State v. Cochran, 40256.

• Citation: 203 S.W.2d 707
• Decision Date: 14 July 1947
• Docket Number: No. 40256.,40256.
• Parties: STATE v. FLOYD COCHRAN, Appellant.
• Court: Missouri Supreme Court

203 S.W.2d 707 STATE
v.
FLOYD COCHRAN, Appellant. No. 40256. Supreme Court of Missouri. Court en Banc, July 14, 1947.

[203 S.W.2d 708]

Appeal from Boone Circuit Court. — Hon. Walter M. Dinwiddie, Judge.

AFFIRMED AND SENTENCE ORDERED EXECUTED.

Henry W. Simpson and Joseph M. Walsh for appellant.

(1) The trial court erred in denying defense request for the appointment of a commission to examine defendant as to his sanity after said defendant's insanity was suggested by counsel for defendant in view of the fact that defendant was an indigent and ignorant negro and financially unable to himself employ and pay psychiatrists for that purpose. (2) The trial court erred in permitting the mother of the murder victim to sit in the courtroom, over defense objection, in close proximity to the trial jury, both before and after her testimony, and there to remain crying and sobbing. Such scene tended to, and did, inflame and prejudice the trial jury against the defendant. (2) The trial court erred in not sustaining defense objection to the admission of alleged confession and extra-judicial statements by defendant, following his arrest, when the state's own evidence establishes that said confession and extra-judicial statements were obtained after long and continuous questioning of defendant, a person of low mental calibre, held incommunicado and thereby denied the right to advice of counsel. State v. Thomas, 250 Mo. 189, 157 S.W. 330; State v. Powell, 266 Mo. 100, 180 S.W. 851; State v. Meyer, 293 Mo. 108, 238 S.W. 457; State v. Butts, 349 Mo. 213, 159 S.W. (2d) 790; State v. Ellis, 193 S.W. (2d) 31. (4) The record in the trial court is replete with references to the murder by defendant of his wife some days after the murder of the Jenkins girl to such an extent that justice requires that defendant be granted a new trial in view of the extremely prejudicial and inflammatory effect upon the jury of such references. State v. Buxton, 324 Mo. 78, 22 S.W. (2d) 635. (5) The trial court erred in allowing the witness Hagan to testify, over defense objection, as to overhearing a statement made by defendant to a psychiatrist, examining defendant in his professional capacity, while defendant was in the state's custody, thus allowing the state to introduce indirectly testimony that could not properly be introduced directly. State v. Horton, 247 Mo. 657, 153 S.W. 1051; State v. Matsinger, 180 S.W. 856; State v. Newcomb, 220 Mo. 54, 119 S.W. 405. (6) The trial court erred in excluding from the evidence in the case defendant's Exhibit 1, a letter written by defendant's wife to her brother several months before the Jenkins murder, which letter had to do with the question of defendant's insanity. State v. Hicks, 319 Mo. 28, 3 S.W. (2d) 230. (7) The argument of the state's attorney to the effect that there was no evidence in the case that the defendant didn't know right from wrong was improper and highly prejudicial and misleading for the reason that such evidence would have been inadmissible under our Missouri cases. Said statement tended to give the trial jury the erroneous impression that before it could find the defendant insane there would necessarily have to be evidence in the record that the defendant could not distinguish between right and wrong, the determination of which question is within the sole province of the trial jury itself. (8) The argument of the state's attorney: He (defendant) took the life of his own wife, he took the life of this girl ..." is so highly prejudicial and inflammatory as to entitle the defendant to a new trial, and the trial court erred in failing to reprimand the state's attorney therefor, and in failing to declare a mistrial. State v. Buxton, 324 Mo. 78, 22 S.W. (2d) 635; State v. Pagels, 92 Mo. 300, 4 S.W. 931. (9) The trial court erred in placing the sheriff and one of his deputies in charge of the trial jury in view of the fact that said sheriff and his deputy testified as witnesses upon the trial of defendant. As a result undue weight might be given to their testimony. State v. Burns, 148 Mo. 167, 49 S.W. 1005. (10) trial jury itself. (8) The argument of the state's attorney: He (de- the sanitary pad (State's Exhibit U) for the reason that it was not properly identified.

J.E. Taylor, Attorney General, and W. Brady Duncan, Assistant Attorney General, for respondent.

