State v. Swinburne, 46829

• Decision Date: 11 May 1959
• Docket Number: No. 46829,46829
• Parties: STATE of Missouri, Respondent, v. Carl George SWINBURNE, Appellant.
• Court: Missouri Supreme Court

Page 746

324 S.W.2d 746

STATE of Missouri, Respondent, v. Carl George SWINBURNE, Appellant.

No. 46829.

Supreme Court of Missouri, En Banc.

May 11, 1959.

Modified in Court's Own Motion, Motion for Rehearing and to

Modify Opinion Denied June 8, 1959.

Lester Watson, William J. Hough and Paul Watson, Clayton, for appellant.

John M. Dalton, Atty. Gen., Robert E. Hogan, Sp. Asst. Atty. Gen., for respondent.

EAGER, Judge.

Defendant was convicted of statutory rape and sentenced to death. He has appealed in due course; he was represented at the trial, and is represented here, by able counsel. The sufficiency of the evidence for conviction is not questioned; hence, it will not be necessary to state the sordid facts in detail. It will be necessary, however, to give an outline of them, so that assertions of error may be intelligently discussed.

The evidence of the State fairly showed the facts now recited. Defendant, after spending several hours in a South St. Louis County tavern, and in the early hours of May 30, 1957, went to a home where the prosecutrix was 'baby-sitting' with three children and procured entrance on the pretext of waiting for the father, whom he knew, and whom he had seen that evening working as a musician at the tavern. He had learned by inquiry of the mother of the children that a baby-sitter was at the home. The prosecutrix, whom we shall not otherwise designate, was 13 years old. Defendant first attempted to rape her in the home, after gagging her, but desisted and forced her out to his car, beat her severely with his fists when she resisted and screamed for help, and threatened her with a knife. Succeeding thus in getting her into his car, he took her to a secluded spot within the confines of Jefferson Barracks, raped her twice, and caused her to perform other acts of a highly revolting nature which constituted sodomy. The prosecutrix testified that she was made unconscious by a blow or blows in the struggle at the car, and that when she regained consciousness, at the spot to which he drove her, defendant was actually raping her on the seat of the car. After keeping the girl there for a very substantial period of time, defendant drove her back to a point about a block from her home. There he warned her not to tell her father or mother, stating that if she did he would read it in the papers and would come back and kill her.

Medical examination of the child revealed that there were discolorations and swellings on her face and jaw, discoloration and swelling inside her mouth, abrasions on her back, skinned areas on her back, buttocks and forearms, and some bleeding into both eyes. Also revealed were pinpoint hemorrhages over her face and scalp which indicated that the circulation around the neck had been partially obstructed as from being choked or suffocated, and that she had been unconscious; the bleeding into the eyes was 'very likely' due to the same cause. Pelvic examination disclosed a fresh laceration of the hymen, with superficial skinned areas; the laceration extended into the lining of the vagina, and a discharge found in the vagina proved, upon test, to be male sperm or semen.

The sole defense made was that of asserted insanity. There was some evidence that defendant had suffered a head injury when he was a boy about 8; that he had, in recent years, shown a violent temper, and had upon occasions wholly failed to recall occurrences in periods just past or, as sometimes stated, suffered 'blackouts.' Since defendant did not testify, much of this information came to his examining doctors as case history. Two qualified psychiatrists had examined him at his counsels' request and testified. We need not analyze their testimony; it rested in large part upon the supposed periods of 'fugue' reaction in which he had no ensuing memory of events, and the effect thereof upon his ability to determine right from wrong. Their testimony was based also, to some extent, upon findings from a spinal puncture, and upon their conversations with him. The trial court submitted the issue of insanity and the jury necessarily found against the defendant on it.

Instruction No. 5 was the only instruction given on insanity. Insanity was the sole defense made. We set out the instruction in full, as follows; 'The court instructs the jury that if you find and believe from the evidence that the defendant, Carl George Swinburne, at the time of the commission of the act charged in the information, if you should find and believe beyond a reasonable doubt from the evidence herein that he did commit such act, and was so perverted, deranged, defective or deficient, in one or more of his mental and moral faculties as to cause him to be incapable at the time of understanding that such act was wrong and in violation of the law, you should acquit him upon the ground of insanity, but to hold the defendant criminally responsible it is only necessary that you should believe that the defendant at the time of the commission of the act charged against him, if you find and believe he did commit such act, had such a degree of mental capacity as to enable him to distinguish between right and wrong in reference to said act and to know that said act was criminal and wrong and would deserve punishment, then in law he had a criminal intent and was not so insane, mentally defective or deficient, as to be exempt from the responsibilities of such act.

