State v. Kollenborn
| Citation | 304 S.W.2d 855 |
| Decision Date | 09 September 1957 |
| Docket Number | No. 43549,43549 |
| Parties | STATE of Missouri, Respondent, v. Eugene Ray KOLLENBORN, A ppellant. |
| Court | Missouri Supreme Court |
Max Patten, Joplin, for appellant.
John M. Dalton, Atty. Gen., Fred L. Howard, Asst. Atty. Gen., for respondent.
This case is written on re-assignment. Defendant was tried, convicted, and sentenced to a term of 6 months in jail for acts constituting a violation of Sec. 559.340. (All statutory references are to RSMo 1949, V.A.M.S., unless otherwise stated.) That section deals with the mistreatment of an infant under the age of 16 by a parent or other person having the care and control thereof; the punishment ranges from 3 years in the penitentiary down to a fine; the offense is a felony of which this court has jurisdiction. Section 556.020; State v. Garner, 360 Mo. 50, 226 S.W.2d 604, 606.
The case was tried by agreement before the Honorable Rex V. McPherson as Special Judge, without a jury. Under Art. I, Sec. 22(a), Constitution of Missouri, 1945, V.A.M.S., a jury may be waived in any criminal case with the consent of the court, and the court's finding shall have the force and effect of a verdict of a jury.
Defendant was the father of the infant in question; he was 22 years of age at the time of the alleged offense in November, 1951, and his wife was either 18 or 19. He had married Betty Kollenborn (whose maiden name is not shown) on January 12, 1949. Their progress in the matrimonial venture had not been unperturbed; she did not know where her husband was living at the time the child was born on July 4, 1951, and she had gone to Wichita, Kansas. Thereafter they were reunited and lived in Joplin, Wichita and Carthage. They were living in Carthage in November, 1951, in an upstairs apartment. At that time the infant daughter was between 4 and 5 months old. The wife worked 'most of the time.' The oral evidence showed: that around the first of November (1951) the baby's ankle was swollen, and the mother took her to a doctor who found nothing wrong; about 2 weeks later defendant went to a show one evening while his wife stayed at home with the baby; after his return and during the very late evening or early morning, the baby was 'fussing' in her bed and the husband got up; the baby started 'screaming' and the mother got up, took her, and rocked her to sleep. The mother was awakened by the screaming, and when she got up, defendant was bent over the bed and the baby was crying. The next morning the baby's 'whole body' was swollen, and the mother took her first to a doctor in Carthage and then both parents took her to the K. U. Medical Center in Kansas City. There she stayed for a week; she was X-rayed, and her arm was put in an elastic bandage. The child's left arm is 'crooked' just a little above the elbow; the mother learned at Kansas City that the child had an 'injured' arm and ankle. About 3 weeks after these occurrences the wife left defendant, and on February 29, 1952 (prior to the trial), procured a divorce. The foregoing recital comprises the substance of the testimony of Betty Kollenborn, defendant's former wife. When she was called as a witness for the State, she stated under oath that she desired to testify voluntarily, and to tell what she knew about the case; also, that she knew that she might refuse to testify, and that she was not being compelled to testify. It was agreed between counsel that Dr. Isbell, of Carthage, would testify that the child was 'injured' when brought to him and that he recommended that it be taken to Kansas City. Lillian Briggle, who lived downstairs in the same apartment building, testified that on one Sunday 'night' in November, 1951, about 1 or 2 A.M., she heard the baby upstairs crying, and heard such loud voices that she went out in the hall to listen. On the next morning Mrs. Kollenborn brought the baby to the witness' apartment and called the doctor from there; the baby's ankles were swollen, its arm, 'this arm,' was 'laying like this,' and when the witness slipped her finger under its arm 'on the bed,' it screamed. She knew of no one else in the Kollenborn apartment that night except the husband, the wife, and the baby.
