State v. Davis, No. 51527

CourtUnited States State Supreme Court of Missouri
Writing for the CourtEAGER
Citation400 S.W.2d 141
PartiesSTATE of Missouri, Respondent, v. Jasper Lee DAVIS, Jr., Appellant
Decision Date14 February 1966
Docket NumberNo. 51527,No. 2

Page 141

400 S.W.2d 141
STATE of Missouri, Respondent,
v.
Jasper Lee DAVIS, Jr., Appellant.
No. 51527.
Supreme Court of Missouri, Division No. 2.
Feb. 14, 1966.
Motion for Rehearing or for Transfer to Court En Banc Denied
March 14, 1966.

Page 143

Norman H. Anderson, Atty. Gen., Jefferson City, Edward P. McSweeney, Sp. Asst. Atty. Gen., Clayton, for respondent.

Norman S. London, St. Louis, for appellant.

EAGER, Presiding Judge.

Defendant was found guilty by a jury of first degree murder and the jury imposed a life sentence. The charge arose from an indictment. For some months prior to trial

Page 144

and at the trial defendant was represented by an attorney privately employed; he had previously had other counsel, presumably appointed, who was permitted to withdraw. Counsel filed a motion for new trial containing 47 assignments of supposed error, but has chosen not to brief the case here. We shall consider on the merits those which are sufficient under Criminal Rule 27.20. Many of these do not set forth with particularity any specific grounds or causes for a new trial and they will be disregarded; this includes assignments 1--10, inclusive, and 45. We have explained so many times the requirements of this rule that we shall not lengthen this opinion further by quoting or describing these assignments. After the overruling of that motion defendant was permitted to appeal as a poor person. Where assignments of a like nature may be discussed as a group, we shall follow that method.

The first group of appropriate assignments contests the sufficiency of the evidence to establish (1) first degree murder, and (2) second degree murder. It will therefore be necessary to recite the evidence in some detail.

Six or seven students of St. Louis University had attended a night baseball game at Busch Stadium in St. Louis on April 22, 1964; they sat in two groups, but met after the game and waited a short time for the crowd to thin out. These boys were approximately 20 years of age, some a little more, some less. One John Lough was to furnish transportation home with his father's car, and they all walked to a parking lot on Grand Boulevard about two blocks from the Stadium. After they drove on to Grand and proceeded a very short distance in bumper to bumper traffic, Lough found it necessary to get out to urinate. One of the others took the wheel, assuming that in such traffic Lough would overtake them. He did not come back immediately and, after proceeding a short distance, the boys turned and drove back; two or three got out briefly to look for him, but soon returned and all drove south again. At the Washington intersection James Ready, the decedent in this case, and James Richard Caccamo got out again and started walking back north on the east side of Grand to look for Lough. From this point on we confine our recital to the specific circumstances of this crime, and the facts which follow are those which the jury could reasonably have found. These two boys were wearing khaki trousers, sport shirts, St. Louis University jackets and no hats. They crossed Franklin and were approaching Bell, proceeding along a space where there was broken sidewalk, an old building and a vacant lot. They saw a group of Negro youths coming toward them, probably 12 or 15, and they moved over to the inside of the walk, walking with their heads inclined downward; they said nothing and they had nothing in their hands. (The racial designations of the different participants are noted throughout the transcript, and were in some particulars material.) As the Negro group approached Ready and Caccamo, one of the group, either Johnny Mason or a boy named Simmons, said 'Let's off these white dudes,' which, as translated, means to hit them or beat them up. As Johnny Mason reached Caccamo, he struck the latter on the side of the face or head with his fist knocking him down, and two others of the group kicked the fallen man in the head as he lay there. Ready, in the meantime, had walked or run ahead a very short distance, but he looked back, saw what had gone on, and came back 'swinging,' as one or more described the scene. He obviously attacked Mason with his fists; some of the others had moved away, but defendant Davis remained very close to the combatants and was hit by a hand or fist, presumably Ready's. Davis, who testified, did not know himself whether the blow was intended for him or not, but he said that he was knocked down; another member of the Negro group, Calhoun, testified that Davis was struck when Mason 'weaved' and thus avoided a blow. Davis, while he was down or partially down, pulled his knife from his jacket pocket, opened it with one hand and thumb, arose, and after being on his feet (as

