State v. Johnson, 42485

Decision Date10 December 1951
Docket NumberNo. 42485,42485
Citation245 S.W.2d 43,362 Mo. 833
CourtMissouri Supreme Court

David M. Grant, St. Louis, for appellant.

J. E. Taylor, Atty. Gen., W. Brady Duncan, Asst. Atty. Gen., for state.

ELLISON, Chief Justice.

The appellant was convicted of murder in the first degree under Sec. 559.010, R.S.1949, Sec. 4376, Mo.R.S.A. and his punishment assessed at death, for shooting with a pistol and killing one Pelham C. Scott, a member of the police force of Overland in St. Louis County. His motion for new trial assigned error on four grounds, the first three of which complained that there was no substantial evidence to support the verdict; that it was against the law and the evidence; and that it was against the weight of the evidence and the result of bias, prejudice and passion.

The fourth ground was split into 91 separate specifications of error, nearly all of which dealt with the admission and exclusion of evidence. Sec. 547.030, R.S.1949, sec. 4125, Mo.R.S.A. provides the motion for new trial in a criminal case 'must set forth in detail and with particularity, * * * the specific grounds or causes therefor.' Nearly all of these 91 grounds in this fourth paragraph failed to comply with that requirement. The brief of appellant's counsel states that while he 'urges each and every ground contained in said motion, he has chosen to argue only' grounds 83, 91, 3, 5, 53, 55, 56, 60 and 61. The first two of these both complain of prejudicial argument by the prosecuting attorney to the jury. If there are any other grounds in the motion that require consideration we shall refer to them later in this opinion. We adopt substantially, without quotation marks, the statement of facts contained in appellant's brief, as follows.

About 11 p. m. on October 14, 1949, appellant and one Cheeks, each driving separate cars, were stopped by the deceased (Scott) and another policeman, Juettemeyer, both being members of the Overland police force, about 1/4 mile west of the limits of that city. The immediate reason for the apprehension is not clear but the car appellant was driving was proved to have been stolen a few days prior thereto. The men were brought to the Overland police station where appellant gave a wrong name as his own and presented a draft registration card also not his. The car appellant was driving was inspected by Juettemeyer and a third officer, Brinker, and found to have a device on it, known as a 'jumper' which enabled it to be operated without use of an ignition key.

While this inspection was proceeding outside the police station appellant and Cheeks were being booked within by the deceased Scott and one Albrecht, night clerk at the station. Scott had some colloquy with appellant over his failure to give his right name, during which [according to Cheeks] Scott first slapped appellant and later knocked him down. Albrecht, called by the State, denied any striking of appellant by deceased. Shortly thereafter the telephone rang and deceased turned and answered it. Appellant in a quick movement left a nearby chair where he was seated, grabbed deceased's service revolver from the holster in which he was wearing it, and said to Scott 'I've got you now.'

According to witnesses for the State, appellant then made his way to the head of the stairway which leads down and out of the west side of the building where the car was being inspected. He stumbled but got to the foot, where the door is located, just as Juettemeyer and Brinker were about to enter. Some shots were fired through this door by appellant and Juettemeyer was fatally wounded. Another shot, which lodged in a parked car, was fired through a garage door in the north part of the building's basement.

Appellant then left the building through the aforesaid west door, procured Juettemeyer's service revolver, and shot Scott as the latter was crossing a lawn on the southwestern portion of the premises. He then procured a car from a driveway of a private person, Whitworth, drove to St. Louis City discarding the remaining bullets and spent shells from the two revolvers during the ride, threw the two revolvers in a sewar after abandoning the car, and went to his room in that city where, about five hours later, he was arrested. The revolvers were recovered from the sewer where appellant had thrown them. A statement in the nature of a signed confession was admitted in evidance over appellant's objections that it was not voluntary. He testified on that issue, but not in the presence of the jury.

Of the nine assignments which appellant's counsel 'chose to argue' to this court, assignment 83 complained of the trial court's refusal to declare a mistrial because the prosecuting attorney in his opening argument to the jury said: 'Now, we were talking about death. Death that we are requesting to be sentence in this case. To do so, you must believe beyond a reasonable doubt that Pelham Scott was killed by that man who sits there in that chair. You must believe he did it in cold blood, in effect what His Honor has told you, if you find his blood was not and enraged, then it would be second degree murder. And you could give him from ten years to life. Now, to predicate murder in the second degree, you would have to believe Cheeks' story. You would have to believe that the defendant was slapped, slugged, knocked down, kicked, and a pistol pointed at him, and that he was so enraged with that that he had no deliberate mind. What evidence do you have of the condition of his mind? Even if you believe Cheeks, who I tell you was a perjurer * * *.'

