State v. Black
Decision Date | 25 November 1980 |
Docket Number | No. 41714,41714 |
Citation | 611 S.W.2d 236 |
Parties | STATE of Missouri, Respondent, v. Julia BLACK, Appellant. |
Court | Missouri Court of Appeals |
Charles Shaw, Shaw, Howlett & Schwartz, Ronald Kaden, Clayton, for appellant.
John Ashcroft, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Jefferson City, George Westfall, Pros. Atty., Clayton, for respondent.
Defendant appeals from her conviction of second degree murder by a jury and resultant ten-year sentence imposed by the court under the second offender act. 1 We reverse.
Defendant has raised five points of error, but it is necessary for us to discuss only one the failure of the trial court to sustain her motion of acquittal at the conclusion of the evidence. We review the evidence presented by the state and view it in the light most favorable to the State and draw from it permissible inferences. We will on occasion make reference to evidence presented by the defense but do not base our conclusion upon such evidence unless favorable to the state.
Joe Black, defendant's husband, was killed from a single blast of a shotgun in the early morning hours of January 27, 1978, while in his home. A police officer, who arrived shortly after the killing, found defendant in the living room crying and hysterical and the dead body of Joe Black in the kitchen. Defendant stated: 2 The officer located a single-barrelled shotgun leaning against a wall in a nearby bedroom. He searched for, but was unable to find, any spent shells or wadding from a shotgun. This search included the snow covered area between defendant's home and her neighbor's residence. At some time while the officer was in the residence defendant fainted. She was taken to the hospital. After leaving the hospital defendant made a statement to the police following waiver of her Miranda warnings. An officer testified that in that statement she gave the following account:
As decedent's body was removed a spent shotgun shell was found under it. Two days after the shooting police returned to the house to obtain a second shotgun that they believed to be on the premises. A double-barrelled shotgun was found under a bed by defendant's nephew and turned over to the police. Defendant was present and, as with all her other contacts with the police, was fully cooperative. Subsequent ballistics tests established that the spent shell was fired from the double-barrelled shotgun. By measurement the police established that the hole in decedent's shirt caused by the shotgun blast was 3 inches by 4.5 inches.
The medical examiner testified that the hole in decedent's body from the blast was 2 inches by 3 inches. In addition there was a superficial wound on decedent's arm caused by grazing from the shotgun blast, and approximately 50 pellets or pellet marks covered an area 6 by 8 inches near the main wound. The pellets causing these marks were referred to as "fliers." The pellets entering the main wound took a slightly downward course through the body striking the lower ribs, heart, lungs, diaphragm, kidney, spleen, stomach, and pancreas. None of the pellets exited the body. Death resulted from massive bleeding of the heart and lungs, and the bleeding outside as well as inside the body was massive. The medical examiner said the wound suggested that decedent was upright but because of variation in actions of the pellets once they entered the body this was not certain. Decedent's blood contained .284% alcohol which would have "considerably" affected his reflexes.
An expert witness for the state testified that he conducted tests with the single-barrelled shotgun by firing from various distances at pieces of cloth fastened to cardboard. From these firings he opined that to achieve the pattern which caused the hole in the shirt the muzzle of the shotgun would have had to be 18 to 20 feet distant from the shirt. He made his shots solely from a 90o angle, no other angles were attempted. He made no attempt to duplicate the smaller hole found in the body, nor did he conduct firing tests with the double-barrelled shotgun. Without explanation he stated his belief that the hole in the shirt was a more accurate measurement of the shot pattern than the hole in the body. 3 He had no explanation of why the body hole was a third smaller than the shirt hole. He also testified that the trigger pull on the single barrelled shotgun was 31/2 pounds which is lighter than average, and that he could not get that gun to discharge by dropping it and touching the side of the gun. He did not test it to see if he could cause it to fire by grabbing in the trigger area as the gun fell. He did not testify to any tests of trigger pull or accidental discharge for the double-barrelled shotgun.
