State v. Lashley

• Citation: 300 S.W. 732,318 Mo. 568
• Decision Date: 12 December 1927
• Docket Number: 27972
• Parties: The State v. William Lashley, Appellant
• Court: United States State Supreme Court of Missouri

300 S.W. 732

318 Mo. 568

The State v. William Lashley, Appellant

No. 27972

Supreme Court of Missouri

December 12, 1927

Appeal from Circuit Court of City of St. Louis; Hon. Anthony F Ittner, Judge.

Reversed and remanded.

Fred A. Bottger and Lee A. Hall for appellant.

(1) The State's own evidence (not bettered by appellant's) did not justify an instruction on murder in the first degree in this case. State v. Snow, 238 S.W. 1071; Ex parte Berden, 237 S.W. 737; State v. Minor, 193 Mo. 597. (2) There was no evidence whatever that would tend to show that appellant had any reason to believe that deceased was a police officer, and appellant was entitled to act upon appearances, even though those appearances turned out afterwards to be false, and the court erred in refusing to give an instruction upon this point. State v Jordan, 268 S.W. 71; State v. Hollingsworth, 156 Mo 178.

North T. Gentry, Attorney-General, and J. D. Purteet, Special Assistant Attorney-General, for respondent.

(1) Premeditation and deliberation in the crime of murder in the first degree are questions of fact to be decided by the jury under a proper instruction, provided there is any substantial evidence upon which to base it. State v. Liolios, 285 Mo. 21, and cases. The element of deliberation need not be expressly proved; it may be inferred from the facts and circumstances attending the killing. Kelley's Criminal Law (3 Ed.) sec. 478; State v. Walker, 98 Mo. 107; State v. Speyer, 207 Mo. 551. The evidence justified submission of the case under instruction on murder in the first degree. It is sufficiently substantial to establish the essential elements of the crime, and there is no basis therein for an instruction on murder in the second degree or manslaughter. State v. Moore, 235 S.W. 1058; State v. Crump, 274 S.W. 69; State v. Baker, 209 Mo. 444; State v. Daly, 210 Mo. 664; State v. Hill, 273 Mo. 329. (2) Where it appears clearly from the evidence that the homicide was of no lower degree than that charged, the court need not instruct the jury as to any lower grade of the crime. State v. Neihaus, 188 Mo. 304; State v. Wooley, 215 Mo. 621; State v. Sassaman, 214 Mo. 695; State v. Privitt, 175 Mo. 207; State v. Lewis, 181 Mo. 235; State v. Phillips, 24 Mo. 475; State v. Bronstine, 147 Mo. 520; State v. Tettaton, 159 Mo. 354; State v. Furgerson, 162 Mo. 668; State v. Gurley, 170 Mo. 429; State v. Wieners, 66 Mo. 13; State v. Henson, 106 Mo. 66; State v. Finkelstein, 213 S.W. 465.

Henwood, C. Higbee and Davis, CC., concur.

OPINION

HENWOOD

The appellant (a negro) was charged by indictment with first degree murder in the Circuit Court of the City of St. Louis. Upon trial the jury found him guilty of murder in the first degree and fixed his punishment at death. He was sentenced to hang and appealed.

The evidence spreads over a broad field of details and abounds with repetitions concerning unimportant matters. However, a full statement of the controlling facts of the case can be made within reasonable limits.

