State v. Banister

• Decision Date: 05 August 1974
• Docket Number: No. KCD,KCD
• Citation: 512 S.W.2d 843
• Parties: STATE of Missouri, Respondent, v. Raymond Denver BANISTER, Appellant. 26727.
• Court: Missouri Court of Appeals

Page 843

512 S.W.2d 843

STATE of Missouri, Respondent, v. Raymond Denver BANISTER, Appellant.

No. KCD 26727.

Missouri Court of Appeals, Kansas City District.

Aug. 5, 1974.

W. V. Mayse, Bethany, for appellant.

John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.

Before PRITCHARD, P.J., and SWOFFORD and SOMERVILLE, JJ.

SOMERVILLE, Judge.

Defendant, charged with murder in the second degree by information in the Circuit Court of Harrison County, stood trial by jury and was found guilty of manslaughter. The jury assessed defendant's punishment at five years confinement in the Department of Corrections. Judgment and sentence were rendered accordingly, and defendant duly perfected a appeal to this court.

The victim was defendant's six month old son, thereby presenting a tragic case of parricide for appellate review. The state alleged and contended that the infant's death resulted from assaults inflicted upon him by defendant. Although presenting nine separate points of alleged error in his brief, they have been consolidated by defendant in the argument portion of his brief, where he states:

'Essentially, the foregoing assignments of error which defendant claims requires reversal of defendant's conviction and discharge of defendant, present the sole question of whether the evidence is sufficient as a matter of law to sustain the judgment of conviction against the defendant.' (Emphasis added.)

Resolve of the 'sole question' raised by defendant on appeal, sufficiency of the evidence to sustain defendant's conviction, compels a review of the evidence in the light most favorable to the State, considering as true all evidence and reasonable inferences favorable to the State and disregarding all evidence and inferences unfavorable to the State. State v. Strong, 339 S.W.2d 759 (Mo.1960); State v. Bruton, 383 S.W.2d 525 (Mo.1964); State v. Archer, 328 S.W.2d 661 (Mo.1959); State v. Colthorp, 437 S.W.2d 75 (Mo.1969); and State v. Watson, 350 S.W.2d 763 (Mo.1961).

It was the sole prerogative of the jury to weigh and evaluate the evidence and make the crucial determination of whether the evidence proved beyond a reasonable doubt that defendant was guilty of manslaughter. The duty of this court on appeal is limited to determining whether there was sufficient substantial evidence to support the jury's determination that defendant was guilty of manslaughter. State v. Strong, 484 S.W.2d 657 (Mo.1972); State v. Crawley, 478 S.W.2d 344 (Mo.1972); and State v. Odom, 353 S.W.2d 708 (Mo.1962).

Manslaughter is the unjustifiable, inexcusable and intentional killing of a human being without deliberation, premeditation and malice. State v. Ayers, 470 S.W.2d 534 (Mo. en banc 1971); and Section 559.070 RSMo 1969, V.A.M.S. Where death results from an unlawful assault and battery, and the assault is without malice, the assailant is guilty of manslaughter, even though death was not intended and the assault itself was not of a character likely to result in the death of the person assaulted. State v. Watson, 364 S.W.2d 519 (Mo.1963); and State v. Cooley, 387 S.W.2d 544 (Mo.1965). The immediate occurrence of death as a consequence of an injury inflicted by an assailant is not required to sustain a manslaughter conviction; the assailant is deemed guilty of manslaughter if the injuries inflicted contribute mediately or immediately to the death of the person upon whom the injuries were inflicted, even if other causes contribute to the death, so long as the other causes are not the proximate cause of the death. State v. Cooley, supra.

The following evidence, comportable with the above enumerated principles of law, completely dissipates defendant's contention that substantial evidence was lacking, as a matter of law, to sustain his conviction of manslaughter.

