State v. Covington, 10622

Decision Date16 November 1977
Docket NumberNo. 10622,10622
Citation559 S.W.2d 78
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Tommy Lee COVINGTON, Defendant-Appellant.
CourtMissouri Court of Appeals

John D. Ashcroft, Atty. Gen., Paul Robert Otto, Robert L. Presson, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.

Arthur T. Stephenson, Caruthersville, for defendant-appellant.

Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.

TITUS, Judge.

Tommy Lee Covington (hereinafter defendant) was jury-convicted of second degree murder in the killing of Robert Thompson on August 20, 1976, at Caruthersville. In accordance with the verdict, defendant was sentenced to 15 years' imprisonment.

The sole point relied on is: "The court erred in not sustaining the Appellant's Motion (for judgment of acquittal) at the close of the State's case for the reason that the State had failed to show the cause of death of the deceased and in so doing had failed in establishing a corpus delicti." (Our emphasis).

Defendant offered evidence in his own behalf after the state had rested its case. By so doing, defendant waived any objection to the overruling of his motion for judgment of acquittal at the close of the state's case. State v. Parcel, 546 S.W.2d 571, 573(3) (Mo.App.1977). Nevertheless, if no submissible case was made for the reason there was insufficient proof of the corpus delicti, then plain error affecting a substantial right is involved from which manifest injustice must have resulted. State v. Alderman, 500 S.W.2d 35, 36(1) (Mo.App.1973). Therefore, we will review the point under Rule 27.20(c), V.A.M.R.

Relative to the single issue involved, the evidence showed this: On the date of his death, Thompson was 28 years of age and weighed 185 pounds. He had once served in the U.S. Navy, was employed as a heavy equipment operator and had been "working regularly . . . every day." Depending on whose testimony the jury believed, defendant went to Thompson's home on the night in question at "around eight-thirty nine" or "nine-thirty, or something to ten." Thompson went outside to talk with defendant. Mrs. Thompson, who remained inside the house, overheard Thompson and defendant arguing for "ten or twelve minutes" before she heard "sort of a scuffle" and then one shot. She immediately summoned a Hayti ambulance by telephone and went outside to where Thompson was "laying (sic) on the grass" complaining of being "real hot" and later saying that "he couldn't feel anything." A police officer arrived and Thompson told the officer defendant had shot him. When the officer asked "Why," Thompson said, "I don't know. I'm dying." En route to a Hayti hospital in the ambulance, Thompson was unconscious but breathing. He expired after reaching the hospital. Mrs. Thompson testified her husband had not been drinking.

The county coroner cursorily examined Thompson's dead body at the hospital morgue "around ten-fifteen or ten-thirty that night." Thompson had been shot once in the left chest, "just about where your shirt pocket would be." Defendant admitted he shot him with a .41 caliber Army Colt revolver which defendant's lawyer gave to the sheriff's dispatcher two days later. The coroner did not probe the gunshot wound. There was no evidence of an autopsy. When asked his opinion as to the cause of death, the coroner's unobjected-to answer was, "It would be death due to gunshot wound."

In homicide, the corpus delicti consists of two elements: (1) the death of the person alleged to have been killed, and (2) the criminal agency of someone other than the deceased having caused the death. State v. Lusk, 452 S.W.2d 219, 221(1) (Mo.1970). Existence of the first element, as stated in defendant's brief, "is a foregone fact." Defendant asseverates, however, that the second element was not satisfactorily proved because the state did not present any expert testimony as to the cause of Thompson's death. Ignoring the coroner's unobjected-to opinion as to the cause of death, defendant iterates that no autopsy was performed and that the coroner did not probe the wound to determine its depth or the path of the bullet. From this he argues that a single...

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5 cases
  • State v. Haslip, 10623
    • United States
    • Missouri Court of Appeals
    • June 4, 1979
    ...complains in one of his points relied on, if the state failed to make a submissible case, then plain error resulted. State v. Covington, 559 S.W.2d 78, 79(1) (Mo.App.1977). Therefore, we will review that point premised upon appellate rules that the evidence is to be viewed in the light most......
  • Covington v. State, 11374
    • United States
    • Missouri Court of Appeals
    • May 19, 1980
    ...Appellant was charged with first degree murder and convicted of second degree murder. That conviction was affirmed in State v. Covington, 559 S.W.2d 78 (Mo.App.1977). Appellant then filed a motion to set aside his conviction and vacate the sentence. The judge who presided at the previous tr......
  • State v. Douglas, KCD
    • United States
    • Missouri Court of Appeals
    • October 30, 1978
    ...State v. White, 439 S.W.2d 752, 753(1-2) (Mo.1969); State v. Asberry, 559 S.W.2d 764, 768(5) (Mo.App.1977); and State v. Covington, 559 S.W.2d 78, 79(1) (Mo.App.1977). The victim of the robbery, Charles Gersh, was visiting in Columbia, Missouri, where he met appellant in a bar. Appellant in......
  • State v. Ricks, 12694
    • United States
    • Missouri Court of Appeals
    • November 12, 1982
    ...in evidence are such that every person of average intelligence would know that the wound was mortal in character. Id. State v. Covington, 559 S.W.2d 78, 80 (Mo.App.1977). Even though Johnny may have consumed large amounts of alcohol and drugs, he was able to converse with defendant and eith......
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