State v. Beal

• Decision Date: 14 June 1971
• Docket Number: No. 55315,55315
• Parties: STATE of Missouri, Respondent, v. Charles BEAL, Appellant.
• Court: Missouri Supreme Court

Page 509

470 S.W.2d 509

STATE of Missouri, Respondent, v. Charles BEAL, Appellant.

No. 55315.

Supreme Court of Missouri, En Banc.

June 14, 1971.

As Modified on Court's Own Motion Sept. 13, 1971.

Rehearing Denied Sept. 13, 1971.

John C. Danforth, Atty. Gen., James M. Reed, Asst. Atty. Gen., Jefferson City, for respondent.

J. Arnot Hill, Kansas City, for appellant.

FINCH, Acting Chief Justice.

Defendant, along with other persons, was charged with murder in the first degree. Tried separately, he was found guilty by the jury which assessed his punishment at death. The case was tried by the state on the basis of the so-called felony-murder doctrine under § 559.010, V.A.M.S., which provides that overy homicide committed in the perpetration of certain offenses, including robbery, shall be murder in the first degree. We affirm.

Various alleged trial errors are asserted by defendant on appeal, but the principal questions presented for decision are these: (1) Was the indictment sufficient to charge defendant under the felony-murder doctrine and does that doctrine apply when persons who have just committed a robbery are fleeing from the police and their getaway car strikes another automobile resulting in death of an occupant thereof? (2) When the prosecutor, before trial, offers to reduce the charge from first degree to second degree murder (a non-capital offense) if defendant pleads guilty, is it a violation of defendant's Fifth and Sixth Amendment rights thereafter to require defendant to risk the death penalty on a first degree murder charge in order to avail himself of the opportunity to plead not guilty and to seek by trial to establish his innocene? (2) Is due process violated by a jury trial in which, without specific standards for assessing punishment, the jury determines both guilt and punishment in a single trial?

The states's evidence was that at about 3:15 p.m. on February 15, 1969, Officer Byrd, while stopped at an intersection in a police vehicle, saw four men, at least three carrying hand guns, run out of a grocery store. The four had just robbed the store of money from the cash register. Some shots were fired in the process. One of the four (defendant herein) ran to a car parked near the store, climbed into the driver's seat and started the car. The other three started running away but one (Connie Jasper) then ran to the passenger side of the moving car and climbed in. The car then sped down 35th Street at high speed (50--70 m.p.h.). Byrd reached for his shotgun and fired at the fleeing car, knocking out the rear window. He then pursued the car, keeping it in sight except for a brief period (estimated at two to three seconds) when it went over the crest of a small hill. As Byrd's vehicle crossed over this hill be saw that the escape car, at the intersection of 35th Street with Van Brunt, had run into the passenger side of a station wagon, knocking two people out on the ground. One of those persons, Ward Wooderson, was killed as a result of the collision. Defendant and Connie Jasper got out of the escape car and were taken into custody by the police. Officer Byrd estimated the elapsed time between the start of the getaway car and the collision at twenty seconds.

FELONY-MURDER DOCTRINE QUESTIONS.

Initially, defendant contends that the indictment was insufficient to permit submission of this case under the felonymurder doctrine because it made no reference to a robbery and did not state that the homicide was committed during perpetration of a robbery. However, it is well settled in this state that a prosecution for first degree murder which occurs in the perpetration of a felony enumerated in § 559.010 may be maintained on the basis of an indictment or information which charges a wilful, deliberate and premeditated killing, without referring to the fact that the homicide occurred during perpetration of a felony mentioned in the socalled felony-murder statute. State v. King, 342 Mo. 1067, 119 S.W.2d 322; State v. Smith, Mo., 310 S.W.2d 845, cert. den. 358 U.S. 910, 79 S.Ct. 237, 3 L.Ed.2d 231. We affirm that rule. The state should not be required to recite in its indictment the proof that it will offer to establish deliberation and premeditation or the fact that such proof will be supplied by showing that the homicide occurred in the perpetration of a robbery. The indictment was sufficient to advise the defendant of the nature and cause of the accusation against him, as required by the Sixth Amendment to the Constitution of the United States. It informed him that, along with certain others, he was charged with unlawfully, wilfully, feloniously, premeditatedly, deliberately and with malice aforethought driving his automobile into another automobile occupied by Ward Wooderson, inflicting a mortal wound on him. Those allegations were sufficient to put him on notice that he was charged with first degree murder and to inform him as to the means by which the homicide was alleged to have been produced. We have examined the cases cited on this point by defendant but in our judgment they do not dictate a result different than we reach.

