State v. Smith
| Citation | 485 S.W.2d 461 |
| Decision Date | 27 September 1972 |
| Docket Number | No. 9231,9231 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. John A. SMITH, Defendant-Appellant. |
| Court | Court of Appeal of Missouri (US) |
John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
A. L. Shortridge, Joplin, for defendant-appellant.
A jury found defendant guilty of mistreating three-year-old Sandy as charged under § 559.340, 1 but failed to agree upon the punishment to be inflicted. Therefore, the Circuit Court of Jasper County assessed and declared defendant's punishment to be six months in the county jail and rendered judgment accordingly. Rule 27.03. Defendant appealed claiming the trial court erred in denying his motions for judgment of acquittal 2 (Rule 26.10) and in giving Instruction 3 (directing a verdict) because there was no substantial evidence that he had the care and control of the child. He also claims the court committed error by admitting into evidence over his objections color photographs of the girl which pictured the results of the alleged beating and in refusing his converse charge, Instruction 10.
Inter alia, § 559.340 states: 'If any mother or father of any infant child under the age of sixteen years, * * * or any other person having the care and control of any such infant, shall unlawfully and purposely assault, beat, wound or injure such infant, whereby its life shall be endangered or its person or health shall have been or shall be likely to be injured, the person so offending shall, upon conviction, be punished by imprisonment in the penitentiary not exceeding three years, or by imprisonment in the county jail not exceeding one year, or by fine not exceeding one thousand dollars or by both such fine and imprisonment.'
Defendant was not the father of the alleged mistreated child, and if it could be assumed (which it cannot) that defendant was 'any other person having the care and control' of Sandy, we conclude there was substantial evidence, if viewed in the light most favorable to the State (State v. Wing, Mo., 455 S.W.2d 457, 465(17), cert. denied 400 U.S. 1009, 91 S.Ct. 566, 27 L.Ed.2d 621), from which the jury could have found that defendant beat and injured her in the manner prohibited by § 559.340. The statute defining the particular offense charged herein must be construed strictly against the State and liberally in favor of the defendant (State v. Chadeayne, Mo. (banc), 323 S.W.2d 680, 685(4)), and the statute should not be held to include any person other than those clearly described both within the letter and spirit of the law; if fair doubt exists whether the person charged is embraced within the prohibition, that doubt will be resolved in favor of the accused. State v. Hall, Mo.App., 351 S.W.2d 460, 463(3). Moreover, the State has the burden to adduce substantial evidence of every constituent element of the charged offense (State v. Chester, Mo.App., 445 S.W.2d 393, 396(3)), and one of the constituent elements of the offense laid against this particular defendant is that he was a 'person having the care and control' of the mistreated child. State v. Osborne, Mo.Pp., 413 S.W.2d 571, 573(5).
Before defendant and Susan were wed in June 1970, each had participated in similar unsuccessful ceremonies. Susan's prior undertaking had produced for her one child, Sandy; defendant's previous matrimonial adventure resulted in his becoming the father of three sons and a daughter. To the new home Susan brought Sandy, then two years of age, and defendant brought his 10-year-old son, Gary. So as to accommodate a gathering of this size and anticipated additions, defendant, Susan, Sandy and Gary in October 1970 moved into a rural home which '(w)e were buying.' Two months thereafter they were joined by defendant's other sons who resided with them 'except on weekends (when) they (would) go down to their grandparents.' A son was born to Susan and defendant on April 4, 1971, and save for a pregnancy leave lasting from mid-January to the date of the alleged offense, Susan was employed in Carthage during the eleven months the off-again on-again cohabitation endured. Sandy was consigned to a babysitter in Carthage while Susan attended her job. Defendant was also employed. Repeated objections by the State (sustained by the trial court) prevented any insight as to what Susan and defendant did with their separate earnings. Consequently, the record does not disclose the quantum of support defendant may have provided for Sandy.
While the union was yet fresh, some discussion was had concerning defendant's adoption of Sandy. However, the association soon grew tedious and tumultuous. The eleven months following the marriage witnessed Susan leaving defendant twice and contemplating divorce. Susan considered sending Sandy to her uncle in New York, or, as defendant recalled, Susan additionally thought of giving Sandy into the custody of the child's natural father or maternal grandmother. Although Susan testified that defendant protested when she wanted to send Sandy to live with a relative, she recounted that defendant was not affectionate toward Sandy and had told Susan he was not adverse to her and Sandy leaving home.
