State v. Lang, 58211

CourtUnited States State Supreme Court of Missouri
Citation515 S.W.2d 507
Docket NumberNo. 2,No. 58211,58211,2
PartiesSTATE of Missouri, Respondent, v. Major LANG, Jr., Appellant
Decision Date12 November 1974

John C. Danforth, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.

James W. Huck, St. Louis, for appellant.

HENRY I. EAGER, Special Commissioner.

Defendant was found guilty by a jury of first degree murder and sentenced to life imprisonment. The case was submitted on the felony murder doctrine, so no alternatives were submitted. This Court has jurisdiction under its order of April 9, 1973, since the appeal was filed prior to that date.

One James Lum, of Chinese extraction, operated a small carry-out restaurant at 5082 North Union in St. Louis. On November 24, 1971, he was shot and killed in the course of an attempted robbery at his restaurant. A group of five or six youths was involved. The actual shooting was done by one Edward Chew. The substantive testimony for the State came from Stanford Bell, one of the participants, and from statements made by the defendant to police. Defendant sought, without success, to suppress those statements, and no point is made on that subject here; nor does defendant contend that the evidence was insufficient for submission. We may therefore omit many details of the evidence.

The jury could, and apparently did, find the facts to be as now related. Stanford Bell (who testified for the State) owned a .38 caliber pistol and had told defendant of this; on November 23, 1971, defendant asked him if he would bring the pistol over to Edward Chew's house the next day. He did so, at about 4:00 or 5:00 p.m., and met there with defendant, Chew, Oscar Robinson and Clifford Wilkes. Chew inspected the pistol; defendant said 'Why don't we get the Chinaman?' or words substantially to that effect; defendant also said he needed some money to get the car fixed, and asked Bell if he was going; Bell replied 'I guess I'll go.' All this consumed half an hour to an hour. As they started to leave the house, Kenneth Nelson came up, was told about the project and said he would go. All six walked to Lum's place which was close by. All entered the place together except Wilkes who stayed outside; Nelson and 'someone else' ordered some rice; while Lum went to prepare it these persons waited in a sort of waiting room. The place was lighted, but 'someone' turned off the light at the switch; 'somebody' locked the front door, and Bell heard it 'click'; Lum came back with the food, Chew pulled out the pistol which Bell had furnished and grabbed Lum by the collar or shirt, saying 'this is a stick-up.' Chew at about this time called for 'somebody' to kick a door open, and defendant did so. During this fracas, Lum broke away, got his revolver and fired one shot which went through a front window. At this time Bell headed for the front door but found it locked, and, with Nelson, went out through a glass window beside the door and ran; Nelson's hat was found on the front sidewalk, as was also the hat of defendant. Bell identified the pistol which was introduced at the trial as an exhibit.

When defendant was arrested, advised of his rights and told of the charges, he blurted out: 'I didn't shoot him. I was there but I didn't shoot him.' He later made two oral statements which in part were: that Eddie grabbed the Chinaman by the shirt, pointed the pistol in his face, and said 'don't run'; that Lum broke loose, grabbed his gun and fired one shot which hit the window; that he and Nelson pushed back, fell through the glass, heard two more shots, and the others ran out; that the five youths had talked at Chew's house about 'sticking up the Chinaman's place on Union'; that when inside the place Bell locked the door, Chew grabbed Lum and put the gun in his face and said 'Don't run, I want your money'; that Lum broke loose, got his gun, fired one shot into the front door; that Chew, 'hemmed in,' began shooting back 'where the Chinaman was.' Defendant and Nelson went through the glass and Bell followed. They all met again at Chew's house. Chew stated that he thought he hit the man and that he still had the gun.

Defendant further stated, by way of exculpation, that when the robbery was discussed he said that he did not want to get involved, that it would be nothing but a 'bust' (meaning an arrest), and that he and Nelson went on to Lum's and ordered some rice; that about fifteen seconds later the others came in and the above events transpired.

