Summary
In State v. Emrich, 252 S.W.2d 310 (Mo. Sup. Ct. 1952), prior to trial the defendant challenged the mental capacity of a witness for the State. Four doctors examined him shortly before trial and three of them testified as to his competency.
Summary of this case from State v. ButlerOpinion
No. 43173.
November 10, 1952.
APPEAL FROM THE CIRCUIT COURT OF ATCHISON COUNTY, FRED II, MAUGHMER, J.
Chas. A. Miller, Trenton, Clayton W. Allen, Rock Port, for appellant.
J. E. Taylor, Atty. Gen., E. L. Redman, Asst. Atty. Gen., for respondent.
This is the second appeal in this case. At the first trial the appellant Emrich, 22 years old, was convicted by a jury of murder in the second degree in the circuit court of Atchison County for the killing of one Mary Hammer, 82 years old, by striking and jabbing her with her crutch at her farm home in Gentry County. The punishment assessed by the jury was imprisonment in the penitentiary for 15 years. That appeal is reported in 361 Mo. 922, 237 S.W.2d 169. We refer to it for a fuller statement of the facts. The judgment there was reversed and the cause remanded for a new trial for error in drawing the names of the members of the jury panel.
On the instant retrial of the case the jury again convicted appellant Emrich, increasing his punishment to imprisonment in the penitentiary for 25 years. He testified at this second trial, though he had not at his first trial except in the absence of the jury on the admissibility of his confession. The chief witness against him was Freddie McQuinn, 35 years old, appellant's accomplice. The assignments of error on this appeal complain: (1) that witness Freddie McQuinn was mentally incompetent to testify as a witness; (2) that his previous conflicting statements made him unworthy of belief; (3) that the testimony of four witnesses as to damaging statements made to them by McQuinn was incompetent because the statements were made out of the presence of the appellant, these four witnesses being two members of the State Highway Patrol, the sheriff and a newspaperman; (4) that the appellant's motions for a directed verdict at the close of the State's case and the whole case were erroneously overruled; (5) the prosecuting attorney's argument to the jury was improper; (6) and the jury were permitted to separate during the trial, and no woman officer was appointed to attend the female jurors.
On the issue as to Freddie McQuinn's lack of mental capacity to testify, expert testimony was introduced coming from Dr. J. Harold Ryan of St. Joseph, a surgeon and regular physician, and Drs. R. J. Milligan and C. N. Williamson, both osteopathic physicians, the former of Stanberry and the latter of the village of Gentry, both in Gentry County. Dr. Williamson also was coroner. All these physicians and a Dr. Barnes of King City, who did not testify, had examined the witness Freddie McQuinn for about 2 hours more or less shortly before the trial.
Dr. Ryan testified that the brain, or mental faculties of persons attain full physical development at the age of fifteen years. Thereafter the intelligence of the particular person increases from education and the use of those faculties. According to Webster's New International Dictionary (2d ed.), "intelligence quotient", the mature mental age of persons, is figured from age 14 or age 16. Dr. Ryan gave it as his opinion that the mental age of Freddie McQuinn, as respects brain development or cultivated intelligence was about 6 years, or about one-third of what an average 6 year old child would have with such cultivation. But he said he did not mean thereby to state that McQuinn had no more intelligence than a 6 year old child lacking such cultivation. His intelligence had been developed by education and individual experience. He said McQuinn knew right from wrong, and that at his age of 34, living in modern society, his intelligence acquired from experience had grown.
Dr. Milligan testified he had examined witness Freddie McQuinn with the other doctors for about 45 minutes, and alone for 30 minutes. He found him to be illiterate and to have the mentality of a 7 or 8 year old child. He had a little trouble counting money and giving the names of remote months past or future, and could not write except to sign his name, but was mechanically inclined and could do things with his hands. He couldn't give the direction of neighboring towns in the county. Dr. Williamson participated in the examination when Dr. Ryan was present. He thought Freddie McQuinn had the mentality of an idiot or perhaps a moron — that of a 4 or 5 year old child.