It appears from the evidence offered by the State that the victim of the alleged homicide was Sidney Sears, a lieutenant of the St. Louis police force. He had a record of distinguished service extending over a period of twenty-five years, and at the time of the unfortunate affair which resulted in his death was in charge of the homicide squad and noted as an expert marksman with a revolver. About 2:15 in the morning of June 22, 1924, Lieutenant Sears and officers Mergelkamp and Stowell left Central District Station at 108 South 12th Street in a Buick touring car, in response to an emergency call at 1433 Papin Street, where a "cutting-scrape" was reported. The car was parked near the northeast corner of the intersection of Papin and 14th Street, fronting towards the northeast and about twelve feet from the curb line of Papin Street. The parking of the car in this fashion was due to construction work on 14th Street at this point and north of the intersection. Sears, who rode on the left side of the back seat, remained in the car, because he was not feeling well, and the other two officers got out of the car and went a short distance west on Papin Street (1433) to investigate the "cutting-scrape." Sears was dressed in plain clothes and wore a black hat. Officer Mergelkamp testified that Sears's police badge or "shield" was pinned on the outside of his coat. There was a big, bright arc light on the northeast corner of the intersection, near the front of the car. One witness for the State (Anna Gerkan) said: "You can read from the light, it is so light." Two workmen at the plant of the Merchants Ice & Coal Company (Church and Hamilton), located near the northwest corner of Papin and 13th Street, saw the officers park the car and, shortly thereafter, saw appellant approach the car from the north on 14th Street. Both of these witnesses testified that appellant walked up to the car on the right side and appeared to be carrying his right hand up close to his right side; that he placed his left hand on the car just back of the front seat and after standing there "a few seconds," "not quite a minute," he raised his right hand and fired a shot into the car; then a shot was fired from the rear seat of the car, and then appellant continued to fire a volley of shots, "but the range of fire changed just a little;" then appellant walked around the rear of the car and ran across 14th Street to the northwest, and out of sight. Several other witnesses for the State, negro residents of the neighborhood, were aroused by the first shot. Some of them saw appellant standing near the car and saw him fire several shots into the car and then run across to the west side of 14th Street and disappear. One of these witnesses (Kate Hardy) said that, after appellant was arrested and brought back to the scene of the shooting, she heard appellant say to the officers: "Please don't hit me any more; I will tell you the truth; I thought it was a hold-up." This witness also said she saw the officers beat appellant. Officers Mergelkamp and Stowell heard the shots and returned to the car by different routes. They said the second shot made a louder report than the first shot and the volley of shots that followed the second shot. Mergelkamp found appellant attempting to hide behind a post in an alleyway west of 14th Street and north of Papin Street, about 125 feet from the car. He also found appellant's pistol (.32-.20) sticking in the ground behind a big stone. After he arrested appellant and while walking with him along the alleyway, he saw appellant throw five cartridges and a half-dollar coin into an open vault nearby. The cartridges and coin were recovered and produced at the trial. When questioned by Mergelkamp, appellant said he had run away from a negro crap game where there was some shooting. Mergelkamp admitted that he struck appellant with his pistol and cut his lip; this, he said, he did because appellant struck him. Two officers in uniform, who took charge of appellant after his arrest, did not testify. One of the witnesses for the State (Hamilton) said appellant's lower lip was split, the side of his face was bloody, and there was a "swollen spot" on the side of his head. Sears was found unconscious, probably dead, leaning backward in the back seat of the car with his head extending out of the left side of the car. He was pronounced dead at the City Hospital a few minutes later and six bullets were removed from his body. All of these bullets entered the front part of his body and one penetrated his heart. His revolver (a Special Colts .44) was found on the floor of the car and had in it one empty shell. A bullet hole was discovered in the lower edge of the top or canopy of the car on the right side and directly opposite to the position in which Sears was found in the car.

It further appeared from the State's evidence that appellant showed his pistol to one of his neighbors (Lee) a few days before the shooting, and Lee testified that appellant referred to it as a "sure 'nuffgun." This witness also said that he saw appellant during the early part of the night of the shooting and appellant "looked like he had been drinking a little;" and that "he seemed to be a little bit intoxicated." Appellant also showed his pistol to his brother-in-law (Gholston) about nine o'clock on the night of the shooting in appellant's home, where Gholston spent the night as a visitor. Gholston said appellant left the house about one o'clock. Appellant's stepdaughter (Otho Belle Hunter), fourteen years old, testified that he took his pistol out from under his pillow and left home about twelve or one o'clock. When asked about his condition at that time, she said: "He wasn't very drunk." The State's evidence showed no previous acquaintance or difficulty between Lieutenant Sears and appellant.

Appellant took the stand and testified rather at length in his own behalf. He said he was a native of Mount Pleasant, Tennessee but had lived in St. Louis fourteen years, and for the last four years at 1706a Gratiot Street, one block north and three blocks west of the corner where the shooting occurred. He admitted that the pistol found by officer Mergelkamp was his pistol and said he bought it a few weeks before in East St. Louis. He also admitted that he fired six shots with this pistol at the man in the car, but denied throwing the five cartridges and the half-dollar coin into the vault after his arrest in the alleyway. He said he left his home between twelve and one o'clock to take his pistol to the home of his brother (John Lashley), because his brother was going to Caruthersville, Missouri, to work, and his brother's wife wanted the pistol to protect herself; that he had promised his brother in the afternoon ...