After complaint was made and defendant was arrested, he made and signed a detailed statement in the presence of a deputy sheriff, the City Marshal, and the jailer. This was offered and received in evidence at the trial without objection. Therein defendant stated, in part: that he and his wife were separated for almost a year; that he had a violent temper; that his wife had threatened to leave him for spanking the baby 'too hard,' as she thought; that on one occasion in November, 1951, while his wife was working, the baby was fussing and he 'jerked it up out of bed,' and its feet were caught in the railings of the bed; that 'it could have been a possibility that I injured its leg'; that on November 25, 1951, although his wife asked him not to go, he and his brother-in-law went to a show; he got home about 10:30 or 11 P.M.; he and his wife 'had a few words,' and she was already in bed; 'sometime in the night, the baby was fussing,' and he got up and went to the crib; that he reached down and took hold of the baby's left arm (and possibly her leg), jerked her 'clean up out of the crib and shook her pretty rough'; that she 'let out a loud cry, as if though in pain'; that at that point his wife got up and took the baby; that, on the next morning, his wife sent word to him at work that the doctor said there was something seriously wrong with the baby and that it needed to be taken to a baby specialist, so he borrowed a car and took them to Kansas City; that the doctor in Kansas City told him, as he understood, that the baby had two broken ankles and that its arm was out of place. At the trial the defendant merely testified that he did not break the baby's arm or leg, and he produced several character witnesses.
On this evidence the trial judge, sitting as a jury, found defendant guilty and fixed his punishment at imprisonment for 6 months in jail, stating expressly that, in so doing, he had considered the time already spent in jail. Motion for new trial was filed and overruled, allocution awarded, and sentence pronounced accordingly; this appeal was duly taken.
No brief has been filed here for appellant. We, therefore, examine those assignments sufficiently raised in his motion for a new trial. State v. Murray, Mo., 280 S.W.2d 809. These are, somewhat consolidated and condensed: (a) that the court erred in permitting defendant's former wife to testify to 'occurrences during the period of their marriage,' such being privileged; (b) that the State's proof failed to show that defendant had committed the crime alleged; and (c) that, even if defendant's statement was a 'confession,' there was no proof of the corpus delicti. We shall consider these points in inverse order.
It would be a mere quibble on words to discuss whether defendant's written statement was a 'confession' or not; it was an extra-judicial admission against interest, received in evidence without objection, and it was thus in the case for whatever it might legally prove. 'Corpus delicti' (i.e., proof of the 'body of the offense,' City of St. Louis v. Gavin, Mo.App., 222 S.W.2d 531) has been described as consisting of, and requiring proof of, two elements, namely: proof of the death (or injury) of the person in question; and proof of the criminal agency of someone in causing it. State v. Lyle, 353 Mo. 386, 182 S.W.2d 530. Apparently, defendant here claims that there must be independent proof of every element of the crime, aside from his own statement. In the Lyle case, supra, in City of St. Louis v. Gavin, supra, and in State v. McQuinn, Mo., 235 S.W.2d 396, it has been held that full of the corpus delicti, independent of defendant's extra-judicial admissions or confessions, is not required; if there is independent evidence, direct or circumstantial, which is corroboratory of the admissions, then both or all may be considered together in determining whether the corpus delicti has been sufficiently proved. See also: State v. Black, 360 Mo. 261, 227 S.W.2d 1006 (); State v. King, 342 Mo.1067, 1067, 119 S.W.2d 322; 26 Am.Jur., Homicide, Sec. 383, p. 425. In the case of City of St. Louis v. Gavin, supra, the court said, at 222 S.W.2d 531, loc. cit. 540: The case of State v. Humphrey, 358 Mo. 904, 217 S.W.2d 551, cited by this defendant in the trial court, was overruled in State v. Hardy, Mo., 276 S.W.2d 90, in so far as it purported to define the elements necessary for proof of the corpus delicti. We have no hesitancy here in holding that the testimony of the wife and the neighbor constituted sufficient corroboration, and that all the evidence sufficiently proved the corpus delicti. We are not confronted here with any question on the admissibility of the confession, for trial counsel expressly stated that there was 'no objection' to it.
From counsel's oral argument upon a motion for dismissal in the trial court, we...
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