State v. Emrich

• Decision Date: 10 November 1952
• Docket Number: No. 43173,No. 2,43173,2
• Citation: 252 S.W.2d 310
• Parties: STATE v. EMRICH
• Court: Missouri Supreme Court

Page 310

252 S.W.2d 310

STATE v. EMRICH.

No. 43173.

Supreme Court of Missouri, Division No. 2.

Nov. 10, 1952.

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

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

ELLISON, Judge.

This is the second appeal in this case. At the first trial the appellant Emrich, 22 years old, was convicted by a jury of murder in the second degree in the circuit court of Atchison County for the killing of one Mary Hammer, 82 years old, by striking and jabbing her with her crutch at her farm home in Gentry County. The punishment assessed by the jury was imprisonment in the penitentiary for 15 years. That appeal is reported in 361 Mo. 922, 237 S.W.2d 169. We refer to it for a fuller statement of the facts. The judgment there was reversed and the cause remanded for a new trial for error in drawing the names of the members of the jury panel.

On the instant retrial of the case the jury again convicted appellant Emrich, increasing his punishment to imprisonment in the penitentiary for 25 years. He testified at this second trial, though he had not at his first trial except in the absence of the jury on the admissibility of his confession. The chief witness against him was Freddie McQuinn, 35 years old, appellant's accomplice. The assignments of error on this appeal complain: (1) that witness Freddie McQuinn was mentally incompetent to testify as a witness; (2) that his previous conflicting statements made him unworthy of belief; (3) that the testimony of four witnesses as to damaging statements made to them by McQuinn was incompetent because the statements were made out of the presence of the appellant, these four witnesses being two members of the State Highway Patrol, the sheriff and a newspaperman; (4) that the appellant's motions for a directed verdict at the close of the State's case and the whole case were erroneously overruled; (5) the prosecuting attorney's argument to the jury was improper; (6) and the jury were permitted to separate during the trial, and no woman officer was appointed to attend the female jurors.

On the issue as to Freddie McQuinn's lack of mental capacity to testify, expert testimony was introduced coming from Dr. J. Harold Ryan of St. Joseph, a surgeon and regular physician, and Drs. R. J. Milligan and C. N. Williamson, both osteopathic physicians, the former of Stanberry and the latter of the village of Gentry, both in Gentry County. Dr. Williamson also was coroner. All these physicians and a Dr. Barnes of King City, who did not testify, had examined the witness Freddie McQuinn for about 2 hours more or less shortly before the trial.

Dr. Ryan testified that the brain, or mental faculties of persons attain full physical development at the age of fifteen years. Thereafter the intelligence of the particular person increases from education and the use of those faculties. According to Webster's New International Dictionary (2d ed.), 'intelligence quotient', the mature mental age of persons, is figured from age 14 or age 16. Dr. Ryan gave it as his opinion that the mental age of Freddie McQuinn, as respects brain development or cultivated intelligence was about 6 years, or about one-third of what an average 6 year old child would have with such cultivation. But he said he did not mean thereby to state that McQuinn had no more intelligence than a 6 year old child lacking such cultivation. His intelligence had been developed by education and individual experience. He said McQuinn knew right from wrong, and that at his age of 34, living in modern society, his intelligence acquired from experience had grown.

Dr. Milligan testified he had examined witness Freddie McQuinn with the other doctors for about 45 minutes, and alone for 30 minutes. He found him to be illiterate and to have the mentality of a 7 or 8 year old child. He had a little trouble counting money and giving the names of remote months past or future, and could not write except to sign his name, but was mechanically inclined and could do things with his hands. He couldn't give the direction of neighboring towns in the county. Dr. Williamson participated in the examination when Dr. Ryan was present. He thought Freddie McQuinn had the mentality of an idiot or perhaps a moron--that of a 4 or 5 year old child.

