State v. Stringer

Decision Date27 May 1948
Docket Number40747
PartiesState v. Jerene Stringer, Appellant
CourtMissouri Supreme Court

Rehearing Denied June 14, 1948.

Appeal from Washington Circuit Court; Hon. Edward T Eversole, Judge.

Reversed and remanded.

Samuel Richeson for appellant.

(1) The information was insufficient. It charged that defendant made an assault upon her child in some way and manner and by some means, instruments and weapons unknown to the prosecuting attorney, of which assault the child died. It fails to charge that the deceased was feloniously, unlawfully and willfully given a mortal wound by the defendant. State v Birks, 199 Mo. 264; State v. Williams, 184 Mo. 261. (2) The evidence was insufficient in that it failed to show the commission of an assault or a striking or wounding by the defendant, and therefore defendant's demurrers should have been sustained for lack of proof of the corpus delicti and criminal agency of the defendant. State v. Bass, 251 Mo. 107; State v. Buckley, 309 Mo. 38. (3) The testimony of the coroner to the effect that defendant had not reported a death to him was improperly admitted. There was no duty upon the defendant to make a report, and such testimony was prejudicial and justifies reversal. Constitution of Mo. 1945, Art. I, Sec. 19; State v. Simmons Hardware Co., 109 Mo. 118.

J. E. Taylor, Attorney General, and Harry H. Kay, Assistant Attorney General, for respondent.

(1) The information in this case is sufficient. State v. Poor, 286 Mo. 644, 228 S.W. 810; State v. Williams, 52 N.C. 447; State v. Parker, 65 N.C. 453; 26 Am. Jur., p. 338, sec. 264. (2) The corpus delicti can be proved by circumstantial evidence, and was sufficiently proved in this case. State v. Smith, 329 Mo. 272, 44 S.W.2d 45; State v. Poor, supra; Clark v. State, 208 S.W.2d 637. (3) It was not error to admit the testimony of the coroner to the effect that the defendant had not reported a death to him, but if it was error, it was harmless error. State v. Cade, 326 Mo. 1132, 34 S.W.2d 82; State v. Dailey, 210 Mo. 664, 109 S.W. 53.

Barrett, C. Westhues and Bohling, CC., concur

OPINION
BARRETT

On Thursday, the 15th of August 1946, at eleven o'clock in the morning, the appellant, with the attendance of a doctor, gave birth to a normal, nine months male child. The appellant was twenty-three years old, a single girl, employed in a shoe factory. She lived with her sister in a one-room building on the banks of Britton Creek in Potosi. She had made no preparation whatever for the baby's birth and the doctor's daughter, who was a nurse and assisted her father in the accouchement, brought clothes for the baby. As they were leaving the daughter stated that she would leave the baby clothes but the appellant said that she would not need them. When the doctor asked for the baby's name she answered that it had no name and requested that he say nothing about the baby's birth. A little girl in the neighborhood discovered that there was a baby in the building and about 2 o'clock walked in and asked to see it. The appellant told her that the baby was no longer there, that she had given it to some friends in St. Louis. On the following Saturday the doctor and his daughter again called on the appellant and she told them that she had given the baby to some people in St. Louis. In the afternoon the sheriff and the prosecuting attorney called and inquired about the baby. She informed them that she had given it to some friends of the nurse's in St. Louis. The sheriff did not believe her and insisted that she tell him the truth. She then told the sheriff and the prosecuting attorney that she tired of her position in the bed and wanted to move, that the baby had been lying between her and the wall, and when she picked it up to move over she accidentally dropped it on its face on the floor and it died. She said: "I was so scared I didn't know what to do." So, within two hours of its birth, she took the baby out back of the house and hid it in the weeds. Neighbors made a search along the creek bank and found the bones of a newly born baby. The inference is that dogs had devoured the child.

Upon a trial for murder the jury found her guilty of manslaughter and assessed her punishment at five years and one day in the penitentitiary.

The appellant admitted that she dropped the baby on the floor and that it died as a result of the fall. Her defense was that its death was accidental -- an excusable homicide. But from the admitted facts and the circumstances that she had made no preparation for the baby's birth, did not want any clothes for it, asked the doctor to conceal its birth and her secretion of its body (Annotation, 2 A.L.R. 1227) the jury could reasonably find that she intentionally, voluntarily and willfully dropped the baby, thereby causing its death, a voluntary homicide or manslaughter. Mo. R.S.A., Sec. 4382. The evidence being circumstantial, the child's homicidal death and someone's criminality in connection with it -- the corpus delicti (State v. Hawkins, (Mo.) 165 S.W.2d 644, 646) -- may be inferred from the appellant's obvious motive in the circumstances. State v. Smith, 329 Mo. l.c. 279, 44 S.W.2d l.c. 48. In one sense a proper definition of voluntary manslaughter is the unjustifiable, inexcusable and intentional killing of a human being without deliberation, premeditation and malice. State v. Holliday, 353 Mo. 397, 398, 182 S.W.2d 553, 554; State v. Stark, (Mo.) 151 S.W.2d 1095, 1096; State v. Hart, 309 Mo. 77, 83, 274 S.W. 385, 386. It is arguable, in the circumstances, that there was sufficient evidence to support a conviction of murder in the second degree (State v. Cade, 326 Mo. 1132, 34 S.W.2d 82) even though an intentional homicide may be manslaughter. State v. Gadwood, 342 Mo. 466, 494, 116 S.W.2d 42, 58. The appellant does not question these rules or the sufficiency of the evidence to support the inferences noted and they are set forth for a complete understanding of her insistence, nevertheless, that she is entitled to be discharged upon this appeal.

