Rowden v. State

• Decision Date: 02 April 1973
• Docket Number: No. KCD26311,KCD26311
• Citation: 493 S.W.2d 699
• Parties: John Edward ROWDEN, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 699

493 S.W.2d 699

John Edward ROWDEN, Appellant, v. STATE of Missouri, Respondent.

No. KCD26311.

Missouri Court of Appeals, Kansas City District.

April 2, 1973.

Mark D. Johnson, The Legal Aid and Defender Society of Greater Kansas City, Kansas City, for appellant; Paul T. Miller, Executive Director, Willard B. Bunch, Chief Defender, Kansas City, of counsel.

John C. Danforth, Atty. Gen., Daniel P. Card, II, Asst. Atty. Gen., Jefferson City, for respondent.

Before DIXON, P.J., PRITCHARD, J., and HARRY A. HALL, Special Judge.

HARRY A. HALL, Special Judge.

Appellant was found guilty of manslaughter by a jury and was sentenced by the court to imprisonment for a term of ten years, which judgment was affirmed on appeal. State v. Rowden, 452 S.W.2d 210 (Mo.1970). Thereafter appellant filed a motion under Criminal Rule 27.26, V.A.M.R., to vacate said judgment and sentence, which was denied by the trial court following an evidentiary hearing and he has appealed to this court.

He alleges that he was denied 'a fair trial' because of the inadequate and ineffective assistance of his trial counsel in failing to assign error in his motion for new trial to the giving of Instructions 2 and 4 offered by the State, and in offering Instruction 5 on behalf of the defendant.

These issues require a consideration of the evidence, which discloses that on the evening of November 15, 1967, appellant, his brother, James Rowden, Aaron Robinson, Bruce Scott, Charles Durant, and Winford Ray Durant drove to Westport High School in Kansas City, Missouri, in Robinson's car, and while en route appellant displayed a loaded pistol which he carried tucked under his belt beneath his coat. None of them attended any class at the school, but they milled around in the building until about 9 o'clock, when they all went outside near the school entrance.

Primitivo Garcia, the victim, and his younger brother had attended an English class at the school. Shortly after leaving the building they observed Mrs. Kinderman, a teacher, being followed by Winford Ray Durant and Aaron Robinson, when Durant snatched her purse and ran. Mrs. Kinderman slipped and fell as she followed them. The purse was empty and Robinson took it from Durant and returned it to Mrs. Kinderman. Primitivo Garcia ran to her aid, striking both Durant and Robinson. After Garcia struck him, Durant ran to defendant yelling, 'Shoot him, Shoot him.' Appellant removed the gun from his belt and handed it to Durant, who then ran towards Garcia, who was standing still. Garcia turned and ran toward 39th Street, followed by Durant, who fired three shots, inflicting the fatal wounds resulting in Garcia's death thirteen days later on November 28, 1967.

After the shooting, appellant and the others ran to their car, where Durant returned the gun to appellant who removed the shells and hid the gun under the dashboard of the car.

The issues submitted to the jury authorized finding of murder in the second degree or manslaughter. Appellant was found guilty of manslaughter by the jury and his punishment assessed at ten years.

Instruction 2 as given by the court is:

'The Court instructs the jury that every person who is present at the commission of a felony and who aids, abets, assists or encourages the same by words or gestures or acts or looks or signs is in law deemed an aider and abettor and is guilty as a principal.

'The Court instructs the jury that when one or more persons aid and abet another in the commission of an unlawful act or purpose, then whatever the person so aided and abetted does in furtherance of such unlawful act or purpose is in law the act and deed of each such person so aiding and abetting.

'On the other hand, mere presence at the commission of a felony does not of itself render a person liable as a principal therein. If he is only a spectator, innocent of any unlawful intent touching such felony, and does not aid, abet, assist or encourage those who are actors therein, he is not liable as a principal or otherwise.'

In Instruction 3 the court expressly defined 'wilfully' and 'feloniously' as follows:

"Wilfully' as used in these instructions means intentionally, not accidentally. 'Feloniously' as used in these instructions means wickedly and against the admonition of the law, that is, unlawfully.'

In Instruction 4 the court submitted the charge of manslaughter requiring a finding that the defendant 'wilfully and feloniously did make an assault upon one Primitivo Garcia with a dangerous and deadly weapon . . ..'

Appellant contends that Instructions 2 and 4 are erroneous in that they do not specifically require a finding that defendant 'intentionally aided and abetted' in the commission of the crime. The record does not support this contention. Instruction 2 properly defines the terms 'aider' and 'abettor', but is not a verdict director and does not mention the defendant nor require any findings relative to him.

Our courts have adopted two methods of submitting instructions involving abettors in criminal cases, and the practice of submitting the definition of 'abettor' in one instruction and the verdict director in a separate instruction has been approved in numerous decisions. See State v. Reece, 324 S.W.2d 656 (Mo.1959); State v. Prigett, 470 S.W.2d 459 (Mo.1971); State v. Taylor, 391 S.W.2d 835 (Mo.1965).

Where the definition and verdict director are combined in one instruction, as in State v. Grebe, 461 S.W.2d 265 (Mo. banc 1970), relied upon by appellant, all elements of both instructions should be included, and a finding of criminal intent is necessary. In Grebe the verdict director...