State v. Francies, 45375
|295 S.W.2d 8
|08 October 1956
|No. 1,No. 45375,45375,1
|STATE of Missouri, Respondent, v. Tracy Keith FRANCIES, Appellant
|United States State Supreme Court of Missouri
Mark M. Hennelly, St. Louis, for appellant.
John M. Dalton, Atty. Gen., John W. Inglish, Asst. Atty. Gen., for respondent.
Charged by indictment with murder in the second degree, the defendant, Tracy Keith Francies, was convicted of manslaughter and his punishment fixed by the jury at imprisonment for a term of five years. He appeals from the ensuing judgment.
Defendant, a resident of St. Louis, Missouri, was married and the father of two children. He was employed at a small arms plant and also at Central Typewriter Company, which belonged to his brother and one Schenk. On October 7, 1953, he was supposed to go to work at 3:30 p. m. However, on the morning of that day he visited several bars in the vicinity of Market Street and Broadway looking for his brother-in-law. He drank several bottles of beer and by 1:30 p. m. had decided not to go to work so he took a cab to the bank and obtained $50. He returned to the area heretofore mentioned where he continued to visit various taverns and bars until about 9:30 p. m., during which time he drank a large quantity of beer. He had visited briefly with the deceased, Sylvia Walton, in the 519 Bar late in the afternoon. He next saw her in Bonnie's Tavern at about 9:30 p. m. At that time he approached her and offered her $5 to go to a room with him. She agreed and they left together.
Instead of going to a hotel room they went by bus to his brother's typewriter shop at 4139 Natural Bridge Avenue, to which defendant had a key. They went into the back room of the typewriter shop where Sylvia took off her clothing. According to defendant, he was too drunk to have intercourse and therefore they engaged in another sex practice. Thereafter Sylvia stated that she had to get back to meet a girl friend. They then argued about money and Sylvia threatened to scream unless he paid her $10. Defendant 'grabbed her by the neck and put her down.' She 'flipped out right away.' Defendant then tried to revive her and she 'kind of threw up.' She then started 'moaning, real heavy breathing,' making 'an awful lot of noise.' Defendant did not want the people in the apartment over the typewriter shop to hear this, so he 'had to hush her up again.' To accomplish this he put his hand over her nose and her mouth. He finally released her when she made no further sounds and at that time she did not appear to him to be breathing at all. He then opened the back door and pulled her over near the door and waited for a considerable time until some of the lights in the area were turned out. He then dragged her body outside and left it near a fence on a used car lot. Defendant then went back into the shop and mopped a portion of the floor. He gathered up all the clothing of deceased and wrapped it in a newspaper and left the building. He placed the package of clothing in an ashpit about a block and a half away and then went on to his home. The nude body of deceased was discovered early the next morning by Mrs. Jobusch who lived above the typewriter shop and the clothes were found a day later.
Most of the facts stated above are taken from two separate statements given by defendant to the police and prosecuting officials shortly after his arrest on October 30, 1953.
An autopsy was performed by Dr. John J. Connor, chief pathologist of the City of St. Louis, who testified that the cause of death was 'suffocation from aspiration of blood.' The principal abnormal finding from the autopsy was a small blood clot on the vocal chords and some clotted blood in the stomach, the source of which could not be accounted for. There were no hemorrhages in the soft tissue in the region of the trachea.
All of the evidence was presented by the State except the limited testimony of the defendant, outside of the hearing of the jury, relating to the issue concerning the voluntary nature of the so-called confessions.
Defendant has filed no brief and we must therefore examine the assignments in his motion for new trial. This motion contains 35 assignments of alleged error, but many involve the same issue and will be considered in groups.
The first eight assignments in the motion for new trial complain of error in the admission in evidence of the various articles of clothing found in the ashpit. An examination of the transcript discloses that no objection was made when these exhibits were offered and admitted. The defendant is not in a position to complain here of alleged errors in the admission of these exhibits in the absence of objection thereto. State v. Gaines, Mo.Sup., 261 S.W.2d 119. What we have heretofore said also applies to assignment number nine relating to the admission of Exhibit 10, a photograph of the deceased to which no objection was interposed.