At that point appellant's counsel objected, out of the hearing of the jury, on the ground that the italicised argument was a comment on the appellant's failure to testify, in violation of Sec. 546.270, R.S.1949, Sec. 4082, Mo.R.S.A., but the court overruled the objection, stating that the prosecuting attorney's argument referred to Cheeks' testimony and not to appellant's failure to testify.

We think the trial court's ruling was correct. The prosecuting attorney was arguing to the jury that appellant should be convicted of murder in the first degree--cold blooded murder--and not murder in the second degree on the perjured testimony of appellant's witness Cheeks that appellant had just been beaten by the police and was enraged thereby. Immediately following that the prosecutor asked the mooted question 'What evidence do you have of the condition of his mind? Even if you believe Cheeks, who I tell you was a perjurer--.' Then came the interposed objection by appellant's counsel. Evidently the prosecutor when thus interrupted was about to refer to other testimony in the record [at least it was there] showing appellant was not beaten; that he suddenly seized Scott's revolver, saying 'I've got you now,' and fled downstairs where he shot and killed officer Juettemeyer through a door and officer Scott on the lawn.

The brief of counsel for appellant here asserts there was not, and could not be, any evidence on the condition of his mind except such as came from his own lips, since he alone knew what that condition was. Thence counsel maintains the prosecuting attorney's argument necessarily was a clear comment on appellant's failure to testify. But counsel is entirely mistaken. If that were true malice, willfulness, deliberation and premediation could be proved only by the accused, himself; and he could defeat a prosecution for murder merely by withholding his own testimony, which he has a right to do under Art. I, Sec. 19, Const.1945. But it stands conceded here [on the whole case] that after stealing the automobile he took the lives to two police officers in an effort to escape apprehension and arrest. This evidence alone was enough to justify the jury in concluding he acted willfully, deliberately, premediatedly and with malice aforethought.

Malice may be presumed from an intentional killing with a deadly weapon, State v. Whited, 360 Mo. 956, 960(1), 231 S.W.2d 618, 620(3). And deliberation and premeditation likewise may be inferred from the circumstances of the homicide in a first degree murder case. State v. Cade, 326 Mo. 1132, 1137(3), 34 S.W.2d 82, 83(1-4); State v. McCracken, 341 Mo. 697, 701(4), 108 S.W.2d 372(4, 5); State v. Kenyon, 343 Mo. 1168, 1177(3), 126 S.W.2d 245, 249(4); State v. Lyle, 353 Mo. 386, 391(4), 182 S.W.2d 530, 533(6, 7); State v. Holland, 354 Mo. 527, 542(5), 189 S.W.2d 989, 997(8, 9).

Another assignment, No. 91, in appellant's brief which his counsel chose to argue, bears on a part of the prosecuting attorney's closing argument wherein he said: 'Now what is there to this case? Pelham Scott has been killed. Shot to death. There sits the man that shot him. Is there any doubt about that in anybody's mind? Did they make any defense of it?' Thereupon appellant's counsel interposed the objection: 'If your Honor please, I object to that and ask that it be stricken, and I ask for a mistrial at this time for that statement, 'did he make any defense of it'.' [Emphasis ours]. This latter quotation using the word 'he' was incorrect. The transcript shows the prosecutor said 'they'.

The question on this assignment is whether by the use of the quoted words 'Did they make any defense of it?' the prosecutor referred to the failure of the defense as a whole to combat the fact that appellant shot and killed officer Scott [which is a conceded fact], or whether it was a comment on the appellant's failure to testify. Appellant's counsel of course takes the latter view, but we do not agree.

The only cases cited and discussed in appellant's brief on this point are: State v. Robinson, Mo.Div. 2, 184 S.W.2d 1017, 1018, and State v. Shuls, 329 Mo. 245, 250-251(7), 44 S.W.2d 94, 96(9). We think they are not in point. In both of these cases three persons, including the defendant, were present at the perpetration of the crime. In the Robinson case one of two...

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