State v. Cox

• Decision Date: 11 December 1961
• Docket Number: No. 2,Nos. 48543,48542,s. 48543,2
• Citation: 352 S.W.2d 665
• Parties: STATE of Missouri, Respondent, v. James COX, alias John Cox, alias Sonny Man, and Robert Williams, alias Little Robert, Appellants
• Court: Missouri Supreme Court

Page 665

352 S.W.2d 665

STATE of Missouri, Respondent, v. James COX, alias John Cox, alias Sonny Man, and Robert Williams, alias Little Robert, Appellants.

Nos. 48543, 48542.

Supreme Court of Missouri, Division No. 2.

Dec. 11, 1961.

Rehearing Denied Jan. 8, 1962.

Raymond A. Bruntrager, St. Louis, for appellant Robert Williams.

Morris A. Shenker, Murry L. Randall, Lawrence J. Lee, St. Louis, for appellant Cox.

Thomas F. Eagleton, Atty. Gen., Dale Reesman, Sp. Asst. Atty. Gen., for respondent.

STORCKMAN, Judge.

Under a charge of murder in the first degree, the defendants were convicted of second degree murder. The jury assessed the punishment of the defendant Robert Williams at fifteen years in the penitentiary. The court found that the defendant James Cox had previously been convicted of a felony in the State of Missouri and assessed his punishment at imprisonment for a term of twenty years. Both defendants were represented by counsel of their own choosing at all proceedings in the trial court.

On appeal the defendant Cox is represented by counsel and has filed a brief. Since the defendant Williams has not filed an appellate brief, the review of his conviction will be upon the assignments of error properly preserved in his motion for a new trial and the essential portions of the record. S.Ct. Rules 27.20 and 28.02, V.A.M.R.; State v. Slicker, Mo., 342 S.W.2d 946, 947. The questions preserved for review by both defendants relate primarily to the correctness of the trial court's rulings in the giving of instructions, the admission of evidence and the state's argument to the jury.

The essential facts take a rather narrow range and the parties are in general agreement as to what the evidence tended to prove. At approximately 10 p. m. on November 19, 1959, Donnell Stewart was shot and killed in front of 2714 Cole Street in St. Louis, Missouri. His death resulted from a single bullet which passed through his body from front to rear piercing his heart. The principal actors in this tragedy were better known by their nicknames: Donnell Stewart, the deceased, was known as 'Duck'; the defendant Cox as 'Sonny Man'; and the defendant Williams as 'Little Robert'. Elliot Street runs north and south; the 900 block is only 232 feet long from curb to curb and does not run through, being bounded on the north by Cole Street and on the south by Franklin, both of which are east and west streets. A poolhall, located at 913 Elliot, is on the west side of the street. Seventy-three feet north of the door of the poolhall is a narrow onevehicle alley which extends west of Elliot Street about 120 feet to a point where it makes a right-angle turn north into Cole Street. 2714 Cole Street, in front of which the killing occurred, is just east of the Cole Street entrance to the alley. On the south side of Cole Street from the alley to Elliot is a solid row-type residence building.

The only eyewitness to the shooting who testified was Mrs. Jo Ann Lewis, the eighteen-year-old girl friend of Donnell 'Duck' Stewart. She had been living with him at his father's home for three or four months. On November 19, 1959, she worked for her sister as a baby sitter and Stewart spent the day with her. Mrs. Lewis testified substantially as follows: At about 6 p. m. on that day, a colored man named James, whom she had not known previously, picked her and Stewart up in an automobile and drove them to Cole and Leffingwell where they got out, intending to go to a movie in the 2700 block of Franklin about two blocks away. Mrs Lewis and Stewart walked east on Cole to Elliot, then south on Elliot. As they approached the poolhall, defendant 'Little Robert' Williams was standing in the doorway and the defendant 'Sonny Man' Cox was crossing Elliot Street from east to west carrying a gun in his hand. The defendant Cox approached Stewart saying he wanted to talk to him, and Stewart told Cox that he also wanted to talk to him. Stewart and Cox stood near the curb in front of the poolhall talking for about five minutes. Mrs. Lewis stood nearby but did not hear what was said. Part of the time she kept her hand in her coat pocket but neither she nor Stewart had a gun. Williams walked south toward Franklin. Stewart and Cox walked north on Elliot to Cole, then west on Cole and stopped in front of 2714 near a street light about an arm's length from each other. Mrs. Lewis followed them at a short distance and ascended to about the third of the four doorsteps leading to the entrance of 2714 Cole. She never at any time heard what Stewart and Cox said to each other. The defendant Cox continued to hold the gun in his hand. The defendant Williams approached on Cole Street from the east carrying a gun and fired a shot at her as she stood on the steps near the doorway causing her to fall, although she was not hit by the bullet. Immediately after defendant Williams shot at her and while she was lying on the step, the defendant Cox stepped back and shot Stewart. Mrs. Lewis further testified that she then ran into the alley followed by Williams who fired another shot and she fell against a post in the alley, but the bullet did not strike her. Williams overtook her, fired again the again missed her. He then struck her on the head with the gun. At this juncture defendant Cox entered the alley from Cole Street, came up to where defendant Williams was standing over her and said, 'Let's go, Little Robert, Duck is dead.' With that both Cox and Williams borke and ran out of the alley toward Elliot. Mrs. Lewis ran into Cole Street, looked at Strewart, then ran west to Leffingwell and called police officers.

