State v. Chambers

• Decision Date: 14 July 1975
• Docket Number: No. 58407,58407
• Parties: STATE of Missouri, Respondent, v. Freddy CHAMBERS, Appellant.
• Court: Missouri Supreme Court

Page 826

524 S.W.2d 826

STATE of Missouri, Respondent, v. Freddy CHAMBERS, Appellant.

No. 58407.

Supreme Court of Missouri, En Banc.

July 14, 1975.

John C. Danforth, Atty. Gen., Dan Summers, Asst. Atty. Gen., Jefferson City, for respondent.

Kenneth W. Haile, Nolen W. Berry, Neosho, for appellant.

HIGGINS, Commissioner.

Freddy Chambers was convicted by a jury of one count of stealing and four counts of murder, second degree. The jury was unable to agree on his punishment and the court fixed the punishment at ten years' imprisonment for the stealing and at twenty-five years' imprisonment on each count of murder with the terms to run consecutively. Sentence and judgment were rendered accordingly. §§ 560.156, 560.161.2(2), 559.020, 559.030, RSMo 1969, V.A.M.S.; Rules 24.04, 27.03, V.A.M.R.

Appellant does not question the sufficiency of evidence to sustain his convictions, and a jury reasonably could find that: On September 4, 1973, defendant and Ray Collins were together from about 9:00 p.m. until sometime after 1:00 a.m., September 5, 1973. They had been drinking, and defendant announced his intention 'to go get a pickup at Hi Dollar Joe Burtrum's' at 4800 Range Line south of Joplin in Newton County, Missouri. When they arrived at Burtrum Brothers Motor Company, defendant 'busted a window out of the pickup, hooked a chain onto it' and 'started pulling the pickup down the road * * * real fast and all over the road.' Collins was in the pickup to steer it and defendant was towing the pickup with his Ford Torino. During the asportation, the pickup collided with an oncoming automobile. Defendant and Collins were observed in the theft of the pickup truck, a 1969, 1/2-ton, 6-cylinder Chevrolet equipped with a camper body, by Joe Burtrum. He heard the sound of glass breaking, after which he observed the Ford Torino pulling the pickup camper north on Range Line (U.S. Highway 71). It was dark; there were no lights on either of the vehicles; and, as they proceeded down Range Line, 'they were accelerating rather rapidly, weaving from side to side of the road.' They crossed the center line several times. He tried unsuccessfully to stop the thieves by firing two or three shots from his pistol. He followed in a car, heard a crash, and saw that the pickup truck had crossed into the southbound lane and hit a Valiant automobile head on about a quarter of a mile from the car lot at 44th and Range Line. There were four persons in the Valiant, all of whom died in or as a result of the collission.

The collision occurred around 1:00 a.m., September 5, 1973.

Among others, the court gave Instruction No. 9A:

'The Court instructs the jury that under the laws of this State where a homicide shall be committed while perpetrating the theft of a motor vehicle it is deemed Murder in the Second Degree.

'In this case, if the Jury find and believe from the evidence beyond a reasonable doubt that a homicide occurred while the defendant was stealing a motor vehicle in the County of Newton, State of Missouri, then the perpetration of such theft stands in lieu of premeditation as hereinbefore defined, and the Jury will be warranted in finding the defendant guilty of Murder in the Second Degree and should so say in your verdict.'

Instruction No. 10:

'The Court instructs the Jury that if you find and believe from the evidence beyond a reasonable doubt that a homicide did not occur while the defendant was stealing a motor vehicle in the County of Newton, State of Missouri, the Jury cannot find the defendant guilty of Murder in the Second Degree and should so say in your verdict.'

Instruction No. 13 submitted the stealing count, and Instructions Nos. 14, 15, 16, and 17, in conventional form and predicated on Instructions Nos. 9A and 10, submitted the four counts of murder, second degree, resulting from the assault of the pickup truck on each of the four occupants in the Valiant.

Appellant charges the court erred (I) in submitting the stealing count and the four counts of murder, second degree. His theory is that 'the underlying felony of stealing, being an essential part of felony-murder, merged into the murder counts, they being the greater charge. A conviction on one felony would exclude a conviction on the other felony. To be tried and convicted for both felonies (the stealing and murder, second degree) is in violation of the doctrine of double jeopardy.'

The question is whether the general rule that a defendant may not be twice tried for the same offense, State v. Toombs, 326 Mo. 981, 34 S.W.2d 61 (1930), applies in this case where defendant was charged and convicted under the felony-murder rule of felonious stealing and four murders in the second degree committed during the perpetration of the theft.