Sandy had not taken to toilet training by the time her mother married defendant and the problem concerned the defendant after the nuptials. Susan and defendant talked frequently of the matter. Defendant said he had discussed taking Sandy to a doctor but the problem had never been presented to a physician because 'we just never did get together on taking her.' It was also related by defendant that 'we had tried several other ways' to correct the problem besides spanking Sandy--one of the ways was 'after we had moved (to the country) we got a little switch, . . . just laid it up where we thought . . . she would think we was going to use it on her to correct her.'
Concerning the charged mistreatment of Sandy: According to Susan she emerged from the bathroom the night of May 17, 1971, and saw defendant standing over Sandy, who was then in bed. She heard defendant ask her then three-year-old daughter why she had soiled her pants. When Sandy replied, 'I don't know,' Susan related that defendant jerked Sandy from her bed by the hair, took her into the bathroom, shut the door, and thereafter for '(n)ot any more than 10 minutes . . . heard him yelling and her screaming.' The mother did not 'ever hear anything like a blow being struck,' but did hear the undersink bathroom 'cabinet bang a couple of times.' During this period, Susan made no effort to intercede for Sandy in any fashion. She undertook to explain her inactivity at this point by 'just the fact that I didn't agree with him and spanking her made him violent and I was afraid if I said anything about it at all it would just be worse.' Of Sandy's appearance when she left the bathroom, Susan said: Defendant denied pulling Sandy from bed by her hair or beating her as Susan indicated he had done. Instead, he said he led the child to the bathroom by the hand, 'spanked her with a houseslipper (on) the fanny . . . three or four times (and) talked to her about trying to get her to cooperate (about) wetting and messing her clothes.' Upon examining Sandy the next afternoon, a physician testified he found 'she had a large hematoma . . . of her right eyelid, the eyelid was swollen out, completely swollen shut and discolored, red, and she had ecchymosis which are bruise marks, both ears and her back and forehead.' In the doctor's opinion it would 'take a minimum of four' blows to cause the injuries he observed.
Defendant maintains 'that as a matter of law' the State did not prove he had 'the care and control' of Sandy. One element of his attack is the assertion that the words 'care and control' in § 559.340 'could only mean the lawful care and control.' (All emphasis herein is ours). The words 'lawful' and 'legal' are ofttimes synonyms (State v. Heath, 221 Mo. 565, 584, 121 S.W. 149, 154; Webster's New World Dictionary of the American Language, College ed., pp. 828 and 835), so we assume that defendant is contending he could be an 'other person' within the terms of § 559.340 only if it was established his care and control of Sandy was in some manner based upon or authorized by law. The ancestor of § 559.340 was § 1272 RSMo 1879, entitled 'Mistreatment of apprentices,' which embraced within its scope 'any master or mistress of an apprentice or other person having the legal care and control of any infant.' This law remained unchagned in form until 1909, and was said to apply to relationships other than master and apprentice provided the relationship was of an equal or inferior class, but that it did not embrace a superior class such as that of parent and child. State v. Koonse, 123 Mo.App. 655, 662, 101 S.W. 139, 141. The 1909 enactment (§ 4492) bore the title 'Mistreatment of child or apprentice' and included 'any mother . . ., or any father of any such infant child, . . . or any master or mistress of an apprentice, . . . or other person having the legal care or control of any such infant.' By the Laws of 1921, p. 281, the statute was amended into its present wording. It is well to note that the 1921 law served to delete the word 'legal,' and a statute as amended should be construed on the theory that the General Assembly meant something by that elimination. Wigand v. State Dept. of Pub. Health and Welfare, Mo.App., 454 S.W.2d 951, 956(11). Also, § 559.340 does not say 'a person' or 'other person' (as its predecessors) having the care and control of the child, but 'any other person.' Employment of the phrase 'or any other person having the care and control,' without inclusion of the word 'legal,' indicates the statute applies, aside from parents, to persons charged with the care...
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