State v. Hutsel

• Decision Date: 09 February 1948
• Docket Number: 40686
• Citation: 208 S.W.2d 227,357 Mo. 386
• Parties: State v. Emil Carl Hutsel
• Court: Missouri Supreme Court

208 S.W.2d 227

357 Mo. 386

State v. Emil Carl Hutsel

No. 40686

Supreme Court of Missouri

February 9, 1948

Appeal from Circuit Court of St. Louis County; Hon. John A Witthaus, Judge.

Affirmed.

J E. Taylor, Attorney General, and Samuel M Watson, Assistant Attorney General, for respondent.

(1) Assignments, general in character, will not be considered on review by this court. Sec. 4125, R.S. 1939; State v. Dollarhide, 337 Mo. 962, 87 S.W.2d 156; State v. Davis, 161 S.W.2d 973; State v. Kimbrough, 350 Mo. 609, 166 S.W.2d 1077; State v. Plassard, 195 S.W.2d 495; State v. January, 353 Mo. 324, 182 S.W.2d 323; State v. Perriman, 352 Mo. 1022, 180 S.W.2d 668; State v. Maples, 96 S.W.2d 26; State v. Hampton, 172 S.W.2d 1; State v. Humphries, 350 Mo. 938, 169 S.W.2d 350. (2) There was sufficient substantial evidence to support the verdict. State v. Keller, 104 S.W.2d 274; State v. Kennedy, 108 S.W.2d 384. (3) The court did not err in admitting evidence of the confession of the defendant. State v. Gibilterra, 342 Mo. 577, 116 S.W.2d 88. (4) The court did not err in admitting the transcript of the coroner's inquest in evidence. State v. Gibilterra, 342 Mo. 577, 116 S.W.2d 88. (5) The court did not err in giving Instruction 3 relating to the elements of conspiracy. Secs. 4070, 4839, R.S. 1939; State v. Richards, 11 S.W.2d 1035; State v. Strickland, 289 S.W. 557, 558. (6) The court did not err in giving Instruction 4, which relates to reasonable doubt. Sec. 4070, R.S. 1939; State v. Arnett, 338 Mo. 907, 92 S.W.2d 897. (7) When the court instructs on all of the law in the case, it is not necessary to give additional instructions on the law of the case offered by defendant. The court did not err in refusing instructions offered by defendant. State v. Crow, 346 Mo. 306, 141 S.W.2d 66; State v. Johnson, 349 Mo. 910, 163 S.W.2d 780; State v. Smith, 194 S.W.2d 905; State v. Citius, 331 Mo. 605, 56 S.W.2d 72; State v. Thornton, 58 S.W.2d 314; State v. Lindsey, 333 Mo. 139, 62 S.W.2d 420; State v. De Shon, 334 Mo. 862, 68 S.W.2d 805; State v. Schnelt, 341 Mo. 241, 108 S.W.2d 377. (8) The court did not err in overruling defendant's motion to quash the panel. Art. I, Sec. 22, Constitution of Missouri, 1945; State v. Logan, 341 Mo. 1164, 111 S.W.2d 110. (9) The court did not err in failing to give an instruction on circumstantial evidence. State v. Fairlamb, 121 Mo. 137, 25 S.W. 895; State v. Donnelly, 130 Mo. 642, 32 S.W. 1124; State v. McCord, 237 Mo. 242, 140 S.W. 885.

Van Osdol, C. Bradley and Dalton, CC., concur.

OPINION

VAN OSDOL

Appellant was charged by information with the murder of his wife, Margaret White Hutsel. Upon trial he was convicted of murder in the first degree and his punishment assessed by the jury at imprisonment in the penitentiary for life.

Appellant has filed no brief herein, and his motion for a new trial contains thirty-two assignments of error. Many of the assignments are so general as to fail to comply with the statute relating to motions for a new trial. Section 4125 R.S. 1939, Mo. R.S.A. sec. 4125. The general assignments, not setting forth in detail and with particularity the specific grounds relied on for a new trial, are not examined herein. Other and particularized assignments of error are examined in the course of the opinion. The sufficiency of the evidence to support the conviction is the principal question raised by appellant's motion.

We believe there could be no doubt of the sufficiency of the evidence to support the conclusion that appellant's wife met her death as a result of a criminal agency, but the sufficiency of the evidence in implicating appellant as the murderer is doubtful, except for a confession and the testimony of appellant at the coroner's inquest, which confession and a transcript of which testimony were admitted into evidence by the trial court. It is assigned by appellant that the confession and the transcript were incompetent because induced by promises of immunity, and extorted by threats to implicate and imprison appellant's young daughter, Emily. Thus it is seen the principal question raised by appellant's motion should be resolved in his favor if the confession and transcript were erroneously admitted into evidence.