Following the expert testimony of these alienists the testimony of the witness Freddie McQuinn was presented. He testified that he had quit going to school when his class was studying the third reader, and that he attended school less than 5 years. He said he learned to read a little, and could write better than he could read. He thought he could count up to 50. Also, he told about his arrest by Trooper Thompson and Dan Pierce, and being at the office of the sheriff "Sogger" Bowman. He couldn't remember whether attorney Redman was present, but said prosecuting attorney Ernst was there. He admitted he told them that Thomas McCrary and Tommy Beal killed Mrs. Hammer. He said the parties present retired from the sheriff's office at that juncture except McCrary and Ernst. McCrary denied committing the homicide and he (McQuinn) retracted the charge against McCrary and Beal and said that appellant Harold Hoover Emrich had done it.
The father of Freddie McQuinn testified that the latter worked him repairing furniture during the week when the homicide occurred. He thought the boy had attended school for 10 years. He couldn't read and was unable to count, or tell a connected story. He was subject to headaches and seemed kind of sick. The father believed it might have affected his thinking. Shortly before his trial he told his father and his attorney that he was not guilty, and he so testified at the trial. While in the penitentiary he wrote letters to his lawyers and a judge of this court saying he was not guilty. He could and did work with his father repairing furniture for a Mr. McCarty, and could plow as well as anyone. And he could paint. He knew some little about mechanics, and had taken a course in repairing radios. He could draw pictures of animals, or of a house, and could wire it and fix furniture.
Likewise read in evidence was the testimony of Freddie McQuinn at the preliminary examination before the first trial in the Harold Hoover Emrich prosecution, along with his testimony in that trial and in a companion prosecution against Elsie Emrich, wife of Earl Emrich, an elder brother of the present appellant Harold Hoover Emrich, this in addition to his testimony in the instant case. The testimony aggregates over 200 pages in the transcript. We cannot review all this testimony in this opinion. We have read all of it and in our opinion it does not show Freddie McQuinn was mentally incompetent to testify as a witness, although some of his testimony contradicted or was out of harmony with parts of his testimony in the instant case. He said at one time, for instance, that he and the instant appellant's brother Earl Emrich had gone to the Hammer home first, and again after Mrs. Hammer's death. On this issue appellant's brief cites three cases. We are unable to see that they have any bearing on the testimonial mental incompetence of the witness.
State v. Huff, 161 Mo. 459, 483(1), 61 S.W. 900, 967; State v. Newcomb, 220 Mo. 54, 67, 119 S.W. 405, 409; State v. Welton, Mo.Sup., 225 S.W. 965, 967.
Section 491.060(2) RSMo 1949, V.A.M.S. provides: "A child under ten years of age, who appears incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly" — shall be incompetent to testify. And in a comparatively recent case involving the question the particular testimony of a mentally subnormal prosecutrix 15 years old in a rape prosecution was held on appeal to be insufficient to take the case to the jury.
State v. McCrackin, Mo.Sup., 162 S.W.2d 853.
The Petty case cited below held a child 10 years old is prima facie competent to testify unless the contrary is apparent, and stated "There is no precise age at which children become competent to testify." In a more recent Jones criminal case a female child 5 years and 4 months old was permitted to testify, and this court ruled it was error. She had stated she didn't know the meaning of an oath, or her birthday date, and did not go to school, and could not read or write. But in a still later Tillet case, a 6 year old boy testified as a witness for the State in a prosecution of the defendant for the murder of his 3 year old sister. After an examination as to his testimonial capacity, he was permitted to take the stand, and the appellant's conviction of first degree murder and life imprisonment was affirmed.
Petty v. K. C. Pub. Serv. Co., 354 Mo. 823, 832-3(6), 191 S.W.2d 653, 657(9-11), 658.
State v. Jones, 360 Mo. 723, 725, 230 S.W.2d 678, 680.
State v. Tillet, Mo.Sup., 233 S.W.2d 690, 692(6).
We think and hold the evidence in the case was legally sufficient to warrant a finding by the trial court that the witness Freddie McQuinn was mentally competent to testify as a witness; and that while he had made conflicting statements with respect to the commission of the crime, the jury were warranted in accepting as true his statements that the appellant Harold Hoover Emrich killed Mrs. Hammer by beating her with a crutch.
Appellant's next four assignments severally complain of the testimony of two members of the State Highway Patrol, the sheriff and a newspaperman, concerning statements made to them by witness Freddie McQuinn out of the presence of appellant Emrich. The following cases are cited. The Johnson case denounces hearsay evidence, and broadly declares: "`Nor can evidence of what a witness has said out of court be received to fortify his testimony.' " The Buckley, Priesmeyer and Hill cases say: "Narrative statements of past events, made after the termination of a conspiracy, are inadmissible against a co-conspirator. Such narratives are rejected as hearsay."
