State v. Tettamble

• Citation: 394 S.W.2d 375
• Decision Date: 11 October 1965
• Docket Number: No. 1,No. 50911,50911,1
• Parties: STATE of Missouri, Respondent, v. Gerald Francis TETTAMBLE, Appellant
• Court: United States State Supreme Court of Missouri

Page 375

394 S.W.2d 375

STATE of Missouri, Respondent, v. Gerald Francis TETTAMBLE, Appellant.

No. 50911.

Supreme Court of Missouri, Division No. 1.

Oct. 11, 1965.

Hale W. Brown, Kirkwood, for appellant.

Norman H. Anderson, Atty. Gen., Jefferson City, Frederick E. Steck, Sp. Asst. Atty. Gen., Sikeston, for respondent.

HOUSER, Commissioner.

Gerald Francis Tettamble was convicted of murder in the second degree and sentenced to 99 years in the custody of the Department of Corrections. He was represented by counsel, who filed a motion for a new trial and after that was overruled filed a notice of appeal. Neither appellant nor his attorney filed a brief on appeal. In this situation we review all assignments of error properly preserved in the motion for new trial. State v. Malone, Mo.Sup., 382 S.W.2d 679.

The evidence favorable to the state demonstrated the following set of facts: John Howell and two other persons suspected of complicity in a burglary were arrested and confined in the St. Francois County jail on June 25, 1963. Howell was not sick on admission to the jail, and was not out of the jail at any time after his admission and prior to his death. The three suspects were held in common with other prisoners, including Tettamble and one Stanley Johnson. On the evening of June 26 Tettamble told Howell to fight an inmate named Wampler or else Howell would have to fight Tettamble. Tettamble was at least 6 feet 2 inches tall, whereas Howell was 5 feet 9 inches in height. Howell and Wampler wrestled around for 4 or 5 minutes. When they quit and 'laid down' Tettamble told Howell he would have to fight someone else. Howell then wrestled with prisoner Ransom. Then Tettamble had Howell wrestle with one Maples. No blows were struck in the course of this scuffling. Later Tettamble and Johnson summoned Howell into a cell. They had a blanket over the door. Tettamble tried to force Howell to perform unnatural sex acts with Tettamble. When Howell refused to comply with Tettamble's demands Tettamble slapped him and then, using his fists, hit Howell 'real hard' blows--'hard licks'--in his chest and stomach, over a period of 15 to 20 minutes. Then Johnson backed Howell up against a wall, 'fighting' him for 10 or 15 minutes, striking him 10 or 15 times in the stomach. When Johnson quit Tettamble started in on Howell again, hitting him in the stomach, chest, side and arms. Howell was hollering, trying to get them to quit, trying to cover and defend himself. He did not 'fight back' at Tettamble or Johnson. Afterwards Howell laid down on the bed, complaining of his stomach. Later Howell, with all of his clothes stripped off, was seen crawling on the concrete floor on his hands and knees before Tettamble, who grinned at two of the other inmates, took his foot and kicked Howell, who fell 2 or 3 feet, hitting his stomach or midsection on and across a piece of channel iron 2 to 4 inches high--an iron track on which the cell door slides back and forth. Howell groaned. It knocked the breath out of him. He got up, holding his stomach, unable to talk. Later, complaining of his stomach, he went into his cell and laid down. Next morning Howell was 'in bad pain.' He walked 'real stiff like he couldn't hardly move.' Tettamble told him to do some push-ups and it would take the cramps out of his stomach. He ordered him to do 50 push-ups or else Howell was going 'to get some more of what he got before.' Howell did 3 push-ups but could do no more. The pain increased during the day. At 5 p.m. on June 27, 1963 he 'got real bad.' The inmates beat on the walls to get help, to get a doctor. An hour later a doctor arrived, examined Howell and pronounced him dead. Howell died from a fresh perforation wound in the stomach resulting in peritonitis. The injury was 15 to 24 hours old. A sufficiently hard blow on the stomach with a fist can rupture a stomach. A man hitting Howell in the stomach with force 10 or 15 times with his fists and kicking him with his foot so that his stomach landed on a metal object 2 to 4 inches high could have caused the stomach perforation. After Howell's body was taken from the jail Tettamble in an argument with another inmate told the latter that 'he'd better watch it or he'd put a hole in his stomach like he done Howell.' Tettamble told the other prisoners not to say anything about what happened; that if anyone asked whether anybody hit Howell, to tell them that no one touched him. Thursday morning, June 27, Tettamble and Johnson unsuccessfully attempted to escape from jail by using iron slat and threatened one prisoner if he said anything about the fighting in jail. Tettamble told another prisoner that he was glad Howell was dead and said 'now he can't rat on me.' The inmates of the jail, afraid of Tettamble, at first denied to investigating officers that there had been any fighting or misconduct in the jail at any time. After Tettamble was removed from the jail they freely talked and told what had occurred.

