State v. Lunsford
| Decision Date | 08 February 1960 |
| Docket Number | No. 47668,No. 2,47668,2 |
| Citation | 331 S.W.2d 538 |
| Parties | STATE of Missouri, Respondent, v. Norman LUNSFORD, Appellant |
| Court | Missouri Supreme Court |
James J. Rankin, St. Louis, for appellant.
John M. Dalton, Atty. Gen., Julian L. O'Malley, Asst. Atty. Gen., for respondent.
The defendant Norman Lunsford and Bobby Lee Griffin were jointly indicted for the murder of Wesley Huson. The defendant Lunsford was also charged with previous felony convictions under the Habitual Criminal Act, Section 556.280 RSMo 1949, V.A.M.S. On a separate trial he was found guilty of murder in the second degree as charged. The jury also found that the defendant had been formerly convicted and assessed his punishment in the State Penitentiary for the remainder of his natural life. After his motion for new trial was overruled, allocution was granted and he was sentenced in accordance with the verdict. He has appealed from the judgment of conviction.
We have before us the transcript of the record on appeal and the state's appellate brief; the defendant has filed no brief. In this situation the Supreme Court will review the assignments of error properly preserved in the motion for new trial. State v. Ronimous, Mo., 319 S.W.2d 565, 566; State v. Harmon, Mo., 264 S.W.2d 309. Since the specifications of error in the motion for new trial concern the giving of an instruction and allegedly improper jury argument by the state, a detailed statement of the evidence is not required.
At the time in question Bradley's Tavern was located at 1023 Lafayette in the City of St. Louis. A row of bar stools extended along the bar from near the front door to the rear of the tavern. During the evening of November 24, 1958, the proprietor, John Bradley, was on duty as bartender. Michael Ogilvy, a serviceman for the juke box in the tavern, was seated on the last bar stool at the rear of the tavern. Seated on the stool next to him was Wesley Huson, a customer and friend of the proprietor.
At about 9:00 p. m., two men, whom Mr. Bradley did not then know, came into the tavern. One of them was later identified as the defendant Norman Lunsford. He first went to the juke box at which time Mr. Bradley and his customers noticed that the defendant had a revolver in his belt. The defendant and his companion then took seats at the bar, the defendant taking the one next to Wesley Huson. There was some conversation between the two and Huson was heard to tell the defendant that he was not scared of him or his gun either. The defendant and Huson got to their feet and the defendant drew his gun, pointed it at Huson and pulled the trigger, but the gun misfired. The proprietor testified that there was no struggle between Huson and the defendant 'until the gun was throwed on Huson and it snapped and Huson grabbed the gun.' At this point the defendant's companion called out either 'Shoot him, shoot him' or 'Shoot the son-of-a-bitch, shoot the son-of-a-bitch.' The defendant jerked the gun away and again pulled the trigger. This time the revolver discharged and Huson fell to the floor, mortally wounded. A bullet entered Huson's chest and passed through his heart and one of his lungs. As Huson lay on the floor the defendant's companion beat him with a metal bar stool. The defendant continued firing his revolver as he and his companion retreated toward the front door. His last shot hit an icebox and ricocheted into Mr. Bradley's arm and body. Mr. Bradley fired a shotgun at the defendant and his companion when they were near the door but did not hit either of them. Wesley Huson was killed, apparently instantly, as a result of a gunshot wound.
The defendant was arrested a short time later in the crowd that collected at the scene of the shooting. The defendant's criminal agency was well established by the evidence. Four eyewitnesses to the murder identified him positively as the one who fired the fatal shot. Two of the witnesses, J. W. Hendon and John Fraley, had entered the tavern immediately behind the defendant and his companion and took seats near the front of the tavern. A taxicab driver testified he brought the defendant and a companion to the vicinity of the tavern a short time before the crime was committed.
The defendant, twenty-six years old at the time of the trial, took the stand in his own defense and admitted being arrested on the sidewalk in front of 1019 Lafayette while he was watching the police carry the body of Huson from the tavern. However he denied being at the scene more than a few minutes before his arrest and claimed to have ridden there on a public service bus. He denied being in the tavern at any time during the evening and having anything to do with the murder. It was admitted that the defendant had seven felony convictions for burglary, burglary and larceny, and two misdemeanor convictions. He was discharged from the Missouri State Penitentiary on November 15, 1958, nine days before the Huson murder.
The motion for new trial contains two specifications of error. The first is that the court erred in giving and reading to the jury Instruction No. 4, an 'aiding and abetting instruction'. The reason urged are that under the state's theory the defendant was the principal since he fired the fatal shot and his companion was the aider and abettor, and that there was no evidence the defendant aided or abetted anyone in the commission of the crime. The defendant contends that the instruction suggests to the jury that he was implicated in some manner other than shown by the evidence, and that the instruction was prejudicially erroneous because it was not based on the evidence.
The instruction is in the usual form of instructions of that nature. In substance it instructed the jury that all persons are equally guilty who act together with common intent in the commission of a crime; that the mere presence of one at or near the scene of the crime however does not render a person liable as a participator; and that if one is only a spectator and does not aid or assist another, he should be acquitted. The instruction concludes as follows: 'If, however, a person be present, and by words or actions, aids, abets, assists, advises or encourage the crime, with the intent that...
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...Sec. 556.170, RSMo1959, V.A.M.S., could 'be charged, tried, convicted and punished' as a principal in the first degree (State v. Lunsford, Mo., 331 S.W.2d 538, 540[3, 4]; State v. Tripp, Mo., 303 S.W.2d 627, 631) without her further participation in or presence at the offense (State v. Holl......
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State v. Isa
...or information may charge a defendant either as a principal or as an aider and encourager with the same legal effect. State v. Lunsford, 331 S.W.2d 538, 540 (Mo.1960); State v. Jackson, 822 S.W.2d 952, 957 (Mo.App.1992). It is proper to submit to the jury a theory of accomplice liability de......
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State v. Gilliam, 48437
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