Additional expert testimony was adduced that no powder burns or unburned powder were found on the shirt. The expert admitted that he did not know how the shirt was handled prior to receiving it, and admitted that heavy bleeding would make powder burns more difficult to detect. No chain of custody of the shirt was established but defendant raised no objection at any time to that.
No wadding from the shotgun was found either in the decedent's body or in defendant's residence. 4 There was testimony that it would normally be expected that on a close-in shot the wadding would follow the pellets into the target. It is also clear from the testimony that while this might be expected it is not inevitable.
No evidence was adduced during the prosecution's case, nor until the defendant testified, as to which shotgun the defendant said she was handling at the time decedent was shot. In her testimony she stated it was the single-barrelled shotgun which she was handing to her husband when the blast occurred. Defendant repeated again her prior statements that she was handing her husband the gun, that she felt it falling, grabbed for it, and it discharged. No evidence was adduced by the prosecution that defendant and her husband had had any argument, disagreement, or fight nor was any evidence adduced to establish a motive for the killing of Joe Black. There was no evidence by the state to establish intoxication of the defendant. In fact, the defense evidence was to the contrary, although the witnesses did testify she had had something to drink during the evening. The defense witnesses further testified that defendant and her husband had had a particularly pleasant and amicable time together earlier in the evening.
An expert for the defense testified that the blast pattern in Joe Black's body was compatible with a test firing at two feet at an angle. He also testified that the hole in the shirt would not be as accurate as the hole in the body unless the shirt were tight fitting in which case the holes should be the same, and that a crease in the shirt which he saw in the picture of decedent's body would cause a larger pattern when the shirt was stretched out for measurement. There was also defense evidence to explain the absence of powder burns, the presence of the 50 fliers (out of between 225 and 275 pellets), and the absence of the wadding in the wound. The theory of the state on appeal is basically that, although it had no evidence of defendant having intentionally shot her husband, it did have evidence that she had either been mistaken or lied about certain facts and that certain presumptions arise from the fact that the victim was killed by a deadly weapon and from defendant's statement that she "accidentally shot" her husband.
Second degree murder is established by showing a willful, premeditated killing of a human being with malice aforethought. State v. Franco, 544 S.W.2d 533 (Mo. banc 1976) cert. den. 431 U.S. 957, 97 S.Ct. 2682, 53 L.Ed.2d 275 (1977). It is the burden of the prosecution to establish beyond a reasonable doubt that defendant intended to kill or inflict serious bodily harm. State v. Helms, 559 S.W.2d 587 (Mo.App.1977). Intent may be inferred from the circumstances of the case. State v. Gillam, 588 S.W.2d 13 (Mo.App.1979). In State v. Shuler, 486 S.W.2d 505 (Mo.1972) the court stated the proper evidentiary standard as follows:
"General criminal intent is found 'when from the circumstances the prohibited result may reasonably be expected to follow from the offender's voluntary act, irrespective of any subjective desire to have accomplished such result.' " (l. c. 509) (Emphasis supplied). (Quoting from 22 C.J.S. Criminal Law Sec. 35, quoted with approval in State v. Anderson, 384 S.W.2d 591, 607 (Mo. banc 1964)).
The state premises the sufficiency of the case upon a series of cases which state that where the evidence shows a killing by the use of a deadly weapon upon a vital part of the body, second degree murder is presumed. State v. Tourville, 295 S.W.2d 1 (Mo.1956); State v. Enlow, 536 S.W.2d 533 (Mo.App.1976); State v. Ward, 569 S.W.2d 341 (Mo.App.1978); State v. Eldridge, 554 S.W.2d 422 (Mo.App.1977). Tracing back the authorities relied upon in those cases it appears that the basis for those holdings is the language from State v. McCracken, 341 Mo. 697, 108 S.W.2d 372 (Mo.1937):
"Where a homicide is intentionally committed with a deadly weapon used upon a vital part of the body and there is no witness to the occurrence, murder in the second degree is presumed in the absence of...
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