State v. Johnson, 334 Mo. 10, 19(3), 64 S.W.2d 655, 659(4, 5); State v. Buckley, 318 Mo. 17, 25(5), 298 S.W. 777, 780 (3); State v. Priesmeyer, 327 Mo. 335, 339(1), 37 S.W.2d 425, 426(2); State v. Hill, 352 Mo. 895, 903(4), 179 S.W.2d 712, 716(8).
So far as we can understand the statement of facts in appellant's brief which contains only 9 pages with a record of 964 pages, the testimony relied on in invoking the foregoing hearsay rule was as follows. Trooper Thompson and sheriff Bowman testified that several months after the homicide, in late March or early April, 1949, they took Freddie McQuinn to the scene of the homicide in the Hammer barn in the absence of the appellant and found incriminating evidence. But neither witness said McQuinn made any statements on that occasion.
The other witnesses were editor Stapleton and Captain Duncan of the State Highway Patrol. Mr. Stapleton testified that on or about April 5, 1949, before these cases were tried, Freddie McQuinn made a statement at Stanberry, Missouri, in his presence and in the presence of the officers, but in the absence of the appellant. Therein McQuinn admitted he and appellant Emrich went to the Hammer home; that he (McQuinn) pushed Mrs. Hammer to the floor and asked her where her money was. She pointed to the bedroom, and appellant struck her on the chest and side of the head, and they carried her out to the barn. Captain Duncan also was present when the statement was given. He said McQuinn at first charged third persons with killing the old lady, and then retracted that accusation and said appellant killed her. Appellant argues this was hearsay because the appellant was absent.
The testimony of these witnesses Stapleton and Duncan was offered near the end of the instant trial, after Freddie McQuinn had already testified affirmatively for the State that appellant Emrich had struck and killed Mrs. Hammer and had given similar sworn testimony in the first trial of this case, and in another State case against Elsie Emrich, transcripts of which had been used in evidence.
Thereafter the defense had introduced as a witness a convict in the penitentiary, Billy Wills, who said McQuinn, while confined there after his conviction had told him (Wills) that Emrich was not guilty and that he (McQuinn) had lied in Emrich's first trial. Thereupon Wills said he wrote six letters which McQuinn signed and mailed, one to a judge of this court, two to one of his attorneys and three to another, in which he denied both his own and appellant's guilt of the murder. These letters also had been introduced in evidence before witnesses Stapleton and Duncan testified in rebuttal that in April, 1949, before any of the trials, McQuinn had told them appellant had killed Mrs. Hammer.
The Attorney General contends this testimony of Stapleton and Duncan was not erroneous hearsay, because it was offered to rehabilitate McQuinn as a witness, and was competent for that purpose since it dealt with statements made by him before he had testified in the case. We think this contention is correct. The decisions cited below so hold.
State v. Emrich, Mo.Sup., 250 S.W.2d 718, 724(3); State v. Fleming, 354 Mo. 31, 35(3); 188 S.W.2d 12, 15(5); State ex rel. Berberich v. Haid, 333 Mo. 1224, 1229(1), 64 S.W.2d 667; Lach v. Buckner, 229 Mo.App. 1066, 1075(5), 86 S.W.2d 954, 960(5).
The next two assignments in appellant's brief are that his motions for a directed verdict at the conclusion of the State's case and at the close of the whole case should have been given on the theory that witness McQuinn was mentally incompetent to testify. We have already ruled that contention against him and will not discuss it further.
The next assignment charges improper argument by the prosecuting attorney for which the jury should have been discharged, when he said "I bring a murder charge with the man denying it — Freddie McQuinn denying it — where a conviction was had; he was sent up and he is serving his time." This evidently refers to McQuinn's six letters severally to a judge of this court and his own attorneys, in which he denied both his own guilt and appellant's. We do not agree. It will be remembered that after those letters were written McQuinn testified at this last trial, as well as preceding trials, that appellant had committed the murder.
