State v. Thurman
| Decision Date | 31 March 1975 |
| Docket Number | No. KCD,KCD |
| Citation | 521 S.W.2d 773 |
| Parties | STATE of Missouri, Respondent, v. Allen Russell THURMAN, Appellant. 27026. |
| Court | Missouri Court of Appeals |
Henry H. Fox, Jr., Errol Copilevitz, Kansas City, for appellant.
John C. Danforth, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
Before SOMERVILLE, P.J., PRITCHARD, C.J., and SWOFFORD, J.
Upon an indictment of manslaughter in the death of 2 1/2 year old William M. Thomas, a child born of appellant's wife prior to their marriage, appellant was found guilty and his sentence was set at the maximum 10 years imprisonment by the verdict of a jury.
Because of prejudicial error in permitting appellant's wife to be questioned on cross-examination concerning whether she denied ever telling any person that appellant picked up a cat and threw it against the wall and killed it, this case must be reversed and remanded for a new trial. A state's rebuttal witness was asked, with no response, whether appellant's wife ever told her that he lost control of himself and threw a cat against a wall until it died, to which appellant objected and moved for a mistrial. The objection was overruled.
At about 11:00 p.m., on April 19, 1973, appellant picked up the child from a baby-sitter's home, and took him to his own home where he prepared him for bed, and found that the child had soiled his pants because of diarrhea. Appellant gave the child a spanking as 'potty' discipline, which caused him to cry. He was put to bed, still crying, and appellant went to another room to eat and watch television. While there, according to appellant's statement given to the police, the child started choking and coughing.
Aleita M. Harvey, the babysitter, testified that the child did have some small bruises on April 19, 1973, and his tongue on both sides looked like his jaw teeth had clamped there, prior to the time appellant picked him up. However, the child did not leave her house looking injured or bleeding about the mouth. He had not been coughing a lot, nor did he appear to be ill. The photographs (in evidence and shown to Aleita) show more bruises than she saw on his body.
Dr. Jose R. Samoza, M.D., a pathologist, performed a post-mortem examination of the child's body on April 20, 1973, after he had been embalmed. He found multiple contusions and bruises on the face, abdomen and back; multiple contusions and lacerations to both lungs, with blood in both cavities, concluded by him to have been caused by some kind of trauma--external injury. He found contusions of the trachea and esophagus caused by a trauma--a blow; the diaphragm muscle and the heart were contused; the abdomen was distended because of blood in the abdominal cavity, which could not have been caused by injury 4 or 5 days before the child died. The appendix was contused along the right colon; there was hemorrhage in the fat of the right kidney and in the adrenal glands, caused by trauma. There was a fracture of the ninth rib posteriorly; a contusion of the soft tissues of the scalp, but no fracture; and there were brain contusions of the right frontal lobe and the left temporoparietal lobe. All of the injuries Dr. Samoza found were testified by him to have been very recent, and he gave as the cause of death: multiple internal bleeding.
Although the submissibility of the state's case is not challenged, the foregoing facts are sufficient for the jury to have found, as it did, appellant's guilt.
At trial appellant testified that when he prepared the child for bed and found he had diarrhea he cleaned him and spanked him a couple of times, and the child was crying. He put him to bed, closed the door, and heard the child coughing and trying to catch his breath. He sat the child up in bed and tried to calm him down as he was having trouble catching his breath, so appellant slapped him a couple of times in the face, which did not do any good. '(T)hen I laid him on the floor and started to give him mouth to mouth.' It was not doing any good. He started vomiting in his mouth, 'so I started pressing on his stomach and his abdomen.' He turned the child on his back and started pressing on his back and stomach. The child did not respond and appellant was getting panicky and hysterical, so appellant took him the mile and a half to the hospital.
In explaining his statement (the confession) to the officers that when he was applying artificial respiration by pushing on the child's abdomen and chest he got carried away; that he could not help himself; and that he could not stop, appellant testified that he told officers that he was panicky and hysterical; he was trying to revive the child and did not seem to be doing any good; and that he just kept trying. He testified that the officers did not put the explanation down in the statement.
A portion of appellant's contention that the court erred in receiving evidence of other crimes relate to testimony of the officer who read appellant's statement into evidence, to cross-examination of appellant, and to cross-examination of appellant's wife, and direct examination of a rebuttal witness, all concerning punishment and beatings of the child administered by appellant to him. The portions of the statement are:
' An objection to the reading of the entire statement was at first withdrawn, but counsel later interjected an objection to the quoted portions of the evidence upon the ground that they impermissibly interjected an issue of other crimes.
The contents of appellant's statement, as it relates to his administering punishment to this child, do not come within the prohibition of evidence of other crimes mentioned as the general rule in State v. Shilkett, 356 Mo. 1081, 204 S.W.2d 920 (1947); State v. Reese, 364 Mo. 1221, 274 S.W.2d 304, 307 (1954); and State v. Reed, 447 S.W.2d 533, 534 (Mo.1969), 'unless such proof has some legitimate tendency to directly establish the defendant's guilt of the charge for which he is on trial.' With the exception of the reference in appellant's statement that he went to a psychiatrist four years ago when he was married to his first wife because of this same thing (which on retrial should be excluded as having a possible and impermissible reference to crimes committed on other persons, if proper objection is made), the statement has reference to appellant's intent and the absence of mistake or accident which is one of the exceptions to the general rule in State v. Reese, supra. See State v. Hepperman, 349 Mo. 681, 162 S.W.2d 878 (1942) (); State v. Hill, 273 Mo. 329, 201 S.W. 58 (1918) (); see the discussion in State v. Hyde, 234 Mo. 200, 136 S.W. 316, 324, 325 (1911); 29 Am.Jur.2d Evidence, § 323, p. 374; 22A C.J.S. Criminal Law, § 683, p. 741; and note the statement of the rule, Wigmore on Evidence, 3rd Ed., § 363, p. 275: ...
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