Page 145

he described it) for two or three seconds, stabbed Ready in the chest severing a coronary artery. Mason, who testified during the State's case but no enthusiastically, stated that he saw Davis (defendant) fall and then saw him jump up and start swinging at Ready, striking him in the chest area, but that he saw nothing in defendant's hand at the time. Calhoun, another of the group, saw Davis take the knife from his pocket, saw the knife in his hand, and saw that he (defendant) 'brung it up and struck the boy somewhere in his chest.' Davis himself testified that Ready (supposedly somewhat larger than he was, but totally unarmed) had started towards him and that he thought that Ready was going to 'harm' him or 'kill' him. No one else testified to similar facts, although three of his group testified for the State. After the stabbing Davis became scared and ran, pursuing a devious course to his home and dropping the knife on the way. It is thus seen that the killing was admitted by the defendant in his trial testimony. Caccamo testified that he and Ready did not touch any of the other group as they passed.

Caccamo eventually got to his feet, saw Ready staggering, saw him fall, tried to assist him and saw him take two deep 'gasps of air,' and then called for help. He was carried across the street to the Veterans' Hospital where he was pronounced dead. There was much testimony concerning the activities of various members of this group on that evening and prior to this occurrence, but nothing of sufficient materiality was developed to require discussion. There were four character witnesses for defendant. Additional phases of the evidence will be referred to as necessary in discussing specific assignments of error.

We first consider the sufficiency of the evidence to sustain a conviction for first degree murder. The basic statutory requirements are willfulness, deliberation and premeditation. Section 559.010, RSMo 1959, V.A.M.S. (All statutory references will be to that revision.) The distinction between first and second degree murder lies in the existence or nonexistence of deliberation. State v. Goodwin, Mo., 352 S.W.2d 614. The willfulness, deliberation and premeditation required for a conviction of first degree murder may all be inferred from and established by the circumstances attending a homicide. State v. Thompson, Mo., 363 S.W.2d 711; State v. McCracken, 341 Mo. 697, 108 S.W.2d 372; State v. Small, Mo., 344 S.W.2d 49; State v. Johnson, 362 Mo. 833, 245 S.W.2d 43; State v. Williams, Mo., 369 S.W.2d 408. Thus, while a presumption of second degree murder arises from an intentional killing with a deadly weapon, used upon a vital part of the body, with nothing more appearing, State v. Small, supra; State v. Goodwin, supra; State v. McCracken, supra, the further element of deliberation may be inferred from the circumstances. Small, McCracken, Thompson. Malice is, of course, presumed or implied by the law in every unlawful killing. State v. Dunn, 18 Mo. 419; State v. Holme, 54 Mo. 153; State v. Johnson, 362 Mo. 833, 245 S.W.2d 43. The term 'deliberation' has been defined many times and its meaning has not been changed over the years. In State v. Holme, 54 Mo. 153, an instruction was approved which told the jury that: '* * * if the party killing had time to think, and did intend to kill, for a moment as well as an hour or a day, then such killing is deliberate, willful, and premeditated killing, * * *.' And as early as State v. Dunn, 18 Mo. 419, the Court said, loc. cit. 424: 'If the party killing had time to think, and did intend to kill, for a minute as well as an hour or a day, it is a deliberate, wilful and premeditated killing, constituting murder in the first degree.' Many of the cases require that the act, in order to constitute a deliberate killing, must be done in the 'cool of the blood,' but require no extended time for the deliberation. State v. Davis, 226 Mo. 493, 126 S.W. 470; State v. Bobbst, 269 Mo. 214, 190 S.W. 257; State v. McCracken, supra; State v. Small, Mo., 344 S.W.2d 49; State v. Jones, 64 Mo. 391. In State v. Davis, supra, the Court approved the following as a correct definition of deliberation,

Page 146

126 S.W. loc. cit. 477: '* * * 'it does not mean brooded over or reflected upon for a week or a day or an hour; but it means a conscious purpose to kill, formed in a cool state of blood, and not under violent passion suddenly aroused by some real or supposed grievance. '' In State v. McDaniel, 94 Mo. 301, 7 S.W. 634, the Court said at 7 S.W., loc. cit. 636, that deliberation: '* * * is defined to 'mean in a cool state of the blood, as opposed to a heated state; and in deliberating there need be no appreciable space of time between the intention to kill and the act of killing. They may be as instantaneous as successive thoughts of the mind.' The terms cool and heated state of the blood are not used in any technical sense. They indicate clearly enough that the killing must have been done, not from passion, but from the 'free act of the will,' and if so done, the act was done with deliberation, though the act had not been brooded over or reflected upon.' The matter is extensively discussed in State v. Speyer, 207...

