State v. Sutton

• Decision Date: 14 July 1969
• Docket Number: No. 2,No. 53791,53791,2
• Parties: STATE of Missouri, Respondent, v. Helen SUTTON, Appellant
• Court: Missouri Supreme Court

Page 481

454 S.W.2d 481

STATE of Missouri, Respondent, v. Helen SUTTON, Appellant.

No. 53791.

Supreme Court of Missouri, Division No. 2.

July 14, 1969.

As Corrected and Dissenting Opinions March 9, 1970.

John C. Danforth, Atty. Gen., Gene E. Voigts, Asst. Atty. Gen., Jefferson City Richard K. Wilson, Special Asst. Atty. Gen., Springfield, for respondent.

Edward A. Glenn, Jackson L. Smith, Louisiana, for appellant.

BARRETT, Commissioner.

Charged with murder in the shooting of her husband, a jury found the appellant, Helen Frances Sutton, guilty 'of involuntary manslaughter by reason of culpable negligence' and fixed her punishment at two years' imprisonment.

Lonnie Sutton and Helen had both been previously married and three of her children, boys 7 and 8 and Julia, age 15, lived with them. It should be interpolated that, especially after beer drinking bouts, Lonnie's and Helen's life was rough and tempestuous, marked by violent cursings and fights. On July 22, 1967, there was an allday picnic at Sunset Park and the Suttons, in a pickup truck, all went to the picnic at 9:30 in the morning. Lonnie left the picnic ground almost immediately with Helen's former husband, the father of Julia, and Guy Trainor and proceeded to the beer taverns. At midday another woman in the party took Julia to town searching for Lonnie, they found him in Johnnie Cotton's tavern but he refused to return to the park for the picnic lunch. In the afternoon Helen took Julia and the two boys in the pickup to a baseball game and then she went in search of Lonnie but was unable to find him, and after the baseball game, but before dark, they went home but no one was there and again they left in the pickup and went to Bowling Green in search of Lonnie but were unable to find him and after driving around returned to Louisiana and finally home. This time it was after dark and Lonnie was home.

Julia says that as her mother stopped the truck Lonnie came out of the house 'went out to the driver's side and started beating on her' with his fists. Julia attempted to separate them and Lonnie 'started after me.' Both mother and daughter got away from him but Lonnie 'took the littlest' boy, a boy with blurred vision, in the house, the other boy went to a neighbor's for unavailable help, and Helen and Julia 'went inside to get my little brother.' Lonnie and the boys were in the kitchen, Lonnie at the table near the sink. Helen called Lonnie a 'son-of-a-bitch,' and he threatened to 'knock her across the room.' Helen went to the bedroom and 'took down' the always loaded .22-caliber single-shot, bolt-action Ranger rifle. Julia says that her mother was trying to put a shell in the gun, there were some shells on a table, and returned to the kitchen. This is Julia's description of the shooting and wounding: 'She had it pointed towards the ceiling and I was going to take it away and it went down and he stood up and it discharged. * * * I just said, 'Give the gun here.' I was--and then she brought it down and he stood up and it just went off.' She did not remember whether her mother had her finger on the trigger. She testified that Lonnie didn't 'say anything.' The gun discharged and Julia says, 'As we was going out the door I took the gun and put it in the corner by the door and took mom outside.' She says they 'more or less' ran out the door but, not knowing where the bullet went, did not look back, got the two boys and drove away in the truck. They went to the stepgrandmother's home in Bowling Green, Julia went in 'and got my stepmother' and they all returned to the fairgrounds and after Helen's talking 'to my stepmother and my father' they started home again and were stopped by a highway patrol officer at 11:45, as she drove to the rear of the B & B Tavern, eleven or twelve miles from the Sutton home. The inference from Julia's testimony is that this is the first knowledge she, and inferentially her mother, had that Lonnie had been shot. The patrolman says that after advising Helen of her rights '(s)he denied having been there.' The next day, however, 'she more or less corroborated the story of her daughter.' The ambulance driver said that Lonnie, dressed only in shorts and a jersey shirt, was wounded in the left abdomen and was dead on arrival at the hospital emergency room from a severed left iliac artery.

This brief resume of the immediate circumstances insofar as they relate to the substantive offense of 'involuntary manslaughter by reason of culpable negligence,' is sufficient to illustrate that the jury's verdict is supported by substantial evidence. State v. Foster, Mo., 338 S.W.2d 892, 896; 40 C.J.S. Homicide § 62, p. 928.

