State v. Thomas

• Decision Date: 05 September 1944
• Docket Number: 38844
• Parties: State v. James Thomas, Appellant
• Court: Missouri Supreme Court

182 S.W.2d 534

353 Mo. 345

State v. James Thomas, Appellant

No. 38844

Supreme Court of Missouri

September 5, 1944

Rehearing Denied or Motion to Transfer to Banc Overruled October 9, 1944.

Appeal from Circuit Court of County of St. Louis; Hon. Fred E Mueller, Judge.

Affirmed.

Freeman L. Martin for appellant.

(1) That the court erred in admitting irrelevant and incompetent testimony concerning appellant's alleged confession which was not shown to have been freely and voluntarily made. State v. Brooks, 220 Mo. 74, 119 S.W. 353; State v. Wilson, 223 Mo. 173, 122 S.W. 671; State v Wooley, 215 Mo. 620, 115 S.W. 417. (2) The court erred in refusing, neglecting and failing to give the jury an "introduction instruction." State v. Riseling, 186 Mo. 521, 85 S.W. 372; State v. Huff, 164 Mo. 480, 65 S.W. 256; State v. Schenk, 238 Mo. 429, 142 S.W. 263; State v. Lewkowitz, 265 Mo. 613, 178 S.W. 58; State v. Cottengim, 12 S.W.2d 53; State v. Johnson, 316 Mo. 229; State v. Mundy, 76 S.W.2d 1088. (3) That the court erred in giving Instruction 1, as not being in the language of the statute, and by omitting -- "in the discretion of the jury." Sec. 4393, R.S. 1939. (4) That the court erred in giving Instruction 2. Said instruction is bad in form and substance, to-wit: by omitting the phrase -- "beyond a reasonable doubt" in two different places. State v. Hamilton, 304 Mo. 19, 263 S.W. 127; State v. Mundy, 76 S.W.2d 1088. (5) That the court erred in giving Instruction 4. The said Instruction 4 given by the court is erroneous in that it is indefinite, confusing, misleading, and does not state fully the law in that respect. It is further vicious in that the court failed to define "material fact." (6) That the court erred in failing and neglecting to give the following instruction on -- extra-judicial confession will not sustain conviction without other proof. (7) The court erred in overruling defendant's motion to dismiss this case and cause for want or lack of jurisdiction of the subject matter.

Roy McKittrick, Attorney General, and Frank W. Hayes, Assistant Attorney General, for respondent.

(1) General assignments of error numbered 1, 2, 8, 9 and 10 in appellant's motion for new trial are insufficient. Sec. 4125, R.S. 1939; State v. Bailey, 8 S.W.2d 57; State v. Boyer, 112 S.W.2d 575; State v. Carroll, 62 S.W.2d 863; State v. Connor, 300 S.W. 685; State v. Copeland, 71 S.W.2d 746; State v. Francis, 52 S.W.2d 552; State v. Guenther, 169 S.W.2d 403; State v. Kaner, 93 S.W.2d 671; State v. Smith, 68 S.W.2d 696; State v. Thomas, 82 S.W.2d 885. (2) The court did not err in permitting Arnold J. Willmann, Sheriff, to testify as to statements made by the appellant. State v. Hoskins, 36 S.W.2d 909; State v. Mitchell, 96 S.W.2d 341; State v. Todd, 116 S.W.2d 113; State v. Turner, 274 S.W. 35. (3) The court did not err in overruling the appellant's demurrer to the evidence offered at the close of state's case. State v. Bigley, 247 S.W. 169; State v. Mitchell, 96 S.W.2d 341; State v. Ring, 141 S.W.2d 57; State v. Schrum, 152 S.W.2d 17; State v. Worden, 56 S.W.2d 595; State v. Wilkins, 100 S.W.2d 889; State v. Sparks, 125 S.W.2d 60. (4) The court did not err in permitting Sheriff Arnold J. Willmann to testify as to verbal statements of appellant. State v. Sinovich, 46 S.W.2d 877; State v. Todd, 116 S.W.2d 113; State v. Lindsey, 80 S.W.2d 123; State v. Davis, 84 S.W.2d 930. (5) The court did not err in its ruling on testimony regarding the knife given by Witness Piotraschke. State v. Beatty, 94 S.W.2d 907; State v. Sinovich, 46 S.W.2d 877. (6) The court did not err in ruling as to evidence of Officer Tracy regarding appellant's coat. State v. Beatty, 94 S.W.2d 907; State v. Evans, 68 S.W.2d 705; State v. Rasco, 239 Mo. 535; State v. Sinovich, 46 S.W.2d 877. (7) The court did not err in failing to give an introduction to the instructions. State v. Decker, 14 S.W.2d 617; State v. Rosell, 279 S.W.2d 705. (8) The court did not err in giving its Instruction 1. Sec. 4393, R.S. 1939. (9) The court did not err in giving its Instruction 2. State v. Batson, 96 S.W.2d 384; State v. Buckner, 72 S.W.2d 73. (10) The court did not err in giving its Instruction 4. State v. Fitzpatrick, 267 S.W. 905; State v. Hart, 56 S.W.2d 592; State v. Lewis, 20 S.W.2d 529; State v. Shelton, 223 Mo. l.c. 138; State v. Lonon, 56 S.W.2d 378; State v. Hart, 56 S.W.2d 592. (11) The court did not err in failing to give the extra judicial confession instruction set out in appellant's motion. State v. Hart, 56 S.W.2d 592; State v. Lewis, 20 S.W.2d 529. (12) The court did not err in holding that the Circuit Court of St. Louis County had jurisdiction of the subject matter and the appellant in this case. Sec. 2562, R.S. 1939; State v. Casteel, 64 S.W.2d 256; Ex parte Buckley, 215 Mo. 93; State v. Flannery, 263 Mo. 579; State v. Frazier, 98 S.W.2d 707; State v. Jack, 209 S.W.2d 890; State v. Layton, 58 S.W.2d 454; State v. McKee, 212 Mo. 138; State v. McKeeber, 101 S.W.2d 22; State v. McKinley, 111 S.W.2d 115; State v. Miller, 56 S.W.2d 92; State v. Mitchell, 229 Mo. 683; State v. Pippey, 71 S.W.2d 719; State v. Piro, 246 S.W. 928; State v. Shuls, 44 S.W.2d 94; State v. Westmoreland, 126 S.W.2d 202; State v. Woodward, 130 S.W.2d 474; State v. Kenyon, 126 S.W.2d 245.

