State v. Hubbard

• Decision Date: 07 June 1943
• Docket Number: 38382
• Parties: State v. Charles Hubbard, Appellant
• Court: Missouri Supreme Court

171 S.W.2d 701

351 Mo. 143

State v. Charles Hubbard, Appellant

No. 38382

Supreme Court of Missouri

June 7, 1943

Appeal from Circuit Court of City of St. Louis; Hon. Joseph J Ward, Judge.

Reversed and remanded.

I Joel Wilson for appellant.

(1) The State's Instruction 3, given by the court on circumstantial evidence, is prejudicially erroneous, in that it declares the law to be that the State is not required to prove its case by positive evidence of guilt. State v. Walser, 1 S.W.2d l. c. 151. (2) The corpus delicti not having been established, it was prejudicial error, in the absence of such proof, to admit in evidence over the objection of defendant, the alleged extrajudicial statement of the defendant. 16 C. J., secs. 993, 1000, 1779; State v. Joy, 285 S.W. l. c. 494; State v. Young, 237 Mo. l. c. 177; State v. Morro, 281 S.W. l. c. 721; State v. Capotelli, 292 S.W. l. c. 43; State v. Crabtree, 170 Mo. l. c. 654; State v. Williams, 99 S.W.2d l. c. 81; State v. Bass, 251 Mo. l. c. 126. (3) It was prejudicial error to give Instruction No. 4, without directing the jury that before they should consider defendant's alleged extrajudicial statement in making up their verdict, they should first find that the defendant had actually made it, that it had been freely and voluntarily made by him, and that what was said therein was true. State v. Schnurr, 225 S.W. l. c. 678; State v. Thomas, 157 S.W. l. c. 338; State v. Stebbins, 188 Mo. l. c. 396; State v. Hersh, 296 S.W. l. c. 435; State v. Meininger, 268 S.W. l. c. 78; State v. Lamb, 28 Mo. l. c. 232; State v. Duncan, 80 S.W.2d l. c. 153; State v. Crabtree, 170 Mo. l. c. 654. (4) It was prejudicial error to instruct the jury in State's Instruction 9, that defendant was required under the law to prove his alibi to entitle him to an acquittal. State v. Taylor, 118 Mo. l. c. 168; State v. Howell, 100 Mo. l. c. 663; State v. Strawther, 116 S.W.2d l. c. 139; State v. Hudspeth, 150 Mo. 12; 16 C. J., sec. 1004; State v. Woolard, 111 Mo. l. c. 256; State v. Crabtree, 170 Mo. l. c. 654.

Roy McKittrick, Attorney General, and L. I. Morris, Assistant Attorney General, for respondent.

(1) No error was committed by the court, in giving Instruction 3 on circumstantial evidence, as the same is an approved and proper form. State v. Miller, 100 Mo. 606, 13 S.W. 832; State v. Moxley, 102 Mo. 374, 14 S.W. 969; State v. Shelton, 223 Mo. 118, 122 S.W. 732; State v. Kebler, 228 Mo. 367, 128 S.W. 721; State v. Concelia, 157 S.W. 778, 250 Mo. 411; State v. Blankenship, 50 S.W.2d 1024, 330 Mo. 792; State v. Robinson, 23 S.W. 1066, 117 Mo. 649; State v. Hoskins, 36 S.W.2d 909, 327 Mo. 313; State v. Hancock, 104 S.W.2d 241, 340 Mo. 918. (2) The court committed no reversible error in admitting to evidence the extrajudicial statement of the defendant. State v. Meadows, 330 Mo. 1020, 51 S.W.2d 1033; State v. Hoskins, 327 Mo. 313, 36 S.W.2d 909; State v. Morro, 313 Mo. 98, 281 S.W. 720; State v. Vinton, 119 S.W. 370, 220 Mo. 90. (3) Appellant's complaint of Instruction 4 is unfounded as the instruction is in approved form and no error was committed by the court in giving said instruction. State v. McGuire, 39 S.W.2d 523, 327 Mo. 1176; State v. Hoskins, 36 S.W.2d 909, 327 Mo. 313; State v. Hershon, 45 S.W.2d 60, 329 Mo. 469; State v. Thompson, 64 S.W.2d 277, 333 Mo. 1069; State v. Arndt, 143 S.W.2d 286; State v. Di Stefano, 152 S.W.2d 20; State v. Gibilterra, 342 Mo. 577, 116 S.W.2d 88; State v. Nagle, 32 S.W.2d 596, 326 Mo. 661; State v. Tharp, 64 S.W.2d 249; 334 Mo. 46. (4) The court properly instructed the jury in its Instruction 9, requiring the defendant to prove alibi, to entitle him to an acquittal. State v. Hale, 156 Mo. 102, 56 S.W. 881; State v. Prunty, 208 S.W. 91, 276 Mo. 359; State v. Curtis, 23 S.W.2d 122, 324 Mo. 58; State v. Blackmore, 38 S.W.2d 32, 327 Mo. 708; State v. Taylor, 35 S.W. 92, 134 Mo. 109; State v. Glasscock, 134 S.W. 549, 232 Mo. 278; State v. Peters, 123 S.W.2d 34.