The first assignment in the motion for new trial is that the court erred in not declaring a mistrial on account of the statement made by the prosecuting attorney during the voir dire examination that the father of the boy 'that was killed' was sitting in the front row. On objection the panel was instructed to disregard that statement. The prosecuting attorney then stated that the boy 'died in jail' and that his father was in the courtroom. The prosecuting attorney asked the father to stand up. The panel was asked whether they knew him and to raise their hands if any of them had any kind of relationship with the father. No hands were raised. The prosecuting attorney did not ask any other persons to stand. After three questions were asked of the panel, and after the court had ruled on objections to two questions and the third question was withdrawn, counsel for defendant for the first time orally moved for a mistrial on the ground that having the boy's father stand up in front of the entire panel after making the objectionable statement that the boy was 'killed' in the jail was calculated to prejudice the jury against defendant. Whether the prosecuting attorney was acting in good faith was a matter for the trial court to determine in the exercise of its discretion. State v. Flinn, Mo.Sup., 96 S.W.2d 506, 509. We find no abuse of discretion in the court's ruling. In Flinn, a homicide case, the prosecuting official drew the attention of the jury to the deceased's widow, who was in the courtroom, and stated that she was the widow of 'this murdered man.' The overruling of an objection to that statement was held nonprejudicial, and we so rule in the similar circumstances before us.

Instruction S-1 recited that defendant and Johnson were charged together with murder, that a severance had been granted and that only defendant Tettamble was on trial 'at this time.' Appellant excepts to these recitals on the ground that they would cause the jury to believe that Johnson would be tried at a later date and that this jury was in competition with another jury, or that what this jury did would be a precedent for another jury in the future. Since every defendant is entitled to a trial conducted as though he had been charged separately, State v. Castino, Mo.Sup., 264 S.W.2d 372, 375, citing Abbott's Criminal Trial Practice, 4th Ed., Sec. 167, pp. 303-304, it is better practice not to allude to or instruct as to the fact that the defendant on trial had formerly been charged with others and that a severance had been granted. Such an allusion, coupled with a reference by the trial judge to the fact that one of those jointly charged had already plead guilty, has been ruled reversible error. State v. Castino, supra. Absent the latter element, such an allusion or instruction, while considered unnecessary, is not necessarily prejudicial, State v. Deppe, Mo.Sup., 286 S.W.2d 776, 780, 781, and we find no prejudice to appellant's rights in this case based upon the claim that the jury may have been led to believe that it was in competition with or was establishing a precedent for another jury.

It is further objected that S-1 failed to inform the jury that the recital of the charge was no evidence of the guilt of defendant. After informing the jury of the crime with which defendant was charged S-1 clearly told the jury that defendant plead not guilty and that this raised an issue of fact which the jury was to determine 'from all the evidence in the case,' and that it was the jury's duty to find defendant guilty or not guilty according to the law as declared by the court in the instructions and the evidence as the jury received it under the direction of the court. This sufficiently admonished the jurors with respect to their duties. The further admonition suggested was not necessary.

Exception is taken to the language of the verdict-directing instructions 'on the 26th day of June, 1963, or at any time prior to the institution of this cause on the 13th day of July, 1963, * * *' on the ground that the italicized language gave the jury a roving commission to find defendant guilty 'of any act that the defendant had done at any time * * * presumably from the date of his birth until the date of the filing of the charge.' This exception is not well-founded. Time is not of the essence of the offense of homicide. The proof of its commission is not limited to the precise date stated in the information. It may be shown to have been committed at any time. There is no statute of limitations on the crime of murder. Sec. 541.190, V.A.M.S. In the case of an offense for which no limitation of time is fixed the court need not fix a time limit within which the jury must find the commission of the offense. State v. Swain, 239 Mo. 723, 144 S.W. 427.

Exception is taken to the language of S-3 (the verdict-directing instruction submitting second degree murder) which required that an assault, hitting, striking, etc. be done feloniously, wilfully,...