcement of the extremely requirements technical of common law indictments and briefly. informations have often been noted and we indicаte them but felonies, particularly homicides, At law all all punish common were . Stephen, History able death Of The Law Eng Criminal Of Crown, land, p. 487; Hale, p. Pleas of 351. There were the attainder, consequences of property attendant forfeiture of and. cor Littleton, Upon necessity 391b. ruption of blood. Coke Of judgments palliatives consequences to these severe and their had to ‘‘Undоubtedly, thé merciful be invented. inclinatioU of judges large part for a purely in favor of life accounts technical requirements in the old indictments. The technical rules served a necessary purpose even justifiable restraining the brutal century (and severity half) ago.’ of the criminal.law 10 Har. *5 (See 98, (1897). also in 39 101 the notes U. Mo. B. R. 37 and 30 XL. Crim., p. comparison L. & 135 and a Crim. of Jour. the indictment as it was in State v. Barrington, 198 Mo. 23, 95 S. W. 235, today English under the practice be and as it would in L. 12 St.
983 L. 281) R. These for rules have ceased basic reasons exist revolting is law and “It to have no better for a rule of than reason Henry that so it laid in down the time of IV. It is still more grounds if which it was laid down have vanished revolting long since, persists past.’' and the rule of from blind imitation Holmes (10 457). “The Path Of The Har. L. Law” R.
The conviction is manslaughter here of and what we said necessarily does not completely mean that the rules are to be relaxed or that the necessarily cases noted must in be overruled toto. “Since prevails common law jurisdiction, and infor this indictments common, charging mations felonies conform to law must rules pleading by of great accuracy, which and technical strictness are Anderson, 382, exacted.” State v. 391, 68, S. W. 70. jeofails (Mo. A., statutе of R. S. 3989) permit does not Sec. necessary omission of substance element of but the. circum repetitions of longer the common law are essentials locutions Borders, (Mo.) substance. State v. 199 S. W. The consti 180. and, right tutional of the accused “to demand the nature cause of (Const. Mo., 1, accusation” Art. Sec. is satisfied when and means that “the. might definitely accused be informed as to the chаrge against nature of that, determined, when it might complete the; constitute a prosecution bar ahother same Borders, offense.” v. W., Mo., State 199 S. c. 182; l. Const. Art. Sec. 19. it is true charge nothing criminal (of “While substance) must be implication, left intendment or rule must .this be having construed as allegations necessary reference to such as are to inform the defendant of the nature and cause the accusation against him; and not to extrinsic matter averment of which is unnecessary if not, proved.” averred ... need be State Hascall, applied As to this so far case, as substance is concerned information -for man slaughter means what it did at common law if but ..omission essentially one possible prejudice not of substance and there is no rights necessary accused is not that the information Chitty, follow the ancient form set forth in 3 Law, p.-750 Criminal —1 the 5th American Ex Keet, edition Parte S. W. 463. If the substantive elements and the essence of the offense unmistakably are forth set and the accused’s connection with the’ charged plainly positive offense is direct manifestly averments requirements of the common are reasonable law satisfied. Mo. A., Burns, Mo. R. S. Sec. 12 W..801; Rx Keet, supra. Parte The information under does consideration specific child terms that the “was mortal wound the defendant.” appeal may purposes For be assumed that good it is not murder in the or second may as a first but it never-
984 manslaughter support if will the lessbe as a of so sufficient State justifies if evidence it we indicated. the submission the as 448; Morgan, 196 Mo. Colvin, v. W. State v. Mo. 126 S. 707; State (2d)W. Frazier, 98 S. S. W. alleges Rennison, W. The that v. 267 S. information your in way by means, “in ... to and manner and some Poor, (State that formant unknown” v. feloniously, un an the made assault the child “kill, deprive of willfully on murder and lawfully, purpose did repeated conclusion. again life” the said child—all of which the unlawfully’ ‘wilfully charges “The indictment that say, intentional, to that killed ‘Wilful’ that is the deceased. means means there killing of not excusable. the deceased was ‘Unlawful’ indict legal justification killing Since the w'as of the deceased. murder, suffi ment of first and second omits elements , . " Holliday v. ciently charges manslaughter the crime of State allega Mo., l. W. l. c. would c. 182 S. 554. Just what tion of the infliction of “a mortal wound” add to the essence such an ?' of substance would -what information Just testifying ad allegation convey In she additional accused? as a baby and that died dropped mitted she on the floor question she only whether result the fall. The meritorious acquitted accidentally or whethei* dropped it and should therefore be guilty intentionally dropped it and killed it and therefore she Barrington, supra. Colvin, supra; State brings problem This us to the whether certain prevented a fair and if not whether its was admissible admission -of 'ac unjustly prejudicial rights trial and was therefore by the cused. The noted were established facts circumstances his testimony neighbors girl, and the the doctor and of two little attorney. addition daughter prosecuting sheriff and the Washington produced to these the state Coroner witnesses as de he first offered a witness County, Dempsey. Dr. When testimony inquired proser and the purpose fense counsel as to of his ‘‘ inquiry is there was purpose cutor said: The to show ne'oer. any county; report by the 'io coroner of the made defendant Missouri, babyWhen death this Washington County, opinion objected expressed offer the court defense counsel to. was the Coroner then could show that witness that the state ques inquire anyone reported death to him. This had whether you August anyone report since asked: “Has made tion was then time, regard August to the dеath 15, 1946, 15 or since that with Stringer?.” born The answer was of a male child that was to Jerene any “No, I notice.” did receive official event the evidence could not have contends state therefore prejudicial to the accused and was error. been harmless.