Omitting the introduction, the information in this case charges that the appellant "on or about the fifteenth day of August, 1946, then and there, in and upon the body of a certain male child of tender age lately being born of the body of her, the said Jerene Stringer, the name of which infant child is unknown to your informant aforesaid, then and there being, feloniously, unlawfully, willfully, deliberately, premeditatedly, on purpose and of her malice aforethought, did make an assault on him, the said infant child aforesaid, in some way and manner and by some means, instruments and weapons to your informant unknown, did then and there feloniously, unlawfully, willfully, deliberately, premeditatedly, on purpose and of her malice aforethought, kill, murder and deprive of life so that he, the said infant child aforesaid, then and there died; and so your informant, upon his oath aforesaid, does say that the said Jerene Stringer, him, the said infant male child aforesaid, in some manner and way and by some means, instruments and weapons to your informant unknown, did then and there feloniously, unlawfully, willfully, deliberately, on purpose and of her malice aforethought at and in said County of Washington and State of Missouri, on or about the fifteenth day of August, 1946, kill and murder against the peace and dignity of the State."

A careful reading of the information reveals that it does not expressly charge "that the deceased was given a mortal wound by the defendant." It is urged therefore that the court erred in refusing to quash the information. Since there was no testimony directly concerning such a mortal wound it is claimed that there was no evidence of the appellant's criminal agency in connection with the death, consequently there was no proof of the corpus delicti and insufficient evidence to support either a conviction or a submission of manslaughter.

As we have indicated, the admitted facts and the circumstantial evidence permit all the inferences necessary to support a submission and conviction of manslaughter unless the elements insisted upon by the appellant are absent and essential to the charge and conviction. The trial court also submitted whether the appellant was guilty of first or second degree murder and whether the child's death was accidental as the appellant claimed but the jury disregarded these instructions and found her guilty of manslaughter. It is possible that this latter fact alone is a sufficient answer today to the appellant's assignments of error in this respect. Since this court has held in State v. Sundheimer, 93 Mo. 311, 6 S.W. 52, however, that an indictment or information for manslaughter must contain all the allegations essential and necessary to a charge of murder, except the elements of deliberation, premeditation and malice, the fact that she was convicted of manslaughter only may not be sufficient to distinguish this and the cases relied upon. In that case the court said: "Perhaps, if we consider the phraseology of the indictment, solely and merely, in the popular significance of the terms employed, it may be deemed to import and express" the necessary elements of manslaughter. The court conceded that the indictment charged that the defendant "did kill and slay said William Singer, by then and there discharging a gun in and upon his face and head, whereby he received such injuries as to cause his death," but, nevertheless, the court held that the indictment did not clearly and distinctly state and express the facts constituting the offense because "this last allegation fails and omits to expressly say that the death, so caused by said injuries, then and there ensued, and this is required, . . ."

In State v. Green,...

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4 cases
  • State v. Ayers, 52911
    • United States
    • Missouri Supreme Court
    • September 13, 1971
    ...unjustifiable, inexcusable and intentional killing of a human being without deliberation, premediation and malice.' State v. Stringer, 357 Mo. 978, 980, 211 S.W.2d 925, 927; V.A.M.S. § 559.070. We have no doubt that the circumstances, coupled with the statements, provide sufficient evidence......
  • State v. Palmer, WD
    • United States
    • Missouri Court of Appeals
    • April 13, 1982
    ...against him and final disposition of the charge will constitute a bar to further prosecution for the same offense. State v. Stringer, 357 Mo. 978, 211 S.W.2d 925, 929 (1948); State v. Tandy, 401 S.W.2d 409, 412-13 (Mo.1966); Hodges v. State, 462 S.W.2d 786, 789 (Mo.1971); State v. Downs, 59......
  • Wescott v. State, WD
    • United States
    • Missouri Court of Appeals
    • April 21, 1987
    ...to enter his guilty plea or the court's jurisdiction to accept it. See State v. Goff, 490 S.W.2d 88, 90 (Mo.1973); State v. Stringer, 357 Mo. 978, 211 S.W.2d 925, 929 (1948). Moreover, the defendant's rights were not prejudiced in any For the foregoing reasons, we affirm the denial of defen......
  • State v. Holland
    • United States
    • Missouri Supreme Court
    • March 10, 1969
    ...instantly died. The court there relied on a citation from Chitty, Criminal Law, published in 1847. As recounted in State v. Stringer, 357 Mo. 978, 211 S.W.2d 925, 928--929, the basic reason for the extremely technical requirements of common-law indictments was to restrain the 'brutal severi......

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