State v. Cheek, 52060

• Citation: 413 S.W.2d 231
• Decision Date: 13 March 1967
• Docket Number: No. 1,No. 52060,52060,1
• Parties: STATE of Missouri, Respondent, v. Fred Park CHEEK, Appellant
• Court: United States State Supreme Court of Missouri

Page 231

413 S.W.2d 231

STATE of Missouri, Respondent, v. Fred Park CHEEK, Appellant.

No. 52060.

Supreme Court of Missouri, Division No. 1.

March 13, 1967.

Motion for Rehearing or to Transfer to Court En Banc Denied

April 10, 1967.

Norman H. Anderson, Atty. Gen., Jefferson City, Richard G. Altobelli, Sp. Asst. Atty. Gen., St. Louis, for respondent.

George E. Sullivan, O'Fallon, for appellant.

HOLMAN, Presiding Judge.

The amended information in this case charged defendant with murder in the first degree. The jury found him guilty of that crime. Since it was alleged and proved that defendant had been convicted of two prior felonies the court determined his punishment which was fixed at imprisonment in the penitentiary for life. See §§ 559.010, 559.030, and 556.280 (all statutory references are to RSMo 1959, V.A.M.S.). He has appealed. Defendant was represented in the trial court and in this court by counsel of his own choosing. His counsel, however, elected not to file a brief in this court. We will therefore consider the contentions properly raised in his motion for new trial. State v. Smith, Mo.Sup., 394 S.W.2d 373.

During the early evening of September 18, 1965, defendant drove his Ford Mustang automobile from O'Fallon to St. Charles, Missouri. He was accompanied by Lee English, Walter Thomas, Harvey Huber, and Rose Wells, all of whom lived in the O'Fallon area. While en route to St. Charles defendant was stopped by a highway patrolman and was given a ticket for passing a line of cars on a hill. The patrolman testified that while he smelled an odor of alcohol, the defendant was not intoxicated. About 45 minutes later defendant shot Terry Aldrich in front of the Aldrich home in St. Charles.

Rose Wells testified for the State. She stated that at least three of the men had been drinking when she entered the car at about 8 p.m.; that after arriving in St. Charles the men bought a fifth of Bourbon which they mixed with grapefruit juice and that they were all drinking; that defendant then drove his car to a trailer court (Trio Mobile Homes Park); that when they arrived at a point near the Court they saw a Volkswagen on the road with a boy pushing it; they stopped and Walter Thomas asked if they could help by pushing the car but the boy said no, they could do it themselves; that at that point defendant and Huber insisted that they would help anyway and defendant backed his car up and then ran it forward and hit the Volkswagen from the rear; that he backed up again and hit the Volkswagen a second time; that a boy then got out of the Volkswagen and came around to the driver's side of the Mustang and reached in, pulled defendant's shirt, and asked him what he thought he was doing; that defendant and Huber both got out of the car--Huber carrying a .38 caliber revolver in his hand and defendant carrying a .22 caliber Derringer; that she then heard a shot and a girl scream; that the men got back in the car and defendant said, 'I shot the guy in the throat'; that they then started back toward O'Fallon and defendant gave the Derringer to Huber, who fired the other shot out the car window, and said he would take it to work the next day and melt it down with a welding torch.

Coleen Skelly testified that on the night in question she had a date with Terry Aldrich and that they were double-dating with Don Campbell and Linda Crosley; that they were all at the home of Terry Aldrich's parents and decided to go play miniature golf; that they started to leave in Don's Volkswagen but the car would not start; that one of the boys was pushing it when some people in a Mustang drove alongside the Volkswagen and asked if we needed help; that Don said 'No, we can manage it ourselves,' and someone in the Mustang said, 'We are going to help you anyway'; and that they backed the car up and drove into the Volkswagen. 'Then we all got out of the car' and the Mustang hit it again 'real hard'; that she then looked at Terry who was standing in the street and about ten seconds later she saw the flash of a gun in front of him and Terry fell; that Terry was standing still at the time he was shot; that she saw that Terry was bleeding and ran to his home nearby and reported that Terry had been shot.

Somewhat similar testimony was given by Linda Crosley and by Donald Campbell. Donald also testified that Terry may have grabbed defendant's shirt when he walked to the driver's window of the Mustang, and that Terry then walked back towards Huber before the shot was fired but was not moving at the time he was shot.

