State v. Jewell

• Decision Date: 13 December 1971
• Docket Number: No. 55719,No. 1,55719,1
• Citation: 473 S.W.2d 734
• Parties: STATE of Missouri, Respondent, v. Michael Ray JEWELL, Appellant
• Court: Missouri Supreme Court

Page 734

473 S.W.2d 734

STATE of Missouri, Respondent, v. Michael Ray JEWELL, Appellant.

No. 55719.

Supreme Court of Missouri, Division No. 1.

Dec. 13, 1971.

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

J. Arnot Hill, Kansas City, for appellant.

HIGGINS, Commissioner.

Michael Ray Jewell, indicated for murder, first degree, was convicted by a jury of murder, second degree. The jury also assessed his punishment at twenty-five years' imprisonment, and judgment and sentence were rendered accordingly. §§ 559.010, 559.020, 559.030, V.A.M.S.

The trial posture of this case was delineated by verdict-directing instructions on murder, first degree, felony-murder, first degree, murder, second degree, manslaughter, innocence, and by a converse instruction on defendant's theory of the case under which defendant could not be found guilty of any crime unless the jury first found that he participated in burglary of the rooms occupied by the murder victim.

Appellant places the case in the same posture here by charges of error in submitting the case without sufficient evidence and with respect to the converse instruction.

Appellant's principal contentions, Point I, is that 'the court erred in submitting to the jury the offense of murder in the second degree, there being no evidence to support a conviction of that offense' and thus 'violated due process of law.' In presentation of this point appellant asserts that he 'does not concede there was sufficient evidence * * * to convict him of murder in the First Degree under the Felony Murder doctrine and if that was done in the argument on this point it was done for the purpose of argument only.' Accordingly, the evidence will be stated in sufficient detail to demonstrate a case of felony-murder, first degree, and of murder, second degree.

Warren Shireman, on July 11 and 12, 1968, was the owner of Hagerwood Inn, 6135 Prospect, Kansas City, Jackson County, Missouri. His business was located on the first or ground floor of a two-story building. The second floor was a seven-room apartment, part of which was used as an office and housing for a safe, with the remainder being occupied by Mr. Shireman's son, Terry S. Shireman. The business also made use of a basement which had doors connecting to the first floor. There was no ingress to the second floor from the first floor; ingress and egress to and from the apartment were accomplished via an outside stairway. At 8:00 a.m., July 12, 1968, Mr. Shireman arrived at the Inn, learned from the bartender that the premises had been burglarized, and found that his coin-operated pool table, 'jukebox,' and cigarette machine had been broken and money removed from them and from a drawer. He went to the front door and upstairs to see if his son had heard anything. 'I went to his room, and he wasn't in bed, and I hollered for him and I couldn't find him, and I went back in his room and I saw blood on the bed, and then I just kept looking around until I found him on the other side of the bed * * *.' On his back on the other side of the bed, and the bed was put over him. * * * The bed had been put over his feet. His feet were under the bed, but tied. He was what they called mummy-wrapped in a piece of bedclothing, and his hands were tied,' with neckties. 'The whole bed had been lifted and placed over his feet.' His face was 'beat to a pulp.' He described his son as age 20, 'five-foot-ten, weighed 165, 170 pounds,' in good physical condition. He also noted that a sheet had been placed over the front withdow of the upstairs office. The window was 'right in front of the safe, which was in a closet.' Some of his son's clothing was missing, as were 'some odds and ends of change * * *.' He called the police when he first found the burglary and called again after discovering his son. Among those who arrived shortly was Kenneth Shireman, M.D., uncle of the deceased.

Dr. Shireman saw his nephew lying as described by the boy's father. 'His face was very bably beaten, quite swollen. He had foaming blood coming from his mouth and nose that indicated * * * death had already come over him.'