From other testimony it was shown that Lum was found by the police lying on the floor of his shop; that he died from a bullet wound of the brain; that money was found in the restaurant by the police, indicating that the robbery was not consummated; that Nelson led the police to the revolver hidden in the attic of a residence; and that the 'pellet' taken from Lum's brain was fired from the revolver already referred to and which Chew was carrying,--a .38 Harrington and Richardson. Stanford Bell admitted that charges had been filed against him, arising out of this affair, that he had been in jail, and that he had only recently been released upon and by reason of his agreement to testify. He understood that the charges against him had been dismissed. From these facts it is seen that the only real issue was whether defendant was a participant in the attempted robbery as properly defined in the instructions, or whether he was merely a bystander, there to buy food. The jury did not accept his explanation.

Two points of alleged error are urged: (1) that the Court erred in refusing to instruct the jury that the testimony of an accomplice should be received with great caution, as requested by defendant; and (2) that it erred in overruling defendant's objection to that portion of the State's final argument in which the jury was told that life imprisonment meant confinement merely until such time as defendant was deemed to be rehabilitated.

Defendant tendered an instruction which was as follows: 'The testimony of another party to an offense must be received by the jury with great caution, and the jury is not authorized to convict on the basis of the testimony of another party to the offense unless there is corroboration of the material fact that Major Lang participated in the attempt to rob James Lum.' This instruction was an incorrect statement of the law. It has been held many times that a defendant may be convicted on the uncorroborated testimony of an accomplice. State v. Strong, 484 S.W.2d 657 (Mo.1972); State v. Deiter, 446 S.W.2d 609 (Mo.1969); State v. Schnelt, 108 S.W.2d 377 (Mo.1937). It seems to be defendant's position that the Court should have corrected the instruction and should have given it as corrected. There are cases indicating that it has been the better practice to give a cautionary instruction on this subject, State v. Jones, 64 Mo. 391 (1877); State v. Harkins, 100 Mo. 666, 13 S.W. 830 (1890); State v. Jackson, 106 Mo. 174, 17 S.W. 301 (1891), but when considered as a whole the cases have not indicated that this is mandatory. Defendant cites cases holding that no such instruction is required unless one is requested. State v. Crow, 465 S.W.2d 478 (Mo.1971); State v. Garton, 371 S.W.2d 283 (Mo.1963); State v. Mahan, 226 S.W.2d 593 (Mo.1950). But this does not necessarily mean that it was error to refuse to so instruct when an incorrect instruction was offered. This question involved a matter purely collateral and cautionary. It was not a part of the law of the case.

We find no case holding authoritatively that it was error to fail to correct and give such a cautionary instruction. State v. Chaney, 349 S.W.2d 238 (Mo.banc 1961) is cited and we shall discuss it briefly. There the allegedly incorrect instruction concerned the effect of impeaching testimony showing that a defense witness had previously told a different story. Three judges joined in an opinion holding that the Court should have given a correct instruction on the subject, two concurred in the result, and two dissented. The three judges apparently held that on certain collateral issues, as indicated in their opinion, the Court should give a corrected instruction in lieu of the one tendered. But that opinion expressly excluded mere cautionary instructions, saying at loc. cit. 244: 'Likewise giving purely cautionary instructions, which may be discretionary with the court, should require the offer of a correct instruction; * * *.' The two judges concurring in the result felt that the tendered instruction was correct, and one stated that the question of impeachment was a part of the law of the case, but that the Court was not required to correct an instruction on a collateral matter. We repeat here, what was said in State v. Taylor, 472 S.W.2d 395 (Mo.1971) at loc. cit. 403: 'It has been substantially impossible to rely upon the Chaney case as authoritatively supporting any view.' The opinion in Taylor contains a further analysis of the Chaney case. We conclude that Chaney was certainly not an authority requiring the trial court to correct and give...

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