State v. Jenkins

• Decision Date: 09 April 1973
• Docket Number: No. 1,No. 56589,56589,1
• Citation: 494 S.W.2d 14
• Parties: STATE of Missouri, Respondent, v. Lester Paul JENKINS, Appellant
• Court: Missouri Supreme Court

Page 14

494 S.W.2d 14

STATE of Missouri, Respondent, v. Lester Paul JENKINS, Appellant.

No. 56589.

Supreme Court of Missouri, Division No. 1.

April 9, 1973.

Motion for Rehearing or to Transfer to Court En Banc Denied

May 14, 1973.

John C. Danforth, Atty. Gen., Daniel P. Card, II, Asst. Atty. Gen., Jefferson City, for respondent.

Joseph Langworthy, Jr., Lester Paul Jenkins, Pacific, for appellant.

HIGGINS, Commissioner.

Lester Paul Jenkins, charged with murder, first degree, was convicted by a jury which assessed his punishment at life imprisonment. Sentence and judgment were rendered accordingly. §§ 559.010, 559.030, RSMo 1969, V.A.M.S.

Appellant tacitly concedes the sufficiency of evidence to sustain his conviction. Suffice to say the record contains evidence upon which the jury reasonably could find: that prior to January 10, 1970, defendant, Carl Aaron Walker, Charlie Joe Quinn, Harold Criswell and Richard Dancy plotted robbery of the Compton Street Market in St. Louis, Missouri; that Walker knew the store and its supply of money on hand, having cashed checks there on several occasions; that Walker would enter the store as if to cash a check and the others would then enter, rob the store, and take Walker's belongings also; that the robbers went to the store in defendant's father's automobile; that the owner of the store, Melvin Schneider, saw defendant, Walker, Quinn, and another Negro enter his store January 10, 1970; that Quinn took his gun and wallet; that defendant fired a shot at the boy behind the liquor counter; that defendant took money from the liquor drawer; that other money was taken from the cash drawer; that more than $500 was taken in all; that in the course of the robbery, Quinn shot one of the butchers, Joseph Jones, in the abdomen and that Mr. Jones died January 11, 1970, from hypovolemic shock due to penetrating gunshot wound of the abdomen. Such made a submissible case of murder, first degree, committed in perpetration of robbery. § 559.010, supra.

Appellant contends, Point I, that his motion for judgment of acquittal at the close of the evidence should have been sustained 'upon the grounds that the substitute information in lieu of indictment purports to charge, if it charges anything, only murder in the first degree under the first part of Section 559.010, V.A.M.S., and does not charge a homicide in the perpetration of a robbery under that section, as the evidence tends to support, sufficiently to meet the (constitutional) rights of the accused * * * to be informed of, the nature and cause of the accusation, and also to give the defendant * * * (constitutional) notice of the charge against him * * * and in that the purported proof of a felony homicide is a departure from the charge of murder as stated in the said information.'

The information in question charged: 'That LESTER PAUL JENKINS alias OSCAR JENKINS, alias ROBERT McCAIN ACTING WITH OTHERS in the City of St. Louis, State of Missouri, on the 10th day of January 1970 feloniously, willfully, premeditatedly, deliberately, on purpose, and of his malice aforethought did make an assault upon JOSEPH JONES with a loaded pistol, and then and there, feloniously, willfully, premeditatedly, deliberately, on purpose, and of his malice aforethought did discharge said pistol at and upon the body of the said JOSEPH JONES thereby feloniously inflicting a mortal wound upon the said JOSEPH JONES, from which said mortal wound JOSEPH JONES did die on January 11, 1970; contrary' etc.

Such information is sufficient in form and substance to charge murder, first degree, in what has been stated as common or conventional form under Section 559.010, supra. State v. Floyd, 403 S.W.2d 613, 615(7) (Mo.1966); 15 Mo.Dig., Homicide § 139.

It is well settled that a prosecution for murder, first degree, in perpetration of any of the felonies enumerated in Section 559.010, of which robbery is one, may be proved and submitted under a charge in the usual and common form, as in this case of a willful, deliberate, and premeditated killing. State v. Stancliff, 467 S.W.2d 26, 33(4, 5) (Mo.1971); State v. Sykes, 436 S.W.2d 32 (Mo.1969); State v. Granberry, 484 S.W.2d 295, 300(11, 12) (Mo. banc 1972); State v. Owens, 486 S.W.2d 462, 467 (Mo.1972). This is so because under Section 559.010 a homicide committed in perpetration of the there enumerated felonies is murder, first degree; and the felonious intent occurs by virtue of the felony without the necessity of showing a separate intent to kill. State v. Owens, supra, 486 S.W.2d l.c. 466(3, 4).