Barrett, C. Westhues and Bohling, CC., concur.

OPINION

BARRETT

A jury found Charles Hubbard guilty of murder in the first degree in killing Mae Bell Cunningham and assessed his punishment at death.

Independently of Hubbard's confession the state's evidence established these facts: In October, 1940, Mae Bell and her husband left their home in Kansas City and went to her brother's, Wash Sowell's, in St. Louis. The husband returned to Kansas City the next day and his wife remained in St. Louis, making her home at 3419 Market Street with her brother and his wife. Although Mae Bell's husband came to St. Louis with her and wrote to her and on at least two occasions sent her small sums of money they seem to have had some domestic difficulties. She obtained employment in a laundry and worked until the latter part of December, 1940, when, for some undisclosed reason, she lost her job.

The Sowells lived in a three room, second floor, apartment. Mae Bell slept in the front or living room on a small day bed. Sowell and his wife slept in the middle room which was furnished as a bedroom. Off the middle room and back of it was a bathroom and a kitchen. The entrance to the apartment from the upstairs hall was through the middle room. The Sowells had two keys to that door. There was also an entrance through the kitchen from the back but that door was kept locked from the inside and there were no keys to it. Charles Hubbard lived in the downstairs apartment with his aunt, Bessie Hester. After Mae Bell came to live with the Sowells he made a fourth at cards in their apartment almost every night. Sometimes, after the Sowells went to bed Charles and Mae Bell sat up and talked and laughed and they considered him as Mae Bell's "boy friend" although they had no personal knowledge of any intimate relationship between them. Shortly before January 9th Louis Hand came to see Mae Bell three times but the Sowells did not know whether he too was her "boy friend."

On the morning of January 9, 1941, Wash Sowell left home at 6:15 and went to his work at the Swift Packing Company. His wife, Mary, left at 7:05 to work in a laundry. When she left Mae Bell was sitting on the edge of the bed dressed in her nightgown. Mary left her key with Mae Bell and when she returned from work about 5:40 in the afternoon rang the bell at the front of the stairs, expecting Mae Bell to admit her. She rang the bell four or five times but got no response. As she rang Bessie Hester appeared and inquired whether she could get in and Bessie rang the bell. About that time Hubbard came out of the Hester apartment and Mary asked him whether he had been in the basement and he said: "No, I been gone all day. I just got in myself." Mary went to the top of the stairs and after "trying the door knob" sat down at the top of the stairs and waited for someone to unlock the door. After a few minutes she heard her husband at the back door. Shortly he came up the front stairs with an insurance man. He unlocked the door but there was something against it so he pushed on the door and stepped in sideways. When the three of them entered Mae Bell was lying on the floor in a pool of blood, dead with a great gash slashed in the left side of her throat, a "straight edge" razor half open near her right arm. Mary screamed and ran downstairs to Bessie's apartment and reported the death. Hubbard gave her some water and then went up to the apartment. Wash directed him to call the police and he left. That night the Sowell's stayed in Bessie's apartment and Wash slept with Hubbard.

The police photographs, as well as the oral testimony, present a gruesome picture. Mae Bell and her gown were covered with blood. There was blood all over the place, in the kitchen four or five feet up on the walls, all over the rugs and furniture. Her bed was bloody and there was a long slash cut in her pillow. The cut on the left side of her neck extended from below her left ear down to the middle of her throat and through the jugular vein and windpipe.

A specimen of her blood was examined and found to be type "O." Spots on Hubbard's shoes, trousers and socks were examined by a pathologist and found to be human blood, type "O." The razor belonged to Wash Sowell. It was bloodstained and the blood on it was type "O."

Charles Hubbard was present when the police arrived on January 9th and they talked to him casually the following day and he suggested that her husband in Kansas City may have killed her. By Sunday, January 12th, the police had heard that Mae Bell and Charles had been "sweethearts" and they arrested him. He then told the police that they were just friends and neighbors. He played cards with her and the Sowells, ran errands for her and for them but denied that he and Mae Bell had established any intimate relationship. He claimed that he left home about 6:30 on the morning of the 9th and went to the American Car & Foundry Company to apply for work. He left there about 10:30 and went to his cousin's, Arnecia Brown's, on Barry Street and stayed there for late afternoon dinner and Brown took him home about 5:00 o'clock. When he got to Brown's, Arnecia's wife, Jessie, was there and their daughter, Mary Ella, was sick in bed. Arnecia came home from work sometime after noon.

But the police say he changed his story on January 15th. While they were questioning him they confronted him with the fact that the stains on his clothes were blood and not paint and he asked to be returned to his cell. Officer Lower, "Shadow" to the defendant and the negroes in the neighborhood, went to his cell with him and after a short time Hubbard admitted that he killed "the girl." He then went into great detail describing the events of the day and the murder, even saying that he did not need to take a weapon along when he went to her...