State v. Cooley, 50663

• Decision Date: 08 March 1965
• Docket Number: No. 50663,No. 1,50663,1
• Citation: 387 S.W.2d 544
• Parties: STATE of Missouri, Respondent, v. Melvin COOLEY, Appellant
• Court: Missouri Supreme Court

Page 544

387 S.W.2d 544

STATE of Missouri, Respondent, v. Melvin COOLEY, Appellant.

No. 50663.

Supreme Court of Missouri, Division No. 1.

March 8, 1965.

Norman H. Anderson, Atty. Gen., O. Hampton Stevens, Asst. Atty., gen., Jefferson City, for respondent.

Morris M. Hatchett, St. Louis, for appellant.

HIGGINS, Commissioner.

An indictment charged that on July 4, 1963, Melvin Cooley and Robert Cooley feloniously, willfully, premeditatedly, on purpose, and of their malice aforethought, with a knife 'did strike, cut, stab, and wound' Odell Davis, inflicting a mortal wound from which he died on September 1, 1963. Melvin Cooley was granted severance and, upon trial, a jury found him guilty of manslaughter and assessed his punishment at ten years' imprisonment. Sections 559.070 and 559.140 RSMo.1959, V.A.M.S. The ensuing judgment and sentence commuted the punishment to a term of seven years. Supreme Court Rule 27.04, V.A.M.R.

Several of appellant's assignments of error have the effect of challenging the sufficiency of the evidence to support the instruction on manslaughter and the jury's verdict. Accordingly, the evidence will be stated in detail.

Ernest Melvin Garrett testified that he owned a full drink tavern, Tiajuana Lounge, at 2510 North Grand, on the corner of Grand and Montgomery Streets in St. Louis, Missouri. The tavern was approximately 100 feet long and 25 feet wide. On the evening of July 3, 1963, he was present as early as 8:30 P.M. The place was fairly crowded and a 'small combo' was providing music for dancing; tables were placed close together to provide more room. The Billups boys, Charles, Roosevelt, and James, were in a group of at least eight people which occupied a booth and a table pushed against it. One of the Billupses (Roosevelt), while leaving the booth, walked over the top of the table and caused a bottle of water to spill on a man at a neighboring table. This man stood up and asked if Billups was going to apologize. This brought the other Billupses to their feet and a conversation followed, during which 'I stepped up and told them if they was going to have an argument they would have to carry it outside.' Another man, Arnold Humphrey, stood up with the man upon whom the water had spilled. When Humphrey and the latter sat down, Charles Billups and Roosevelt Billups proceeded to the rear of the bar. Humphrey remained approximately 15 minutes. He and his party left, and he returned around midnight. At this time appellant came into the place with his brothers, Lawrence and Robert, and Davis (Jerry or James, as distinguished from Odell Davis) and Rice. Davis went to the bowling machine where the Billups boys were playing and asked to join them. Arnold Humphrey returned at this point. He walked up to Davis and asked for 'the thing,' 'a small automatic weapon.' He got it from Davis and walked back to the door. Davis then got into the bowling game and tendered a dollar bet, which one Leads Bounds covered. Davis lost and refused to pay. Humphrey reappeared, this time with Robert Rice. Delores Bounds, daughter of Leads, moved in and asked Davis to leave her father alone, at which time Humphrey and Rice moved up beside Davis around the bowling machine. Humphrey took Davis's part, saying, 'Yes, sir, he's not going to pay nobody a dime.' Jimmy Billups turned around and asked, 'What's the matter with you? You crazy?' As he turned, Humphrey pulled the pistol. Jimmy Billups 'charged' him and Humphrey shot up over his head. They started to struggle and the Cooley brothers came in. 'Everybody started to tussle and somebody * * * thumb-bolted the back door.' People 'was piling up at the door.' Odell Davis (the victim) had come in with the Billups boys but was not participating in the fight. 'He was standing by the bowling machine looking horrified.' 'Everybody kept saying that he was with them; they was after him. 'You better get out." He 'took off' for the front door and Melvin Cooley and Robert Cooley caught up with him at the front door. 'I seen one take him by each arm and smash him out into the walkway of the door. * * * I seen a knife. * * * In the hands of both of them. * * * They were cutting on him across the front.' He saw Melvin Cooley cut him in the stomach. Davis broke loose and ran on up the street. Then a Robert Moody broke and ran and everybody chased him up Montgomery. There were 25 or 30 people in the tavern when the fight started. The Cooleys were reputed to be local toughs.

