State v. Burnett
| Decision Date | 09 July 1956 |
| Docket Number | No. 45052,45052 |
| Parties | STATE of Missourl, Respondent, v. Robert BURNETT, Appellant. |
| Court | Missouri Supreme Court |
Joseph Noskay, St. Louis, for appellant.
John M. Dalton, Atty. Gen., Grover C. Huston, Asst. Atty. Gen., for respondent.
Defendant has appealed from a conviction and sentence for murder in the first degree, where the death penalty was imposed.
The offense was alleged to have been committed in the City of St. Louis on December 20, 1954. An indictment charging appellant and one Sterling Quinn with murder in the first degree of one Abe Levitt was returned and filed on February 4, 1955. Thereafter, appellant was arraigned and entered a plea of not guilty. Appellant was granted a severance and a trial was had before a jury. On April 13, 1955, the jury returned a verdict of guilty of murder in the first degree as charged in the indictment, and fixed the punishment at death. A motion for a new trial was filed and overruled, and appellant was, thereafter, on June 6, 1955, duly sentenced to suffer death by the administration of lethal gas.
On this appeal the appellant has not favored us with a brief and it is necessary for us to examine the assignments of error in his motion for a new trial. Supreme Court Rule 28.02, 42 V.A.M.S.; State v. Pierce, Mo.Sup., 236 S.W.2d 314.
The evidence shows that Abe Levitt was shot and killed by appellant while appellant was attempting to perpetrate a robbery. The cause of death was shown to be a 'bullet wound in left chest.' Levitt owned and operated a grocery store on the southwest corner of the intersection of Maffitt and Newstead avenues in the city of St. Louis. Appellant and Sterling Quinn entered the store about 7:30 p. m. on the evening of December 20, 1954. At that time Abe Levitt, Robert Farmer and his grandson Michael and a customer, Miss Fredia Tumpkins, were in the store. Appellant carried a 7.65 millimeter semi-automatic pistol of German make, which used .32 caliber Remington shells. Appellant subsequently described the gun as a .32 automatic. Appellant advised Levitt that it was a holdup and demanded Levitt's money and ordered him to open the cash register. Levitt refused and an extended argument followed. Appellant finally backed Levitt against the basement door and shot him in the chest. Appellant and Quinn then ran from the store and left in an automobile which had been parked in an alley near the store. Robert Farmer recognized appellant by his voice and testified that both Quinn and appellant had been in the store on previous occasions. Quinn was not masked, but appellant had a dirty pocket handkerchief over the lower part of his face.
Appellant and Quinn were subsequently arrested at the Sylvan Beach Airport and, on December 26, 1954 appellant gave the police officers a written statement, in question and answer form, concerning the attempted robbery and murder. The statement was identified, offered and received in evidence. Appellant said he had been residing with Quinn at 5175 Kensington avenue and that they owned a gray 1939 Buick automobile in partnership. About 3:00 p. m., on the afternoon of December 20, 1954, they planned a holdup, but had not located a place. They got lost while driving around looking for a suitable place, but finally drove by the Levitt store and appellant stated that the other stores were closed. Quinn said 'Let's go in and get 'em.' The automobile was parked in an alley and the two entered. Both were carrying guns, appellant had the '.32 automatic' with the safety off, while Quinn had 'a cap gun, it was in no good condition.' Appellant had taken a bloody handkerchief off of his sore hand and had tied it over his face. When appellant entered the store he saw the owner of the store, the old man (Farmer) and the boy. Appellant further stated the facts as follows:
He said, 'You going to shoot me?' I said 'I hope I don't have to.' He said, 'You want to kill me?' And I said, 'I don't want to.' And he reached for my pistol and I got out of the way of him and stepped back and shot him.
'Q. And then what happened? A. I ran into the alley and got in the car. * * *
'Q. What was the conversation he had with you again, Robert? A. I told him I wanted some money, 'Open the cash register.' He said, 'You ain't going to get nothing here.' He said 'You won't shoot me, you don't want to kill me, do you?' I told him, 'No, I hope I don't have to.' And he run around there and went to grab my pistol and he made a miss-grab and I stepped back and shot him. * * *
' * * *
'
In a further written statement appellant said he told the police that he had left the city after the shooting and had taken the gun to his father's home at Wyatt, Missouri. He gave certain officers permission to get the gun. The officers flew down and recovered the gun and others and returned that afternoon. The guns were then exhibited to appellant and he identified the gun he had used to shoot Mr. Levitt. He said he knew 'it by the handles.'
Other evidence on behalf of the state tended to show that police officers arrived at the Levitt store shortly after the attempted robbery and shooting. Mr. Levitt was taken to a hospital, but he was dead on arrival and a few minutes thereafter his body was removed to the city morgue, where an autoposy was performed and the bullet removed from the body. In the store where the shooting occurred a discharged .32 caliber Remington shell was found and the shell and the mentioned bullet were both delivered to a ballistic expert, together with the semi-automatic pistol recovered by the police and identified by appellant as the gun he had used to shoot Mr. Levitt. The expert fired a test shot from the gun and recovered both the shell and the bullet and then compared, under a microscope the marking on the two shells and the marking on the two bullets. He testified that both shells had been fired in and ejected from the same gun and that the two bullets had been fired from the same gun. He also testified that it was impossible for the rifling in two guns to be exactly the same.
Appellant testified in his own behalf at the trial, as follows:
On cross-examination appellant testified:
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Appellant was 20 years old at the time of the trial.
Some of the thirty assignments in the motion for a new trial refer to matters which, if they occurred, are not shown by the record. We are bound by the record presented for review and, therefore, assignments which are based upon matters not shown by the record cannot be considered or determined. State v. O'Brien, Mo.Sup., 249 S.W.2d 433, 434(7); State v. Quilling, 363 Mo. 1016, 256 S.W.2d 751, 754(5); State v. Marlin, Mo.Sup., 177 S.W.2d 485, 487(2). Certain other assignments, as we shall see, wholly fail to comply with Supreme Court Rule No. 27.20 which, in part, requires that 'a motion for a new trial shall be in writing and must set forth in detail and with particularity, in separate numbered paragraphs, the specific grounds or causes therefor.'
It is contended that the court erred in failing to sustain defendant's motion for a judgment of acquittal at the close of the State's case, and erred in failing to sustain a similar motion at the close of the entire case, because 'there was no evidence of wilful, deliberate, premeditated and with malice aforethought homicide.' The record shows that appellant's counsel requested a judgment of acquittal at the close of the State's case. The request was denied. Appellant thereafter testified in his own behalf and the request for a judgment of acquittal was not renewed at the close of all the evidence. The motion tendered at the close of the State's case was intended to present the issue of whether as a matter of law the evidence offered by the State was sufficient to support a conviction under the charge in the indictment. Supreme...
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