640 S.W.2d 128 (Mo. 1982), 62775, State v. Giffin

Docket Nº:62775.
Citation:640 S.W.2d 128
Party Name:STATE of Missouri, Respondent, v. Burl Delbert GIFFIN, Sr., Appellant.
Case Date:October 12, 1982
Court:Supreme Court of Missouri
 
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Page 128

640 S.W.2d 128 (Mo. 1982)

STATE of Missouri, Respondent,

v.

Burl Delbert GIFFIN, Sr., Appellant.

No. 62775.

Supreme Court of Missouri.

October 12, 1982

Page 129

Rehearing Denied Nov. 9, 1982.

Page 130

John E. Price, Daniel P. Wade, Springfield, for appellant.

John Ashcroft, Atty. Gen., Jay D. Haden, Asst. Atty. Gen., Jefferson City, for respondent.

ALDEN A. STOCKARD, Senior Judge.

Appellant, in a jury-waived trial, was found guilty of second degree murder and sentenced to life imprisonment.

From the evidence the following could reasonably be found. On the afternoon of May 11, 1979, appellant, his wife and daughter, and a friend arrived at Roy and Esther's Tavern in Ava, Missouri. While at the bar, appellant got into a fight with one of the patrons, Boyd Conrad. Appellant called Conrad a "bastard" and a "bull-headed son-of-a-bitch" at which point Conrad hit appellant knocking him to the floor. Appellant got up, and as he went out the door he said: "You've had it. I'll be back."

Approximately one hour later, appellant walked toward the tavern carrying a shotgun. Appellant did something to the gun and then flung open the door to the tavern. Once inside he hesitated momentarily, and then shot and fatally injured Doug Robinson who stood up as appellant came in the door. Appellant turned and ran out the door and called to his wife and daughter to "run." The three of them got into a white Volkswagon and drove away.

Two persons who saw appellant run out of the tavern ran to the police station and told a police officer, who had heard the shot, to stop the man in the white Volkswagon. Appellant drove back onto the Ava square and two officers pursued him. Appellant pulled over and stopped, and was ordered out of the car. One officer read the Miranda warning to appellant and he was then placed under arrest.

As his initial point on appeal, appellant contends that for three separate reasons the evidence was insufficient to convict him of second degree murder. He asserts that (1) "the evidence established that [he] was intoxicated at the time of the offense to such an extent that he was unable to form an intent to kill * * * or to premeditate his actions;" (2) the killing was committed in a heat of passion occasioned by his altercation with Boyd Conrad; and (3) the evidence established that the killing was accidental in that appellant intended to shoot into the wall but the deceased walked into the line of fire.

Rule 27.01(b) provides that the findings of the court shall have the force and effect of a jury. Therefore, appellate review is as though a verdict of guilty has been returned by a jury. If there is substantial evidence to support the findings of the trial court, its judgment...

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