Delores Bounds testified that she was present in the company of Jimmy Billups. About 12:30 she stepped outside and saw a white Oldsmobile car with six passengers drive into a filling station across the street from the Tiajuana. The six people jumped out 'all sides of the car,' and 'rushed into the tavern.' Appellant was one of them and she also saw Robert Rice, 'Two-Bucket' Curtis, Jerry Davis, Arnold Humphrey, and Willie Broeck. After the shot was fired she left with Jimmy Billups and his father, James, Sr., to take Jimmy to the hospital. Jimmy had a stab wound in his chest from which he died at the hospital. She said Garrett and Lawrence Cooley were fighting and she also saw Lawrence and Jimmy fighting. She did not see the incident between appellant and Odell Davis except to see appellant running up the street with others.

Lula Lowery, another daughter of Leads Bounds, left the tavern before any altercation involving her father, whom she described as drunk. Appellant was at the tavern when she left.

Patrolman Donald Swanson went to 3500 Montgomery at 1:31 A.M. in response to a radio call. He found a Thomas (Robert) Moody bleeding and sent him to the hospital by ambulance. He examined an automobile owned by James Billups, Sr., and found a .32-caliber revolver with three spent cartridges.

Patrolman Donald Preston testified that he saw a large pool of blood in the street at Grand and Montgomery and found a case knife, Exhibit 4, near the blood.

Charles Billups testified to his presence in the Tiaujuana with his wife, Lillie Rose. He did not see or have any fights; however, he said there was quite a bit of 'noise' around the bowling machine and that someone 'pushed' him as he tried to leave. He later found he had been cut (presumably when 'pushed') and he went with his brother to the hospital for treatment.

Tommy Moody testified to seeing all the above principals at the Tiajuana. Appellant and his group came in around 12 o'clock. In the course of the fight he got stabbed in the side and, as he left, hit with a bottle. He ran up Montgomery Street with six or eight people after him. He did not see the incident between appellant and Odell Davis.

Detective Joseph Harr testified that he arrived at 1:31 A.M. on July 4, 1963, and found blood in the driveway of the Shell station across the street from the Tiajuana. He also found fresh blood in front of 2546 North Grand and a trail of blood leading west across Grand through a parking lot next to 2517, on across a 12-foot cyclone fence at the back of the lot at 2517, and then back to the scene. He went to the hospital and found Odell Davis, the victim. He had been 'conveyed there by an unknown cruiser.' He arrested appellant on July 7 or 8.

Mrs. Tressie Orange was also a patron of the Tiajuana. She saw appellant that evening but saw no fighting before she left around 12:30 A.M.

Roosevelt Billups testified to his presence at the Tiajuana in the company of his brothers, Jimmy and Charles. He admitted being the person who spilled the water in the first incident of the evening. Later in the evening he saw a fight between Lawrence Cooley and his brother Jimmy in which he intervened to hit Lawrence with a bottle. He went outside following the scuffle, having been stabbed himself. He also had some words with Melvin Cooley but denied fighting with him. He saw Odell Davis in the bar but did not see the incident between Odell and Melvin.

Dr. John J. Thomas, a surgeon, testified that he was the pathologist for the coroner's office. He performed a post-mortem examination on the body of Odell Davis September 2, 1963, at 10 A.M. He found Odell Davis to be a colored male, 19 years old, 5 feet 6 inches tall, weighing about 110 pounds. The body showed marked nutritional deficti; he was small and skinny. There were old and recent healed postoperative incisions in the right rectus. There was an old midline postoperative scar healed at the distal end; the upper end had a large abscessed cavity and fistula connected with the abscess. Infection was coming from inside the abdomen. There were wounds where glucose, blood, medication and water had been fed to the patient. A large part of the large bowel had been removed and the small bowel was sewed to the remaining portion. The liver showed chronic acute inflammation with an abscess involving the left lobe containing foulsmelling pus. He stated the cause of death to be septicemia caused by the abscess of the liver and acute diffused peritonitis. He found no stab wounds but gave his opinion that the peritonitis could have resulted from stab wounds. He had not seen the patient prior to his examination but, from the history available, deemed the treatment evidenced by the wounds he saw to have been adequate and normal for one suffering stab wounds. '* * * he developed complications from his stab wounds, which necessitated the other * * * operations that he had.' He stated also that the condition he found was a complication of some type of trauma; that if the trauma was stab wounds they probably would be removed or cut through at the time of surgery.

Medical records from Homer G. Phillips Hospital, in evidence as Exhibit 5, showed that Odell Davis was admitted July 4, 1963, at 3 A.M. and that he remained in the hospital until he expired September 1, 1963, at 2:50 P.M.

Dr. Cecil Harold, a physician, testified that he was Chief Resident, General Surgery, at Homer G. Phillips Hospital. On July 4, 1963, at approximately one to two...