Terry, a 20-year-old college student, was taken at once to the hospital where he died later that night. According to the testimony of Dr. Roberts who performed an autopsy there were powder burns on deceased's neck, and the bullet punctured the right jugular vein so that blood filled the windpipe and lungs of the deceased. In answer to a hypothetical question Dr. Roberts expressed the opinion that deceased died as a result of the gunshot wound.

Linda Crosley had been able to get a part of the license number on the Mustang before it left the scene and the car was located about midnight in Wentzville, at which time defendant, Huber, and Thomas were arrested. If later developed the Huber had thrown the revolver out of the car at the time of his arrest and it was found at that place early the next morning. An officer testified that defendant denied knowing anything about the shooting at the time of his arrest.

The State obtained a tape recorded joint statement of defendant and Huber which was admitted in evidence and heard by the jury. We will not recite that testimony herein as defendant's version thereof did not very greatly from his testimony at the trial, which is hereinafter set out.

Defendant testified that he had stolen the .38 caliber revolver, which Huber had on the night of the killing, about three weeks before from a man called 'Herb'; that he had purchased the Derringer in St. Louis about three years before the shooting; that in 1962 he dropped that gun and broke the pin which held the trigger; that he repaired it by replacing the pin with a small wire brad, and since that time the gun had been 'real easy to trigger.' He further testified that on the night of the shooting, when the boy refused their offer to push the Volkswagen, someone said, 'Let's give them a push anyway'; that he backed the car up and pulled in behind the other car and 'let it roll down and bump into' the Volkswagen; that at that time a boy, whom he later learned was Terry Aldrich, came back to his car, grabbed and tore his shirt, spilled his drink, and then said 'Are you guys looking for trouble?'; that Huber got out and walked around the back of the car and the boy then let go of him and started back toward Huber; that he then opened his door and went back to where Aldrich was; that before getting out of the car he had obtained the Derringer from between the seat and the transmission; that he then walked toward Aldrich and put his hand on his arm and 'I started to say something to him and had the gun in my hand, and when he turned around he bumped into me--turned into me--and when he did the gun went off'; that somebody said, 'Let's get in the car'; and 'we ran and got in the car and took off.'

Defendant further testified that he knew that Huber, who was intoxicated, had the .38 revolver when he got out of the car; that when he first got out of the car he saw that Huber was pointing the gun at Aldrich.

On cross-examination he stated that his Derringer would not go off unless it was 'cocked' and that he did not know it was cocked at the time of the shooting.

Both Walter Thomas and Lee English testified for the defendant. They each stated that when defendant got back in the car he said he didn't mean to shoot the boy. English testified that in returning from St. Charles to O'Fallon defendant used country roads and 'drove like a maniac.'

Additional evidence will be hereinafter stated in connection with our discussion of points raised on this appeal.

Defendant's first assignment is that the court erred in submitting murder in the first degree. He says that the intentional killing of a human being with a deadly weapon is presumed to be second degree murder; that there was no proof of deliberation and hence the evidence did not overcome the presumption of second degree murder and a submission of first degree murder was not warranted. We do not agree. In this case the evidence was rather fully developed by eyewitnesses. There was evidence from which the jury reasonably could have found that after deceased grabbed defendant's shirt defendant picked up the gun, tried to stop his car from rolling forward, got out of the Mustang, traveled a distance of at least ten feet, raised the gun so that it was pointing at deceased, and shot him in the neck while he stood motionless. That was ample evidence to reasonably support a finding of deliberation. The point is ruled adversely to defendant.

The Court gave instructions authorizing a conviction for murder in the first degree, second degree, and manslaughter. At the request of defendant an instruction was given which directed an acquittal upon a finding that the killing was accidental. In the first degree submission the jury was required to find that defendant shot the deceased 'wilfully, feloniously, deliberately, premeditatedly and of his malice aforethought.' For his second assignment defendant says the instruction was erroneous because the definition of 'deliberately' was incomplete. Since the quoted words have overlapping meanings, we set out the definition of all of them, as follows: "Willfully', as used in these instructions, means intentionally, not accidentally. 'Feloniously' means wickedly and against the admonition of the law. 'Deliberately' means in a cool state of blood; that is, not in a heat of passion caused by some just provocation to passion. 'Premeditatedly' means thought of beforehand for...