State v. Jackson

• Decision Date: 11 June 1973
• Docket Number: No. 56574,56574
• Citation: 496 S.W.2d 1
• Parties: STATE of Missouri, Respondent, v. Theodore JACKSON, Appellant.
• Court: Missouri Supreme Court

Page 1

496 S.W.2d 1

STATE of Missouri, Respondent, v. Theodore JACKSON, Appellant.

No. 56574.

Supreme Court of Missouri, En Banc.

June 11, 1973.

Rehearing Denied July 16, 1973.

John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.

Robert C. Babione, Public Defender Bureau, St. Louis, for appellant.

DONNELLY, Judge.

Appellant, Theodore Jackson, was convicted of murder in the second degree by a jury in the Circuit Court of the City of St. Louis, Missouri, and his punishment was assessed at 15 years in the penitentiary. Following rendition of judgment and imposition of sentence, an appeal was perfected to this Court. The case was heard in Division Two of the Court and was then transferred to, and heard, in the Court en Banc.

Appellant's first point on appeal is that the trial court's instruction on murder in the second degree was erroneous 'because it did not require the finding of a homicide which was done feloniously, willfully, premeditatedly and with malice aforethought.' This instruction read in part as follows:

'If you find and believe from the evidence beyond a reasonable doubt:

'First, that on the 13th day of October, 1969, in the City of St. Louis, State of Missouri, the defendant caused the death of Annie Dale by shooting her, and 'Second, that the defendant intended to take the life of Annie Dale, then you will find the defendant guilty of murder in the second degree.

'However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of the foregoing, then you must find the defendant not guilty of that offense.'

The jurors in this case found that 'the defendant caused the death of Annie Dale by shooting her, and * * * that the defendant intended to take the life of Annie Dale * * *.' In our opinion, the jurors, in so finding, necessarily and unavoidably believed and found that the homicide 'was done feloniously, willfully, premeditatedly, and with malice aforethought.' Appellant's first contention is without merit.

Appellant's second point on appeal is that the trial court 'should have instructed on the offense of manslaughter.'

It is now well-established that unless we can declare as a matter of law that there is 'an entire absence of evidence upon which to rest a verdict of guilty of manslaughter' (Sparf and Hansen v. United States, 156 U.S. 51, 64, 15 S.Ct. 273, 278, 39 L.Ed. 343), it is the duty of the trial court to give an instruction on manslaughter. State v. Ayers (Mo.) 470 S.W.2d 534 (banc 1971).

Appellant was convicted of killing his common-law wife, Annie Dale Jackson, early the morning of October 13, 1969, in O'Fallon Park in the City of St. Louis.

Appellant testified in part as follows:

'Q All right. After Annie came back over to the car did you go someplace with her? A Yes, sir.

'Q Where was that you went? A O'Fallon Park.

'Q And do you know about what time you got there?

'A About a quarter to 1:00.

'Q And what did you do after you arrived there at the park?

'A Sat in the car and talked a while.

'Q All right. Did you do anything after that?

'A We made love.

'Q All right. Now, did you stay in front of the car or behind?

'A I was in the back of the car.

'Q And what happened after that?

'A Well, she talking about stereo mostly.

'Q Do you remember anything else you were talking about in particular at that time? A No, nothing else in particular.

'Q Now, you have seen the shotgun which has been marked as State's Exhibit No. 8. Do you recognize that gun? A Yes, I do.

'Q Was it there at that time in your car? Did you have it in your car that night? A Yes, sir.

'Q Where was it? A In the back seat.

'Q All right. Did you have any occasion to handle or did Annie have occasion to handle the gun? A I don't understand, sir.

'Q Well, did you use it or pick it up or did she pick it up at any time? A She picked it up and at the time she picked it up I picked it up.

'Q When was it she picked it up with reference to the time you would have to separate and after you would leave?

'A She said, 'After we separate I'd go to my mother.'

'Q And did you do anything with it? A No.

'Q Did you do anything or were you going to do anything with that?

'A No.

'Q Did it discharge at anytime later on?

'A Yes, it discharged right after she picked it up. And I grabbed it.

'Q How did that happen?

'A She went down and picked up the gun, and I grabbed it with my left hand to get it, and it discharged out the door. The door was open.

'Q Which door was that? A The left door.

'Q The driver's side? A Yes, sir.

'Q Was the window open or closed at that time?

'A The window was closed in the back. The door was open.

'Q And what were you going to do with the gun?

'A I was going to put it in the trunk.

'Q Now, after this first shot discharged out the door what did you do?

'A I started reaching in my pocket to get the key.

