State v. Aitkens

• Decision Date: 03 April 1944
• Docket Number: 38730
• Parties: State v. Ida Aitkens, Appellant
• Court: Missouri Supreme Court

179 S.W.2d 84

352 Mo. 746

State v. Ida Aitkens, Appellant

No. 38730

Supreme Court of Missouri

April 3, 1944

Appeal from Lafayette Circuit Court; Hon. Robert D Johnson, Judge.

Reversed and remanded.

R H. Musser, Frank W. Armstrong, and A. R Alexander for appellant.

(1) The trial court erred in admitting, over the objection and exception of the defendant, the hypothetical question by the State to the witness, Dr. W. R. Moore, also witnesses, Dr. W. B. Spalding and Dr. A. G. Templemon, the same not being based upon the evidence in the record, and was improper, leading and suggestive and the answers were prejudicial to this defendant. State v. Decker, 104 S.W.2d 307; State v. Hyde, 136 S.W. 316, 234 Mo. 200; State v. Palmer, 61 S.W. 651, 161 Mo. 152; State v. Dunn, 77 S.W. 848, 179 Mo. 95; State v. Brown, 79 S.W. 1111, 181 Mo. 192. (2) The court erred in permitting the State to ask leading and suggestive questions of the witnesses, J. A. Purdome, Jack Inman, Marie C. Hoffman, Guy Oliphant, Ben Stewart, Sergeant Poage, as to whether while she was in their custody she was threatened or abused and questions of a like nature, all calling for conclusions of said witnesses, and in overruling the defendant's objections thereto, and in refusing to allow the defendant's counsel to cross-examine properly said witnesses. (3) The court erred in permitting to be read to the jury the alleged statement of the defendant, Exhibit 12. (4) The court therefore erred in admitting, over the objection and exception of the defendant, the paper writing identified as plaintiff's Exhibit No. 12, the alleged statement of defendant. State v. Butts, 159 S.W.2d 790; Chambers v. Florida, 309 U.S. 227, 84 L.Ed. 716, 60 S.Ct. 472; State v. Williamson, 99 S.W.2d 76; State v. Gibilterra, 116 S.W.2d 88, 342 Mo. 577; State v. Hwkins, 165 S.W.2d 644; State v. Ellis, 242 S.W. 952. (5) The presumption is that confession subsequent to prior involuntary and inadmissible confession arose from continuance of prior influence. State v. Nagle, 32 S.W.2d 596, 326 Mo. 661; State v. Condit, 270 S.W. 286, 307 Mo. 393. (6) Law presumes that confession, induced by persons in authority while defendant was in jail, is involuntary. State v. White, 292 S.W. 411, 316 Mo. 576; State v. Tharp, 334 Mo. 54, 64 S.W.2d 249; State v. Nagle, 32 S.W.2d 600; State v. Hancock, 104 S.W.2d 245; State v. Williamson, 123 S.W.2d 44; State v. Williamson, 99 S.W.2d 76. (7) The court erred in admitting the testimony of the witnesses, Oliphant, Poage, Stewart, Johnson, Brice and Inman, with respect to an alleged reenactment of the offense charged and under the supervision orders and requirements of the said persons, they having taken her in charge and directing her acts and all that she did was in compliance with orders from them and not of the free will of the defendant. (8) The court erred in refusing Instruction 5 offered by the defendant. (9) The court erred in giving instructions 5 and 6 offered on the part of the State in that said instructions did not fully instruct the jury as to the law of confessions and does not require the jury to find all the facts and circumstances necessary to create voluntary confessions. (10) The court erred in giving Instruction 7 on the part of the State as to excusable homicide, and the same contradicts Instruction 11 given upon the part of the defendant, thereby causing the jury to disregard the law as contained in said Instruction 11. And said instruction fails to instruct the jury fully as to the law of excusable homicide, "accident or misfortune," and fails to inform the jury that if the death of said child was by natural causes, and that unless acts of the defendant did not cause said death, to find her not guilty. (11) The record is positive as to mutilation after death and the jury should have been so instructed, and not permitted to include mutilation in their deliberation. State v. Wheaton, 221 S.W. 26; State v. Joy, 286 S.W. 489, 315 Mo. 7; State v. Odbur, 295 S.W. 734, 317 Mo. 372; State v. Minor, 92 S.W. 466, 193 Mo. 597. (12) The mutilation and pictures in evidence, were of a separate and distinct offense. State v. Hyde, 234 Mo. 200; State v. King, 342 Mo. l.c. 975, 119 S.W.2d 277. (13) The court erred in refusing to give to the jury defendant's Instruction 2 at the request of the defendant. State v. Thomas, 250 Mo. 189, 157 S.W. 330; State v. Powell, 258 Mo. 239, 167 S.W. 559; State v. Powell, 266 Mo. 100; State v. Meyer, 238 S.W. 457; 16 C.J. 718, sec. 1468; 22 C.J.S. 1433, sec. 817; People v. Trybus, 113 N.E. 538, 219 N.Y. 18; People v. Klyczek, 138 N.E. 275, 307 Ill. 150; Williams v. State, 86 P.2d 1015; People v. Vinci, 129 N.E. 193. (14) Whether a confession is voluntary, or in other words testimonially worthy depends largely upon the facts of the particular case. In determining the question factors which are proper to be considered include sex, age, character, disposition, education, and previous training of accused, his mental qualities, his physical health and his surroundings as well as the nature, content and import of the confession itself. 22 C.J.S., p. 1428 citing Perrygo v. United States, 2 F.2d 181; Curry v. State, 82 So. 489, 203 Ala. 239; State v. Meyer, 238 S.W. 457, 293 Mo. 108; Clark v. State, 45 S.W.2d 575; State v. Johnson, 95 Utah 572; Brown v. State, 132 S.W.2d 15; People v. Russell, 77 Cal.App. 113. (15) It is proper to take into consideration the fact of imprisonment when considering whether the confession is voluntary or not. 22 C.J.S., p. 1433, sec. 817; People v. Klyczek, supra; Williams v. State, 86 P.2d 1015; 16 C.J., p. 720. (16) And also the fact of illegal imprisonment. People v. Vinci, 129 N.E. 193, 295 Ill. 419; People v. Trybus, 113 N.E. 538, 219 N.Y. 18. (17) The court erred in that it did not properly instruct the jury as to the law of the case and erred in refusing to give to the jury defendant's Instruction 3 at the request of the defendant. State v. Gibilterra, 116 S.W.2d 88, 342 Mo. 577; State v. Smith, 222 S.W. l.c. 458; State v. Hart, 237 S.W. 473; State v. Keller, 263 Mo. 539; State v. Woodward, 182 Mo. l.c. 412; State v. Hawkins, 165 Mo. 644; State v. Williamson, 99 S.W.2d 76.

