State v. Holmes

• Decision Date: 12 November 1980
• Docket Number: No. 61437,61437
• Citation: 609 S.W.2d 132
• Parties: STATE of Missouri, Respondent, v. Roderick HOLMES, Appellant.
• Court: Missouri Supreme Court

Page 132

609 S.W.2d 132

STATE of Missouri, Respondent, v. Roderick HOLMES, Appellant.

No. 61437.

Supreme Court of Missouri, En Banc.

Nov. 12, 1980 As Modified On Court's Own Motion Dec. 15, 1980.

David V. Bear, Bear, Hines & Thomas, Columbia, for appellant.

John Ashcroft, Atty. Gen., Nancy D. Kelley, Asst. Atty. Gen., Jefferson City, for respondent.

ALDEN A. STOCKARD, Special Judge.

Appellant was found guilty by a jury of capital murder and sentenced to imprisonment for life. He has appealed from the ensuing judgment.

Appellant does not challenge the sufficiency of the evidence. It is sufficient to state that a jury reasonably could find from the evidence that on June 24, 1978 appellant caused the death of Glenn Chambers, age 16, by inflicting multiple stab wounds.

On August 3, 1978 the grand jury of Audrain County, Missouri, returned an indictment charging appellant with murder. What was then Rule 24.01 provided that the indictment should state on its face "the section of the Revised Statutes of Missouri which proscribe the conduct charged, the section of the statutes which fixes the penalty or punishment therefor, and the name and degree, if any, of the offense." Pursuant to this requirement the following was set forth on the upper right hand corner of the indictment: "Murder, 1st degree, section 559.010 Penalty: life imprisonment, section 559.010." However, prior to the date of the commission of the alleged offense § 559.010, which defined conventional murder in the first degree, had been repealed.

A substitute information in lieu of indictment was filed. ¹ Appellant does not contend that it does not charge him with capital murder in violation of 565.001 RSMo 1978, which was in effect on the date of the alleged murder of Glenn Chambers.

Appellant asserts in his first point that the indictment charged him with "murder in the first degree under § 559.010 RSMo 1969, which was repealed * * * (and) not in effect at the time the offense was allegedly committed," and for that reason the trial court erred in permitting the State "to substitute an information charging defendant with capital murder * * * and proceed to trial thereon without granting (appellant) a preliminary hearing," because as appellant asserts, "the substitute information charged an offense different (from) that originally charged."

In State v. Jackson, 594 S.W.2d 623, 624 (Mo.1980), it was ruled that "the erroneous citation of the statute (which proscribed the conduct charged) did not render the indictment * * * a nullity and the correction by way of substitute information was properly allowed." See also State v. Higgins, 592 S.W.2d 151, 162 (Mo. banc 1979). Therefore, if as required by then Rule 24.01 the allegations of the indictment contained "a plain, concise and definite written statement of the essential facts constituting" capital murder, as defined in § 565.001 RSMo 1978, the indictment was not a nullity, and the filing of a substitute information which charged the offense of capital murder was permissible.

Section 565.001 RSMo 1978 provides that "Any person who unlawfully, willfully, knowingly, deliberately, and with premeditation kills or causes the killing of another human is guilty of the offense of capital murder." The indictment charged that appellant "feloniously, willfully, premeditatedly, deliberately, on purpose, and of his malice aforethought, and after considering and reflecting on this matter fully and coolly, did make an assault upon Glenn Chambers, with a certain unknown instrument, and then and there intentionally caused the death of Glenn Chambers by stabbing him, and (appellant) intended to take the life of Glenn Chambers and reflected upon this matter coolly and fully before stabbing him * * *." It is readily apparent that every "essential fact" in the statutory definition of capital murder is contained in the indictment except the allegation that appellant "knowingly" killed or caused the death of Glenn Chambers.

In State v. Simone, 416 S.W.2d 96, 98 (Mo.1967), it was stated that "Where a statute defines the criminal offense and sets forth all of its elements, the better practice is for the indictment to follow the language of the statute, but an indictment will not be held insufficient for failure to do so if words of similar import are employed." See also State v. Harris, 313 S.W.2d 664 (Mo.1958). Although the indictment in this case did not specifically allege that appellant "knowingly" killed or caused the killing of Glenn Chambers, it did allege that he "willfully" made an assault on Glenn Chambers and that he "intentionally" and "on purpose" caused his death. In State v. Marston, 479 S.W.2d 481 (Mo.1972), this court considered the meaning of the word "willfully," and noted that in State v. Stogsdill, 324 Mo. 105, 23 S.W.2d 22 (1929), and in State v. Edwards, 435 S.W.2d 1 (Mo.1968) it was held to mean "intentionally" and not "accidentally." In State v. Foster, 355 Mo. 577, 197 S.W.2d 313, 321 (1946) it was stated that "The word 'wilfully' has often been defined in this State and elsewhere as meaning 'intentionally' or 'knowingly' in defining a criminal offense." See also State v. Shuler, 486 S.W.2d 505, 509 (Mo.1972); and State v. Brown, 445 S.W.2d 647 (Mo.App.1969).

