State v. Brannom, 37040

• Decision Date: 27 July 1976
• Docket Number: No. 37040,37040
• Citation: 539 S.W.2d 747
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Robert Lee BRANNOM, Defendant-Appellant. . Louis District, Division Two
• Court: Missouri Court of Appeals

Page 747

539 S.W.2d 747

STATE of Missouri, Plaintiff-Respondent, v. Robert Lee BRANNOM, Defendant-Appellant.

No. 37040.

Missouri Court of Appeals, St. Louis District, Division Two.

July 27, 1976.

Herbert A. Kasten, Jr., St. Louis, for defendant-appellant.

John C. Danforth, Atty. Gen., Preston Dean, Sheila K. Hyatt, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Daniel J. Murphy Asst. Circuit Atty., St. Louis, for plaintiff-respondent.

DOWD, Judge.

This case involves a double homicide which originated with an argument over a hat. Defendant was convicted by a jury in the Circuit Court of the City of St. Louis, Missouri, of manslaughter in two counts for the deaths of Eugene Smith and Robert Rogers. The jury assessed punishment to be ten years imprisonment for Count I and two years for Count II. The court imposed sentences in accordance with the verdict, specifying that the sentences were to run consecutively. Defendant appeals on two grounds: (1) that the court was without jurisdiction to allow prosecution of both counts at a single trial; and, (2) that there was insufficient evidence to show knowing and intentional aid or encouragement by the defendant towards the offenses charged.

The challenge to the sufficiency of the evidence necessitates a detailed discussion of the facts. At trial defendant's two sisters Marie Rogers and Ernestine Brannom, both witnesses for the State, testified that at about 7 p.m. on March 1, 1974, there was an argument between defendant and Robert Rogers, Marie's husband. This argument took place on North Twenty-Third Street in front of the house which was shared by four people: Marie and Robert Rogers, Ernestine Brannom, and Eugene Smith, who was Ernestine's boyfriend. The argument concerned a hat which defendant had in his possession but which belonged to Robert Rogers. It ended by Rogers chasing defendant and throwing a brick at him, which did not hit him. Codefendant Herbert Trotter was present during this incident and defendant and Trotter left together in a blue Oldsmobile which belonged to Trotter's father.

State's witness Mrs. Joyce Horton, who lived next door to the Rogers' house, testified that she and her husband Donald stopped by their home momentarily at about 8:30 p.m. on March 1. They parked their car in back of a dark blue Oldsmobile. She waited in the car while her husband went in the house with packages. They both saw a black man get into the Oldsmobile and both Mr. and Mrs. Horton positively identified this man as codefendant, Herbert Trotter. They also saw Eugene Smith in the front doorway of his house and defendant talking with him. This was about three or four feet from where Mrs. Horton waited in the car. As Mrs. Horton waited, she heard defendant say to Smith, 'I have something in my pocket that will shoot seven times without stopping.' Then she saw him pull out a gun and show it to Smith. Smith answered, 'I believe you, but not around here, because we don't have that kind of stuff around here.' Defendant said, 'If I give it to him right now, he will shoot it. If you don't believe me, I will give it to him right now.' Then defendant put the gun back in his pocket, got in the Oldsmobile where Trotter was sitting, and drove away.

The Hortons were getting ready for bed at about 12:30 a.m. and heard breaking noises outside. Mr. Horton looked out the bedroom window and saw Herbert Trotter standing in the doorway of the house next door, and firing a gun. Horton ran to call the police. When he looked out the window a second time he saw defendant pull himself up to the back window of the house where the shooting had occurred and look inside the house, then run away towards the back of the house. Horton also saw Herbert Trotter running on the sidewalk.

Ernestine Brannom, defendant's sister, testified that at about 12:30 a.m. she was in her bedroom and Eugene Smith and Robert Rogers were in the kitchen. There was a knock on the door and Eugene Smith answered it. Herbert Trotter was standing in the doorway holding a gun and defendant was behind him. Trotter shot her boyfriend Eugene Smith twice. Trotter then said to Robert Rogers, 'Why did you want to do it?' Rogers turned to run out of the kitchen into the bedroom and Trotter shot him in the back. Ernestine ran out of the house and hid under a truck until the police came. She saw two pair of feet go by and heard Trotter say, 'We are not going to find that bitch,' and then the two men separated and ran.

The above recitation of the facts demonstrates that there was ample evidence of defendant's aid and encouragement toward the offenses charged. Presence at the scene of a crime raises wholly different inferences under differing circumstances, and each case must stand upon its own facts. State v. Simmons, 494 S.W.2d 302, 305(5) (Mo.1973). 'Presence, companionship and conduct before and after the offense are circumstances from which a defendant's participation in the criminal intent may be inferred.' State v. Johnson, 510 S.W.2d 485, 489(6) (Mo.App.1974). See also 22 C.J.S. Criminal Law § 88(2) (1961).

In this case all the facts point unequivocally to defendant's encouragement and aid. Defendant threatened Eugene Smith by showing him a gun and saying, 'If I give it to him right now, he will shoot it.' Trotter acting alone had no reason to kill the two men; the only motive for the shooting was the altercation between victim Rogers and defendant over a hat. The evidence further showed that defendant returned and looked into the window of the house and then fled from the scene. Most revealing of all is the fact that defendant stood unprotestingly behind Trotter as Trotter shot defendant's brother-in-law and the...