State v. Black

• Decision Date: 13 March 1950
• Docket Number: No. 2,No. 41581,41581,2
• Citation: 360 Mo. 261,227 S.W.2d 1006
• Parties: STATE v. BLACK
• Court: Missouri Supreme Court

Page 1006

227 S.W.2d 1006

360 Mo. 261

STATE v. BLACK.

No. 41581.

Supreme Court of Missouri, Division No. 2.

March 13, 1950.

Roy Hamlin, Hannibal, for appellant.

J. E. Taylor, Attorney General, Lawrence L. Bradley, Assistant Attorney General, for respondent.

TIPTON, Judge.

In the circuit court of Marion County, Missouri, the appellant was convicted of manslaughter for killing his daughter Geneva Lorene Black, and his punishment was assessed at imprisonment in the county jail for one year. From this judgment he has duly appealed.

His first assignment of error is that the trial court erred in overruling his motion to quash the indictment returned by the grand jury against him. In his motion he contends that the indictment is so vague, verbose and conflicting that no accused could prepare a defense nor anticipate for what he was being put in jeopardy. The indictment states that the appellant 'on or about the 25th day of January, one thousand nine hundred forty seven, * * * with force and arms, * * * did make an assault, * * * with his hands and fists * * * in and upon the head and dody * * * did strike, knock, hit, beat and wound, giving to the said Geneva Lorene Black, * * * one mortal blow, bruise, contusion, laceration and wound, of which said mortal blow * * * and wound the said Geneva Lorene Black, on the 26th day of January, one thousand nine hundred forty seven at the Township of Mason, County of Marion and State of Missouri, did die.'

We are of the opinion that this indictment clearly informed the appellant that he was accused of killing Geneva by striking and beating her upon the head and body with his hands and fists and that as a result of said striking and beating she died. It is not subject to appellant's charge that it was merely 'a 'shot gun' accusation in the hope of having something develop upon which appellant could be convicted.' Since the indictment omits the elements of first and second degree murder, it sufficiently charges the crime of manslaughter. State v. Holliday, 353 Mo. 397, 182 S.W.2d 553.

Appellant contends that the trial court erred in overruling his motion to suppress his evidence, his wife's evidence, his daughter's evidence and his son's evidence, taken at the coroner's inquest in reference to the death of Geneva. These four people were duly subpoenaed to appear before the coroner's jury. The appellant was duly sworn and testified that his name was Marvel Black and he was the father of deceased. Then the prosecuting attorney of Marion County asked him the following questions:

'Q. Mr. Black, I do not know what this inquest will bring out. There is a possibility that you may not want to testify. I want to advise you now that you are not required to testify if you think that it will jeopardize you in any way. You have a constitutional right not to do so. In view of this right, do you want to tell us what you know about this situation? A. Yes, sir. It is just like I told you yesterday * * *

'Q. You made a voluntary statement to officer Blackburn and me yesterday? A. Yes. I believe that was his name.'

On the motion to suppress the appellant testified that he went only to the fourth grade in school, that he did not know what was meant by his constitutional rights in regard to testifying at the coroner's inquest, and that he did not have an attorney. The record of the testimony at the inquest showed that neither the appellant nor his wife was warned that her testimony could be used against appellant, nor was there any warning given the two children of appellant.

The court ruled on each of these four witnesses separately. He held that regardless of whether Mrs. Black and the children had been warned of any constitutional rights, their testimony could not be admitted as evidence against the appellant but could be used for impeachment purposes in their cross-examination in the event they were put on the witness stand by the appellant. The trial court ruled that appellant had been sufficiently warned in very clear, understandable language of his constitutional rights.

We agree with the trial court that appellant had been warned in clear, understandable language of his constitutional rights. We think his answers to the questions set out above indicate that he understood the warning and the court properly overruled that part of the motion to suppress the testimony of the appellant.

There is some ambiguity in the record as to whether the testimony of the appellant was used by the state in its evidence in chief or used only for impeachment purposes in cross-examination. Under the law, if it was not given voluntarily, then it would be inadmissible either in chief or in cross-examination. State v. Burnett, Mo.Sup., 206 S.W.2d 345, and cases cited therein. But we are of the opinion that appellant voluntarily testified at the coroner's inquest and he therefore waived his constitutional rights for the reason that he understood the warning given by the prosecuting attorney at the inquest. State v. McDaniel, 336 Mo. 656, 80 S.W.2d 185.

However, there is nothing in the record to show that the appellant was warned that his wife could not testify against him. Section 4081, R.S.Mo., 1939, Mo.R.S.A., provides that no person on trial or examination, nor wife or husband of such person, shall be required to testify. Under the circumstances in this case the appellant did not voluntarily waive his legal rights when his wife testified at the coroner's inquest, and her testimony given there should not have been used in her cross-examination at the trial, even if used only to impeach her. State v. Burnett, supra. But we have carefully searched appellant's motion for a new trial and fail to find any assignment of error that would preserve this question for our review.

Appellant's next two assignmetns of error go into the sufficiency of the evidence to sustain a verdict finding the appellant guilty of manslaughter. The evidence most favorable to the state is as follows: The deceased was a little over sixteen years old and was employed as a domestic in the home of Mr. and Mrs. John Miller in Hannibal, Missouri. In the afternoon of January 25, 1947, the mother of the deceased called her by telephone at the Miller home and requested her to come home, which she did for a short while. Upon arriving home she was questioned by her parents about $15.00 she had obtained from a Mr. Hemme by device of a note purportedly written by her mother requesting a loan of $15.00. After some questioning she finally admitted that she had written the note and got the money. Appellant then told her if that was the way she was going to act for her to get her clothes and come home. No corporal punishment was administered to her at this time.

After the deceased returned to the Miller home, Mrs. Miller heard her crying in her bedroom. A little later Mrs. Miller saw her in the bathroom vomiting and she continued to vomit off and on for some time. Mrs. Miller and her husband went in a car to appellant's home and informed the Blacks of the deceased's illness. The appellant stated he would go after her and said, 'I will go down and give her a good beating like I did one of my other girls, that is what she needs.' As he left with the Millers he said to his wife, 'If I'm not back in a few minutes you can come to the police station after me.' The group then drove back to the Miller home and on arriving found the deceased in the bathroom vomiting. Appellant told deceased to get up and get her clothes. After an interval deceased went to her bedroom and Mrs. Miller helped her pack. Appellant and deceased left in a taxi. The driver of the taxi testified that deceased said nothing on the way home but was whimpering like she had been crying. He heard the appellant say to her, 'You think you feel bad now, wait until I get you home.' When they got to the Black home, deceased got out of the taxi unassisted and she and appellant went into the house.

Appellant immediately asked deceased what she had done with the $15.00 and she refused to answer. When she refused to answer, according to appellant, he slapped her with his open hand four or five times. Deceased went to bed and appellant heard her vomiting during the night. He told her to get up and get a pan, and not to vomit on the clean floors. He stated that one time during the night he heard her fall or stumble into a chair in the kitchen.

Appellant testified that the Black family arose about 5:00 the next morning but deceased stayed in bed. While the rest of the family was at breakfast deceased was heard to go outside toward the outdoor toilet. She did not return in a reasonable length of time so appellant picked up a switch about the size of a lead pencil and went out to see about her. He found her lying face down on a concrete side walk. She was dressed in a nightgown, house coat and slippers. He told her to get up and she did with his help. Just as she got to the doorway, he struck her several times about the buttocks and legs with the switch. She went into the house and went to bed. He then went to work at the cement plant. The other children later went to Sunday school. When they returned they went into deceased's bedroom to show her their Sunday school papers. After...