Defendant's infant son was pronounced dead at approximately 8:00 P.M. on Monday, July 31, 1972, at the Noll Memorial Hospital, Bethany, Missouri, by Dr. Gilbert Frank Scamahorn. The infant was brought to the hospital by defendant, his father, and Linda, his mother, and died approximately five minutes after Dr. Scamahorn arrived. Dr. Scamahorn observed that the infant was 'very pale' and that 'three or four bruises showing on both the left and right side of the head' and 'bruises on the top of the head and two bruises, one on each cheek'. In response to a hypothetical question Dr. Scamahorn testified, 'It was my opinion that the child's death was due to trauma which is demonstrated by the bruises which were visible.' Dr. Scamahorn also offered as his medical opinion that a subdural hematoma, discovered by Albert Upsher, M.D., a board certified pathologist, in the performance of an autopsy on the infant on August 1, 1972, was the producing factor or cause of the infant's death.

Linda, the infant's mother, testified that on July 25, 1972, defendant 'took his hand and kept slapping (the infant's) face, back and forth' and 'he just hit him hard with his hands'. Linda further testified that on July 27, 1972, defendant 'picked . . . (the infant) . . . up by the back of the neck, and just hit his head against the closet door' two times. Additionally, Linda testified that on the afternoon of July 31, 1972, she discovered defendant 'was hitting on him (referring to the infant) and he told me to take him, he was afraid he was going to kill him' and that defendant 'had him by the back of the neck and pushed his face into the (car) seat'. Although defendant testified that the infant fell out of bed on July 25, 1972, and that Linda accidently allowed a screen door to close on the infant's head on July 27, 1972, Linda denied both occurrences.

Defendant testified that on the afternoon of July 31, 1972, preceding the infant's death, an automobile he was driving, and occupied by the infant and his mother Linda, ran off of a road in Bethany and went into a grader ditch and then came back on to the road. Linda, although recalling the occurrence of such an accident, refused to admit that it occurred on July 31, 1972, and said she could not recall the date of its occurrence. Additionally, Linda testified that the automobile accident occurred 'because (defendant) was drunk'. Linda further testified that she didn't remember seeing any bruises on the infant caused by the automobile accident. Dr. Scamahorn testified that it was 'possible, but unlikely' that the bruises he observed on the infant's head and face at the hospital the night of his death were caused by the automobile accident.

Albert Upsher, M.D. testified that he performed an autopsy on the child on August 1, 1972, which disclosed the following multiple hemorrhages: two on the right side of the infant's face and two more lower down on the right side of the infant's face in the chin area; two on the left side of the infant's face and one lower down on the left side of the infant's face in the chin area; two on the infant's left arm between the elbow and shoulder; four involving the infant's scalp, 'up on the top of the head, roughly right about the crown of the head'; two 'beneath the scalp, that is between the bottom of the scalp and the skull'; and one on the left side of the brain which he described as a subdural hematoma because of its location and the fact that it was 'more in volume than the other areas that were identified'. Dr. Upsher further testified that during the course of his autopsy all the organs of the infant were examined and 'they were all essentially normal for a six month old child'; there was 'no evidence of any congenital anomalies'; and microscopic studies of small samplings of all the infant's organs 'confirmed our gross findings that we do not have such things as pneumonia or infectious diseases or anything that we can identify that might be related to the demise of this infant.' In response to being asked if he had an opinion as to the cause of the infant's death, Dr. Upsher replied as follows, and also gave the following testimony in response to additional questions in sequence:

'A. Well, in view of some 15 areas of hemorrhage that I can identify externally on this youngster, all in a certain anatomical position, plus the hemorrhage in the brain, my opinion is that this child died from some type of traumatic--that means forceful--injury.

Q. Could it have been more than one injury?

A. That's correct, it could and probably was.

Q. What do you base that on?

A. Well, I base that impression upon the fact that the areas of hemorrhage are not all apparently in the same time schedule. These areas of hemorrhage beneath the skin were bluish in discoloration and this usually takes any place from 24 to 48 hours, or perhaps a little longer, for this color pigment to develop. So these injuries were all sustained at least two to three days or maybe longer before the infant was brought to the Noll Memorial Hospital.

Now, the area in hemorrhage on the brain appeared to be something perhaps of a more recent date, perhaps 24 hours, maybe 48, and it's even possible it could be older than that. It cannot be beyond about ten days because there is no organization of the clot, which almost invariably will occur in this type of hemorrhage on the surface of the brain.' (Emphasis added.)

Dr. Upsher further testified on direct examination,...