State v. Robinson

• Court: Missouri Supreme Court
• Writing for the Court: Barrett, C.
• Citation: State v. Robinson, 184 S.W.2d 1017 (Mo. 1945)
• Decision Date: 05 February 1945
• Docket Number: 39272
• Parties: State of Missouri, Respondent, v. Claude Pintard Robinson, Appellant

184 S.W.2d 1017

State of Missouri, Respondent, v. Claude Pintard Robinson, Appellant

No. 39272

Supreme Court of Missouri, Second Division

February 5, 1945

From the Circuit Court of the City of St. Louis Criminal Appeal Edward M. Ruddy, Judge

Reversed and Remanded

OPINION

Barrett C.

It was charged that Mary Snowdell died as the result of an illegal abortion produced by Dr. Claude Pintard Robinson. Mo. R.S A., Sec. 4385. He was found guilty of manslaughter and sentenced to four years' imprisonment in the penitentiary.

Upon the trial of the cause Dr. Robinson did not testify. Nor did he offer any evidence in defense of the charge. In his motion for a new trial, and upon this appeal, he contends that he is entitled to a new trial because the court permitted the state's attorney, in his closing argument, to comment upon his failure to testify, thereby infringing his constitutional right against self-incrimination and the statutory prohibition against referring to or considering the fact that a defendant in a criminal cause has not availed himself of the right to testify. Const. Mo. Art. 2, Sec. 23; Mo. R.S.A., Sec. 4082.

The state's attorney said: "Gentlemen, what did he say she died from? He said, 'septic abortion,', and he said that they found part of the placental tissue, and 'you can't have that unless there was pregnancy' and that was the State's witness, and, gentlemen, that remains uncontradicted. Gentlemen, there were three persons present December 8th, 1942 at 2611A Olive Street. Constance Hoffman has told you her story; Mary Snowdell can't."

Timely and proper objection was made and overruled and it is not claimed that the point is not properly before us for review nor that the error was either waived or cured. See and compare State v. McKeever, (Mo.) 101 S.W. 2d 22, 23 and 84 A.L.R., l.c. 791-- 802. It is argued by the Attorney-General that the statement did not refer, either directly or indirectly, to the defendant's failure to testify but that there were "three people present at 2611A Olive Street at the time in question besides the appellant" and that the statement referred to the defendant's failure to call the fourth person as a witness. It is contended that the state had a right to argue and comment upon the defendant's failure to produce other witnesses (State v. Linders, 299 Mo. 671, 253 S.W. 716) and to otherwise present the strength of the state's case with vigor. State v. McKeever, supra.

But in detailing the circumstances under which the abortion was performed, in retelling what the doctor said and did, Constance Hoffman did not testify that a fourth person was present. The only reasonable inference from the record is that Mary, Constance and Dr. Robinson were alone in the doctor's private office. She said that when they went to 2611A Olive Street they entered "a reception room" and that "there was a girl there. I don't know whether she was a receptionist or not." In any event there is no indication from Constance's evidence that the girl or any other fourth person saw or heard the doctor say or do anything that would materially bear on the actual merits of this case. Furthermore, if the state's attorney was referring to a fourth person or another witness, why didn't he say so? He did not say "there were four persons present." He said: "There were three persons present." One of them, Constance, testified. Mary was dead and the third person referred to had to be and was Dr. Robinson.

Under those circumstances the case is exactly the same as the statement in State v. Shuls, 329 Mo. 245, 44 S.W. 2d 94, "There were three parties there and these two girls were the only ones that testified and what did they say?" The statement is not comparable to Here we have testimony undenied, undisputed by no living or unliving witness." State v. Ruck, 194 Mo. 416, 92 S.W 706; State v. Hughes, 258 Mo. 264, 167 S.W. 529. Here the only person who could have testified and denied the state's most damaging and material evidence was the defendant. Annotation 68 A.L.R., l. c. 1135. Neither is the argument reasonably susceptible to the construction that it was merely a general statement referring to the defendant's failure to produce any testimony whatever. State v. McCleave, (M...