State v. Battles

• Decision Date: 12 July 1948
• Docket Number: No. 40723.,40723.
• Citation: 212 S.W.2d 753
• Parties: STATE v. WILSON BATTLES, Appellant.
• Court: Missouri Supreme Court

212 S.W.2d 753

STATE v. WILSON BATTLES, Appellant.

No. 40723.

Supreme Court of Missouri.

Division Two, July 12, 1948.

Appeal from Circuit Court of City of St. Louis. — Hon. Waldo C. Mayfield, Judge.

AFFIRMED.

Morris A. Shenker and Bernard J. Mellman for appellant.

(1) The court erred in giving Instructions One and Two to the jury. For though the court also gave to the jury in Instruction Three an instruction on circumstantial evidence, and the degree of proof required of circumstantial evidence, yet Instructions One and Two would warrant the jury in finding the defendant guilty if they merely could "reasonably infer" the necessary ingredients of the crimes alleged from the circumstantial evidence presented at the trial. These instructions, then, are in conflict with Instruction Three, and thus prejudicial to this defendant. State v. Bowman, 294 Mo. 245, 243 S.W. 110; State v. Freyer, 330 Mo. 62, 48 S.W. (2d) 894; State v. Pritchett, 327 Mo. 1143, 39 S.W. (2d) 794; 23 C.J.S., sec. 907; 32 C.J.S., sec. 1039; McGill v. Walnut Realty Co., 235 Mo. App. 874, 148 S.W. (2d) 131; State v. Buckley and Buckley, 309 Mo. 38, 374 S.W. 74; State v. Carpenter, 348 Mo. 464, 154 S.W. (2d) 81; State v. Dickson, 78 Mo. 438; State v. Kelley, 106 S.W. (2d) 486; State v. Long, 336 Mo. 630, 80 S.W. (2d) 154; State v. Taylor, 347 Mo. 607, 148 S.W. (2d) 802. (2) The court erred in giving Instructions One and Two to the jury, in that the said Instructions were improper comments and interpretations by the court on and of the evidence in the case, and thus conveyed to the jury the court's opinion as to matters in issue — all to the prejudice of this defendant. Sec. 4083, R.S. 1939; State v. Brown, 193 S.W. 902; State v. Drew, 213 S.W. 106; 23 C.J.S., sec. 1150; State v. Cole, 213 S.W. 110; State v. Cruts, 288 Mo. 107, 231 S.W. 602; State v. Gabriel, 301 Mo. 365, 256 S.W. 765; State v. Ivanhoe, 238 Mo. App. 200, 177 S.W. (2d) 657; State v. Johnson, 234 S.W. 794; State v. Lemon, 263 S.W. 186; State v. Lyles, 351 Mo. 1174, 175 S.W. (2d) 587; State v. Miller, 307 Mo. 365, 270 S.W. 291; State v. Millsap, 310 Mo. 500, 276 S.W. 625; State v. Murphy, 237 S.W. 529; State v. Rollins, 226 Mo. 524, 126 S.W. 478; State v. Shaw, 220 S.W. 86; State v. Stewart, 274 Mo. 649, 204 S.W. 10; State v. Williams, 273 S.W. 1069. (3) The court erred in admitting testimony, over the objection of counsel for the defendant, which testimony was given by the police officers testifying for the state, to the effect that the defendant had made no statement immediately subsequent to his arrest. Missouri Constitution of 1945, Art. I, Sec. 19; State v. Bowdry, 346 Mo. 1090, 145 S.W. (2d) 127; State v. Swisher, 186 Mo. 1, 84 S.W. 911; State v. Conway, 154 Mo. 128; State v. Dengel, 248 S.W. 603; State v. Fitzgerald, 201 S.W. 86; State v. Hale, 156 Mo. 102, 56 S.W. 881; State v. Hogan, 252 S.W. 387; State v. Howard, 102 Mo. 142, 14 S.W. 937; State v. Mullins, 101 Mo. 514, 14 S.W. 625; State v. Young, 99 Mo. 666, 12 S.W. 879. (4) The court erred in denying the defendant's challenge for cause of the juror, Mr. Straub, which juror had upon voir dire examination stated that in no case, if he were convinced of the defendant's guilt, would he recommend as punishment anything but the death penalty. Sec. 4378, R.S. 1939; State v. Yeager, 12 S.W. (2d) 30; Stroud v. United States, 251 U.S. 380, 40 S. Ct. 176; 23 C.J.S., sec. 1438; 24 C.J.S., sec. 1900, 1948; United States v. Clark, 21 F. Supp. 747. (5) The court erred in instructing the jury on murder in the first degree and on murder in the second degree, and in failing to instruct the jury on manslaughter. Secs. 4376, 4377, 4382, R.S. 1939. (6) The court erred in refusing to give and read to the jury defendant's requested instruction in the form of a demurrer to the evidence, offered at the close of the state's case.

J.E. Taylor, Attorney General, and Samuel M. Watson, Assistant Attorney General, for respondent.

