State v. Butts

• Decision Date: 13 March 1942
• Docket Number: 37778
• Citation: 159 S.W.2d 790,349 Mo. 213
• Parties: The State v. James Butts, Appellant
• Court: Missouri Supreme Court

159 S.W.2d 790

349 Mo. 213

The State v. James Butts, Appellant

No. 37778

Supreme Court of Missouri

March 13, 1942

Appeal from Jackson Circuit Court; Hon. Paul A. Buzard Judge.

Reversed and remanded.

Richard Arens for appellant.

(1) The court erred in overruling appellant's challenge for cause to one police officer, on the jury panel, named Danford Z Engle. State v. Langley, 116 S.W.2d 38, 342 Mo. 447; R. S. 1939, secs. 699, 758; 35 C. J., p. 201; Murphy v Cole, 88 S.W.2d l. c. 1024; State v. West, 69 Mo. 401; State v. Leabo, 89 Mo. 247; State v. Young, 119 Mo. 495; State v. Foley, 144 Mo. 600; State v. White, 34 S.W.2d 70; Carroll v. United Rys. Co., 157 Mo. l. c. 264. (2) The court erred in refusing to declare as a matter of law that the purported confessions of the appellant, including the recordings of the appellant's voice, were involuntary and were therefore inadmissible. State v. Ellis, 242 S.W. 952, 24 A. L. R. 682; State v. Condit, 270 S.W. 286, 307 Mo. 393; State v. Powell, 167 S.W. 559, 258 Mo. 239; McAffee v. United States, 105 F.2d l. c. 34; State v. Gibilterra, 116 S.W.2d l. c. 93. (3) The court erred in refusing to sustain the appellant's motion to discharge the jury because of the fact that during the highly prejudicial and improper closing argument of the prosecuting attorney, Mrs. Maenhoudt, the mother of the deceased, shrieked, fainted and collapsed in the courtroom in the presence of the jurors and was carried from the courtroom in full view of the jurors. State v. Connor, 252 S.W. 713.

Roy McKittrick, Attorney General and Olliver W. Nolen, Assistant Attorney General, for respondent.

(1) The indictment properly charges appellant with murder in the first degree and the form has been approved by the court. State v. King, 119 S.W.2d 277, 342 Mo. 975; State v. Beard, 68 S.W.2d 698, 334 Mo. 909; State v. Lloyd, 87 S.W.2d 418, 337 Mo. 990; State v. Kenyon, 126 S.W.2d 245, 343 Mo. 1168; State v. Privett, 130 S.W.2d 575, 344 Mo. 1020. (2) The verdict is in proper form. State v. Batson, 116 S.W.2d 35, 342 Mo. 450; State v. Barbata, 80 S.W.2d 865, 336 Mo. 362; State v. Wright, 112 S.W.2d 571, 342 Mo. 58. (3) There was no error in overruling appellant's challenge to the competency of the juror Danford C. Engle. The fact that he was a police officer does not disqualify him. The juror, on his voir dire examination, was competent. State v. Craft, 253 S.W. 224, 299 Mo. 332; State v. Langley, 116 S.W.2d 38, 342 Mo. 447; State v. Golubski, 45 S.W.2d 873; State v. Lewis, 20 S.W.2d 529, 323 Mo. 1070; Sec. 699, R. S. 1939. (4) The confession and statements of appellant were voluntary. State v. Arndt, 143 S.W.2d 286; State v. Evans, 133 S.W.2d 389, 345 Mo. 398; State v. Tharp, 64 S.W.2d 249, 334 Mo. 46; State v. Christup, 85 S.W.2d 1024, 337 Mo. 776; State v. Menz, 106 S.W.2d 440, 341 Mo. 74. (5) In view of the evidence, there was nothing improper in the prosecuting attorney's remarks. Appellant has not properly preserved in the bill of exceptions the actions of Mrs. Maenhoudt, the mother of the deceased child, in fainting and shrieking in the courtroom. The affidavits filed after the trial are not competent proof. State v. Neal, 300 S.W. 1073, 318 Mo. 766; State v. Cohen, 100 S.W.2d 544; State v. Raines, 62 S.W.2d 727, 330 Mo. 538; State v. Smith, 281 S.W. 35; State v. Tarwater, 239 S.W. 480, 293 Mo. 273; State v. Jones, 207 S.W. 793, 276 Mo. 299; State v. Glazebrook, 242 S.W. 928.

Westhues, C. Bohling and Barrett, CC., concur.

OPINION

PER CURIAM

Appellant was convicted in the Jackson County Circuit Court of murder in the first degree and the death sentence was imposed. An appeal was duly taken.

