State v. Cole
| Decision Date | 13 April 1964 |
| Docket Number | No. 49974,No. 1,49974,1 |
| Citation | 377 S.W.2d 306 |
| Parties | STATE of Missouri, Respondent, v. William COLE, Appellant |
| Court | Missouri Supreme Court |
Morris A. Shenker, Lawrence J. Lee, Emanuel Shapiro, St. Louis, for appellant.
Thomas F. Eagleton, Atty. Gen., Robert D. Kingsland, Asst. Atty. Gen., Jefferson City, for respondent.
By an indictment filed in the Circuit Court of St. Louis County, the defendant was charged with manslaughter in the death of one John Henry Rogers on June 23, 1961. Defendant was convicted of said offense and his punishment was assessed at one year's imprisonment in the county jail. He has appealed from the judgment entered against him.
On this appeal there is no contention that a case was not made for the jury, but error is assigned on the giving and refusal of instructions, to wit: on the failure to give instructions with reference to threats made by the deceased against the defendant and with reference to the intoxication of the deceased. Also, on the court's failure to instruct on the question of whether defendant was acting to prevent the commission of a felony upon his companions. Defendant also complains of the giving of Instructions No. 1 and No. 2 because of the exclusion of the last mentioned matter from these instructions.
With these assignments in mind, we shall review the evidence and in doing so we shall consider the evidence in a light most favorable to the defendant-appellant in order to determine whether the evidence was sufficient to support and authorize instructions on the mentioned matters. State v. Stone, 354 Mo. 41, 188 S.W.2d 20, 22; Thurman v. St. Louis Public Service Co., Mo.Sup., 308 S.W.2d 680, 684; Rudin v. Moss, Mo.Sup., 349 S.W.2d 893, 894. That is, we must ascertain whether the record contains any competent substantial evidence on the mentioned matters and whether the court was requested to instruct thereon and whether the issues have been preserved for review. See State v. Murphy, 292 Mo. 275, 237 S.W. 529, 535; State v. Clinton, 278 Mo. 344, 213 S.W. 841, 843[7, 8]; State v. Baker, 262 Mo. 689, 172 S.W. 350, 353[2, 3]. Instructions must be based upon substantial evidence and the reasonable inferences to be drawn therefrom. State v. Bartlett, 359 Mo. 881, 224 S.W.2d 100, 103[4, 5].
The State produced and offered in evidence three statements taken from defendant while he was in the custody of the police officers, to-wit: a statement of defendant in his own handwriting reviewing the facts and circumstances attending the death of Rogers; a statement of defendant taken by the coroner of St. Louis County and reduced to writing; and the transcript of a statement given by defendant to Daniel V. O'Brien, a member of the prosecuting attorney's staff, which statement was taken on a tape recorder and then transcribed. Needless to say, these statements contained many admissions against interest, but in view of the issues presented on this appeal it will not be necessary to review either of these statements.
At the time of the alleged crime, the defendant was 20 years of age and weighed 175 pounds. He had graduated from high school and had attended Northeast Missouri State Teachers College at Kirksville for one year and Harris Teachers College in St. Louis for one semester, but he had dropped out of college in January 1961, to work for one semester, planning to return to college in September 1961. Back in 1956, when he was 15 years of age, he had been a Golden Gloves Champion. He had never been in any trouble 'with the law.' He lived with his parents in the City of St. Louis, and was employed at the Hi-Pointe Professional Pharmacy at the corner of Clayton and McCausland.
Willie Brown, a friend of defendant Cole, also lived in the City of St. Louis, and had also attended Northeast Missouri State Teachers College. Brown had been secretly married to Loresta Smith, who lived with her mother at 217 Euclid in Rock Hill, St. Louis County. She was attending the Kansas Neurological Institute.
One Janet Terry, a friend of Loresta Smith, lived down the street a short distance from the Smith home. John Henry Rogers, age 22 years, lived in the neighborhood of the Smith home and had been at the Smith home on countless occasions. On the evening of June 22, 1961, Janet Terry, who had dated Rogers, was visiting at the Smith home and had refused to see Rogers that evening. Janet Terry had with her as her guest one Johnnie Avery (a girl) from Chicago. Both girls spent the evening of June 22, 1961, visiting Loresta Smith.
The evidence tends to show that for some time there had existed some feeling by the local boys in the county against city boys who came out to visit girls in the county, and there was constant friction and tension between them. The evidence further shows that William Charles Hudson, who was with Rogers on the evening in question, was a known troublemaker.