-985 jury against It is that no contended would be influenced the accused merely reported because the coroner said that no one had the death question argued jury him. In this it is connection could not have considered the failure of the defendant to report the *7 any consequence to death the coroner as of because would be duty report unaware the to a death to the coroner.
However, attorney’s from prosecuting initial statement and plain testimony from the purposе context is that the it reported to show that the had accused not the -child’s death to the finally permitted say officially coroner. He was to that one had reported consequence the death to but of what could that fact have been unless it meant appellant reported that the had In not it? the second place, argument erroneously assumes- that there was legal duty general some public particularly upon the ac report to cused child’s death to the coroner. An examination any the statutes does not such general public duty. reveal Mo. R. S. A., 9767, 13227-13268, Secs. 14839. The requiring statute the coroner" jury to a summon “so soon body as he shall be notified of the-dead any person, supposed to hlive come to his death violence or casualty,” (Mo. A., R. necessarily Sec. impose does not any specific duty such upon' or, matter, accused for general public. irrespective
But duty part general on the public certain statutory duty that there was no on the report accused to is. the child’s death to the coroner and question’ the meritorious plain whether the inference duty that there was such a unfairly prejudicial in the circumstances of this trial. As pointed we have out, the evidence to show that the intentionally killed' the wholly child was circumstantial. There was the prepara- fact of no baby’s tion birth, for the her desire identity to conceal its birth and its finally her body. concealment of its Am. Jur., Secs. Any circumstance, including the desire reasonably to elude discovery, pointing to guilt the defendant’s against admissible her. 1 Wharton, Evidence,' Criminal p. See. 395. But here her failure to report the child’s death to the coroner is necessarily not inconsistent with her innocence. In some report might instances failure to á death be most Hedger v. a cogent State, circumstance 144 Wis. pointing to N. W. 80, guilt. For a husband knew example, lay his wife, dead in the home, kitchen of their a victim of violence, yet he report failed tо anyone the fact to and so con- trived that someone else apparently should be the first to discover her. In this case it is obvious did not intend report to the child’s death at all—on contrary, attempted she conceal it—and the fact that report she did not anyone it to or to person in who the normal course of naturally events she would been-.expected have rеport strong it to-is a guilt. indication of The- o£ quality
fact plain damaging inference demonstrates tbe the coroner’s evidence tbe child’s death to reported that sbe bad not him.
She was statutory duty under no no com- to do so there was pulsion, in tbe Had circumstances, reporting her to tbe coroner.' for he talked capacity prose- to her in bis and tbe official as tbe sheriff cuting -attorney did, friend, might or even there then been as some reason her divulging death. But here there child’s duty was no compelling voluntary report or circumstance accused to any capacity. the coroner in was circumstan- tial, no preparation, secrecy hiding body, and in addition to these circumstances the her state added the circumstance of failure report arriving the death to the coroner. at her intention the jury may weighed against have considered and her additional fact circumstance that had reported she the child’s death to weight jury may the coroner. No one knows what force and have attributed the office and functions of coroner failure *8 voluntarily report the accused to this instance him. testi- mony of prejudicial the coroner was and in the circumstances infringed appellant’s right trial, case to a fair conviction only those circumstances from which it a fair and reasonable intentionally inference that she killed the child. unfairly
Because of the harmful effect of the introduction of this judgment reversed the cause remanded. Westhues Bolding, CC., concur PER foregoing opinion CURIAM: The by BaRrett, C., is adopted opinion as Tipton, J., the court. All concur except P. not sit- ting. F. and Marie
Arthur Doing D. Wimberly, Kalbfell Partners K. City Theater, Appellants, Business as Robin Louis, of St. of, Corporation, Kaufmann, Mayor A. P. Municipal City of the Louis, Safety Riley, St. Director Public Charles J. City Louis, Albert H. Baum, Building of St. Commissioner of City Louis, St. Chief of Police of O’Connell, Jeremiah City Louis, St. H. Fire Marshal Waleer Kammann, City of St. Louis. No. 40502. 211 S. (2d)W. 911. Two, May 27,
Division Rehearing Overruled, Motion for or to Transfer to Banc June