Two other assignments are that the jury were permitted to separate during the trial, and no woman officer was appointed by the court to look after the lady jurors. On this point appellant cites three statutes and two decisions. The incident complained of occurred during a noon recess, after the jury had been selected and testimony was being received. Two members of the jury were women. There was a separate rest room for women in the basement of the court house. Three female witnesses testified they were about to enter the rest room when a deputy sheriff posted outside the door barred them from entering. They waited close to the door and in a few minutes the two women jurors came out and the three women went in. they found the sheriff's wife and a Mrs. Sweat [non-jurors] already inside. In other words these last two women had been in the rest room for a short time before the two female jurors had left. In fact they had entered the room first. But the three women who had been waiting outside heard no conversation inside, and the sheriff's wife and her companion said there had been none. The deputy sheriff said he, also, had heard no talking between them. The two women jurors did not testify.
Sections 546.220, 546.230 and 546.240 RS Mo 1949, V.A.M.S.
State v. Bowman, Mo.Sup., 12 S.W.2d 51, 52(5); State v. McGee, 336 Mo. 1082, 1090-2(1-2), 83 S.W.2d 98, 103-3(3-6).
Of the foregoing three statutes cited,fn8 Sec. 546.220 provides that in all felony cases the trial court may, of its own motion, or when requested by counsel on either side, place all jurors found to be competent to sit in the trial of the cause in the custody of court officers until the entire panel has been selected and challenged and sworn. Sec. 546.230 provides that with the consent of counsel on both sides the court may permit the jury to separate at any adjournment or recess of the court in the trial of all felony cases except capital cases, which latter this case was. And Sec. 546.240 provides that after the cause has been argued and submitted the jury may decide the case from the jury box or retire for deliberation in some private place under the charge of a sworn officer, who shall not permit any person to speak or communicate with them or do so himself, except by order of the court or to inquire whether they have reached a verdict. But by Laws Mo. 1945, p. 845, a proviso was added to the statute providing that if women be members of the jury, they may be kept separate from the men members under the charge of a woman officer of the court, when the court is not in session or the jury are not deliberating upon their verdict.
The two decisions cited by appellant, supra,fn9 were decided before the foregoing amendment of the statute in 1945. The general rule is that where [as here] the separation of the jury occurred before the submission of the cause to them the burden is on the State to show affirmatively that the jurors were not subjected to improper influences during the separation. In this case when the incident was called to the court's attention the judge publicly warned the deputy sheriff in the presence of the jury that nobody should talk to them, or associate with them, while they were so serving, and then excluded the jury and interrogated the deputy sheriff and the five women involved — other than the two women jurors. Being satisfied that no improper influence had been exerted on them, the trial was resumed. We hold this ruling was a proper exercise of the trial court's discretion under the cases just cited,fn10 and others.
State v. Fletcher, Mo.Sup., 244 S.W.2d 98, 102-3(2); State v. Boone, 355 Mo. 550, 555-6, 196 S.W.2d 794, 797(5-7).
State v. Bayless, Mo.Sup., 240 S.W.2d 114, 122-3(10-17); State v. Spencer, 355 Mo. 65, 69(3), 195 S.W.2d 99, 101 (3); State v. Ferguson, 353 Mo. 46, 54-7(4), 182 S.W.2d 38; State v. Nenninger, 354 Mo. 53, 60(7), 188 S.W.2d 56, 59(11 12).
Finally appellant contends the trial court cited in admitting the testimony of witnesses Stuart and Swinford that they found old style paper money on or near a street corner in Stanberry near the Duffy boarding house. Both fixed the time as about the noon hour and the date as January 24, 1949, which was close to the date of Mrs. Hammer's death. Swinford said he found a $5 bill. Stuart said he found three $20 bills, one $10 bill and one $5 bill. They were old bank notes issued by the First National Bank of King City, some dated in 1910.
Mrs. Duffy, looking through a glass in the door of her boarding house on or about that date saw Stuart pick up what appeared to be paper money in the street. Another woman in the house saw the same thing Freddie McQuinn testified that after the murder of Mrs. Hammer he and the appellant were walking back toward Stanberry and were picked up by a passing motorist who took them there and let them out at a store whence they walked toward their home. When they reached the Duffy boarding house corner McQuinn said he turned over the money he had got to appellant Emrich and went on home alone. This was the point where Swinford and Stuart picked up the paper money they found. This evidence was admitted as competent in the first trial of this case, State v. Emrich, 361 Mo. 922, 929(4), 237 S.W.2d 169, 173(4), and in State v. Emrich, Mo.Sup., 250 S.W.2d 718, 723(2).
The foregoing covers all the assignments in appellant's brief that need be discussed. We find no error in the record, and the judgment is affirmed.
All concur.