The State v. Wooley

• Decision Date: 04 January 1909
• Citation: 115 S.W. 417,215 Mo. 620
• Parties: THE STATE v. JOHN WOOLEY, Appellant
• Court: Missouri Supreme Court

115 S.W. 417

215 Mo. 620

THE STATE v. JOHN WOOLEY, Appellant

Supreme Court of Missouri, Second Division

January 4, 1909

Appeal from Buchanan Criminal Court. -- Hon. A. D. Burnes, Special Judge.

Affirmed.

Motter & Shultz and Neville & Grier for appellant.

(1) It is settled law in this State that no person can be convicted of a crime upon his extra-judicial admission alone. There was a failure to prove a corpus delicti in this case. The corpus delicti must be proved by evidence independent of the extra-judicial confession or admission. Robinson v State, 12 Mo. 592; State v. Scott, 39 Mo. 424; Pitts v. State, 43 Miss. 472; People v Frank, 83 P. 578; Hatchett v. Com., 76 Va 1026; McBride v. People, 37 P. 953; Dressen v. State, 59 N.W. 1024; State v. Nesenhener, 164 Mo. 461; Wilson v. State, 53 S.W. 122; Brown v. State, 5 So. 626; MacNamee v. State, 34 Neb. 288. (2) The court committed error in admitting the defendant's and wife's confession in evidence, as they were procured under circumstances which make them involuntary. It was error to give the wife's statement to the jury with her signature attached. Biscoe v. State, 67 Md. 6; State v. Walker, 34 Vt. 296; People v. Phillips, 42 N.Y. 200; State v. Day, 55 Vt. 510; 6 Am. and Eng. Ency. Law, 530, 531; State v. York, 37 N.H. 175; State v. Carson, 36 S.C. 524; Green v. State, 15 So. 10; Com. v. Myers, 36 N.E. 481; Com. v. Preece, 140 Mass. 276; Com. v. Nott, 135 Mass. 269; Jones v. State, 58 Miss. 349. (3) The court erred in not submitted to the jury (a) murder in the second degree; (b) manslaughter; (c) and mistreatment of an apprentice. State v. Young, 119 Mo. 495; State v. Phillips & Ross, 24 Mo. 486; State v. Wilson, 98 Mo. 448; State v. May, 142 Mo. 151; State v. Tabor, 95 Mo. 595; State v. Holme, 54 Mo. 161; State v. Foster, 61 Mo. 552; State v. Lane, 64 Mo. 322; State v. Anderson, 98 Mo. 472; State v. Curtis, 70 Mo. 599; State v. May, 172 Mo. 649; State v. Musick, 101 Mo. 271; State v. Shock, 68 Mo. 563; Taylor v. State, 57 S.W. 812; State v. Highland, 144 Mo. 302; State v. Anderson, 86 Mo. 315; State v. John, 172 Mo. 220; State v. O'Hara, 92 Mo. 59; R. S. 1899, sec. 1857. (4) The court committed error in not quashing the indictment for the reason that defendant's wife testified before the grand jury, which indicted him, without defendant's consent, and for the reason that the names of all the witnesses who testified before the grand jury were not indorsed on the back of the indictment. (5) The court committed error for the following reasons: (a) For refusing to permit certain jurors to qualify on the panel because they stated that they believed that punishment by death was too severe and that they believed in punishment by imprisonment; (b) for the reason that certain jurors were permitted to qualify on the panel who stated that they had formed an opinion and believed at that time that defendant was guilty, and that it would require evidence to remove that conviction; (c) for the reason that they stated that they had read the confessions of the defendant and his wife as published in the newspapers, which were copies of the confessions as introduced in evidence in the case.

Herbert S. Hadley, Attorney-General, and John Kennish, Assistant Attorney-General, for the State.