There are several propositions bearing on the resolution of this question. Although the state cannot split a single crime and prosecute it in parts, e.g., a conviction for procuring execution of a false stock certificate is a bar to subsequent prosecutions for procuring execution of other certificates, where all were signed and issued in a single transaction at a single request and with a single intent, State v. Toombs, supra; nevertheless, a person may by one act violate more than one statute or commit more than one offense, State v. Moore, 326 Mo. 1199, 33 S.W.2d 905 (1930). The test whether the offenses charged are one and the same has been expressed to be whether each offense necessitates proof of an essential fact or element not required by the other. United States v. Phillips, 432 F.2d 973 (8th Cir. 1970); Cardarella v. United States, 375 F.2d 222 (8th Cir. 1967), certiorari denied, 389 U.S. 882, 88 S.Ct. 129, 19 L.Ed.2d 176 (1967). It is immaterial that the same evidence is utilized to prove each offense if each requires proof of an essential fact or element not required to support a conviction on the other. United States v. Johnson, 284 F.Supp. 273 (W.D.Mo.1968), affirmed, 410 F.2d 38 (8th Cir. 1969), certiorari denied, 396 U.S. 822, 90 S.Ct. 63, 24 L.Ed.2d 72 (1969); Cardarella v. United States, supra; State v. Moton, 476 S.W.2d 785 (Mo.1972). As observed in State v. Toombs, supra, 34 S.W.2d l.c. 64, offenses are not identical 'where an essential element of the offense denounced by one statute is not an essential element of the offense defined in the other * * *.' See also Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

The question is now restated, whether, in the circumstances of this case, the stealing charge is an essential element of, or lesser included offense within, the felony-murders as to bring the case within the prohibition of State v. Toombs, supra.

The felony-murder rule permits the felonious intent necessary to a murder conviction to be shown by the perpetration of or attempt to perpetrate a felony. Proof of intent to commit the underlying felony raises a conclusive presumption that the defendant possessed the necessary felonious intent to support conviction for the resulting murder, i.e., intentional, willful, and premeditated, with malice aforethought, if felony-murder, second degree, is charged, or these plus deliberation if felony-murder, first degree, is charged. State v. Jenkins, 494 S.W.2d 14 (Mo.1973); State v. Jasper, 486 S.W.2d 268 (Mo. banc 1972). The rule does not make the underlying felony an element of the felony-murder; it merely provides an additional means of proving the requisite felonious intent for murder. State v. Jasper, supra; State v. Shuler, 486 S.W.2d 505 (Mo.1972).

Defendant Chambers was charged with and convicted of stealing a motor vehicle, the elements of which, under Sections 560.156 and 560.161, supra, are an intentional taking of property of another without his consent and with intent to deprive the owner of the use thereof, State v. Webb, 423 S.W.2d 795 (Mo.1968); and four counts of murder, second degree, the elements of which under Section 559.020, supra, are the premeditated, willful, and intentional taking of a human life with malice aforethought, State v. Jewell, 473 S.W.2d 734 (Mo.1971). The elements of the two offenses are thus dissimilar. The commission of the underlying felony, stealing, is not an element of the murders in the second degree. With respect to the murders, the underlying felony serves only to prove the intent or state of mind necessary to the murders; and proof of the underlying felony proves both it and the intent necessary to the murder charges. Proof of different elements is necessary to each offense, even though the same evidence may go to both offenses. The offense of stealing requires proof of a taking of property; the offense of murder requires proof of a killing. Thus, the two offenses, stealing and murder, second degree, are not merged, but are separate and distinct in law and in fact. State v. Toombs, supra; Cardarella v. United States, supra; Blockburger v. United States, supra.

Several cases have recognized the absence of double jeopardy in analogous situations. In State v. Bobbitt, 228 Mo. 252, 128 S.W. 953 (1910), defendant was first charged and acquitted of murder, first degree, perpetrated during attempted arson of a house. He was subsequently charged and convicted of the attempted arson of the house. Upon appeal, defendant contended he was twice placed in jeopardy because in the murder case the state prosecuted on the theory that defendant was guilty of murder, first degree, for killing the victim while burning or attempting to burn his house, and the State was now barred from prosecuting him for the same burning, i.e., that the arson now charged was the arson offered as evidence in the murder case and it was a necessary element of the murder case. The court held that acquittal on the murder charge was no bar to the prosecution for the underlying arson. In State v. Moore, supra, defendant was charged and convicted of the murder, first degree, of one Heller. He was subsequently charged and convicted of...