In this background the crux of this appeal is whether the court erred in overruling the appellant's motion to suppress certain evidence, the gun, shells and three photographs, as well as her objections to their introduction, on the asserted ground that it was the product of an illegal search and seizure and therefore a direct invasion of her constitutionally protected rights. Annotation to Mapp v. Ohio, 6 L.Ed.2d 1544.

These are the additional circumstances in which this problem arose: In the first place and important here is the ownership and local of the Sutton home. It was stipulated that the property was owned by Lonnie and Helen 'in an estate by the entirety.' It is north of Highway 54, 200 yards west of the Champ Clark Cafe and about two and one-half miles from Louisiana. The house is off the main road on Kelly Lane about an eighth of a mile--the lane dead ends at the Sutton home. Shortly after 10 o'clock, Sharon Wessel, the telephone operator in Hannibal received a telephone call from Louisiana, a male voice identified himself as Lonnie Sutton. He said 'That his wife had shot him and to call him an ambulance, he was dying.' The operator kept that line open and could hear 'moaning in the background.' Once 'He was wondering where the ambulance was.' On another line the telephone operator called Mr. Collier, the ambulance owner-driver, in Louisiana and reported her conversation. The ambulance driver testified that over the open line Lonnie identified himself 'said that his wife had shot him. That he needed help. To come quickly, words to that effect.' Collier, not knowing the exact location of the Sutton home, called the Louisiana town marshal, Mr. Lindsay, and reported the conversation. Lindsay in turn communicated by radio with Sheriff Marshall and they agreed to meet at the Sutton residence. The ambulance operator Collier, accompanied by a neighbor, Burbridge, and Simpson arrived at the Suttons' first, in about ten minutes after receiving the telephone call. He immediately entered the house, only Sutton was there, on the kitchen floor on his side and unconscious. Collier noticed the telephone off the hook, the telephone operator in Hannibal said that she heard the ambulance arrive, told Mrs. Wessel of his arrival, it was then 10:45, hung up the telephone and proceeded on his way to the hospital in Louisiana with Lonnie.

One eighth of a mile from the Sutton house Marshall Lindsay met and passed the ambulance. In the meanwhile he too, at 10:30, had talked to Lonnie. He had known him for years and recognized his voice. Lindsay arrived at the Sutton place and waited a few minutes for Sheriff Marshall. The house was unlocked and, of course, there was no one in the house when the sheriff and marshal entered. Upon entry they immediately observed the rifle '(s)itting near the door in the north side of the room.' Beer cans were scattered about and the sheriff said that the single-shot, bolt-action .22-caliber rifle was leaning against the sink. The sheriff took three pictures of the kitchen, including the rifle. He found an unexpelled shell on the floor near the icebox, an expelled shell in the rifle. He removed all these objects and turned them over to the highway patrol for ballistics tests. The ballistics expert, incidentally, testified that the single-shot, blot-action rifle could only be fired in this manner: 'Pull back on this portion of the bolt or the firing pin mechanism to actually compress a spring and pull it into a cocked position.' As stated a highway patrolman stopped the appellant at 11:45 or 11:50 on Highway 61 near Bowling Green. He released her, however, and the next day she was interrogated by the prosecuting attorney and the sheriff and finally charged with killing her husband.

Appellant's diligent, indefatigable, court-appointed lawyer contends that there was an illegal search and seizure, that the gun, shells and photographs were inadmissible in evidence because the sheriff and marshal entered the house without a warrant, that the entry, search and seizure were not incidental to an arrest and therefore, of course, the court erred in not sustaining the motion to suppress and the objections to the introduction of the evidence. In opposition the state contends, even though there was no search warrant and no arrest, that the search and seizure were nevertheless lawful because (a) 'the search was pursuant to consent by one of the joint owners of the property in that the decedent had requested the authorities to come to his home to his immediate assistance and the entry was made pursuant to such request' and (b) that the entry and subsequent discovery of the evidence 'was suthorized under the circumstances as an 'emergency' or 'exceptional situation."

In connection with these points it is necessary to make certain preliminary and differentiating observations. This jurisdiction in the deservedly leading cases of State v. Owens, 302 Mo. 348, 259 S.W. 100, 32 A.L.R. 383, and State v. Lock, 302 Mo. 400, 259 S.W. 116, adopted the rule that evidence obtained by an illegal search and seizure by the state is not admissible against the defendant in a criminal case for the reason that the admission of such evidence violates his contitutional security against unreasonable search and seizure. State v....