State v. Whelehon
| Decision Date | 17 November 1890 |
| Citation | 14 S.W. 730,102 Mo. 17 |
| Parties | The State v. Whelehon, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jefferson Circuit Court. -- Hon. John L. Thomas, Judge.
Reversed and remanded.
Dinning & Byrns with W. H. H. Thomas for appellant.
(1) There is no evidence tending to prove tat anything done by the defendant to deceased caused or hastened its death. No authorities necessary. (2) The court erred in permitting the state to read the minutes of the evidence taken by the grand jury: Mrs. Holman, Tod Holman and Mrs. Applegate. R. S. 1889 sec. 4075; Smith v. Stickney, 17 Barb. 489; People v. Finnegan, 1 Parker, C. R. 147; Lamb v Stewart, 2 Ohio 230; Stahle v. Spohn, 8 Serg. & Rawle, 317; Wear v. Wear, 8 Greenleaf, 42; Jackson v. Ely, 5 Cowan, 314; Munson v Hastings, 12 Vt. 346; Robb v. Hackley, 23 Wend. 50; State v. Winkly, 14 N.H. 480; Roscoe Crim. Ev. [6 Amer. Ed.] pt. of Judge Sharswood's note on p. 96; Russell v. Coffin, 8 Pick. 143; Moore v. Rodgers, 10 Conn. 13. (3) The court erred in permitting the state to read in evidence the minutes of Mrs. Applegate before grand jury, at some time when she had not testified on this trial of the case as a witness. State v. Thomas, 78 Mo. 327; State v. Grant, 79 Mo. 113. (4) The verdict was against the evidence, and against the weight of the evidence, and against the law as declared by the court.
John M. Wood, Attorney General, for the State.
Conceding the grand jury notes were improperly admitted, it was not reversible error. State v. Owen, 78 Mo. 367.
-- Defendant and his wife were jointly indicted at the September term, 1886, of the circuit court of Jefferson county for murder in the first degree. The indictment charged that defendants in said county, on the first day of December, 1885, and on divers other days and times between that day and the first day of April, 1886, made divers assaults in and upon one Della Whelehon, a female child of the age of three years, and at divers times during said dates struck, beat and wounded the said Della Whelehon with sticks and other weapons to the jurors unknown; and that it was the duty of said defendants to provide for and take care of said Della Whelehon, and, contrary to their duty in that behalf, they put and placed her out of their house, and into an open place and left her exposed to the inclemency of the weather without sufficient clothes, covering, shelter and protection for the body of the said female child, by means of which striking, beating and exposure, she became and was mortally sick, weak and disordered in her body, of which she, on the first day of April, 1886, in said county died.
At the May term, 1887, they were arraigned and plead not guilty, and, upon a trial had at said term, Decenia Whelehon, wife of Garrett P. Whelehon, was found not guilty, and Garrett P. Whelehon was found guilty of manslaughter in the fourth degree, and his punishment assessed at imprisonment in the county jail for three months and a fine of one hundred dollars, the lowest punishment, we believe, which could be imposed for the offense charged. Defendant duly appeals from the judgment and sentence against him.
As we gather from the abstracts furnished us by the parties to the cause, the defendant, Garrett Whelehon, discovered that one Sarah Larkins, an unmarried female, living in the neighborhood, was pregnant, and communicated the fact to his wife and codefendant, and also that he was the father of the child, and thereupon it was agreed between him and his wife that, in order to avert suspicion and keep down scandal, they would have the said Sarah come to their house and remain until after the child was born, and that defendant and wife would claim the child as their own. Sarah Larkins acquiesced in this arrangement, took up her residence with the Whelehons until some ten or twelve days after the birth of the child, which she left with them upon their promise, after its birth, to raise it as one of their own children. Said Sarah thereafter never assumed any charge or control of the child, but the defendants claimed it as one of their own children. The child was born either in March, 1883, or in March, 1884; was at first, perhaps, a healthy child, but soon became weakly and sickly, and, after numerous afflictions, died at defendant's house in April, 1886.
We deem it unnecessary to go into the details of the evidence, but think it will suffice, in view of our disposition of the case, to say that some of the evidence in behalf of the state is to the effect that the child was neglected, harshly treated, improperly clothed and exposed. While some portions of the state's evidence and the evidence in defendant's behalf are to the effect that defendants gave it proper attention and care, medical attention and food and clothing the same as that bestowed on their other children, and such as they could afford and was suitable to their condition in life.
Upon the trial the state was permitted over defendant's objection to read in rebuttal the minutes of the testimony of Emeline Holman and Tod Holman, and one Mrs. Applegate or Appleberry taken before the grand jury, for the purpose of showing that statements made before the grand jury were consistent with their evidence upon the trial, the defendant having offered evidence of statements by them contradictory to their evidence upon the trial. So far as the last-named witness, Mrs. Applegate, is concerned, if indeed there was any such witness, the transcript shows that the prosecuting attorney offered in rebuttal the minutes of the testimony of Mrs. Applegate (so she is named in the offer) before the grand jury for the above purpose, and that the same was thereupon received. But the clerk says that while the bill of exceptions calls for the testimony of Mrs. Applegate or Appleberry, he has not been able to find the same. The transcript shows that one Mrs. Rebecca Appleberry testified as a witness in the state's behalf, but fails to...
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