State v. Baker
| Decision Date | 11 May 1970 |
| Docket Number | No. 2,No. 54547,54547,2 |
| Citation | 453 S.W.2d 918 |
| Parties | STATE of Missouri, Respondent, v. Edwin L. BAKER, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Thomas L. Patten, Asst. Atty. Gen., Jefferson City, for respondent.
Stanley I. Dale, Whitney W. Potter, Joseph L. Flynn, St. Joseph, for appellant.
BARRETT, Commissioner.
By information the appellant, Edwin L. Baker, and his wife, Josephine T. Baker, were charged with manslaughter in an attempt to produce or promote an abortion upon Janet, age 24, by the administration of a drug. Specifically the information alleged that 'on or aobut the 13th day of July, 1968 * * * Edwin L. Baker and Josephine T. Baker did feloniously, with the intent to produce or promote a miscarriage or abortion * * * administer to a woman, to-wit, one Janet * * * a drug' and that as a result of the acts of the Bakers Janet died. Upon a severance and change of venue Edwin Baker was separately tried, found guilty of manslaughter 'as defined in Instruction 6' and his punishment fixed at ten years' imprisonment. Instructoin 6 submitted and hypothesized that 'Edwin L. Baker, either alone or acting with his wife, Josephine T. Baker, did then and there with the intent to produce or promote a miscarriage or abortion administer to a woman by the name of Janet * * * a drug, and that as a direct and proximate result of the administration of said drug,' Janet died.
In brief outline these are the background circumstances of the charge and verdict: Ronald Niemiec, age 26, and Janet, both from Detroit, although not married, moved to St. Joseph where they lived together, sometimes as husband and wife. In the course of their relationship they had two children who were 'adopted out through the welfare and social workers.' In April or May of 1968 it was discovered that Janet was again pregnant and this time Niemiec went in search of an abortionist and finally was referred to Baker, an ice-truck driver, as a well-known abortionist. On Thursday, June 27, 1968, Niemiec drove Janet to Baker's home, 2619 Faraon Street, and waited in his automobile about an hour while Janet, after being met by Mrs. Baker, went inside. The next day, Friday, June 28th, Niemiec and Janet got and cashed their weekly pay checks and with his $80.00 and her $45.00 in cash and after the purchase of 'a douche thing' and Kotex they returned to the Bakers and this time he waited outside about forty-five minutes. Again Niemiec did not see Baker but he say that as on the day before he saw that 'his car was there.' The next day was Saturday, June 29, and Niemiec worked until noon but about 12:30 again drove to the Bakers and Janet walked up to the car and then to the duplex and Mrs. Baker 'let Jeannie,' and '(t)here was someone peeking out of the curtains' but again he did not see the appellant. Janet was inside the house about an hour and after she came out Niemiec took her home to her apartment--they were then living in separate apartments. Twelve days later, on Friday, July 12, 1968, Niemiec and Janet returned to the Bakers and again he waited outside about forty-five minutes. While he was waiting a rainstorm developed and he saw Mrs. Baker run out and roll up the windows on her husband's Mercury. Again he took Janet to her apartment and the next day, Saturday, July 13, 1968, about 7 o'clock in the morning on his way to work he stopped at Janet's for coffee and saw her alive for the last time. As he left Janet 'She said she was going to get a shot,' she told him that 'at 2:30 she was going to see Mr. Baker and get a shot.' Niemiec got off from work shortly after 3 o'clock and immediately went in search of Janet. He finally became frantic and between 6 and 7 o'clock went to 2619 Faraon but Mrs. Baker in response to his questions said, 'She didn't show up, she didn't come over here today.' On this occasion, it was dark inside the house, he saw a man 'sitting on the living room floor' but he could not identify the man as Baker. Niemiec made repeated calls to the Bakers, on one occasion Mrs. Baker said, 'We told that girl to go see a doctor and get a D & C.' And finally, with his friend Duffy, Niemiec confronted Baker in his back yard while he was washing his automobile and when Baker said 'Is somebody missing?' directly accused him: 'You gave her an abortion, Baker.' But Baker, said, After the police had intervened and arrested Niemiec, his companion and the Bakers, Niemiec again challenged Mrs. Baker about the day of the rain and she said, used the phone and left.
On Monday, July 15, 1968, Mr. Delaney who lived about 6 miles south of Stewartsville was 'smoothing' his roadway with a bulldozer when he came upon the body of a young woman, Janet, in the edge of the water of Castile Creek. She had been dead between 24 and 48 hours. She was naked and her clothes, shoes, pocketbook and wallet were never found. It is not necessary to describe the autopsy in detail or to relate in full the pathologist's testimony. On the forehead, just above the hairline, there was 'a defect in the skin,' not a 'severe traumatic wound, if it is a wound at all.' Most important here: 'There is a very slightly swollen area in the right upper quadrant of the right hip.' An incision into the skin revealed 'some hemorrhage' which the doctor called 'antemortem.' He described it in this language: 'There is a slightly raised area which measures at least 10 cm. across which, to this examiner, might be interpreted as the type of skin change noted in a hornet's or bee's sting: that is, there is a diffuse swelling of the skin and subcutaneous tissue.' He said that her breasts indicated a state of pregnancy. In describing the vaginal area Dr. Kernodle said, 'No surgical instrument marks can be identified: that is, there is no evidence of an operative procedure.' Again in his report and describing the uterus he reported, 'There is no blood clot in the opening, only mucus, and there does not appear to be evidence of any type of instrumentation.' Opening the uterus the amnion membrane was intact and normal and inside was the fetus of a male ten to twelve weeks old. And here the doctor repeated, 'It must be emphasized at this time that no instrument wound is found in the cervix of the uterus, the uterus itself, the vagina or any portion of this part of the body.'
Before coming to the essential problem involved here it is necessary to interpolate that on July 18, 1968, a lady in walking up the alley to the rear of the Bakers' residence came upon a pasteboard box, near their garbage drum, which she picked up and gave to the police. The empty box was a Parke, Davis & Company drug box which once contained five doses of penicillin and streptomycin. Also it should be said that a number of Janet's organs, uterus, kidneys, liver and intestines were examined by the FBI in Washington and 'No drug substances were identified in these tissues.' As to Pitocin, a trade name for a drug, oxytocin, designed to hasten childbirth or to induce a miscarriage, the report was: 'There is no method known to this Laboratory for the chemical identification of Pitocin or its analogues in postmortem tissue.'
The state to establish its case put this hypothetical question to Dr. Kernodle and another pathologist: 'Now, Doctor, I will ask you to assume that the girl upon whose body you performed the autopsy was last seen alive on July 13, at which time she appeared to be in good health and spirits, and to assume further that her nude body was found in a rural area on July 15, and to assume further that chemical tests were made of the liver, kindneys, lungs, intestines,...
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