November 15, 1946, appellant, thirty-seven years old, and his wife, thirty-four years old, lived in a small frame house (three rooms) at 7222 Devonshire Avenue in St. Louis County. They had two children -- Emily, in her fourteenth year, and Carl, eleven years old. The wife had been in ill health. She had suffered one or more "paralytic strokes, for two years she had been ailing, off and on." She had been under a doctor's care for the last five years and, after a paralytic stroke, was in St. John's Hospital for about five weeks. Just prior to the homicide, she was much better and was elated with the improvement in her physical condition.

Appellant was employed as a mechanic, an automobile "body worker," in the St. Louis Dairy Company's garage situate at 22d and Eugenia Streets in St. Louis. He worked the "day shift," 8:00 A.M. to 5:00 P.M.; but, on November 15th, worked overtime. It was his testimony that, having worked until about "ten minutes to twelve (P.M.)" he departed for home, stopped briefly on the way, and upon entering his home through the kitchen door "as I turned on this light, you could see in the bedroom . . . I saw my wife laying in a clot of blood." Appellant wakened his children and, discovering the telephone was disconnected, took the children with him to a filling station on Chippewa Avenue; he there attempted to call a doctor by telephone, and then called the police.

Testimony of witnesses for the State was introduced tending to show that early (about one o'clock) in the morning of November 16th appellant called the police of the City of St. Louis by telephone from a filling station on Chippewa Avenue and Watson Road and stated that a burglary had been committed at his home and his wife had been slugged. The St. Louis police referred the report to the police of the village of Shrewsbury; and Joseph Lemberger, chief of police of the village, was the first officer to reach appellant's home. The appellant was there present when the officer arrived. Appellant's wife was lying in bed. It was determined that she was dead. She had been shot in the left temple with a pistol held three or four inches from her head. Later, having moved the body, the officer found a small slug "very mashed up." The telephone had been disconnected and was lying on the floor; otherwise the room was not in disorder. A pocketbook on the dresser containing three $ 10 bills and three $ 1 bills had not been disturbed. Having made the preliminary investigation, the officer took appellant to the City Hall and questioned him. Appellant made statements of his whereabouts throughout the preceding day. He then took his children to the home of his brother-in-law in Montgomery City; and upon his return, at about eleven o'clock the morning of November 16th, appellant was questioned by officers of St. Louis County, particularly by deputy sheriff Harry Newbold. In the course of this examination, according to the testimony of the officers, appellant confessed his complicity in the murder of his wife. Appellant testified he made no statement. He said the confession "was formed there for me to sign." The purported confession was typed by the officer Newbold in question and answer form; each page was authenticated by appellant's initials and the confession was signed by him, November 17th. Later, November 19th, appellant testified at the coroner's inquest to facts in substance the same as were the facts stated in the confession. The appellant testified he was told by the officers to give the same statements at the inquest "if I knew what was good for me." A transcript of his testimony at the inquest was later examined by appellant, corrected, each page initialed and the transcript signed by him, November 27, 1946.

Facts stated in the confession are summarized as follows,

On November 15th appellant was living with his family at the residence on Devonshire Avenue in St. Louis County. His wife was fatally shot the night of November 15, 1946, at about 11:10 o'clock. A few days prior to Sunday, October 27th appellant had met a Negro, Thad (or Seth) Crawford, whom he had known about fourteen months. Appellant had become acquainted with Crawford through a negress, Alma Mackey. Appellant talked to Crawford about disposing of appellant's wife and asked Crawford if "he would dispose of her, he told me he would think about it, and if he did not, he would get someone." Appellant met Crawford and Alma Mackey at Crawford's home on Sunday night, October 27th; another Negro, Sunny Harrison, whom appellant had not known, was present. Appellant, Crawford and Harrison discussed killing appellant's wife -- "Crawford said this other man (Harrison) would take care of it . . . I told them I did not want a knife used or any instrument, but to use a gun, and to make it short and quick, I did not want her to suffer, but to get it over with as fast as possible . . . Crawford said he had the gun." It was agreed that appellant should pay $ 100, and on Friday, November 1st, appellant gave Crawford that sum -- it had been planned that appellant would take his children away from home that evening and appellant's wife, being left alone, was to be murdered by Harrison. Appellant did take his children from home early in the evening, and, upon returning home at 9:30 P.M., found his wife unharmed. "I felt like I got stuck for the One hundred dollars . . . I called Crawford on the phone the next day, he said they went out there and he thought it had been done, I told him it had not been done, he said he did not know...