State v. Cole
| Decision Date | 11 June 1945 |
| Docket Number | 39327 |
| Citation | 188 S.W.2d 43,354 Mo. 181 |
| Parties | State v. Buford Cole, Appellant |
| Court | Missouri Supreme Court |
Motion for Leave to File Motion for Rehearing Overruled July 18 1945.
Appeal from Circuit Court of City of St. Louis; Hon. Robert J Kirkwood, Judge.
Affirmed.
J E. Taylor, Attorney General, and W. Brady Duncan, Assistant Attorney General, for respondent.
(1) The indictment is in proper form, and follows the language of the statute and charges the defendant with first degree murder. Sec. 4376, R.S. 1939; State v. Kaufman, 73 S.W.2d 217, 335 Mo. 611; State v. Kenyon, 126 S.W.2d 245, 343 Mo. 1168; State v. Frazier, 98 S.W.2d 707, 339 Mo. 966; State v. Cole, 174 S.W.2d 172. (2) The court did not err in overruling defendant's motion to quash indictment. Secs. 3903, 3904, Mo. R.S.A.; State v. Richetti, 119 S.W.2d 330, 342 Mo. 1015; State v. Hudspeth, 51 S.W. 483, 150 Mo. 12; State v. King, 119 S.W.2d 277, 342 Mo. 975; State v. Miller, 90 S.W. 767, 191 Mo. 587; State v. Taylor, 71 S.W. 1005, 171 Mo. 465; State ex rel. Graves v. Southern, 124 S.W.2d 1176, 344 Mo. 14; State v. Shawley, 67 S.W.2d 74, 334 Mo. 352; State v. Washington, 146 S.W. 1164, 242 Mo. 401; State v. Crane, 100 S.W. 422, 202 Mo. 54; State v. Welch, 33 Mo. 33; State v. Sartino, 115 S.W. 1015, 216 Mo. 408; State v. Carolla, 292 S.W. 721, 316 Mo. 213. (3) The court did not err in overruling defendant's motion to employ lie detector in reception of testimony of State and defense witnesses. Sec. 4070, Mo. R.S.A.; Sec. 22, Art. II, Mo. Constitution; State v. Klinger, 46 Mo. 224; State v. Jacobson, 152 S.W.2d 1061, 348 Mo. 258. (4) The verdict is proper as to form, and is responsive to the charge as set out in indictment, to the evidence and to the law as submitted to jury. Secs. 4376, 4378, R.S. 1939; State v. Barbata, 80 S.W.2d 865, 336 Mo. 362; State v. Batson, 116 S.W.2d 35, 342 Mo. 450. (5) Allocution, judgment and sentence are in proper form and fully comply with the statutes. Secs. 4100, 4102, 4108, R.S. 1939. (6) Assignments general in character will not be considered on review by this court. Sec. 4125, R.S. 1939; State v. Kennon, 123 S.W.2d 46; State v. Brown, 165 S.W.2d 420; State v. Wright, 112 S.W.2d 571, 342 Mo. 58; State v. Schmitz, 46 S.W.2d 539; State v. Anno, 296 S.W. 825; State v. Dollarhide, 87 S.W.2d 156, 337 Mo. 962; State v. Kelly, 107 S.W.2d 19. (7) Demurrer at close of State's case waived by presenting evidence on part of defendant. State v. Barr, 78 S.W.2d 104, 336 Mo. 300; State v. Lebo, 98 S.W.2d 695, 339 Mo. 960; State v. Kelly, 107 S.W.2d 19. (8) The trial court did not refuse the defendant the right to use witness Dr. R. H. Gradwohl, or witness Dr. James H. Connor. Sec. 4125, R.S. 1939. (9) The court did not err in overruling defendant's demurrer at close of entire case, or for overruling defendant's motion to discharge him at the close of the whole case, for the reason there was no substantial evidence of the defendant's guilt. State v. King, 119 S.W.2d 322, 342 Mo. 1067; State v. Arndt, 143 S.W.2d 286; State v. DiStefano, 152 S.W.2d 20; State v. Cole, 174 S.W.2d 172. (10) The court did not err in giving Instruction 2. State v. Murray, 292 S.W. 434, 316 Mo. 31; State v. McCullough, 316 Mo. 42, 289 S.W. 811; State v. Gibilterra, 116 S.W.2d 88, 342 Mo. 577; State v. Wallace, 289 S.W. 871, 316 Mo. 72; State v. Stebbins, 87 S.W. 460, 188 Mo. 387; State v. Brennan, 65 S.W. 325, 164 Mo. 487; State v. Moore, 61 S.W. 199, 160 Mo. 443. (11) The court did not err in not giving instruction as outlined under Point No. 13 in defendant's motion for new trial. Sec. 4083, R.S. 1939; State v. Bartholomew, 24 S.W.2d 1006; State v. Stogsdill, 23 S.W.2d 22, 324 Mo. 105; State v. Bevins, 43 S.W.2d 432, 328 Mo. 1046. (12) The court did not err in refusing defendant new trial upon alleged newly discovered evidence. Sec. 4125, Mo. R.S.A.; State v. Trainer, 80 S.W.2d 131, 336 Mo. 620; State v. McKeever, 101 S.W.2d 22, 339 Mo. 1066; State v. Proffer, 159 S.W.2d 681; Young v. Levine, 31 S.W.2d 978, 326 Mo. 593. (13) Record need not show arraignment. Sec. 4004, R.S. 1939. (14) Exceptions of defendant left out of motion for new trial are not preserved for review. State v. Mason, 98 S.W.2d 574, 339 Mo. 874; State v. Finley, 137 S.W. 879, 234 Mo. 603; State v. Whitsell, 44 S.W. 332, 142 Mo. 467; State v. Kenyon, 126 S.W.2d 245, 343 Mo. 1168.