Following the expert testimony of these alienists the testimony of the witness Freddie McQuinn was presented. He testified that he had quit going to school when his class was studying the third reader, and that he attended school less than 5 years. He said he learned to read a little, and could write better than he could read. He thought he could count up to 50. Also he told about his arrest by Trooper Thompson and Dan Pierce, and being at the office of the sheriff 'Sogger' Bowman. He couldn't remember whether attorney Redman was present, but said prosecuting attorney Ernst was there. He admitted he told them that Thomas McCrary and Tommy Beal killed Mrs. Hammer. He said the parties present retired from the sheriff's office at that juncture except McCrary and Ernst. McCrary denied committing the homicide and he (McQuinn) retracted the charge against McCrary and Beal and said that appellant Harold Hoover Emrich had done it.

The father of Freddie McQuinn testified that the latter worked him repairing furniture during the week when the homicide occurred. He thought the boy had attended school for 10 years. He couldn't read and was unable to count, or tell a connected story. He was subject to headaches and seemed kind of sick. The father believed it might have affected his thinking. Shortly before his trial he told his father and his attorney that he was not guilty, and he so testified at the trial. While in the penitentiary he wrote letters to his lawayers and a judge of this court saying he was not guilty. He could and did work with his father repairing furniture for a Mr. McCarty, and could plow as well as anyone. And he could paint. He knew some little about mechanics, and had taken a course in repairing radios. He could draw pictures of animals, or of a house, and could wire it and fix furniture.

Likewise read in evidence was the testimony of Freddie McQuinn at the preliminary examination before the first trial in the Harold Hoover Emrich prosecution, along with his testimony in that trial and in a companion prosecution against Elsie Emrich, wife of Earl Emrich, an elder brother of the present appellant Harold Hoover Emrich, this in addition to his testimony in the instant case. The testimony aggregates over 200 pages in the transcript. We cannot review all this testimony in this opinion. We have read all of it and in our opinion it does not show Freddie McQuinn was mentally incompetent to testify as a witness, although some of his testimony contradicted or was out of harmony with parts of his testimony in the instant case. He said at one time, for instance, that he and the instant appellant's brother Earl Emrich had gone to the Hammer home first, and again after Mrs. Hammer's death. On this issue appellant's brief cites three cases. ¹ We are unable to see that they have any bearing on the testimonial mental incompetence of the witness.

Section 491.060(2) RSMo 1949, V.A.M.S. provides: 'A child under ten years of age, who appears incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truely'--shall be incompetent to testify. And in a comparatively recent case involving the question ² the particular testimony of a mentally subnormal prosecutrix 15 years old in a rape prosecution was held on appeal to be insufficient to take the case to the jury.

The Petty case cited below ³ held a child 10 years old is prima facie competent to testify unless the contrary is apparent, and stated 'There is no precise age at which children become competent to testify.' In a more recent Jones criminal case ⁴ a female child 5 years and 4 months old was permitted to testify, and this court ruled it was error. She had stated she didn't know the meaning of an oath, or her birthday date, and did not go to school, and could not read or write. But in a still later Tillet case, ⁵ a 6 year old boy testified as a witness for the State in a prosecution of the defendant for the murder of his 3 year old sister. After an examination as to his testimonial capacity, he was permitted to take the stand, and the appellant's conviction of first degree murder and life imprisonment was affirmed.

We think and hold the evidence in the case was legally sufficient to warrant a finding by the trial court that the witness Freddie McQuinn was mentally competent to testify as a witness; and that while he had made conflicting statements with respect to the commission of the crime, the jury were warranted in accepting as true his statements that the appellant Harold Hoover Emrich killed Mrs. Hammer by beating her with a crutch.

Appellant's next four assignments severally complain of the testimony of two members of the State Highway Patrol, the sheriff and a newspaperman, concerning statements made to them by witness Freddie McQuinn out of the presence of appellant Emrich. The following cases are cited. ⁶ The Johnson case denounces hearsay evidence, and broadly declares: "Nor can evidence of what a witness has said out of court be received to fortify his testimony." The Buckley, Priesmeyer and Hill cases say: 'Narrative statements of past events, made after the termination of a conspiracy, are inadmissible against a coconspirator. Such narratives are rejected as hearsay.'

So far as we can understand the statement of facts in appellant's brief which contains only 9 pages with a record of 964 pages, the testimony relied on in invoking the foregoing hearsay rule was as follows. Trooper Thompson and sheriff Bowman testified that several months after the homicide, in late March or early April, 1949, they took Freddie McQuinn to the scene of...