State v. Eiland

• Decision Date: 09 March 1976
• Docket Number: No. 36840,36840
• Citation: 534 S.W.2d 814
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Robert C. EILAND, Defendant-Appellant. . Louis District, Division Four
• Court: Missouri Court of Appeals

Page 814

534 S.W.2d 814

STATE of Missouri, Plaintiff-Respondent, v. Robert C. EILAND, Defendant-Appellant.

No. 36840.

Missouri Court of Appeals, St. Louis District, Division Four.

March 9, 1976.

Neal P. Murphy, Asst. Public Defender, James C. Jones, St. Louis, for defendant-appellant.

John C. Danforth, Atty. Gen., Preston Dean, Robert L. Presson, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.

NORWIN D. HOUSER, Special Judge.

Robert Eiland, charged with first degree murder of Jackie Jones and convicted of murder in the second degree, has appealed, challenging the sufficiency of the evidence to support the verdict.

At approximately 7 p.m. July 25, 1973, Jackie Jones, the 17-year-old victim, accompanied by her brother Otis Jones, age 16, and her boyfriend Richard Works, 24, arrived at 2020 East Grand in the City of St. Louis, where they went to Lorenzo Willims' upstairs apartment. Several others were playing cards. Jackie and Richard watched television. During the evening Otis went downstairs. There he observed appellant conversing with one Eddie Fleming and saw appellant hand Eddie a $10 bill. At about 11 p.m. appellant came upstairs to the doorway of Lorenzo's apartment and asked Richard if 'anything was happening.' Richard answered in the negative. Appellant went downstairs. Shortly thereafter Eddie Fleming got change for the $10 bill from Richard and proceeded to play cards with the others. Appellant returned to the apartment door, asked Richard if he knew a 'Tony' (evidently referring to Eddie Fleming). Richard answered in the negative. Appellant went downstairs to the street. Joseph Williams, who came to Lorenzo's apartment shortly after appellant's second departure from the apartment door, testified that appellant had said that 'if he don't get his money there's going to be some stuff.' Richard, Otis and Jackie, with two others, went downstairs to the steps in front of the building. Appellant, who was there, approached Richard and asked if 'Tony' had come up there with $10. Richard repeated that he did not know a 'Tony.' Appellant then got into the back seat of a white Oldsmobile automobile. The driver was a man. There was a woman passenger in the right front seat. The Oldsmobile pulled north on Grand, circled the water tower and came back south towards the place where Jackie and the others were standing in front of 2020 East Grand. When the automobile approached the place where the group was standing it slowed to 3--5 miles an hour and two shotgun shots were filed from the back seat of the Oldsmobile. The second shot struck Jackie Jones on the back of the head as she entered the building through the door. She died from the gunghot wound. Otis Jones testified that appellant fired the shot that killed Jackie Jones.

Otis Jones' testimony is challenged by appellant as conflicting and without probative value. Appellant notes these inconsistencies: that at trial Otis testified the shots were fired by appellant from the back seat of an Oldsmobile which had stopped about even with the steps where he, Jackie and another were standing, whereas he told police and grand jury the shots were fired from a Monte Carlo automobile which was moving at the time; that at trial Otis maintained he could identify appellant, seated in the back seat, and could identify the woman passenger on the other side of the driver, but could not see the driver 'too good,' although the driver was closer to Otis than the woman; that at trial Otis testified he was standing on the curb when the shots were fired but told the grand jury the second shot was fired when he started to run. Inconsistencies such as these affect the weight, not the admissibility or sufficiency, of the evidence. It is for the jury to determine whether the witness' testimony at trial is credible in the light of the inconsistencies. State v. Spinks, 344 Mo. 105, 125 S.W.2d 60 (1939); State v. Austin, 496 S.W.2d 799 (Mo. banc 1973), cert. den. 414 U.S. 1044, 94 S.Ct. 549, 38 L.Ed.2d 336; State v. Collins, 520 S.W.2d 155 (Mo.App.1975). Notwithstanding the inconsistencies there was eyewitness testimony that appellant fired the fatal shot and there was sufficient evidence to support the verdict of guilty.

Appellant contends that the court committed reversible error in permitting Richard Works to testify that Joseph Williams came up to the apartment between appellant's two appearances there and said 'that dude said if he don't get his money there's going to be some stuff.' Appellant brands this as clearly hearsay, says it was properly objected to, and claims it was not admissible under any exception to the hearsay rule. As pointed out by the Attorney General the error, if any, in admitting this hearsay evidence was not prejudicial under the rule laid down in Baker v. Woodbury, 492 S.W.2d 157(3) (Mo.App.1973), for the reason that the same facts had already been elicited in the course of cross-examination in the defense's attempt to impeach the State's star witness, Otis Jones, without any objection by appellant. The transcript, page 56, supports the State's contention. "One will not be heard to complain of the admission of testimony over his objection, where evidence of the same tenor has been admitted without his objection." Baker v. Woodbury, supra, 492 S.W.2d l.c. 159. Appellant seeks to invoke the plain error Rule 27.20(c), but '(i)n view of the fact that defense counsel had previously elicited such testimony * * * on cross-examination, we reject the suggestion that the matter should be considered under the plain error rule.' State v. Franklin, 448 S.W.2d 583, 584(3) (Mo.1970).

Appellant further contends that it was error to admit the following hearsay testimony, given by witness Richard Works:

'Q What did he (Eddie Fleming) tell you about the ten dollars?

'A He said didn't nobody give him no ten dollars and then he said, 'so what, you would have ripped him off too.' I said you're going to have to leave because you can't come up here and take nobody's momey and then I put him out the back door.'

Appellant did not object to this particular question or move for curative action after the answer given, and therefore no issue was preserved for appellate review.

Appellant has preserved for appellate review the question whether the court erred in failing to instruct the jury on manslaughter.

In instructing juries in homicide cases tried after March 1, 1975, additional instructions both on second degree murder and manslaughter must be given in all cases where the pleadings and evidence warrant the submission of first degree murder. See Notes on Use 6 under MAI-CR § 6.02. The notes on use, however, are prospective in application; do not apply to cases tried before that date. State v. Williams, 529 S.W.2d 883, 888 (Mo. banc 1975). And see State v. Mudgett, 531 S.W.2d 275 (Mo. banc 1975). This homicide and the trial of this case occurred prior to March 18 1975. The giving of a manslaughter instruction was not then automatic. Such an instruction was required only if there was evidence to support it. State v. Henderson, 510 S.W.2d 813, 823(17) (Mo.App.1974). Whether appellant was entitled to an instruction on manslaughter depended upon 'whether from the evidence introduced the jury could have found that he unjustifiably and inexcusably killed deceased without premeditation or malice,' State v. Anderson, 515 S.W.2d 534, 537 (Mo. banc 1974) ¹; whether there was an '* * * 'unjustifiable, inexcusable and intentional killing of a human being without deliberation, premeditation and malice.' State v. Stringer, 357 Mo. 978, 980, 211 S.W.2d 925, 927; V.A.M.S. § 559.070.' State v. Ayers, 470 S.W.2d 534, 536 (Mo. banc 1971).

Preliminarily we observe that this is a case of transferred intent, submitted on the theory that appellant caused the death of Jackie Jones in an attempt to take the life of Eddie Fleming. If appellant was not...