State v. Emrich

• Decision Date: 12 March 1951
• Docket Number: No. 2,No. 42226,42226,2
• Parties: STATE v. EMRICH
• Court: Missouri Supreme Court

Page 169

237 S.W.2d 169

361 Mo. 922

STATE v. EMRICH.

No. 42226.

Supreme Court of Missouri, Division No. 2.

March 12, 1951.

Charles A. Miller, Trenton, Clayton W. Allen, Rock Port, for appellant.

J. E. Taylor, Atty. Gen., E. L. Redman, Asst. Atty. Gen., for respondent.

ELLISON, Presiding Judge.

The appellant, 20 years old, was convicted by a jury of murder in the second degree in the circuit court of Atchison County, on change of venue from Gentry County, for the killing of one Mary Hammer in January, 1949. The punishment assessed by the jury was imprisonment in the penitentiary for 15 years. The conviction of an accomplice, Fredie Edgar McQuinn, in a prior separate trial in Gentry County with like punishment, was recently affirmed by this court on January 8 State v. McQuinn, 235 S.W.2d 396.

The deceased Mary Hammer was a recluse 82 years old, who lived alone in squalor mostly in the kitchen of her isolated farm house over six miles southwest of Stanberry, in Gentry County. In the winter she wore her outdoor clothing in the inadequately heated kitchen, and because she was a cripple had her cane and crutch near at had. Her frozen body was found in a barn about 200 feet from the dwelling house on the afternoon of January 22, 1949, by a neighbor lad, Francis Whitmore, who had gone to talk to her about renting some pasture. She had last been seen alive [except for her assailants, if any] four days earlier on January 18 by another neighbor, Fred Salisbury; and on January 17 by her sister Lizzie, who lived 2-1/2 miles away. During the intervening time the weather had been cold and snowy, with the temperature ranging as low as 5 to 13 degrees below zero.

The Whitmore lad said when he went to the Hammer place the first time on January 22 the south kitchen door was open and snow was on the floor. Also the south barn door was open. He went to the hen house and barn but could not find Miss Hammer. He noticed one set of tracks in the snow leading from the kitchen porch to a hen house but didn't follow them further. There were no cane or crutch marks therealong. That afternoon he returned with his father and mother and the deceased's sister Lizzie. They made a further search and found Miss Hammer's body near a manger in the barn lying on a ladder and covered with hay. A pitchfork which she sometimes used as a support in slick weather was broken. So was her crutch. An over-shoe, enclosing a shoe from one foot, was off and covered with hay. The cane and mittens she ordinarily used were found in her house.

There were four wounds or bruises on the face and body which the undertaker, Taggart, thought were inflicted before death. One of them on the forehead had been bleeding The coroner, Dr. Williamson, an osteopathic physician, expressed the opinion that the old lady died of heart trouble. And it was shown she was taking digitalis as a remedy for that disease. Dr. Reutter, a physician, testified an overdose of digitalis would produce dizziness and might cause the person to fall.

The above mentioned accomplice, Fredie Edgar McQuinn, 35 years old, was the State's chief witness. At his own trial he had denied any knowledge of the homicide. But after his conviction and before his case had been heard here on appeal, he testified as a witness for the State in the trial of the present appellant Emrich, and confessed he and appellant Emrich had committed the homicide. He was obviously a person of low mentality; said he could not read or write except to sign his name; and that he could not count money very well. He lived with his parents and helped his father some in the latter's trade as a carpenter. And he often visited the neighboring home of the appellant Emrich and his mother, and knew them well.

Dr. Williamson, the coroner, and Dr. Milligan, both osteopathic physicians, had examined McQuinn. Dr. Williamson thought he was a moron with the mentality of a child about 9 years old. But he agreed that his mental ability as for that age might have increased from experience. Dr. Milligan thought McQuinn had the mentality of a 7 or 8 year old child. But he did a lot of work with his father. He could plow, paint houses, knew something about mechanics, could install electric wiring under direction and could draw good pictures with a pencil. And he gave very lucid testimony about his trip with appellant to Mary Hammer's home on the occasion of the homicide, and what occurred there.

He said he and Emrich went to her farm house door, asked if she had any old iron to sell; gained admission; and made her tell them where her money was in the bedroom. There they found three old syrup buckets full of money, mostly old style large size paper currency in rolls, but also some loose paper money and some gold and silver coins. Appellant struck the old woman three times on the head with her crutch, and jabbed her in the chest with it twice. They carried the body to the barn, broke the crutch over the manger, and covered both with hay. Thence they hitchhiked back to Stanberry, and at the street corner where they parted on the way to their respective homes accomplice McQuinn turned over to appellant the money he had got at the Hammer farm.

There was considerable circumstantial evidence tending to corroborate McQuinn's confession. Thus, two residents of Stanberry severally testified that on January 24 they found several pieces of old style paper currency in the street at or near the corner in Stanberry where accomplice McQuinn testified he had turned over his part of the money loot to appellant Emrich, when they parted after the commission of the homicide. And four witnesses who were traveling the highway between Stanberry and the Mary Hammer farm shortly before her body was found, told of seeing appellant and McQuinn walking along that country road in the cold weather.

Likewise Harwood McKain, an employee in a tavern in Council Bluffs, Iowa, testified that late in January and early in February 1949, the appellant Emrich and a man called Tommy had him exchange some old style large size paper currency for newer smaller bills at the Federal Reserve Bank in Omaha. The bank records showed that $610 in old bills, $180 of them being retired gold certificates, were cashed on or about February 2. On another occasion witness McKain cashed $1500 in old bills for appellant and Tommy retained $500 for his trouble. Appellant was questioned by the Council Bluffs police on January 27, 1949, and denied having any old money. Registration cards of the Ogden Hotel in Council Bluffs were introduced without objection showing he was there on January 27, 28 and 30.

A Mr. and Mrs. Charles Sweat, who operated a gasoline service station in Gentry County testified that on March 19, about two months after Mary Hammer's death, appellant and McQuinn bought two automobile tires from them without inquiry as to the price, and when appellant paid for them he pulled from his pocket a handful of tarnished silver dollars two of which were dated 1881 and one 1900. David Hammer, a nephew, and his three brothers at the direction of the sheriff, searched Mary Hammer's home on or about April 3 after her death and found in some cans about $142. There were seven $20 bills, one an old large size type dated in 1900. And when she paid neighbor Fred Salisbury for some seed corn he said she opened three baking powder cans containing paper currency before she found the money she wanted.

The appellant did not testify before the jury. His main factual defenses were an alibi and that Mary Hammer was not murdered but died of heart disease. On the latter point Dr. Williamson, osteopathic physician and coroner diagnosed the cause of her death as heart disease, basing that conclusion on the fact that her sister told him she had heart trouble and upon the dark discoloration of the corpse. Two other undertakers and a physician, none of whom had been the corpse, testified that condition might result from that disease.

As to the alibi, appellant's wife testified he was at home on Saturday, January 22, 1949, the date...