State v. Statler
| Citation | 331 S.W.2d 526 |
| Decision Date | 08 February 1960 |
| Docket Number | No. 1,No. 47413,47413,1 |
| Parties | STATE of Missouri, Respondent, v. Jesse STATLER, Appellant |
| Court | United States State Supreme Court of Missouri |
Joseph M. Settich, St. Louis, for appellant.
John M. Dalton, Atty. Gen., William C. Blair, Sp. Asst. Atty. Gen., for respondent.
Defendant was found guilty of sodomy, per os, and his punishment assessed at 10 years in the penitentiary (Sec. 563.230, statutory references are to RSMo, V.A.M.S.) and has appealed from the judgment and sentence entered. Defendant has filed no brief so we consider the assignments properly made in his motion for new trial. State v. Stehlin, Mo.Sup., 312 S.W.2d 838.
Defendant claims error in failing to sustain his motion for judgment of acquittal (assignments 5 and 6) but this is apparently based on his claim (assignment 1) that the boy who testified to the act of sodomy upon him was not a competent witness and upon his claim that his confession was inadmissible (assignment 3) because elicited by promises of leniency. Of course, defendant's claim of refusal of judgment of acquittal at the close of the State's evidence (assignment 5) was waived by defendant offering evidence thereafter. See State v. Shelby, Mo.Sup., 327 S.W.2d 873, 874, and cases cited. Thus the principal issues, on defendant's contention that he was entitled to a judgment of acquittal at the close of all the evidence, are the competency of the boy and the admissibility of the confession. We would probably have to hold that a jury case against defendant would not be made without the boy's testimony.
The boy (hereinafter sometimes referred to as Tommy) involved was 13 years old at the time of the alleged act, 14 at the time of the trial. He was mentally retarded and still in the third grade in school and was attending a special school for such children. Defendant sets out four reasons (under assignment 1) for claiming the boy was incompetent, as follows:
A child over 10 years of age is prima facie a competent witness (Sec. 491.060) but may be shown to be incompetent. State v. Jackson, 318 Mo. 1149, 2 S.W.2d 758, 760; see also Burnam v. Chicago Great Western R. Co., 340 Mo. 25, 100 S.W.2d 858, 862; State v. Jones, 360 Mo. 723, 230 S.W.2d 678, 681; State v. Villinger, Mo.Sup., 237 S.W.2d 132, 134. In the Burnam and Jones cases we stated and applied the following four fundamental elements of the test of competency of a child to be a witness: '(1) 'Present understanding of or intelligence to understand, on instruction, an obligation to speak the truth; (2) mental capacity at the time of the occurrence in question truly to observe and to register such occurrence; (3) memory sufficient to retain an independent recollection of the observations made; and (4) capacity truly to translate into words the memory of such observation.'' In this case, the boy although over 10 years of age was shown to be mentally retarded. The rule is that, 'In each case the trial judge is to determine by appropriate questions the competency of the child offered as a witness, and his decision can only be set aside where he has abused his judicial discretion.' State v. Jones, supra, 230 S.W.2d loc. cit. 680, 681; see also State v. Groves, Mo.Sup., 295 S.W.2d 169, 172, and cases cited. In this case, the court held a preliminary hearing for this purpose. The boy stated his age and date of birth, the city and state where he was born, pointed out defendant, said that defendant had a secondhand store and told the streets which intersected at its location; and also gave the names of the schools he had attended and the streets on which his present school was located. He went to church sometimes alone and sometimes with his sister and little brother. It is true that when first questioned by defendant's counsel he answered 'No' to the following questions: 'Do you know what the nature of an oath is?' 'Do you know what it means to tell the truth?' 'Do you know what a lie is?' However, defendant's counsel also asked the following questions, receiving the following answers:
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The trial court, in ruling the boy competent, stated the matter thus:
The court also had before it the boy's deposition, taken by defendant's counsel, which was read in evidence by the State.
On this subject, it is said in 3 Wharton's Criminal Evidence 95, Sec. 762: We think the trial court's ruling was proper and disposes of the first three reasons stated in defendant's motion. As to the fourth, the boy's testimony both at the trial and in his deposition was clear, detailed and complete as to his activities, location of places, sequence of events and the act in which he said defendant forced him to participate. He was not confused as to these matters by cross-examination and he was corroborated in much of his testimony by the testimony of a twelve-yearold companion, whose competency was not questioned. He told his companion's parents about the act with defendant soom after the time he said it occurred. We think his testimony shows that he did have a memory sufficient to retain an independent recollection of the observations made. On the entire showing, we cannot hold that the trial court's ruling was an abuse of discretion and must rule that this testimony was properly admitted. We further hold that the boy's description of the act of sodomy by mouth in the back room of defendant's store, with the partial corroboration by defendant's companion who saw them there by looking in through a rear window (defendant was facing away from this window with the boy in front of him) was sufficient to make a jury case against defendant and to support a verdict finding him guilty, without the evidence of an oral confession by defendant.
On the admissibility of defendant's oral confession, the evidence was that the act with the boy was on January 22, 1958, and defendant was arrested on January 24th about 3:40 P.M. When questioned at that time by the arresting officer, Patrolman Cook, he denied the act and when questioned again by the same officer later that evening, after the two boys had been brought in to view him, he denied it again. On the morning of the 25th, defendant was taken to the District Police Headquarters to be questioned by Detective Armstrong. Cook was not in the room with them but could see and hear what took place by means of a mirror and microphone. From a preliminary hearing before the court on the issue of voluntariness, it appears that defendant took a lie detector test in the room, after which questioning continued. (The jury was not told anything about this test.) According to his deposition, Cook had said that Armstrong then told defendant that it might go a little bit easier on him if he confessed. In his testimony at the trial, Cook said he guessed he said that in his deposition but he did not remember saying it and did not remember Armstrong telling defendant that. He said defendant did admit the act to Armstrong, after the lie detector test, and again later to him but defendant was not asked to sign a written confession. Armstrong said his questioning lasted 35 or 40 minutes and that defendant at first denied it. His testimony was that he said to defendant: 'Don't you think you would be better off by trying to clear your own conscience and get this off your chest?' He also said: In his preliminary examination, Armstrong said he told defendant the results of the lie detector test and said: 'I probably mentioned it in this way: that as long as he was guilty, that it sometimes happens that if guilty people plead guilty to the charge, then they can go into court, state their case to the Judge, and quite frequently they get off with less time than they would if they went to trial in front of a jury on it.' He also said he did 'tell him about innocent people, that if they are innocent they should still maintain their innocence and not admit to anything.' Defendant denied that he made any admission of the act to the officers or made any statements to them...
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