State v. Goforth, No. 35738

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: STEWART; CLEMENS, P.J., and KELLY
• Citation: 535 S.W.2d 464
• Docket Number: No. 35738
• Decision Date: 24 February 1976
• Parties: STATE of Missouri, Plaintiff-Respondent, v. James William GOFORTH, Defendant-Appellant. . Louis District, Division Two

Page 464

535 S.W.2d 464 STATE of Missouri, Plaintiff-Respondent,
v.
James William GOFORTH, Defendant-Appellant. No. 35738. Missouri Court of Appeals, St. Louis District, Division Two. Feb. 24, 1976.
Motion for Rehearing or Transfer Denied April 13, 1976.

Page 465

Brunson Hollingsworth, Hollingsworth & Williams, Robert M. Sears, Hillsboro, for defendant-appellant.

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John C. Danforth, Atty. Gen., Preston Dean, Philip M. Koppe, Robert L. Presson, Asst. Attys. Gen., Jefferson City, Hugh Roberts, Pros. Atty., Farmington, Charles A. Weber, Pros. Atty., Ste. Genevieve, for plaintiff-respondent.

STEWART, Judge.

James William Goforth, defendant, was found guilty of murder in the second degree. The jury was unable to agree on punishment. The court sentenced defendant to thirty years imprisonment. We affirm.

Defendant complains of the trial court's failure to sustain defendant's motion for judgment of acquittal at the close of the State's case and also its failure to sustain the motion for acquittal at the close of defendant's case. Defendant argues that the State did not establish the corpus delicti and the criminal agency. The other issues urged by defendant are concerned with sentencing procedure.

Any claim of error with respect to the motion for judgment of acquittal at the close of the State's case was waived when defendant chose not to stand on his motion and offered evidence in his own behalf after the motion was denied. State v. Turnbough, 497 S.W.2d 856, 858(1) (Mo.App.1973).

Defendant has preserved for our review the question of whether there was sufficient substantial evidence to warrant the submission of the case to a jury. In making this determination the facts in evidence and the favorable inferences reasonably drawn therefrom must be considered in the light most favorable to the State and all evidence and inferences to the contrary must be disregarded. We do not consider defendant's evidence except where it is favorable to the finding of the jury. State v. Johnson, 447 S.W.2d 285, 287(2) (Mo.1969).

Having these principles in mind the jury could have found that Ron Hulvey, Dale Bader and defendant were riding around Festus, Missouri, in Hulvey's black 1963 Cadillac on the afternoon of October 27, 1972. Since defendant had said that he had to see someone in Farmington, Missouri, the three drove to that city. After arriving in Farmington they stopped at a fast food stand where defendant sought information concerning three individuals. He received directions to the home of one of the persons about whom he had inquired, John Hunt. At that time defendant was carrying a pistol in his hip pocket. After leaving the food stand, the three stopped near the Canary Bar and defendant went inside alone. At that time defendant was carrying the gun in his belt on the left side. He went up to the bar and ordered a beer. Frank, Somogyi, the bartender, asked to see defendant's identification. While Somogyi was examining defendant's cards Homer McClaskey, who was described as 'always happy-go-lucky', approached Somogyi and told him that he should 'check him good, I'm with the F.B.I.'. He was not with the F.B.I. Somogyi told McClaskey to go sit down and he returned to his seat. There was no trouble between McClaskey and defendant inside the bar.

Defendant was served a beer and began drinking it. A few minutes after returning to his seat, McClaskey got up and left the bar. Defendant, who had not finished his beer, left a few seconds after McClaskey. McClaskey's car was parked across the street, at about a 45 angle from the tavern. He had gone about forty feet into the street in the direction of his car when he suddenly turned and came back to defendant who was standing just outside the door of the bar. The jury could have inferred that McClaskey's return was in response to a request on the part of the defendant. They stood 1 1/2 to 2 feet apart. After 'just talking' for a little more than a minute, during which time neither man touched the other, defendant shot McClaskey. No one had heard the conversation. McClaskey died a short time later as a result of the gun shot wound.

After the shooting defendant ran to Hulvey's car, pointed a gun at Hulvey, who was driving, and told him to get out of there. He also told Hulvey and Bader that if they

Page 467

testified against him he would 'get' them. Before the car was stopped by the police, defendant threw the pistol out the window of the moving vehicle.

Murder in the second degree is the willful, premeditated killing of a human being with malice aforethought but without deliberation. § 559.020. ¹ The requisite malice may be presumed from an intentional killing. 'And, an assault with a deadly weapon used in such a way as will naturally, probably or reasonably produce death or jeopardize life, gives rise to the presumption of itnent to kill.' State v. Sherrill, 496 S.W.2d 321, 324 (Mo.App.1973). Evidence of acts, conduct, and declarations of the accused, including flight and attempts to conceal the crime, while not sufficient in themselves, are considerations tending to show a consciousness of guilt, and may be considered by the triers of the facts. State v. Simmons, 494 S.W.2d 302 (Mo.1973).

This case does not present a situation where the evidence 'tells only one story' indicating the innocence of the accused. State v. Rash, 359 Mo. 215, 221 S.W.2d 124, 126 (1949). There was conflicting testimony as to whether McClaskey gave Goforth cause to fear injury or death. Defendant did testify that he was being choked by the deceased. Some of the witnesses called on behalf of the State testified that the two were 'kind a fighting' outside the bar, others said they were not. The State vouches for the credibility of its witnesses and is bound by uncontradicted evidence it introduces even if adverse. However, it is not precluded from...