Defendant Cole spent the evening of June 22, 1961, with Willie Clifton Brown and another friend, Stanley McKissic. McKissic also lived in the City of St. Louis, and was employed as a messenger boy for the Spielberg Manufacturing Company. He had also been a Golden Gloves Champion. At about midnight, Cole and McKissic went with Brown to visit Brown's wife in Rock Hill at the Smith home. They did not drink any alcohol that night, nor did they carry any weapons with them.
At the Smith home they are brownies, drank milk and played records for an hour or so. Also present was Ted Smith, a young brother of Brown's wife, and Mrs. Smith. One Herschell Turner, a nephew of Mrs. Smith, was also staying at the Smith home during vacation from Washburn College, Topeka, Kansas. He was working as a bus boy at Gaslight Square in St. Louis and, when he got off from work, all of the young people, except Brown and wife, drove into the city to pick him up and bring him home with them.
While defendant and the others had gone for Turner, Rogers and Hudson raced their automobile back and forth in front of the Smith home, drove into the driveway and out and made a lot of noise and talked loud. When Willie Brown went out to see them, they said they did not want anyone in the house, but as he re-entered the house, they yelled at him to give his name. Thereafter, Rogers and Hudson continued to drive into the driveway, back out and go back and forth in front of the Smith home, making a lot of noise. When the young folks returned with Turner, Brown told the defendant and the others about these fellows pulling into the driveway, cursing and making noise. Mrs. Smith then asked defendant Cole and his friend McKissic to take the visiting girls, Janet Terry and Johnnie Avery, to the Terry home about a block away and they proceeded to do so.
As the boys were returning to the Smith home, walking in the edge of the street, Rogers and his companion Hudson approached them, driving their automobile at a high rate of speed, but Cole and McKissic were able to get on the sidewalk and out of the way, and they continued walking toward the Smith home. Rogers and Hudson then stopped their car and after a few remarks, they got out of the car and 'asked what the so and so are we doing out there' and stopped them. Both Rogers and Hudson then started harassing Cole. Cole did not know either of the two men and the place where he had been stopped was very dark. Rogers and Hudson then began hitting, pushing, cursing and threatening Cole. Rogers and Hudson were both drunk and they concentrated their attention on Cole. In an effort to protect Cole, McKissic cut Rogers off from Cole and argued with him, because both men were after Cole. Cole and McKissic explained that they did not want to fight, but Rogers and Hudson persisted with threats, curses, pushing and blows. Hudson then obtained from his car trunk an automobile hood ornament with which he struck defendant Cole on the back and shoulder. As stated, the area was very dark and it was difficult for Cole to tell who was hitting whom, especially since Cole did not know either Rogers or Hudson.
Brown and Turner, at the Smith residence, heard the affray and ran to the scene. Turner announced that he was going to call the police and ran back to the Smith house. There he told Mrs. Smith to call the police, which she did. Neither Brown nor Turner had participated in the affray. Hudson, upon hearing Turner announce that he would call the police, cursed him and jumped into his car, called for Rogers to join him, but Rogers did not respond. Hudson then drove away.
At the Smith house, Turner obtained a knife from his own suitcase and returned to the scene of the affray, handing it to defendant Cole, so that Cole could defend himself. Cole had been backing up and had started to run. He had gone perhaps 15 feet when he met Turner and received the knife. He then rejoined the group arguing with Rogers. When Rogers saw Cole standing behind Brown, 'he ran down toward Cole and they collided.' Rogers was stabbed in the chest and fell back on the concrete and Cole fell in the street. Rogers did not get up and, when they saw blood on his shirt, the boys panicked and fled. Later, they called Mrs. Smith to learn that the police had arrived, pursuant to Mrs. Smith's call, and that an ambulance had arrived and removed Rogers. Rogers was pronounced dead upon arrival at the hospital.
Dr. John Poyner Wyatt, M.D., a pathologist and a witness for the State, performed a post-mortem examination on the body of John Henry Rogers. The knife wound had severed the aorta and the pulmonary arteries and passed through 'the base of the heart.' The witness had had the blood from Rogers' body analyzed for alcohol content and found '.20 grants of alcohol percent,' or '.05 grams percent' above what the 'National Security Council regulations' have fixed as a maximum above which an individual is not capable of operating a motor vehicle.
Appellant's first assignment, as stated, is that 'the trial court committed...
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