At about 11 o'clock on the night of the shooting defendant Williams surrendered to the police and turned over to them an automatic pistol. In one of the yards adjoining the alley police officers found a nickle plated revolver and in the alley two spent shells and a bullet fired from Williams' automatic. A statement taken from Williams and a transcript of his testimony given in an assault trial on May 25, 1960, were admitted in evidence against the defendant Williams only.

The facts related by Williams on each occasion were generally the same and substantially as follows: Williams went to the poolhall at about 5:45 on that night of November 19, 1959, taking his gun with him. He hid the gun under some lumber in a yard about 25 feet from the poolroom where it remained until he retrieved it before going to Cole Street as hereinafter stated. At about 6:30 Williams was standing in the doorway of the poolroom when, according to his statement, this occurred: 'Duck Stewart and a girl whose name I don't know came up to this poolroom and asked me had I saw Sonny Man. I looked up and saw Sonny Man coming across the street and I said to Duck and the girl, 'Here he comes now.' Sonny Man said to Duck, ,'Get your hands out of your pocket.' Duck said something that I couldn't hear. Both Duck and Sonny Man pelled pistols and the girl had her hands in her coat pockets. Then Sonny Man and Duck started arguing and I walked up to them. Sonny Man told me to go back and Duck said, 'He is not goint to do anything.' The girl said, 'If he do, I will shoot him and anybody that moves.' I moved back. Then they walked up the street and around the corner of Cole and Elliot and I waited until they got around the corner and ran up to them, I yelled, 'Hold it, Duck, it don't make sense.' Then the girl yelled, 'Duck, he has got a pistol,' and he fired. When he fired, I fired one and I hit him and he fell. I aimed the pistol at the girl on the steps and tried to fire it but it didn't fire. She ran down the alley and I ran behind her and shot at her one or two times. She fell against a fence and a post and threw her hands up from her pockets and I hit her on the head with the pistol. Sonny Man then ran up through the alley and said, 'Come on, let's go.' We both ran down the alley to Jefferson and Cole and then we split up. I went home then.' Williams took his gun with him but later called the police and gave it to them when he was arrested. Williams' testimony at the assault trial was more detailed and he testified additionally that the gun which Stewart had was a nickle plated one; that he did not see Cox fire a shot; and that he, Williams, fired at Stewart because he was scared.

The first assignment of defendant Cox is that the trial court erred in giving and reading to the jury Instructions Nos. 1, 2, and 3, which allowed the jury to convict him as an 'aider and abetter' acting jointly or in concert with co-defendant Williams for the reason there was no evidence admitted against Cox to support a finding that he was an aider and abetter of co-defendant Williams in the killing of the deceased Stewart. This is followed by the further assignment that the court erred in fefusing to give an instruction on circumstantial evidence for the reason that all the evidence, if any, tending to show aiding and abetting was circumstantial evidence. With slight variations, the defendant Williams raises similar questions.

Was there direct evidence apart from the statements of the defendant Williams from which the jury could reasonably find that Cox aided and abetted the commission of the offense? We are convinced there was. The distinction between direct and circumstantial evidence is well stated in State v. Famber, 358 Mo. 288, 214 S.W.2d 40, 43, as follows: 'Direct evidence is said to be 'evidence which if believed proves the existence of the fact in issue without inference or presumption; while circumstantial evidence is evidence which, without going directly to prove the existence of a fact, gives rise to a logical inference that such fact does exist.'' See also State v. Varnon, Mo., 174 S.W.2d 146, 147, and State v. Hubbard, 351 Mo. 143, 171 S.W.2d 701, 704[1-3].

There was direct evidence of acts and declarations by the defendant Cox from which the jury could find that he aided and abetted the defendant Williams. Jo Ann...