Evans v. United States

Decision Date22 August 1941
Docket NumberNo. 1992.,1992.
PartiesEVANS v. UNITED STATES.
CourtU.S. Court of Appeals — Tenth Circuit

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David Allen, of Denver, Colo. (James B. Kelsey and John H. Murray, both of Leavenworth, Kan., and Joseph J. Wolf, of San Francisco, Cal., on the brief), for appellant.

Summerfield S. Alexander, U. S. Atty., of Topeka, Kan. (Homer Davis, Asst. U. S. Atty., of Topeka, Kan., on the brief), for appellee.

Before PHILLIPS and BRATTON, Circuit Judges, and FRANKLIN E. KENNAMER, District Judge.

FRANKLIN E. KENNAMER, District Judge.

This appeal is from a conviction in the court below of the appellant, Everett Ault Evans, alias Everett A. Troglin, alias Dutch Evans, of the crime of murder in the first degree for the killing of Herbert Otis Hayes within the United States Penitentiary at Leavenworth, Kansas.

It was charged that appellant committed an assault on Hayes about 10:30 A. M. on May 23, 1938, which resulted in the death of the latter shortly before 10 A. M. of May 25, 1938. Both appellant and the deceased, Hayes, were, at the time, convicts serving sentences in the Penitentiary.

In the morning of May 23, 1938, appellant and four other inmates of the prison were in what is called the "sole room" — a room in the prison shoe factory where shoe soles were stacked in racks and the air kept moist with water sprayers. The deceased, Hayes, who bore the nick-name of "King Kong," came into the "sole room" bringing shoe soles to be placed on the racks, and appellant, who was sitting on one of the racks or shelves, looped a string about the head and neck of Hayes and gave it a jerk which caused Hayes to fall to the floor and become unconscious. It was claimed by the Government that while Hayes was on the floor and in an unconscious state, appellant inserted the handle of a broom with considerable force into the anal canal of Hayes, upward into the rectum for a distance of about seven or eight inches from the external rectum, lacerating the intestine and puncturing the sigmoid flexure or colon at the juncture of the sigmoid and rectum, from which inflicted wounds peritonitis developed and caused the death of Hayes about two days later. The episode of looping the string about Hayes and his falling to the floor and becoming unconscious from the fall was admitted by the testimony of appellant, he testifying that he was merely "playing" with Hayes and had no intention of injuring him. Although having previously made statements, both written and oral, to the contrary, at the trial appellant denied the use of the broom handle on Hayes in any manner. His such denial was corroborated by the testimony of three other convicts who were in the "sole room" at the time Hayes was injured. About 10:30 A. M. of May 23, Hayes applied to the first aid attendant in the prison shoe factory for some headache tablets. At that time, this attendant testified that Hayes was holding a hand to his side and leaned against a seat, and there was a bruise over one of Hayes' eyes and lacerations on both sides of his neck. Hayes also returned to this attendant during the afternoon of the same day and was given some headache tablets. Early in the evening of that day Hayes was taken to the Penitentiary hospital, and there the physicians diagnosed his condition as appendicitis requiring an immediate surgical operation. Accordingly, an operation was performed which was completed about 11:48 P. M. After opening the abdomen, according to the medical testimony, the appendix was found to be intact and not undergoing any active disease. The surgeon then elongated the incision he had made and further examined the abdominal cavity and its viscera. This disclosed a ruptured sigmoid from which and its surroundings emanated a considerable quantity of fresh fecal matter and some bloody inflammatory fluid. Without narrating further the details of this operation which were related at great length by the medical witnesses, it was found, to use the language of Doctor O'Kane, testifying for the Government, that Hayes was suffering from "generalized peritonitis," which meant "that the entire abdominal cavity or the intestine, the viscera, were bathed in this fecal, greenish fluid, purulent pus." In the opinion of the attending physicians, this peritonitis caused the death of Hayes. This operation and an autopsy shortly after Hayes died revealed, in addition to the ruptured sigmoid, injuries in the form of abrasions and tears in the anal and rectal canals up to the point of the rupture or puncture of the sigmoid, indicating that some blunt instrument had been inserted into the anus and forced upward some seven or eight inches, and that all these wounds had the appearance of having been freshly made. A portion of the viscera was admitted in evidence to demonstrate the position and character of the wounds. In the opinion of the medical witnesses, the peritonitis causing the death of Hayes was incited by the infliction of the above-mentioned wounds. About 8:30 o'clock on the morning of May 24, two officials of the Penitentiary made a search of the "sole room" and there found a broom. At this time the part of the broom where the straw joined the handle was very wet, and the upper part of the handle was wet and had the appearance of having been recently cleaned and sand papered. Sand paper and emery paper were kept in the shoe factory for the use of the convicts in their work. Appellant made a written statement concerning the occurrences leading to the death of Hayes to Associate Warden Shuttleworth on May 23 and another on May 24. He also made a written statement to L. B. Reed, Special Agent of the Federal Bureau of Investigation, at the Penitentiary, on June 27, 1938. In the second of the statements made to Shuttleworth, appellant admitted the incident of the string and the falling of Hayes to the floor and being revived from an apparent faint by wet hands placed on his face, but in neither of the Shuttleworth statements did appellant mention a broom. In his written statement made to Investigator Reed, appellant, among other things, said:

"While Hayes was on the floor I picked up a broom that was in the sole room and poked it up his (Hayes) trouser leg, in an effort to poke him and bring him back to consciousness."

In addition to the mentioned written statements, appellant made several oral statements to the officers. At the time Investigator Reed took the written statement, according to his testimony, the appellant made the further statement to him orally, which the appellant did not want incorporated into the writing, that he had used the broom handle on Hayes, and when asked by the investigator in what manner, appellant replied, "I jabbed it up his" anus. The appellant testified that he made no such statement. Hereinabove, we have attempted to briefly narrate the most material circumstances of this tragedy as disclosed by the record, but we will hereinafter make further necessary reference to the evidence at the trial.

Appellant contends that the evidence is insufficient to support the verdict. Hereunder, and making major argument thereon, appellant claims that the evidence failed to establish the corpus delicti. It is insisted that apart from the extrajudicial confession or admissions of appellant admitted in evidence, there was no evidence to prove the body of the crime. It is the law that unless corroborated by independent evidence of the corpus delicti, the extrajudicial confession or declarations of a defendant charged with crime are not sufficient to authorize a conviction. Gulotta v. United States, 8 Cir., 113 F.2d 683; Gregg v. United States, 8 Cir., 113 F.2d 687; Martin v. United States, 8 Cir., 264 F. 950; Naftzger v. United States, 8 Cir., 200 F. 494. But the independent evidence, however, need not be of itself sufficient proof of guilt, but need only be a sufficient showing which together with the defendant's confession or admission establishes the crime beyond a reasonable doubt. Gulotta v. United States, supra; Gregg v. United States, supra; Naftzger v. United States, supra; Forte v. United States, 68 App.D.C. 111, 94 F.2d 236, 127 A.L.R. 1120; 20 Am.Jur., §§ 1230-1233. The corpus delicti may be proved by circumstantial evidence. 20 Am.Jur., § 1231; Perovich v. United States, 205 U.S. 86, 27 S.Ct. 456, 57 L.Ed. 722; St. Clair v. United States, 154 U.S. 134, 14 S.Ct. 1002, 38 L.Ed. 936. It is stated in Murray v. United States, 53 App.D.C. 119, 288 F. 1008, 1016, that:

"The corpus delicti, as relates to homicide, is composed of two elements: (a) The death of the person alleged to have been killed; (b) that some criminal agency caused such death. * * * Of course, both of these elements must be established beyond a reasonable doubt. When the jury find these established, the next inquiry is as to the identity of the criminal agency; and this, too, must be established beyond a reasonable doubt, but is properly no part of the corpus delicti."

In our judgment, this case correctly defines the constituent elements of corpus delicti. Wharton, however, gives a somewhat different definition.

"The corpus delicti in homicide consists of the criminal act and the resulting death, and the agency of the accused in its commission." Wharton, The Law of Homicide, 3rd Ed., § 587.

Accepting either of the above definitions, there was ample proof in the instant case of the body of the crime independent of the admissions of the appellant. The death of Hayes, of course, is undisputed, and the medical testimony is very clear that it resulted from peritonitis activated by the wounds inflicted by the forcible insertion of some blunt instrument — such as the broom handle in evidence — seven or eight inches upward into his rectum. The use of the string by appellant and the falling of Hayes to the floor and his resultant unconsciousness is undisputed. After his injury, Hayes applied for medical assistance, at the...

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