OPINION

Ellison, J.

The appellant, a negro 20 years old, was convicted in the circuit court of St. Louis county of forcible rape, a felony under Sec. 4393. [¹] The punishment assessed by the jury was death. The facts are revolting but are candidly set out in the brief of his counsel, who did not enter the case until after the trial below. Appellant did not testify or offer any evidence except a single record entry showing he was represented at the trial by attorneys appointed by the court.

The State's evidence was that appellant effected an entrance into the home of the prosecutrix at Wellston after midnight in January, 1943, when she opened the back door to put a bottle of milk outside She was a white married woman 22 years old with a baby four months old, and was employed at a Small Arms Plant on a shift working from 4 p.m. to midnight. She had just returned home. The appellant was masked and armed with a knife. He cut the prosecutrix on the hand and stomach; took all her money; threatened her and her baby with the knife; and thus accomplished his purpose. Appellant's assignments here complain of error: in the admission of evidence; in the giving and refusal of instructions; and in the overruling of his motion to dismiss the case for want of jurisdiction.

The last is the pivotal assignment. It runs on this theory. The prosecution was based on an information filed by the prosecuting attorney, instead of an indictment returned by a grand jury. Sec. 3892 authorizes that procedure. But Sec. 3893 provides it cannot be employed unless the accused shall first have been accorded the right of preliminary examination before some justice of the peace of the county where the alleged crime was committed, in accordance with other statutes. There is, however, a proviso in the section that such preliminary examination shall not be required if the accused waives it.

The record in this case shows the appellant was offered the right of preliminary examination and that he waived it. But appellant's present counsel contends this preliminary proceeding was void for failure to comply with the governing statutes, in consequence of which the legal situation is the same as if there had been no preliminary hearing at all -- thereby clashing with the above requirement of Sec. 3893. It is counsel's further view that the asserted errors in the preliminary proceeding went to jurisdiction over the subject matter, and therefore could not be waived by appellant.

The factual basis for these contentions is that the preliminary proceeding was conducted before one purported justice of the peace of the county, named Erickson, acting for and in behalf of another, named Werremeyer. Counsel argues that the papers and transcript of the preliminary hearing do not adequately show acting justice Erickson was a justice of the peace at all; that, so far as appears from them, he may have been a mere volunteering private citizen; that proof of his official status could not be made by parol, as was done in the circuit court; and that in any event under our statutes the first justice of the peace could not be substituted for the second, especially to act in the name of the latter. The relevant portions of the affidavit, or verified complaint, at the preliminary hearing and the warrant and justice's transcript, on which this controversy turns, are shown in the margin. ^[2] We set out only certain descriptive matter, endorsements and signatures. The substantive part of these papers is not involved.

It will be noticed the papers recite appellant's appearance was before A. H. Werremeyer a Justice of the Peace for Normany Township, St. Louis County, and that in the jurat of the verified complaint Roy Erickson signs merely as acting for him, without indicating his own official title; whereas in the endorsements and other signatures Erickson is designated as "Justice," or "Justice of the Peace," or "J.P." The State's parol evidence showed Erickson was in fact one of the two duly elected, qualified and acting justices of the peace of Normandy Township, St. Louis County, when the above proceedings were had. And Erickson testified he was requested by Justice Werremeyer to officiate during the period when the preliminary hearing in question was held, because Werremeyer "was in the hospital." But there is nothing in any of these papers reciting any such request.

The pertinent provisions of our statutes specifying who shall conduct such preliminary examinations, as pointed...