State v. Gibilterra

• Decision Date: 03 May 1938
• Docket Number: 35433
• Parties: The State v. Jasper Gibilterra, alias Sam Bommerito, Appellant
• Court: Missouri Supreme Court

116 S.W.2d 88

342 Mo. 577

The State v. Jasper Gibilterra, alias Sam Bommerito, Appellant

No. 35433

Supreme Court of Missouri

May 3, 1938

Appeal from Circuit Court of City of St. Louis; Hon. Robert J Kirkwood, Judge.

Reversed and remanded.

Roy McKittrick, Attorney General, Olliver W. Nolen Assistant Attorney General, and Lawrence L. Bradley for respondent.

OPINION

Ellison J.

The appellant was convicted of murder in the first degree and his punishment fixed by a jury at life imprisonment in the penitentiary, for killing William C. Hite with a knife in the city of St. Louis. He has filed no brief. His motion for new trial contained 27 assignments of error. Some of these are too general to comply with the new trial statute, Section 3735, Revised Statutes 1929 (Mo. Stat. Ann., p. 3275), and will not be discussed. We shall consider the others in groups, where possible.

A question is raised as to the sufficiency of the evidence. Aside from proof of corpus delicti , the State's case rests altogether on two confessions made by appellant to the St. Louis police. In the second of these he implicated another man named Scorfina. It is claimed they were incompetent because extorted by physical violence and promises of immunity, and that the trial court erred in admitting them in evidence. If this is true, the State is left without sufficient evidence to support the verdict.

The appellant is an ex-convict twenty-seven years old. The deceased was a weak, sickly man past middle age, afflicted with consumption or some bronchial ailment, who conducted a secondhand store at 1809 Franklin Avenue in St. Louis. He lived alone on the second floor above his store. The date and hour of his death are unknown, but it occurred sometime in the late afternoon or night of Saturday, November 9, 1935. The corpse was discovered on the floor of the store room the next morning by Fred Scott, who had gone there to pick up some articles he had purchased the day before. Small electric lights were burning in the windows but not in the store and the front door was locked. However, the back door was ajar. In response to Scott's telephone call police officers Bland and Cox and Sergeant Dreckshage came to the scene of the homicide. Conditions indicated there had been a struggle: a chair was tipped over; a shoe was off one of the deceased's feet; a trouser leg was pulled up; and the body was lying in a twisted, unnatural position, nearly on the back, but partly on one side.

The corpse lay in a pool of blood with a bloody closed knife and a pick handle nearby. There were many cuts on the neck, face, head, and chest. The carotid artery was severed and the skull fractured. Dr. Wm. J. Doyle, autopsy physician for the coroner performed an autopsy on the body three days after the homicide and gave it as his professional opinion that the cause of death was, fracture of the skull, laceration of the brain, hemorrhage from the severed artery and the cuts and lacerations.

There was no expert or other testimony as to how long Hite had been dead when found. But a neighbor, Shobal Boatman, whose living quarters were close to and well within hearing distance of those of the deceased, said he and members of his family were playing cards until about 10 o'clock the night of the murder and did not hear him coughing, as they usually did at night. But on cross-examination it was developed that at the coroner's inquest Boatman had testified the last time he heard Hite coughing was between 8 and 9 o'clock that night, and he said he did not want to change that answer. His wife, Mae Boatman, was a witness for the appellant. She said she heard the deceased coughing as late as 10:30 or 11 o'clock that Saturday night. This also was her testimony at the coroner's inquest. Charles Mantia, another defense witness, declared Hite came to his store about 8 or 8:15 that night to buy some baking soda. No one else was in the store at the time. But he admitted on cross-examination that he had not given this information to the police when they were investigating the homicide just after it occurred; and that the first time he had ever told that story publicly was at the trial. He asserted, however, the police questioned him accusingly; that he only told them what they asked him about; and that they didn't inquire when he had last seen the deceased. All this evidence as to the time of the killing was important because of its bearing on the appellant's defense, which was an alibi. Singularly enough nobody heard the struggle when Hite was killed.

