State v. O'Neal

• Decision Date: 09 December 1968
• Docket Number: No. 2,No. 53243,53243,2
• Citation: 436 S.W.2d 241
• Parties: STATE of Missouri, Respondent, v. Charles Wayne O'NEAL, Appellant
• Court: Missouri Supreme Court

Page 241

436 S.W.2d 241

STATE of Missouri, Respondent, v. Charles Wayne O'NEAL, Appellant.

No. 53243.

Supreme Court of Missouri, Division No. 2.

Dec. 9, 1968.

Motion for Rehearing or to Transfer to Court En Banc Denied

Dec. 31, 1968.

Norman H. Anderson, Atty. Gen., Jefferson City, F. Daley Abels, Special Asst. Atty. Gen., St. Louis, for respondent.

Van Matre & Van Matre, Mexico, for appellant.

J. DORR EWING, Special Judge.

This is an appeal by Charles Wayne O'Neal, who was charged with murder in the first degree, for the killing of his wife, Wanda O'Neal. He was tried in the Circuit Court of Audrain County and convicted by a jury of murder in the second degree, and his punishment assessed at ten years' imprisonment.

Appellant was ably represented at his trial, and in this appeal, by counsel of his own choosing.

The appellant first asserts that the Court erred in admitting into evidence a statement made by the defendant 'at the scene,' admittedly without any 'Miranda' warning.

'The Missouri practice contemplates a preliminary or voir dire examination to determine the competency of a confession before it is presented to the jury.' State v. Washington, Mo.Sup., 399 S.W.2d 109, 114.

The Court properly, out of the hearing of the jury, conducted a hearing to determine whether or not the statement sought to be introduced into evidence was admissible.

The Court having made a determination that the statement was a voluntary statement of the defendant, we must review the evidence and determine whether there was substantial, credible evidence upon which to base such finding.

Second, defendant asserts error in the refusal to admit testimony offered by defendant showing defendant had stated some twelve hours to two days after these events, when he was in a hospital, that deceased had either shot herself or her shooting accidentally resulted when defendant tried to take the revolver from her.

Third, defendant contends the evidence, being circumstantial, was not sufficient to show the defendant did intentionally kill his wife. Accordingly, we must set forth the evidence relating to this issue in some detail.

Finally, defendant asserts that one juror, while the jury was by agreement permitted to separate after the State had withdrawn its right to ask the death penalty, was guilty of such misconduct as to deprive him of his right to a fair trial.

Defendant came to spend his leave from military service with his wife and four children at their four-room, one-story home in Mexico, Missouri. Not having found his wife at home with the children when he tried to telephone her and finding the children without a grown person with them and being unable to locate his wife until her return at five to six A.M., there was later difficulty between them. Their home had two bedrooms, a bath, a living room and a kitchen.

Defendant left home about 8:30 or 9:00 the night of September 24, 1966, and spent the evening at taverns visiting friends and drinking beer, returning home about 1:00 A.M. The wife, fully clothed, had gone to bed with the children in the children's bedroom. Arriving, defendant woke his wife and demanded that she return to their own bed. This she did. The children, having been awakened, heard some loud talk and then heard defendant call his wife vile and vulgar names. Shortly thereafter, the children heard a loud noise, a gunshot.

Immediately the children went into the parents' bedroom and saw their mother lying on the bed with her head all bloody, and defendant was embracing her. Defendant and deceased were the only persons in the bedroom at the time of the gunshot, and the wife was dead upon arrival of the officers. Defendant directed his children to call police and an ambulance.

Within a few minutes, Police Officer Poland arrived at the home, having been advised there had been a shooting but not the identity of the victim or the name of any suspect. Defendant was lying on the floor of the living room covered with blood when the officer arrived. Poland asked defendant, 'What has happened?' to which defendant made no reply. Nina, the thirteen-year-old daughter, replied, 'It's not him; it's mom.'

No further questions were asked, except other officers arriving might have asked a similar question but received no response.