Roy McKittrick, Attorney General, and Covell R. Hewitt , Assistant Attorney General, for respondent.

(1) No error was committed by the court in overruling appellant's objections to the hypothetical questions propounded to witnesses (Dr. W. B. Spalding, Dr. W. R. Moore and Dr. Templeman). State v. Privitt, 75 S.W. 457, 175 Mo. 207; State v. Adams, 19 S.W.2d 671, 323 Mo. 729; State v. Hancock, 104 S.W.2d 241, 340 Mo. 918. (2) This assignment of error in appellant's motion for new trial is too general for review. Sec. 4125, R.S. 1939; State v. Eason, 18 S.W.2d 71, 322 Mo. 1239; State v. Maness, 19 S.W.2d 628; State v. Morgan, 56 S.W.2d 385. (3) The court did not err in admitting in evidence Exhibit No. 12, the confession of appellant. State v. Tharp, 64 S.W.2d 249, 334 Mo. 46; State v. McGuire, 39 S.W.2d 523, 327 Mo. 1176; State v. Menz, 106 S.W.2d 440. (4) The court did not err in admitting the admissions and statements made by the appellant at the time of the re-enactment of the alleged crime. Cases cited under Point (3). (5) The court did not err in refusing to give defendant's instructions 2 and 3, since the matters therein contained were covered by the court's instructions 5 and 6. State v. Wilkins, 100 S.W.2d 889; State v. Peterson, 154 S.W. 134; State v. Evans, 133 S.W.2d 389, 345 Mo. 398; Criminal Law, Key No. 829 (1). (6) No error was committed by the court in refusing to give defendant's Instruction 5. (7) The State's instructions 5 and 6 fully cover the law on the question of the admissibility of the confession of the appellant. State v. Kowertz, 25 S.W.2d 113, 324 Mo. 748; State v. Sherry, 64 S.W.2d 238; State v. Tummons, 34 S.W.2d 122; Authorities under Point (5). (8) The giving of Instruction S-7 by the court was not error and did not contradict defendant's Instruction D-11. (9) There was sufficient evidence in this case to submit a second degree instruction. (10) The court sustained the objection to the argument of the assistant prosecuting attorney and therefore, there was no further request made by the appellant. State v. Short, 87 S.W.2d 1031, 337 Mo. 1061; State v. Arnett, 92 S.W.2d 897, 338 Mo. 907. (11) Appellant's assignment is too general to preserve anything for review. Sec. 4125, R.S. 1939; Authorities under Point (12). (12) There was substantial evidence to sustain the verdict. Sec. 4125, R.S. 1939; State v. Anno, 296 S.W. 825; State v. Williams, 292 S.W. 19; State v. Carroll, 62 S.W.2d 863; State v. Francis, 52 S.W.2d 552, 330 Mo. 1205; State v. Standifer, 289 S.W. 856, 316 Mo. 49; State v. Tippett, 296 S.W. 132, 317 Mo. 319; State v. Burrell, 252 S.W. 709, 298 Mo. 672; State v. Simon, 295 S.W. 1076, 317 Mo. 336.

OPINION

Ellison, J.

The appellant, 32 years old, was convicted in the circuit court of Lafayette county, on change of venue from Clinton county, of murder in the second degree for the killing of Bertha Lorene Aitkens, a female child 14 months old, by choking and smothering her. The punishment assessed by the jury was 18 years' imprisonment in the pententiary. We have concluded the cause must be reversed and remanded. For that reason we shall discuss only such assigned errors as may recur on retrial. These challenge the sufficiency of the evidence; the admission in evidence of appellant's written and oral confession; and the giving and refusal of instructions. But first, as briefly as possible we state the facts.

The deceased infant was one of the six children of Mr. and Mrs Fred Aitkens, and the appellant is the wife of Fred's brother Harry, the latter couple having two children. The two families...