A number of points were preserved for our review. The question of whether a confession of the defendant, used against him at the trial, was voluntarily made, and the question of the qualification of a juror who was challenged for cause by appellant on the ground that the juror was at the time of the trial a police officer of Kansas City, Missouri, are the two most important points.

Appellant was charged with having murdered Mary Margaret Maenhoudt, eight years old. The evidence revealed that the little girl had been brutally assaulted and then beaten to death. Her nude body was found in a weed patch where the crime had been committed. The double crime of rape and murder perpetrated upon this little helpless child was most dastardly and atrocious and naturally aroused public indignation. The bill of exceptions contains over one thousand pages, but since the sufficiency of the evidence to sustain a conviction was not challenged we will state the facts as briefly as the circumstances permit. The victim of the crime lived with her parents at 3054 Oakley street. Appellant and his family lived at 6102 East 30th street. The child's body was found on a vacant plot of ground near 31st street and Topping avenue. These points are located in Kansas City, Missouri, within a few blocks of each other. At about 1:00 o'clock on Saturday afternoon, August 17, 1940, Mrs. Maenhoudt sent Mary Margaret to a grocery store, which was about two blocks from their home, for the purpose of getting some groceries. A list of the groceries to be purchased was written upon a small slip of paper. The little girl stopped at the home of her aunt, Mrs. Thelma Maenhoudt, who lived next door and who also gave her a list of groceries to be purchased. Her aunt wrote the name "Thelma" on the slip of paper. The child did not return home, and after waiting some time the mother inquired at the grocery store and learned the child had not been there. She became alarmed and she and Mrs. Thelma Maenhoudt and others began to investigate. Soon the entire neighborhood joined in the search. The police were notified and they too began an investigation. About 2:00 o'clock it began to rain and at intervals rained heavily. The body of the child was found about 6:30 o'clock by an aunt, Mary Maenhoudt, on a vacant lot surrounded by thick, high weeds and brush. An examination of the body revealed that the child had been criminally assaulted and her skull crushed.

The evidence tending to connect appellant with the crime, aside from his alleged confession, was in substance as follows: A number of witnesses testified that at about 2:00 P. M. of that day they noticed appellant and the little girl sitting together at the edge of a street not far from where the body was found. These witnesses noticed that the child had a small slip of paper in her hand. The witnesses were personally acquainted with both appellant and the child. At about 7:00 P. M. the police officers went to appellant's home and took him into custody. His clothes were wet, and when asked about his whereabouts during the day he stated that he had been at home all afternoon. Appellant's shirt, overalls and other articles were sent to the Bureau of Investigation at Washington, D. C. An employee of that department testified that when the package reached the bureau he opened it and examined the contents; that he found a slip of paper in the pocket of the shirt. This slip of paper was identified by Mrs. Thelma Maenhoudt as the paper upon which she had written a list of groceries to be purchased by the little girl. She identified the writing on the paper as her own and the name "Thelma" written thereon as her signature. Police officers testified that appellant was intoxicated when they arrested him. Appellant at the trial admitted he had consumed a pint of whisky during the afternoon.

The evidence pertaining to the question of whether appellant's confession was voluntarily made was about as follows: The police officers stated that appellant was taken into custody about 7:00 P. M. Saturday; that about 4:00 o'clock Sunday morning he signed a confession; that he signed another about noon Sunday and that a phonograph record of the confession was made about 1:30 Sunday afternoon. Appellant at the trial refuted these confessions and testified that he had been beaten unmercifully by the police; that he was kept up all night; that the members of his family had been taken into custody and that sometime during the night he was permitted to see his wife, two children and a son-in-law in a showup room, handcuffed together, but that he was not permitted to speak to them or they to him and that they could not see him; that he was told the family would not be released until he signed a confession; that because of all of this he signed a statement dictated to him by the police, which statement he was forced to repeat numerous times and then a phonograph record was made thereof. The county jail physician, a witness for appellant, testified that on Monday he examined appellant at the jail and found a cut and swelling on his lower lip caused by trauma; that the left ear-drum had been ruptured; that the defendant's wrists were swollen and were very tender and that he found wounds on appellant's shins.

The police officers emphatically denied that appellant had been mistreated in any manner. For the purpose of this case and in determining the question of whether appellant's confession was voluntarily made we will disregard appellant's evidence and take as true the evidence as given by the police officers. That evidence justifies the following statement concerning the alleged confession. After appellant was arrested he was taken to police headquarters where all of his clothing was removed and he was given a white jacket and dark trousers to wear which were very much too large for him. Appellant was questioned by police officers, first one and then another, including the chief of police, from the time he reached police headquarters until the next day at noon. During this time he did not sleep, and at about 3:00 A. M. he was taken to the...