'Q What were you going to do with the gun? A Put it in the trunk of the car.

'Q And then what happened as you were making preparation to go and put it in the trunk?

'A She grabbed it, and I just about coming, and it went off in my stomach.

'Q Okay. Just how did you have hold of the gun when it started in your stomach?

'A I had one hand on this barrel like this, and reaching in my pocket, and I had a little key with a chain for the back of the car (indicating).

'Q And all you had hold of at that time was the barrel; is that right?

'A That's right.

'Q What do you remember happening after that time?

'A It discharged. I don't remember anything happen.'

'Q Now, on the night of October 13 did you use that gun, however, to shoot yourself in the stomach? A No, sir.

'Q Did you use it to shoot Annie Dale at anytime? A No, sir.'

Officer Sam Brooks testified in part as follows:

'Directing your attention, Officer, to about 3:00 a.m., October 13, 1969, will you tell us where your duties took you?

'A They took me to O'Fallon Park.

'Q Will you tell us what to O'Fallon Park you went there for?

'A Investigate a shooting.

'Q Now, when you arrived at O'Fallon Park on the drive can you tell us what, if anything, unusual you found there?

'A I observed a man laying on the street.

'Q All right. Will you tell us what his condition was?

'A He had been shot in the stomach. There was a lot of blood and guts hanging out.

'Q With reference to that automobile, officer, where was the body of this man located?

'A Well, he was laying more or less in front of the automobile with his head to the direction of west and his feet to the east more or less in line with the bumper.

'Q Will you tell us what you did?

'A When we first got there and just as we pulled up I seen the person laying there. I got out first because I didn't have to pull up and park and I approached that person laying on the street.

'Q What did you do then?

'A Then as I approached him I said, 'Oh, my God,' or something, and then he groaned.

'Q He groaned. And will you tell us if he said anything at that time or did you say anything?

'A When I got next to him he said, 'I am going to die.'

'Q All right. And what did you say or do?

'A I said, 'What happened? And then he told me. He said--

'MR. BABIONE: I will object to what he said, in other words, to preserve my motion on the preliminary--

'THE COURT: Yes, you may do so and it will be overruled for the same reason as previously given.

'Q (By Mr. White) You may answer. What did he say?

'A He said, 'I shot my wife and I shot myself over her mother.'

'Q Okay. Would you tell us what, if anything, you did at that point, officer? A I hollered at Mike this guy was still living and Mike was calling for help at that time.

'Q On the radio in the cruiser?

'A Right. And then I went over toward the car, towards the parked automobile.

'Q The parked automobile. And what, if anything, did you observe then, Officer?

'A I observed laying on the back floorboard a female.

'Q You mean on the floor of the backseat? A Yes.

'Q Was she conscious? A No, sir.'

In State v. Clough, 327 Mo. 700, 705, 38 S.W.2d 36, 38 (1931), this Court said:

'The authorities are fairly harmonious in holding that, in order for a homicide to be reduced from murder to manslaughter, there must be a sudden unexpected assault, encounter, or provocation tending to excite the passion beyond control. It is not the assault or the provocation alone that reduces the grade of the crime, but it is the sudden happening or occurrence of the provocation so as to render the mind incapable of reflection and obscure the reason so that the elements of malice and deliberation necessary to constitute murder are absent, and therefore the crime is not murder, but manslaughter.'

On the record in this case, we hold that the trial court did not err in failing to instruct on manslaughter because there is no evidence which would support a reduction of the homicide from murder to manslaughter.

The judgment is affirmed.

FINCH, C.J., and MORGAN, HOLMAN and HENLEY, JJ., concur.

BARDGETT, J., dissents in separate dissenting opinion filed.

SEILER, J., dissents in separate dissenting opinion filed and concurs in separate dissenting opinion of BARDGETT, J.

BARDGETT, Judge (dissenting).

I respectfully dissent because I believe the second-degree murder instruction given in this case is prejudicially erroneous.

At a minimum, the definition of murder in the second degree is the intentional killing of a human being with premeditation and malice aforethought, § 559.020, RSMo 1969, V.A.M.S.; State v. Ayers, 470 S.W.2d 534, 537 (Mo. banc 1971); State v. Jewell, 473 S.W.2d 734, 738 (Mo.1971). The majority opinion does not deviate from the long line of Missouri cases that uniformly hold malice aforethought and premeditation to be essential elements of this crime.

The basis of this dissent is that I believe the instruction that is given to the jury as the law of this State, and under which the jury must find defendant guilty or not guilty must inform the jury as to what it is they must find to be true in order to...