'The law does not excuse unless the mental derangement or impairment is so great that it actually renders the person incapable at the time of its commission of distinguishing between right and wrong as to the particular act proved against such person. The insanity of the defendant may be proven either by positive and direct proof or by circumstantial evidence. As the law presumes the defendant innocent, the burden of proving him guilty rests with the State, and before you should convict him, his guilt must be established beyond a reasonable doubt. On the other hand, to entitle the defendant to a verdict of not guilty, solely by reason of his insanity, the law requires the defendant to prove it, not however, beyond a reasonable doubt, but only by the preponderance or greater weight of the evidence.

'From all this it follows that although you may believe and find that the defendant did commit the act charged against him, yet if you are reasonably satisfied by the greater weight or preponderance of the evidence you further find that at the time he did it he was in such an insane, deranged, defective or deficient condition of mind that he did not know he was doing wrong, and did not comprehend the nature and character of the act, then such act was not, in law or in fact, malicious or felonious, and you ought to acquit him on the grounds of insanity, and by your verdict so say.

'By the term 'greater weight or preponderance of the evidence' as is used in the foregoing instruction, is meant evidence which is more convincing and worthy of belief than that offered in opposition thereto.'

It is obvious that the first paragraph, when read literally, requires that insanity be proven beyond a reasonable doubt; this result was apparently caused by inserting the word 'and' in the fifth line of the instruction (as it appears here), while attempting to copy the first paragraph of the instruction shown in the case of State v. Barton, 363 Mo. 991, 255 S.W.2d 752, 754 (second appeal). In that case the court reaffirmed the proposition that the burden of proving insanity by a preponderance of the evidence rests on the defendant. There the requirement of proof 'beyond a reasonable doubt' appeared as a separate clause confined solely to proof of the commission of the act charged whereas here the conjunctive 'and' joins that element with the submitted hypothesis that defendant was so perverted, etc., as to be incapable of understanding that the act was wrong; the remainder of the paragraph in nowise lessens the burden thus imposed. Defense counsel insist that the additional part of the paragraph improperly reduces the State's burden, but we may pass that agrument. The second paragraph, standing alone, is good, but a conflict exists between it and the first paragraph.

In the third paragraph the jury is told that 'if you are reasonably satisfied by the greater weight or preponderance of the evidence' that defendant was insane, it should acquit him. This paragraph is apparently an adaption from the third paragraph of the same Barton instruction but the phrase just quoted above has been inserted in lieu of the words 'from the evidence.' It seems very strange that this should be done in view of the express condemnation of the words 'satisfied,' 'reasonably satisfied' and 'reasonable satisfaction,' when used in a similar connection in the first Barton case (Mo., 236 S.W.2d 596), and the reversal of that conviction because thereof. The exact meaning of that case is somewhat obscure, since five Judges concurred in the result and two dissented; we construe it, however, as condemning the terms or phrases referred to above. If we have misconstrued that case, then we condemn those phrases now, as applied to an affirmative defense. At the second Barton trial the instruction omitted all such references, yet the present instruction (almost a copy except for the two inserts which we have noted), reinserts the requirement 'reasonably satisfied.' We recognize that until the first Barton case was decided here similar requirements had been approved (State v. Sapp, 356 Mo. 705, 203 S.W.2d 425; State v. Scott, 359 Mo. 631, 223 S.W.2d 453; State v. Wright, 134 Mo. 404, 35 S.W. 1145, 1149; State v. Porter, 213 Mo. 43, 111 S.W. 529, 532; State v. Douglas, 312 Mo. 373, 278 S.W. 1016, 1027), usually with the accompanying phrase 'by the weight and preponderance of the evidence,' or similar words. We recognize also that the terms condemned in the first Barton case (236 S.W.2d 596) were used alone, the opinion stating, loc. cit. 601: ...