Angelo Lapi, M.D., chief pathologist at St. Mary's Hospital and deputy coroner for Jackson County, performed an autopsy on the body of Terry S. Shireman at 12:30 p.m., July 12, 1968. Excluding head injuries, he saw two marks on the wrists. 'They were grooves, on each wrist.' He found deceased to be 'a very well developed and muscular young man * * *. The face, neck and head were very much swollen and discolored because of many bruises in the scalp, particularly on the left side in the temporal area * * *. Both cheeks, and the lips and mouth on the inside showed some very jagged cuts.' He described the blows to cause such injuries as 'Blunt impacts. Multiple blunt impacts' which could have been caused by a hand or a fist. Such blows caused injury to the brain. '* * * the brain was pretty badly beaten to a pulp, because it had all kinds of bruises, just like the external tissues. * * * There was also some hemorrhage under the covering of the brain, * * * when the brain is bruised extensively like this one was, it swells up * * * but there's no place for it to go because of the skull * * * and so the result is that the bottom of the brain, as in this case, goes--the only place it can go, and that's the little opening at the bottom of the skull where the spinal cord comes out. * * * And it jams, it laterally jams or ruptures, through into that opening, * * * and when that gets jammed down in there, then respiration stops. * * * the heart continues to beat until it uses up all the available oxygen in the circulating blood, which is a matter of maybe six or ten minutes, and then it stops, too.' In his opinion, 'he died from brain injury due to multiple blunt impacts to the head.' He had been dead at the time of autopsy about ten or twelve hours.

Sergeant John Cowdrey of the Kansas City Police Department went to the scene of the homicide between 8:00 a.m. and 9:00 a.m., June 12, 1968. He 'found the rear door to the upstairs had been apparently forced open. Glass was broke out of the door. In the bedroom located along the south part of the apartment was the body of the deceased.' He noted the deceased lying in the condition described by Mr. Shireman, and 'The room gave all appearances of having been gone through. The personal items of the deceased were strewn about the room. * * * The victim's billfold was inside the doorway, personal items that had been in the billfold were strewn about the floor. The dresser drawers had been opened.' The room with the sheet over the window also showed evidence of having been prowled.

Detective Robert Penson of the Kansas City Police Department also went to the scene and to the second-floor rear door at 6135 Prospect, and 'found the window glass broken from without * * * which would allow a person to reach in and open the door from the inside.'

Officer Billy Trollope investigated the burglary in the Hagerwood Inn area. He found that the coin-operated machines had been forcibly pried open. There were pry marks on a rear door which led from the lower basement level parking lot up a flight of steps into the tavern. 'This door was apparently not used too often and had been nailed up, and on the inside another door had been propped up * * * there were signs to show that the door had been pushed inward at the bottom, and the wooden frame was pulled loose from the concrete blocks, permitting an opening.'

Detective Earl Horner interrogated Michael Ray Jewell July 31, 1968. 'He stated that he wasn't going to fry for anybody, and that he was in the Colony Bar at about midnight * * * that the person he knew as Pat Holderby and another man he knew as Phil (Phil Cannot) * * * came to the bar and got him, the three of them went to the Hagerwood Inn at 6135 Prospect, in Philip Cannon's car * * * that he had (and) Phil played pool * * * while Pat Holderby sat at a booth and drank beer, that Mrs. Shireman said the place was closed, and they walked to their car, which was parked in the south parking lot of the tavern, and while en route, why, Pat Holderby and Phil made this statement to the effect, 'Let's make this place, let's make some money.' He stated that they got in the car and parked where they could watch, and that they waited until three persons had left the tavern. Mrs. Shireman, the barmaid, and another person he did not know. And after they left, why, he and Phil got out of the car, and Phil had a crowbar, and a large screwdriver, and they walked up to the bar and went to the rear, and he and Phil made the agreement that Phil would break in and he would act as a lookout * * *. Holderby stayed in the car. * * * he stood on the southeast corner of thet tavern and Phil went to the back door of the tavern and pried on the door but couldn't get in, and he and Phil then forced the rear basement door open and Phil went inside and he was inside for ten to 15 minutes. He came out and he had a sackful of change. He stated that he took the change back to the car, gave it to Pat Holderby, and he came back to the rear of the tavern, that Phil told him that he thought there was some money upstairs and 'sometimes a man stays up there.' He said * * * Phil went up the outside steps, broke out the rear window of the door and went inside. He stated he was in there about five to ten minutes. He came down the steps and he made the statement, 'There was some old man up there, I tied him up, I jumped him, I think he's dead, let's get the hell out of here.' They went to the car * * * and they went to Phil and Pat Holderby's apartment * * * and they slept there all night and the next morning Holderby took the change that they got * * * and cashed it in for bills, and he got thirty to forty dollars of the money, that they heard about it on the news the next day * * *.' Jewell said his duties...