State v. Caldwell, 53105

• Decision Date: 12 February 1968
• Docket Number: No. 53105,No. 2,53105,2
• Citation: 423 S.W.2d 738
• Parties: STATE of Missouri, Respondent, v. Alvin CALDWELL, Appellant
• Court: Missouri Supreme Court

Page 738

423 S.W.2d 738

STATE of Missouri, Respondent, v. Alvin CALDWELL, Appellant.

No. 53105.

Supreme Court of Missouri, Division No. 2.

Feb. 12, 1968.

Norman H. Anderson, Atty. Gen., Jefferson City, Sidney Fortus, Special Asst. Atty. Gen., Clayton, for respondent.

J. Whitfield Moody, The Legal Aid and Defender Society of Greater Kansas City, Kansas City, for appellant.

EAGER Judge.

Defendant was convicted by a jury of assault with intent to kill, with a deadly weapon, and whth malice aforethought. Upon allegations and findings of a previous conviction, sentence and imprisonment for a felony he was sentenced to a term of seven years. Defendant was represented at the trial by employed counsel who filed a motion for new trial; this appeal was taken promptly when that motion was overruled. He is represented upon this appeal by the Public Defender of Jackson County, by appointment.

Since only one question is raised in defendant's brief, we need not relate all factual details; however, the jury could have believed all of the following facts from the evidence produced. One William Broussard and his friend Leon Wyatt, both regularly employed, stopped in a tavern known as the Miami Bar at 27th Street and Troost Avenue in Kansas City, between 6:00 and 7:00 p.m. on May 7, 1966. Each ordered a glass of beer; Broussard sat at the bar while Wyatt went to watch a pool game a little farther back. While Broussard was sitting at the bar a woman, whom he did not know, brushed against him, merely in passing. At about that time three men had entered the place, and one (specifically identified as this defendant, whom Broussard had never seen before) started a very loud argument with Broussard, insisting that the woman 'was somebody's old lady,' and that 'I am trying to put you onto the facts,' with some repetition and considerable name-calling; Broussard replied that he had a wife and was 'not interested in anybody's old lady' and to 'forget it.' Hearing the argument, Wyatt came back and persuaded Broussard to leave; he did leave and walked to his car parked on a small lot about half a block (or less) north on the west side of Troost. Wyatt remained a very short time to see if he could placate the other party or parties. Broussard got into his car and started it, then got out and walked back to the sidewalk to wait for Wyatt. He soon saw the defendant and a small group of men coming towards him from the tavern; defendant was holding an open knife with a blade of approximately six inches, which Broussard saw from approximately 25 feet; defendant called Broussard a vile name, said he was 'going to get him,' and run up to him. Broussard circled around and tried to fend off the knife with his hands and arms, getting a few minor cuts in the process, but he finally stumbled and fell between two parked cars. While he was thus lying on the ground, defendant stabbed him in the back and pierced a lung; he then remained 'astraddle' of him for a short time. Various people were around this scene, but no one interfered. Broussard tried to kick the defendant, but with no effectiveness. Finally, one of defendant's companions said 'Well, you got him, Joe, so let's go.' Thereupon they departed, in some haste, and with no hindrance. Wyatt got his friend across the street to a bowling alley where he collapsed. The police and an ambulance were called; Broussard was in the hospital for several days.

Wyatt had followed defendant and his companions from the tavern and saw these occurrences. Both Broussard and Wyatt positively identified defendant at the trial as the man who stabbed Broussard, and the testimony further showed: that Broussard had first identified defendant from a police picture (there being no objection to this evidence) and later in a lineup; that Wyatt had identified him in a police lineup. Broussard first learned defendant's name after these things had occurred. Wyatt confirmed all the substance of Broussard's testimony. All of the persons directly concerned were colored. Broussard and Wyatt were most extensively cross-examined concerning the identity and appearance of the aggressor, perhaps to the point of tediousness. At one point, when Wyatt was asked why this affair made such an 'imprint,' he said: 'Because the man had a knife and was trying to kill another man.'

On behalf of defendant, three witnesses (two male, one female) testified. Two of these were in the 'Barclay Cafe' outside of which the stabbing occurred; while 'goofing around,' as one of these witnesses said, they heard and saw a commotion outside so they went out. The woman testified that she saw the man stabbed, but that the person who did it was not this defendant. The other, her male associate, testified that he saw the man with the knife, fighting, and that it was not this defendant. Both of these had known the defendant previously. The third witness, who had just been standing on the sidewalk in front of the cafe, ran closer to see the fight. He testified: that he had seen the aggressor around the neighborhood previously; that he knew the defendant, having spent some 'time' with him at the Municipal Farm. He inferred that the man who stabbed Broussard was not this defendant. The defendant did not testify.

The Court gave the usual instructions on the presumption of innocence and credibility; it also gave one on alibi, to which no objection is made here. It gave two verdict-directing instructions, No. 3 and No. 4; the first submitted defendant's guilt of an assault with malice; the other, his guilt of an assault without malice. We need not consider the latter, since defendant was not found guilty under it and the defendant complains here only of Instruction No. 3. Such is his sole point of error. We quote the pertinent parts of Instruction No. 3 omitting definitions of which no complaint is made: 'The Court instructs the jury that if you believe and find from the evidence in this case, beyond a reasonable doubt, that at the County of Jackson and State of Missouri, on the 7th day of May, 1966, the defendant herein, ALVIN CALDWELL, did then and there unlawfully, wilfully and feloniously make an assault upon one William Broussard with a dangerous and deadly weapon, to-wit: a knife likely to produce death or great bodily harm, with felonious intent, and on purpose with Malice Aforethought to kill or do great bodily harm to the said William Broussard, if such be your finding, then you will find the defendant guilty of Assautl with Intent to Kill with a knife with Malice Aforethought and so find in your verdict.

'And, unless you find the facts to be as above stated, you are instructed to acquit the defendant of Assault with Intent to Kill with a knife with Malice Aforethought.'

The arguments made in support of this appeal, insofar as we understand them, are: that the supposed facts supporting guilt were affirmatively stated in the instruction, whereas the theory of defendant's innocence was stated negatively in the 'unless' clause; that this tended to assume, or to give the jury the idea, that the affirmative recitals were 'actual occurrences,' particularly since they were referred to as 'facts'; and that the jury should have been instructed that there was a difference between 'fact and evidence.' Counsel thus conclude that the 'unless' clause here was a 'positive misdirection,' and that the words therein implied a 'lesser obligation' than did the hypothesis of the first paragraph. It is a little difficult for us to follow this argument.

Three cases are cited, namely: Rosebraugh...