State v. Laspy, 46604

• Decision Date: 13 April 1959
• Docket Number: No. 46604,No. 2,46604,2
• Citation: State v. Laspy, 323 S.W.2d 713 (Mo. 1959)
• Parties: STATE of Missouri, Respondent, v. Elsie Mae LASPY, Appellant
• Court: Missouri Supreme Court

Page 713

323 S.W.2d 713

STATE of Missouri, Respondent, v.Elsie Mae LASPY, Appellant.

No. 46604.

Supreme Court of Missouri, Division No. 2.

April 13, 1959.

Motion for Rehearing or to Transfer to Court en Banc Denied

May 11, 1959.

Rufus Burrus, Independence, for appellant.

John M. Dalton, Atty. Gen., W. Don Kennedy, Asst. Atty. Gen., for respondent.

LEEDY, Judge.

Elsie Mae Laspy(hereinafter referred to as defendant) appeals from a judgment convicting her of manslaughter in having shot and killed her husband, Julius, and by which she was sentenced to a term of ten years' imprisonment in the penitentiary in accordance with the verdict.She has been thrice convicted under the instant information (two times for second degree murder, and currently for manslaughter), and this is her second appeal.See298 S.W.2d 357 for a more complete statement of the facts than is deemed necessary to a determination of the questions raised by the points now urged for reversal, which points relate (1) to the admissibility of a written statement given to the police while defendant was in custody; (2) the refusal of the court to instruct on the subject of such statement in certain particulars as requested by defendant; (3) the exclusion of proffered exhibits; and (4) the failure of the court to grant a new trial because of certain newspaper publicity.

Defendant admittedly killed her husband about 6:15 A.M., on January 1, 1955, by shooting him with a pistol.Her defense was self-defense.The killing occurred at their home in Independence while an allnight New Year's party was in process of breaking up.At least some of the guests were still present.The one eyewitness who testified on the part of the state was one of these guests.The killing seems to have grown out of the husband's resentment over the failure of defendant to lock the bathroom door when she entered therein, but we need not concern ourselves with any of the facts except those having relevancy to the questions presented on this appeal, and for that reason we omit the circumstances surrounding the homicide itself.

Immediately after the shooting she went to the home of neighbors where, following an unsuccessful effort on her own part to call the police, someone at the neighbors' home put the call through, and the police came.The chief of police arrived about 6:45, and Officers Crownover and Wingate and Sergeant Hayden were already there.Defendant told the chief that she had killed her husband, and informed Officer Crownover where the gun would be found, and it was recovered.After brief questioning at the home, defendant was taken to police headquarters in Independence, arriving about 7 o'clock.There she gave a statement (in question and answer form) to the police which was subsequently received in evidence on the part of the state.As indicated above, the question of its admissibility is one of the live questions on this appeal, this is the light of the objections offered at the trial and preserved in the motion for new trial.At defendant's request, the court held a preliminary investigation out of the presence of the jury on that question, at which defendant did not testify or offer any evidence, the only evidence being that of the state's witness Officer Mikulich, whose testimony was in substance: That defendant was questioned by Officers Crownover and Wingate; the witness reduced the questions and answers to writing, his role being exclusively that of typist; that they started taking the statement about 7:40 A.M. (within little more than half an hour after arriving at headquarters), and completed the same in an hour or an hour and a half.Crownover and Wingate were no longer connected with the police department.The statement was taken in the records room of police headquarters.Present were Crownover, Wingate, the defendant and the witness.The chief of police came into the room momentarily while the statement was being taken--he was in and out.Everyone was seated.Crownover advised defendant that she did not have to give the statement, and if she did give it, it was of her own free will and accord, knowing that it might be used for or against her in a court of law (and this also appears in mimeograph from on the face of her written statement).The witness further testified that Crownover also advised the defendant that she was entitled to have friends and an attorney present.(On cross-examination the witness admitted that at the former trial he may not have testified as to this particular feature.)He also testified that no threats or promises were made--in short, no type of coercion was used.Such was the state of affairs when the statement was offered in evidence.

We consider separately the several objections to its admission, the first of which was that the statement was not shown to have been 'entirely voluntary.'The objection apparently concedes that the statement was partly voluntary but not entirely so.The latter claim is based on the fact that other testimony showed the defendant had been up all night at the New Year's party and had been in custody from 6 o'clock until the time the statement was taken, and not accorded an opportunity to rest, and she had no will to resist, nor was she able to determine what her answers were, or if, in fact, she had been asked any questions.In the absence of facts whereon to base the latter part of the objection (as was the case), it would have been the rankest kind of error to have excluded the statement on such grounds, and the mere fact defendant had been up all night at a New Year's party would not, of itself, render her statement involuntary.

The next objection urged against the admissibility of the statement is that 'defendant was not shown to have been aware of, nor had she knowingly waived her constitutional right under Section 19 of Article I of the Missouri Constitution, V.A.M.S., and under the Fifth Amendment to the Constitution of the United States, to remain silent, and not be compelled to give testimony which might tend to incriminate herself and be compelled to testify against herself in a criminal case.'This is not a valid objection for a variety of reasons.In the first place, it is made in the teeth of the state's contrary showing by the witness Mikulich, but, for present purposes, disregarding his testimony on the subject of advising defendant that she was not required to give the statement, and warning her in that regard, there being nothing to impeach the voluntariness of the statement (the state's showing in that regard having been sufficient to at least make it a jury question), 'the fact that the officer did not caution or warn the accused that it might be used against him does not render the confession inadmissible.'State v. Hoskins, 327 Mo. 313, 317, 36 S.W.2d 909, 910;State v. Evans, 345 Mo. 398, 406, 133 S.W.2d 389, 393;State v. Johnson, 316 Mo. 86, 92, 289 S.W. 847, 849.

It is further contended that the confession was rendered inadmissible as a matter of law under the Sixth Amendment to the Constitution of the United States, and...