(1) The court did not err in overruling defendant's motion for a sanity hearing before trial. Sec. 4046, R.S. 1939; State v. Crane, 202 Mo. 54, 100 S.W. 422. (2) The court did not err in overruling Assignment No. 2 of defendant's motion for new trial concerning the mother of deceased sitting inside the rail of the enclosure. State v. Hepperman, 349 Mo. 681, 162 S.W. (2d) 878; State v. Marlin, 177 S.W. (2d) 485; State v. Havens, 177 S.W. (2d) 625. (3) The court did not err in overruling Assignment No. 3 of appellant's motion for new trial, relative to the admission in evidence of defendant's confession. State v. Evans, 345 Mo. 398, 133 S.W. (2d); 389; State v. Gibilterra, 342 Mo. 577, 116 S.W. (2d) 88; State v. Ramsey, 197 S.W. (2d) 949; State v. Golden, 353 Mo. 585, 183 S.W. (2d) 109; State v. Ellis, 193 S.W. (2d) 31. (4) Assignments in motion for new trial not carried forward in brief are waived. Appellant, in his brief, did not carry forward assignments in his motion for a new trial numbered 4, 5, 6, 7, 9, 10, 12, and 13. State v. Kenyon, 343 Mo. 1168, 126 S.W. (2d) 245. (5) Points IV, VIII and X in appellant's brief are not subject to review by the Supreme Court because they are not preserved for review by defendant's motion for new trial and are not such a subject matter as might be considered under Rule 3.27 of the Supreme Court of Missouri. Sec. 4125, R.S. 1939; State v. Di Stefano, 152 S.W. (2d) 20; State v. Painter, 329 Mo. 314, 44 S.W. (2d) 79; State v. Mabry, 324 Mo. 239, 22 S.W. (2d) 639; State v. Batey, 62 S.W. (2d) 450; State v. De Shon, 334 Mo. 862, 68 S.W. (2d) 805; State v. Myers, 147 S.W. (2d) 444; Rules 3, 3.01, 3.27, Supreme Court of Missouri. (6) The court did not err in admitting statements of defendant made to a physician, when such statements are not made or elicited for the purpose of treatment, and when physician is not witness. Sec. 1895, R.S. 1939; Arnold v. Maryville, 110 Mo. App. 254, 85 S.W. 107; Burgdorf v. Keeven, 351 Mo. 1003, 174 S.W. (2d) 816; State v. Smith, 193 S.W. (2d) 499; 107 A.L.R. 1496. (7) The court did not err in excluding defendant's Exhibit No. 1, offered on the question of his insanity. 22 C.J.S., sec. 724, p. 1235; State v. Tarwater, 293 Mo. 273, 239 S.W. 480; State v. Glenn, 262 S.W. 1030; State v. Murphy, 338 Mo. 291, 90 S.W. (2d) 103. (8) The court did not err in overruling Assignment No. 14 of defendant's motion for new trial, which assignment complains of argument of prosecuting attorney. State v. Crutcher, 189 Mo. App. 302, 175 S.W. 299. (9) The court did not err in overruling Assignment No. 15 of defendant's motion for new trial. State v. Pinkard, 318 Mo. 751, 300 S.W. 748.

HYDE, J.

Defendant was convicted of murder in the first degree. He was sentenced to death, and has appealed.

Defendant was found guilty of the murder of Marylou Jenkins by strangling her, by tying an electric light cord tightly around her neck, after raping her in her home on February 5, 1946. She was found dead by her mother when she returned to her home on the morning of February 6th. Defendant confessed to this murder on February 26th, when he told the officers who were questioning him that he could show them how he did it better than he could tell them. He was taken to the Jenkins' home where he reenacted the crime.

[1] At the trial, defendant attempted to prove alibi and insanity and also to exclude this and other later confessions as involuntary. All of these issues were submitted to the jury on comprehensive instructions and no claim of error therein is made. The principal evidence of defendant's guilt consisted of these confessions although there was evidence of certain corroborating circumstances. The trial court held a preliminary hearing, with the jury excluded, before admitting any evidence of confessions, and, thereafter, overruled defendant's motion to exclude them. Defendant contends that these confessions were inadmissible as a matter of law, claiming they were obtained after long and continuous questioning of defendant, who was a person of low mental calibre, held incommunicado and without the advice of counsel. A conviction based on confessions must be reversed if the evidence conclusively shows they were involuntary; and this question should be decided on this appeal upon consideration of all of the evidence, both at the preliminary hearing and before the jury. [State v. Ramsey, 355 Mo. 720, 197 S.W. (2d) 949 and cases therein cited.] If the evidence is conflicting on this issue it is a question...