The officer went on into the bedroom and found Wanda O'Neal lying on the bed, with a bullet hole about an inch below her eye and already dead. The officer then returned to his car and called for the coroner and an ambulance. Upon returning to this room he observed a 38 caliber pistol, property of defendant, lying beside the body, covered with blood.

It was shown the defendant made trips to wash his wife's face, to the bathroom, and some ten or fifteen minutes after Officer Poland first arrived, as he was facing away from any officers, and returning to the bedroom, and without any question being asked him by anyone, defendant said, 'She's dead, I know she's dead, I shot her,' and a few seconds later added, 'Zip her up in a black rubber bag and ship her out. That's the way we do overseas.'

The officers, re-examining the body of Wanda, found not only the bullet hole below her eye but found a hole in the back of her head with blood, bone and brain tissue pushed out.

Defendant took the stand and testified that after the argument in the bedroom he obtained his revolver from the dresser drawer and threatened to kill himself. He said his wife told him he worldn't and while he had his back turned said, 'If you won't, I will,' and when he turned she had the revolver in her hand and he made a lunge to grab it and she was shot. Defendant sought to prove that at the hospital some twelve hours to two days after this shooting, defendant told the same story that he did at the trial. This offer was refused.

Defendant cites Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974; and State v. Beasley, Mo.Sup., 404 S.W.2d 689, for support of his claim that his statement, made to officers a few minutes after their arrival, was improperly admitted. In Miranda, 86 S.Ct. 1602, l.c. 1629, the Court said: 'General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. * * * Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence.' (Italics ours.)

We hold that the evidence before the Court was abundantly adequate to show beyond a reasonable doubt that the statement of defendant was a voluntary statement made by defendant, spontaneously made at the scene, while not in custody, and at a time when he had not been and was not being interrogated by the police or anyone else. The trial court properly held this to be a voluntary statement which was admissible. See State v. Peck, Mo. Sup., 429 S.W.2d 247, 251; State v. Burnett, Mo.Sup., 429 S.W.2d 239.

The statement being properly admitted, it follows the Court did not err in refusing to declare a mistrial for the wrongful admission of such statement.

Defendant's second contention is that he was deprived of his right to a fair trial when the Court refused the offer of evidence to prove that at times from twelve hours to two days after the shooting he made statements to the physician and personnel at the hospital telling the events as he told them when he testified in his own behalf.

We are cited the case of State v. Bridges, Mo.Sup., 349 S.W.2d 214 as so holding. In that case the State, not the defendant, sought to show the statement being offered as proof of defendant's guilt. In State v. Perkins, Mo.Sup., 92 S.W.2d 634, cited by appellant, the Court laid down the rule, l.c. 638:

'The law is well settled that a defendant in a criminal case will not be permitted to make evidence for himself by adducing his self-serving declarations (when not a part of the res gestae) explaining his motives, designs, etc.'

It is generally held a litigant cannot found his case upon statements he makes with reference to the facts when not a part of the res gestae. We so hold. See State v. Brown, Mo.Sup., 312 S.W.2d 818, 822; State v. Durham, Mo.Sup., 418 S.W.2d 23, 28; State v. Gooch, Mo.Sup., 420 S.W.2d 283, 288.

The burden is upon the person offering the evidence to show the necessary state of facts to entitle the same to admission. Thus, the burden was upon defendant to show his hearsay statements were made under such circumstances as to assure the truth.

Many cases have dealt with the question of whether statements under differing circumstances were or were not part of the res gestae so as to be admissible.

In State v. Stallings, 334 Mo. 1, 64 S.W.2d 643, 645, it quoted with approval the opinion in Stewart v. Commonwealth, 235 Ky. 670, 32 S.W.2d 29, l.c. 32: 'The exclamation must be the act of talking for itself, not the person taiking about the act. It must be the apparently spontaneous result of the occurrence operating upon the perceptive senses of the speaker * * * rather than the result of reasoning from collateral facts.'

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