One cannot do an act "on purpose" without doing it "knowingly," and it is done "knowingly" when it is done "intentionally" or "wilfully." While the indictment did not use the word "knowingly," it did use words having similar import and supplying the same meaning. The indictment was sufficient to charge appellant with capital murder, and since the substitute information in lieu of indictment admittedly charged appellant with capital murder, it did not charge a new offense or an offense different from that charged in the indictment.

Appellant's second point is based on the assumption that the indictment failed to state a charge and was a nullity. He asserts that if that were so then the substitute information was in fact the first "accusatory pleading," and he was tried without being afforded a preliminary hearing.

We have held that the indictment did state a charge of capital murder, and that the substitution of the information did not charge an additional or different offense. Rule 23.02, then in effect, provided that "No preliminary examination shall be required where an information has been substituted for an indictment." See also Boykins v. State, 566 S.W.2d 509 (Mo.App.1978). There is no merit to appellant's second point.

Appellant next asserts that the trial court erred when it admitted in evidence "a paper machEe mannequin into which sixty-four holes were drilled and inserted into each hole a red plastic pin to indicate the location of the stab wounds on the body of the deceased, as the mannequin was highly inflammatory, had no evidentiary value, and its only function was to unfairly prejudice the jury."

The mannequin, Exhibit No. 4, has been deposited with this court. However, the plastic pins had been removed, and apparently are not now available. Other plastic pins have been submitted and by affidavit it is stated that they are "substantially identical." Exhibit No. 4, is a headless and armless paper machEe form of the human torso. It appears to be the type that is frequently used to display men's shirts. Prior to trial appellant asked for and was granted a protective order that the mannequin not be displayed to the jury "until it is admitted" in evidence.

Dr. John M. Boyce, a pathologist who performed an autopsy on the body of Glenn Chambers, testified that there were multiple small holes in the body, that he and a police officer had prepared Exhibit No. 4, and that it accurately and fairly depicted the location and number of wounds that he was able to identify on the torso of Glenn Chambers at the time of the autopsy. When Exhibit No. 4 was offered in evidence the trial court left the bench to make an examination of the exhibit in camera before ruling.

Appellant argues that "the cause of death was not disputed," and he cites State v. Mucie, 448 S.W.2d 879, 887 (Mo.1979), and quotes therefrom the general statement that, "it is error to admit evidence of an inflammatory nature if it does not reasonably tend to prove or disprove a disputed fact issue." In support of his contention appellant refers to the comment of his counsel made to the court when objecting to the admission in evidence of the Exhibit No. 4 that, "There is no issue about where they (the stab wounds) were located. They were fatal. There is no issue about that. There is absolutely no issue about the fact that Glenn Chambers was killed as a result of these wounds and that they were numerous and multiple."

Appellant entered a plea of not guilty, and the State therefore had the burden of convincing the jury beyond a reasonable doubt as to each and every element of the charged offense, State v. Mullen, 528 S.W.2d 517 (Mo.App.1975), which in this case included the fact that Glenn Chambers died as the result of multiple stab wounds which were inflicted by appellant. See State v. Love, 546 S.W.2d 441, 452 (Mo.App.1976). The State also had the burden to prove the alleged intent with which the wounds were inflicted. Appellant may have told the court that no issue of fact existed, but the court was not the trier of the facts, and "The right of the state to offer, and to have received, evidence which is relevant and material to the issue cannot be taken away by an offer for stipulation or by an admission." State v. Townes, 522 S.W.2d 22, 25 (Mo.App.1974). See also State v. Denmon, 473 S.W.2d 741 (Mo.1971).

As noted the trial court viewed Exhibit No. 4 before it was shown to the jury, and because of the superior vantage point occupied by the trial court for balancing the probative value and prejudicial effect of demonstrative evidence of this type it necessarily is vested with a broad discretion in admitting or rejecting such evidence. State v. Love, supra...