The appellant, 29 years old, was convicted in the circuit court of the City of St. Louis of murder in the first degree and his punishment assessed by the jury at death, for the killing of a seven year old girl by strangulation in the attempted commission of a rape upon her. Both parties were negroes. On a former appeal the case was reversed and remanded for the giving of an erroneous instruction. State v. Cole (Mo., Div. 2), 174 S.W.2d 172. On this second appeal he has filed no brief. We shall take up the assignments of error in his motion for new trial after stating the facts.
The mother and father of the murdered child were separated. The mother worked away from home during the day. The child sold newspapers after school in the neighborhood of her home. On December 19, 1941, she left home after the supper hour to resume her work and had not returned by 11 p.m. A search was instituted, and the child's absence reported to the police about 1 a.m. Her corpse was found between 5 and 6 a.m. in the corner of a fence in the alley at the rear of 2624 Lawton Avenue by a negro Silas Millan, who notified the police. He had died since the first trial and his testimony at that trial was read in evidence. The corpse was lying on an ash pile with one leg extending through a hole in the fence. A sick woman in a nearby house heard a child screaming between 10 and 11 p.m. that night.
An autopsy early the next morning indicated death had occurred four to twelve hours earlier. The coat and panties on the corpse were torn and there were blood stains on the crotch of the latter garment together with microscopic evidence of vegetable fiber and gray hair -- whether human or not it was impossible to determine. The vagina and hymen were lacerated and vaginal swabs disclosed seminal fluid. Contusions, finger and thumb nail marks were found on the throat.
The thumb nail mark was on the right side of the neck. Appellant's counsel sought to show on cross-examination of Dr. Connor that such marks must have been made by the thumb of the left hand of the person who inflicted them; and that appellant could not have been the guilty party because, admittedly, his thumb on that hand had been amputated at the base. Indeed, if that hand had been used there would be no thumb nail mark at all. But, even otherwise, it seems counsel's theory is incorrect. When two persons face each other the right side of the body of each is opposite the left side of the other. And if one in that position seize with his right hand the throat of the other, his thumb would be on the inside or left of that hand and would mark the right side of the other's throat. Furthermore, appellant's confession stated he used his left hand in holding the girl's throat; his counsel in cross-examining witness McCreary argued the appellant's hand would have gripped clear around the small throat of the girl; and this witness quoted the appellant as telling him he was behind the girl and struck her, she screamed, and he seized her neck and face with both hands. There is nothing in this evidence excluding the appellant as the possible perpetrator of the homicide.
Silas Millan, who discovered the corpse, was first held by the police for the crime about ten days. He was 61 years old, grayhaired and feeble. He was porter at a hotel in the same block, and stored junk and slept in the summertime in a shed at the rear of 2612 Lawton Avenue, just twelve doors from where the body was found. But he testified that on that night he had slept at a house in the 2700 block where a woman friend lived. He regularly went to and from work through the alley to pick up empty bottles, which he sold for junk. When he passed that way the evening before about 7 p.m. the corpse was not there. The particular reason that suspicion had attached to him was that small blood spots were found on the front and upper part of his coveralls, shirt, underwear and overcoat. There was a small bottle of vaseline in the overcoat pocket. Millan accounted for the blood spots by the fact that he had had a tooth extracted on December 11, because of which the gum had bled for three days up to December 14 (five days before the homicide) during which time he had expectorated on his clothes, including the shirt and underwear he wore at night.
Bearing on this point, laboratory blood tests showed that fresh blood obtained from the appellant was in group ON; blood taken from the panties of the corpse was in group O; and blood scraped from the spots on the clothes of Silas Millan also was in group O. Thus it appeared the blood on the garments of the deceased and of Millan were in the same group O, the commonest group, whereas the fresh blood taken from the appellant was in group ON. But the bacteriologist, Dr. Gradwohl, explained that blood types M or N might be found in combination with any of the four groups designated A, B, O and AB if the blood were fresh, but could not be identified if the blood had dried. As a matter of fact blood taken from stains on the knee of the appellant's white trousers (of which later) also was in group O; whereas the blood stains on Millan's clothes were up around the shoulders and chest. Furthermore, the particular type of appellant's blood does not seem important since there was no blood letting from him; and the question was whether it was the little girl's blood on his pants.
As stated...
To continue reading
Request your trial