Appellant asserts his constitutional issue has never been decided in Missouri; however, in State v. Stancliff, supra, 467 S.W.2d l.c. 33, appellant urged the court to re-evaluate the foregoing rule citing the Sixth Amendment, United States Constitution, and Article 1, Section 18(a), Constitution of Missouri, which provide that an accused shall have the right to be informed of the nature and cause of the accusation. The court adhered to the rule. See also State v. Granberry, supra.

This information puts the accused on notice that he is charged with causing the death of Joseph Jones. Such notified him that he would have to defend against killing Joseph Jones, and he could never be retried for killing Joseph Jones had the jury acquitted him. If defendant believed himself in need of the details and particulars of the offense, he could have secured same by motion under Rule 24.03, V.A.M.R., a recourse he waived by failure so to move. State v. Ball, 432 S.W.2d 265, 266(1) (Mo.1968).

Appellant's next point, III, contains five charges of error upon voir dire examination of prospective jurors:

'1. permitting the prosecuting attorney's statement to the effect that reasonable doubt was to be defined by the judge to stand, in that, properly, it was not to be defined by the judge, and was of course subsequently not to be defined by him;

'2. permitting the prosecuting attorney's statement to the effect that there was a predetermined punishment for the alleged crime to stand, in that there were alternative, but not predetermined, punishments prescribed;

'3. refusing to permit defendant's attorney to inquire sufficiently of the panel about its understanding of the difference in the duties of a civil and of a criminal jury, and particularly of its understanding of the differences in the burden of proof in a civil and in a criminal trial;

'4. permitting the prosecuting attorney's statement to the effect that the jury should have an open mind, which in effect contradicted the presumption of innocence which the defendant was entitled to;

'5. permitting the prosecuting attorney to inquire whether any members of the jury panel or of their family had been arrested.'

An instruction defining 'reasonable doubt' is not required, State v. Taylor, 486 S.W.2d 239, 244(10) (Mo.1972), State v. Robinson, 117 Mo. 649, 23 S.W. 1066 (1893), State v. Lafferty, 416 S.W.2d 157 (Mo.1967); neither is it error to define reasonable doubt, and the court did, by Instruction 6, define reasonable doubt in a previously approved form. State v. Wiley, 442 S.W.2d 1, 2(2) (Mo.1969); State v. Durham, 418 S.W.2d 23, 31(24) (Mo.1967). Consequently, permitting the prosecuting attorney's remark to stand was not error.

Appellant does not demonstrate where the prosecuting attorney may have made the remark that 'there was a predetermined punishment.' Both prosecuting attorney and defense counsel made repeated references upon voir dire to the then applicable penalty and range of punishment for murder, death or life imprisonment. It is not suggested that any such references constituted trial error and, in view of the statute, it may be said that death or life was the then 'predetermined' punishment for murder, first degree.

The substance of appellant's third criticism of the voir dire is that a direction to counsel limiting them to general questions where such 'would suffice' and would not prejudice either the State or defendant abridged his right to determine jurors' qualifications. Specifically, it appears that counsel wanted to go further in determining panel members' understanding of the difference in duties of a civil and criminal jury.

Appellant does not develop what additional inquiry he may have wished to make; neither does he demonstrate how any limitation imposed may have prejudiced defendant. The transcript references show only questions by which counsel would tell prospective jurors what views they should hold with respect to defendant's innocence, and that such questions were argumentative in nature. In such circumstances no abuse of discretion by the court in its control of voir dire is shown.

With respect to the fourth complaint, appellant says only that presumption of innocence and an open mind are different. He does not demonstrate what questions suggested the alleged conflict and he does not demonstrate how he was prejudiced. The context of the referenced questions shows only that the state was attempting to ascertain whether any juror had decided defendant's guilt or innocence because of preexisting prejudice by way of background, news reports, and the like. Again, such does not demonstrate an abuse of discretion in control of voir dire.

Of his fifth complaint, appellant asserts only that questions to jurors about their arrests are never permitted unless some peculiar fact is present. Appellant's only citation does not support his statement, and the assertion alone does not demonstrate how defendant was prejudiced or how the court abused its discretion. Such questions by a prosecuting attorney are at his risk of disfavor, and reasonably may bear on a juror's present state of mind. In the circumstances of this case they do not convict the court of an abuse of discretion.

Next, by Point V, appellant asserts the court erred in giving Instruction No. 2 in that (1) it and No. 3 are verdict-directing instructions and thus the court erroneously gave two...