(1) Assignments general in character will not be considered on review by this court. Sec. 4125, R.S. 1939; State v. Dollarhide, 337 Mo. 962, 87 S.W. (2d) 156; State v. Davis, 161 S.W. (2d) 973; State v. Kimbrough, 350 Mo. 609, 166 S.W. (2d) 1077; State v. Plassard, 195 S.W. (2d) 495; State v. January, 353 Mo. 324, 182 S.W. (2d) 322; State v. Perriman, 362 Mo. 1022, 180 S.W. (2d) 668; State v. Maples, 96 S.W. (2d) 26. (2) There was sufficient substantial evidence to support the verdict, and defendant's requested instruction in the form of a demurrer to the evidence at the close of the State's case was properly overruled. State v. Keller, 104 S.W. (2d) 247; State v. Kennedy, 108 S.W. (2d) 384; State v. Scott, 214 Mo. 257; State v. Concelia, 250 Mo. 411. (3) The court did not err in giving Instructions 1 and 2 on first and second degree murder, respectively, both of which instructions concluded with an identical paragraph, to the effect that while the burden is on the State to prove wilfulness, deliberation, premeditation and malice aforethought beyond a reasonable doubt, nevertheless such necessary ingredients of the crime need not be proved by direct evidence, but may be adduced from all the facts and circumstances, if the jury can reasonably infer their existence from all of the evidence, because instructions of this nature have been approved by this court and do not conflict with the adequate instruction on circumstantial evidence numbered 3. State v. Nasello, 30 S.W. (2d) 132; State v. Ross, 300 S.W. (2d) 785; State v. Kelly, 106 S.W. (2d) 486; State v. Bowman, 294 Mo. 245; State v. Dixon, 78 Mo. 438; State v. Long, 336 Mo. 630. (4) The court did not err in giving Instructions 1 and 2 to the jury because said instructions were proper and did not amount to comments and interpretations by the court on and of the evidence in the case. State v. Nasello, 30 S.W. (2d) 132; State v. Dunn, 221 Mo. 530; State v. Meyers, 198 Mo. 227. (5) The court did not err in admitting testimony over objection of defendant's attorney wherein police officers testifying for the state testified that the defendant had made no statement immediately subsequently to his arrest. State v. Salts, 331 Mo. 665, 56 S.W. (2d) 21; State v. Batey, 62 S.W. (2d) 450; State v. Murphy, 345 Mo. 358, 133 S.W. (2d) 398; State v. Steinkraus, 244 Mo. 152, 148 S.W. 877. (6) The court did not err in denying the defendant's challenge for cause of juror Straub, based upon the juror's statement on voir dire examination that if convinced of defendant's guilt he would recommend as punishment nothing short of the death penalty. State v. Hayes, 78 Mo. 307; State v. Snyder, 182 Mo. 462, 82 S.W. 12; Sec. 4060, R.S. 1939; State v. Yeager, 12 S.W. (2d) 30; State v. Kauffman, 335 Mo. 611, 73 S.W. (2d) 217; State v. Poor, 286 Mo. 644, 228 S.W. 810; State v. Burns, 351 Mo. 163, 172 S.W. (2d) 259; State v. Rasco, 239 Mo. 535, 144 S.W. 449; Parlon v. Wells, 322 Mo. 1001, 17 S.W. (2d) 528; 23 C.J.S. p. 1143, sec. 1438; 24 C.J.S., p. 889, sec. 1900; State v. Tippett, 317 Mo. 319, 296 S.W. 132; Stroud v. United States, 259 U.S. 380, 40 Sup. Ct. 176. (7) The court did not err in instructing the jury on murder in the first and second degree while at the same time giving no instruction on manslaughter. State v. Murphy, 338 Mo. 291, 90 S.W. (2d) 103; State v. Wright, 342 Mo. 58, 112 S.W. (2d) 571; State v. Robinson, 353 Mo. 934, 185 S.W. (2d) 636.

TIPTON, P.J.

The appellant was convicted in the circuit court of the city of St. Louis, Missouri, of murder in the second degree and his punishment was assessed at imprisonment in the state penitentiary for a term of 15 years. He has duly appealed to this court.

Appellant contends that the trial court erred in refusing to give his requested instruction directing a verdict to acquit him. The evidence on behalf of the State is as follows: On March 30, 1946, Thomas Fulton, the deceased, and Clarence M. Sullivan were working at the Paula Products Company, a factory located at 2905 Washington Avenue, St. Louis, Missouri. About 3:00 A.M. of that day Sullivan and deceased stopped work to eat their lunches which they had brought with them. The deceased went out of the factory to get his lunch and stayed so long that Sullivan went out to see about him. He found the deceased sitting in his car which was parked 10 or 15 feet from the entrance of the Paula Products Company. Deceased was seated next to the driver's seat and his face was bloody. A negro was sitting in the driver's seat trying to start the car. Sullivan identified this negro as the appellant.

Deceased asked Sullivan to help him. Sullivan took him out of the car and started toward the factory with him. He could walk with Sullivan's help. As they approached the factory the negro said, "He fell down: I am going to carry him home." The negro got out of the car and followed them almost to the factory door. When Sullivan asked him for deceased's keys, the negro started fighting him and he fought his assailant off the best he could. When they got into the factory Sullivan picked up a die and hit the negro with it. In the course of the ensuing fight the negro hit Sullivan on his head with a lead pipe, which blow caused him to lose consciousness for a brief period. When he regained consciousness he heard the negro breaking through the outside door on the other side of the office.

Immediately after he regained consciousness he called the police and officers Cohen and Eresh responded to the call. Upon making an investigation they observed blood spots upon the sidewalk in front of the Paula Products Company. These blood spots led across the street to the corner of Washington and Ewing Avenues, from there to an alley between Locust and Washington, and down this alley where they saw the appellant sitting on a platform. The officers told him he was under arrest and he broke away from them. He ran until he bumped into a "No Parking" sign and fell down, after which the officers held him. At this time...