(1) The court did not err in overruling the motion to quash the indictment. 1. The names of nine witnesses are indorsed on the indictment. Upon the hearing of the motion to quash the indictment it was admitted that three witnesses, therein named, appeared before the grand jury and testified, whose names were not indorsed on the indictment. No evidence whatever was offered to show that the State had purposely refrained from indorsing the names of such witnesses, and the State, upon such hearing, offered to indorse such names upon the indictment, with the defendant's consent, but the defendant objected. Neither of the said three witnesses testified against the defendant at the trial. State v. Barrington, 198 Mo. 23. 2. The record shows that defendant did not testify as a witness before the grand jury, and while it is optional with the defendant in a criminal case whether or not the husband or wife shall be permitted to testify, it has never been held a sufficient basis for a motion to quash an indictment that the husband or wife of the defendant, or even the defendant, testified as a witness before the grand jury. 3. The motion to quash the indictment is not included in the bill of exceptions, and, therefore, is not before this court for consideration. State v. Tooker, 188 Mo. 438; State v. Finley, 193 Mo. 202; State v. Coleman, 199 Mo. 112. (2) It is well settled that a general challenge for cause as to the qualifications of a juror, without stating the specific ground thereof, is not sufficient under the law to preserve the question for review in this court. State v. Meyers, 198 Mo. 248; State v. Taylor, 134 Mo. 142; State v. McGinnis, 158 Mo. 118; State v. Miles, 199 Mo. 545. While ten of the panel had formed or expressed an opinion as to the guilt or innocence of the defendant, based upon newspaper report and published extracts of an alleged confession, it is shown in each case that such opinion would not prejudice the juror in the discharge of his duty or prevent him from rendering a fair and impartial verdict upon the evidence under the instructions of the court. State v. Gartrell, 171 Mo. 489; State v. Darling, 199 Mo. 168; State v. Forsha, 190 Mo. 296; State v. McCarver, 194 Mo. 717; State v. Taylor, 134 Mo. 141. (3) 1. The confession of an accused person is prima-facie admissible in evidence. State v. Stebbins, 188 Mo. 387; State v. Hottman, 196 Mo. 110. And as there was an entire absence in the evidence of improper conduct on the part of the officers procuring the confessions, to induce defendant to make them, by the flattery of hope or promise of immunity or reward, or the use of any threats, they were properly admitted in evidence. The mere fact that defendant was in charge of an officer, did not render the statements made by him inadmissible in evidence, if they were not induced by threats or promises of reward or the hope thereof. State v. Barrington, 198 Mo. 23; State v. Stebbins, supra; State v. Church, 199 Mo. 605; State v. Ruck, 194 Mo. 416. 2. Defendant's wife made a written statement of the facts relative to the infliction of the injuries upon the child, and this statement, when read to defendant, he expressly admitted to be true, with one or two exceptions. Defendant thus adopted the written statement as his own, and thereupon it became admissible against him and under the same rules of evidence as though his wife were in no manner connected therewith. There is no question of the privileged character of confidential communications between husband and wife, presented, for any such question was expressly waived by defendant when he acknowledged the statement to be true, in the presence of his wife and third parties. This is not a case in which it is sought to introduce, against the defendant, a declaration or admission of the wife made in the husband's presence, under the rule that by his silence he assented thereto, and thereby made it admissible in evidence against him, as in the case of State v. Burlingame, 146 Mo. 207, and the case of Bank v. Nichols, 43 Mo.App. 385, where it was held that the presumption arising from silence did not obtain in such case. It is of no materiality whether the written statement was made by the wife or a stranger, for when it was read to the defendant and adopted by him, it then became his statement and falls within the general law as to admissibility of admissions and declarations against interest. 1 Ency. of Evid., 562; Long v. Martin, 152 Mo. 688; Reed v. Reed, 101 Mo.App. 176.

OPINION

FOX, J.

This cause is now pending in this court upon an appeal by the defendant from a judgment of conviction in the criminal court of Buchanan county for murder in the first degree. At the March term, 1907, of the criminal court of Buchanan county, an indictment was returned by the grand jury, charging the defendant, John Wooley, with the murder of his stepchild, Pearl Smith. Anna Wooley, wife of the defendant, John Wooley, was charged in the indictment as an accessory before the fact. The charge upon which the judgment in this cause is predicated is thus made by the indictment returned by the grand jury:

"State of Missouri, County of Buchanan, ss.

"In the Criminal Court of Buchanan County, at the March Term thereof, 1907.

"The grand jurors of the State of Missouri, within and for the body of the county of Buchanan aforesaid, being duly empaneled and sworn, upon their oaths, do present that John Wooley on or about the 2d day of February, 1907, at the county of Buchanan and State aforesaid in and upon one Pearl Smith, then and there being feloniously, wilfully deliberately, premeditatedly, on purpose and of his malice aforethought, did make an assault, and with his two hands and clenched fists, her the said Pearl Smith, feloniously, wilfully, deliberately, premeditatedly and of his malice aforethought did slap, strike, beat and hit in and upon the face, head, breast and body of her the said Pearl Smith, and with his two hands, her the said Pearl Smith, feloniously, wilfully, premeditatedly and of his malice aforethought did seize and take up and knock, cast, throw and hurl the body, face and head of her the said Pearl Smith, with great force and brute violence, down upon the hard wooden floor then and there being, giving to the said Pearl Smith, then and there with the hands and fists aforesaid and by the knocking, casting, throwing and hurling against the wooden floor aforesaid, in and upon the face, head and body of her the said Pearl Smith, feloniously,...