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28 practice notes
  • State v. Smart, No. 57293
    • United States
    • United States State Supreme Court of Missouri
    • 11 September 1972
    ...under consideration, inasmuch as deliberation is the element which distinguishes first and second degree murder. State v. Davis, Mo.Sup., 400 S.W.2d 141, Under the old instruction employing the term 'premeditatedly' the court was obliged also to define the term for the benefit of the jury. ......
  • Security Ins. Co. of Hartford v. Owen, No. 73--101
    • United States
    • Supreme Court of Arkansas
    • 19 November 1973
    ...1968), cert. denied, 391 U.S. 907, 88 S.Ct. 1658, 20 L.Ed.2d 421; State v. Hutnik, 39 Wis.2d 754, 159 N.W.2d 733 (1968); State v. Davis, 400 S.W.2d 141 (Mo.1966), cert. denied, 385 U.S. 872, 87 S.Ct. 142, 17 L.Ed.2d 99; Fox v. Schaeffer, 131 Conn. 439, 41 A.2d 46, 157 A.L.R. 132 The questio......
  • State v. Seals, No. 57978
    • United States
    • Missouri Supreme Court
    • 14 October 1974
    ...cites State v. Snow, 293 Mo. 143, 238 S.W. 1069 (1922) as evidencing this distinction, but there are many later cases. State v. Davis, 400 S.W.2d 141 (Mo.1966); State v. Davis, 472 S.W.2d 389 (Mo.1971); State v. Clark, 494 S.W.2d 26 (Mo.banc 1973); State v. Smart, 485 S.W.2d 90 (Mo.1972). T......
  • State v. Lindsey, No. 57404
    • United States
    • Missouri Supreme Court
    • 11 March 1974
    ...and it is presence or absence of deliberation which marks the distinction between first and second degree murder. State v. Davis, 400 S.W.2d 141, 145 (Mo.1966). Since there is nothing in this record from which we can determine whether the jury convicted appellant under correct Instruction N......
  • Request a trial to view additional results
28 cases
  • State v. Smart, No. 57293
    • United States
    • United States State Supreme Court of Missouri
    • 11 September 1972
    ...under consideration, inasmuch as deliberation is the element which distinguishes first and second degree murder. State v. Davis, Mo.Sup., 400 S.W.2d 141, Under the old instruction employing the term 'premeditatedly' the court was obliged also to define the term for the benefit of the jury. ......
  • Security Ins. Co. of Hartford v. Owen, No. 73--101
    • United States
    • Supreme Court of Arkansas
    • 19 November 1973
    ...1968), cert. denied, 391 U.S. 907, 88 S.Ct. 1658, 20 L.Ed.2d 421; State v. Hutnik, 39 Wis.2d 754, 159 N.W.2d 733 (1968); State v. Davis, 400 S.W.2d 141 (Mo.1966), cert. denied, 385 U.S. 872, 87 S.Ct. 142, 17 L.Ed.2d 99; Fox v. Schaeffer, 131 Conn. 439, 41 A.2d 46, 157 A.L.R. 132 The questio......
  • State v. Seals, No. 57978
    • United States
    • Missouri Supreme Court
    • 14 October 1974
    ...cites State v. Snow, 293 Mo. 143, 238 S.W. 1069 (1922) as evidencing this distinction, but there are many later cases. State v. Davis, 400 S.W.2d 141 (Mo.1966); State v. Davis, 472 S.W.2d 389 (Mo.1971); State v. Clark, 494 S.W.2d 26 (Mo.banc 1973); State v. Smart, 485 S.W.2d 90 (Mo.1972). T......
  • State v. Lindsey, No. 57404
    • United States
    • Missouri Supreme Court
    • 11 March 1974
    ...and it is presence or absence of deliberation which marks the distinction between first and second degree murder. State v. Davis, 400 S.W.2d 141, 145 (Mo.1966). Since there is nothing in this record from which we can determine whether the jury convicted appellant under correct Instruction N......
  • Request a trial to view additional results

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