The next two assignments relate to the testimony of Pattie Sue Presley, a barmaid employed in the 519 Bar, who saw both defendant and deceased on October 7, 1953. It is said that the court erred in permitting this witness to partially identify the deceased by reciting what she had seen in a newspaper as such was hearsay. This apparently relates to testimony of the witness that she had seen a picture of deceased in the paper and recognized it as a picture of the girl she had known as Sylvia and further learned that her last name was Walton. Evidence of the name by which a person is known is not within the rule excluding hearsay evidence. State v. Deppe, Mo.Sup., 286 S.W.2d 776. It may be, however, that to permit a witness to repeat a name learned from one specific article in the newspaper would be extending this exception too far. Assuming, without deciding, that it was improper to permit this witness to state that she learned from the paper that the last name of deceased was Walton, it is our view that since there was other evidence as to her name, any error in this regard would not have been prejudicial. Counsel for defendant asked this witness the following question: 'Has the Excise Commissioner's Office questioned you about this matter?' Defendant contended such testimony would affect the credibility of the witness and complains of the action of the trial court in sustaining an objection thereto. There is nothing to indicate that this question would have elicited relevant evidence and since no offer of proof was made to show its relevancy we cannot say that the exclusion thereof was error. State v. Dill, Mo.Sup., 282 S.W.2d 456.
Another contention appearing in the motion for new trial is that the proof, independent of defendant's confessions, failed to establish the corpus delicti and hence the court erred in admitting the confessions in evidence, and further erred in overruling the motions of defendant for a judgment of acquittal. The corpus delicti in a murder case consists of proof of the death of the person alleged to have been murdered and that such death was caused by the criminal agency of some one other than the deceased. State v. Meadows, 330 Mo. 1020, 51 S.W.2d 1033. In the instant case the fact that the dead body of the deceased was found on a used car lot in a large city, in a nude condition, and that her clothes were found in an ashpit a block away, when considered in connection with the finding of the pathologist that she died of suffocation, would seem to be sufficient to indicate that her death resulted for the criminal agency of someone. State v. Kauffman, 329 Mo. 813, 46 S.W.2d 843; State v. Stringer, 357 Mo. 978, 211 S.W.2d 925. We rule this assignment against defendant.
It is also contended that the court erred in admitting the confession in evidence because they were said to be 'the result of coercion and force, and the defendant having been held in jail past the 20 hour limit; they were hearsay and no proper foundation was laid for their introduction.' At the request of the defendant the court held a preliminary hearing, outside the presence of the jury, upon this issue. The evidence presented by the State indicated that defendant was arrested at 8:45 a. m. on October 30, 1953. He signed his first confession before noon the next day. The officers testified that no threats or promises were made to defendant and that he was not questioned for any extended period of time. It is perhaps significant that defendant was permitted to talk with his wife for about two hours during the afternoon of October 30, and on the morning of October 31, when defendant made the admissions in question, his brother was present during the period of questioning. It is true that defendant testified at this hearing that he was questioned at intervals all the first day of his arrest and until 4:30 a. m. of the next day. He also stated that the officers told him he was 'just being held as a material witness, and the girl had died a natural death, and I wouldn't have anything to worry about, if I would make a statement I could go home, and get everything cleared up without any embarrassment whatever.' The officers denied making this statement. The first statement was taken by the police on the morning of October 31 and subsequently defendant was questioned by Mr. Bruntrager, an assistant circuit attorney, and another (more detailed) statement was signed by him.
While there was some conflict between the testimony of the defendant and that of the officers, we have concluded that the State, at the preliminary hearing, sustained the burden of showing that the confessions were voluntary. State v. Di Stefano, Mo.Sup., 152 S.W.2d 20. Moreover, the fact that defendant may have been held, under arrest, for more than 20 hours, without being formally charged with a criminal offense, does not render the confessions...
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