The appellant was not arrested until nearly a month later on December 7, 1935, after an informer disclosed to the police that he might have had some connection with the crime. Sergeant Forthman apprehended him about 10:30 o'clock that night on the street in front of 1915 Franklin Avenue, near Hite's store. The appellant lived and worked desultorily in that vicinity and had remained there after the homicide. In fact he was present when the body of the deceased was taken away. Sergeant Forthman had known the appellant for twelve years and said he readily agreed to tell all about the killing if they would take him upstairs at police headquarters. He was questioned by Assistant Circuit Attorney McLaughlin. Miss Amanda Bartling, stenographer in the office of Chief McCarthy was called, and took in shorthand and transcribed the questions and appellant's answers, about 1:30 in the morning. Sergeant Forthman said it was about 3 A. M.

The facts about the appellant's two confessions were developed in an unusual manner. Sergeant Forthman, who made the arrest, was permitted without objection to testify before the jury concerning them. He said after he had talked to appellant for about an hour at police headquarters the latter requested that Chief of Detectives Carroll or Lieutenant Murphy be called, which was done. Miss Bartling, the stenographer, was summoned. Appellant said he would make a statement but would not sign it without seeing his lawyer. That was what he did. The second statement was made the following (Sunday) afternoon. Appellant said he had thought it over during the night and wanted to tell the whole truth. Forthman signed as a witness to both confessions. Both were marked as exhibits and identified by the officer. He declared the appellant was not mistreated in any way, shape or form before either was made. He was vigorously cross-examined on that point before the jury and reiterated his previous statements, stating that both confessions were freely and voluntarily made by the prisoner of his own volition.

Next, Miss Bartling testified about writing the first confession. Following that the confession was offered in evidence. Then, for the first time, appellant's counsel objected on the ground that it was involuntary and was obtained by violence, abuse and promises; and indicated they desired the court to make an inquiry thereinto. But counsel refused to produce any testimony to substantiate their objection, saying they would do so in open court before the jury. The court inquired: "How is the Court going to pass on your objection without hearing testimony as to your objection?" Appellant's counsel replied: "The Court has heard what testimony it has in here." In other words counsel wanted the court to exclude the confession on the evidence thus far heard. The objection was overruled "for the present," and counsel saved an exception. The court inquired, "Does that settle it?" and counsel answered in the affirmative. Then the first confession was read to the jury, which had been present during the foregoing colloquy. After it was read appellant's counsel moved that it be stricken from the record and the jury instructed to disregard it, for the reasons already stated; and also asked that a mistrial be declared and the jury discharged. These requests were overruled and exceptions saved.

Next Lieutenant Murphy was called to the stand. He was present when both confessions were made, and explained that about 11 A. M. the morning after the first, unsigned confession had been written, the appellant asked to be taken to the office of Chief of Detectives Carroll, where he announced he desired to change some untrue statements therein. The second confession was taken and transcribed by a stenographer about 1 P. M., and was signed by appellant on each page. The witness declared appellant was not abused in any way before making it. The confession was offered in evidence and appellant's counsel renewed the objection made to the first confession. They further stated in answer to a question from the court that they wanted to follow the course they had adopted on the admission of the first confession -- that is, by reserving for the jury their proof of the involuntary nature of the confession. The objection was overruled, exceptions saved, and the confession was read to the jury. Following that appellant's counsel led the witness through a long, searching cross-examination, in which he again denied that appellant was subjected to any violence, abuse, threats, or sweating, and also denied that any promises of immunity were made to him.

Considering all the evidence the State made a substantial showing that the confessions were voluntary. The appellant made a substantial showing to the contrary. His girl friend, Lucille Hutchcraft, said that when she saw him he "looked terrible;" that his clothes were mussed and he appeared to be suffering from loss of sleep. She noticed no bruises or marks on his face. The appellant's wife testified to the same disheveled condition; that his physical appearance and swollen neck and face indicated he had been beaten; that he had to sit on the edge of a chair and couldn't straighten his back; that he told her he had been severely...