Next, defendant asserts that a verdict should have been directed because under the state's own evidence the homicide was not incident to the robbery. He argues that this is true because the robbery had been completed at the time of the automobile collision and the pursuing officer had lost sight of defendant and the car in which he was fleeing the scene. Our decided cases hold otherwise. In State v. Adams, 339 Mo. 926, 932, 98 S.W.2d 632, 636, involving the shooting of a town marshal following a burglary, the court said: '* * * it has been held where the initial crime committed was robbery, that the asportation of the property seized, being an essential element of the crime, protracts it so long as the robbers are attempting to carry away and complete their dominion over the property; and hence that a killing by the robbers during their flight from the scene of the crime with the plunder is a homicide committed in the perpetration of the robbery.' See also State v. Messino, 325 Mo. 743, 764, 30 S.W.2d 750, 759; State v. Engberg, Mo., 376 S.W.2d 150, 155; Annotation 22 A.L.R. 850, supplemented by 108 A.L.R. 847.

Defendant next argues that application of the felony-murder doctrine to this factual situation is not authorized by previously decided Missouri cases. His brief states that, 'In all the cases that we have read regarding homicides that occurred during an escape from a robbery, the courts have proceeded on the theory that the defendants agreed among themselves to rob and thereafter to escape by force of arms.' Defendant then claims that the reasoning in those cases would not apply to or encompass a homicide caused by a collision between the escape car and another vehicle. He argues that at most this would amount to manslaughter by culpable negligence and not first degree murder under the felony-murder doctrine.

Other states have considered this question. In Whitman v. People, 161 Colo. 110, 420 P.2d 416, defendant and another person conspired to rob a creamery. During the robbery, defendant waited in a nearby automobile. As defendant's co-conspirator was leaving the creamery, two Denver police officers, purely by chance, stopped their squad car directly in front of this establishment. Adamson, the co-conspirator, proceeded swiftly to the waiting car, entered and defendant drove off. The officers, upon notification by the victim of the robbery, pursued. The chase was a high speed one with the cars moving as fast as 100 miles per hour. Ultimately, defendant collided with another vehicle, fatally injuring the driver. Defendant was tried and convicted under the Colorado felony-murder statute which provided that murder committed in the perpetration or attempt to perpetrate a robbery would be murder in the first degree. In affirming that conviction the Colorado Supreme Court said, 420 P.2d l.c. 418: 'Colorado would appear to be in accord with the general rule that the turpitude of the felonious act, in this case robbery, supplies the element of deliberation and design to effect death, and that therefore no express or implied design to effect death is essential and the murder is still of first degree though 'casual and unintentional."

In People v. Ulsh, 211 Cal.App.2d 258, 27 Cal.Rptr. 408, defendants robbed a liquor store and then attempted to escape in an automobile. Police, notified by a silent alarm system, spotted the defendants leaving the scene of the robbery and followed in hot pursuit. During the chase, many shots were fired. The chase ended when defendants' automobile collided with another car at an intersection 3.2 miles from the scene of the liquor store, killing a passenger in that vehicle. At the trial defendants moved to dismiss on the ground that when they left the liquor store the robbery in and of itself was completed and that the felony-murder doctrine would not apply. In addition to holding that the lapse of time and the distance traveled did not terminate the criminal activity in perpetration of the robbery, the court held that the collision was the direct consequence of the effort to escape, and then said, l.c. 417: 'It is clear that it is of not the slightest consequence that the robbers here did not intend to bring about the victim's death. * * * It was a killing in the perpetration of a robbery, and is therefore murder in the first degree regardless of whether it was intentional or accidental.'

We conclude, as did the courts in Whitman and Ulsh, supra, that the homicide resulting from the collision which occurred in an attempt to escape falls within the legislative enactment contained in § 559.010, and that the trial court did not err in submitting the case under the felony-murder doctrine. ¹

Incidental to the issue involving application of the felony-murder doctrine, defendant complains of the giving of Instruction No. 3 (submitting the...