State v. Lunsford

• Decision Date: 10 October 1960
• Docket Number: No. 47909,No. 1,47909,1
• Citation: State v. Lunsford, 338 S.W.2d 868 (Mo. 1960)
• Parties: STATE of Missouri, Respondent, v. Norman Eugene LUNSFORD, Appellant
• Court: Missouri Supreme Court

Page 868

338 S.W.2d 868

STATE of Missouri, Respondent, v. Norman Eugene LUNSFORD, Appellant.

No. 47909.

Supreme Court of Missouri, Division No. 1.

Oct. 10, 1960.

James J. Rankin, St. Louis, for appellant.

John M. Dalton, Atty. Gen., Robert E. Hogan, Sp. Asst. Atty. Gen., for respondent.

HYDE, Judge.

Defendant was convicted of assault with intent to kill with malice aforethought by shooting John Bradley and sentenced to 35 years' imprisonment in accordance with the verdict of the jury. He had appealed from this judgment and sentence.

Defendant was previously convicted of murder in the second degree for shooting and killing Wesley Huson on the same occasion; after which he shot and wounded John Bradley, the owner of a tavern in which the shooting occurred. The murder conviction was affirmed in State v. Lunsford, Mo.Sup., 331 S.W.2d 538, to which reference is made for a statement of the facts since defendant makes no assignment that the evidence herein was insufficient to sustain his conviction. As in that case, defendant has filed no brief herein and we therefore review the assignments of error properly preserved in his motion for new trial.

Defendant's defense herein was alibi but he was positively identified as having done the shooting by the same witnesses who so testified in the murder case and was further identified by other circumstances as hereinafter shown. Defendant's assignments all go to alleged trial errors. Defendant's companion Bobby Lee Griffin was tried separately for the murder of Huson, convicted and sentenced to 25 years' imprisonment. However, on appeal this judgment and sentence was reversed and remanded for improper admission of evidence, State v. Griffin, Mo.Sup., 336 S.W.2d 364. Defendant by assignments 2, 3, 4, 6, 7 and 10 of his motion raises similar questions concerning admission of evidence herein. Reference is made to the statement of the testimony in that case which it was held (336 S.W.2d loc. cit. 367) 'established the details of the prior offenses mentioned by the witnesses as though defendant had been upon trial for their commission.'

As stated, defendant's defense, as in the murder case, was alibi. One of the most important fact issues in this case was the identification of the man who fired the shots in the Bradley Tavern, which killed Huson and wounded Bradley. The State's evidence (in addition to the identification by eyewitnesses to the shooting) which tended to identify defendant as the man who did the shooting was testimony of witnesses tracing his movements from another tavern (called Pat and Rose's Tavern) to the Bradley Tavern. The revolver used in the shooting at Bradley's was not found but the State had evidence to show that a bullet fired by defendant into the wall at Pat and Rose's Tavern (according to the testimony of witnesses who said they saw him there) and the bullets which struck Huson and Bradley had been fired from the same weapon. Defendant denied being in either tavern but said he had arrived near Bradley's on a bus a minute or two before officers carried Huson from the tavern; and that he was then arrested while standing there watching. According to the State's evidence, defendant's alleged accomplice, Griffin, was with him at both taverns and was with him in the taxi in which they went from one to the other. Thus, as held in the Griffin case (336 S.W.2d loc. cit. 367), 'the testimony of their presence at Pat and Rose's Tavern and in Patch's taxicab and so much of their actions as was relevant and necessary to refute defendant's alibi and establish his presence at the murder of Huson was competent.' However, we held the evidence of the activities of defendant and Griffin (see statement of this evidence, 336 S.W.2d loc. cit. 365-366) was improperly admitted because 'proof of the presence of Lunsford and defendant (Griffin) at Pat and Rose's Tavern and in Patch's taxi did not necessitate a showing of all the details of their disturbances of the peace, assaults, batteries, robbery by means of a dangerous and deadly weapon and other offenses prior to the homicide for which defendant was on trial; and the admission in evidence of the details of such offenses which had no tendency to identify defendant as a participant in the homicide or to refute his alibi constituted reversible error.' As hereinafter shown, such details were not put in evidence in this case and our conclusion is that there was no reversible error in the admission of evidence in this case.

Defendant's motion for new trial assigns as error the admission of the testimony of the witnesses James Henderson and his wife Opal Henderson and William Patch. The Hendersons identified defendant as having come into Pat and Rose's with Griffin shortly before 8:30 P.M. (November 24, 1958), described his appearance and how he was dressed (they had seen him there the previous Sunday) and said that defendant had a pistol which he fired into the north side of the wall over the door. Mrs. Henderson called the police from a phone booth and went across the street to another tavern to make another call. As she came back, she saw defendant and his companion come out and get in a Black and White taxi, which had just come up, and then saw the cab leave. Defendant got in the front seat and the other man in the back seat. She said it was then about 'twenty till nine.' She saw defendant again at a police station about midnight. Mr. Henderson did not see the pistol fired but heard it and said defendant then ordered him, and two men sitting with him, out the door. While he was outside, defendant and his companion got into a Black and White taxi. He also saw defendant again at the police station about midnight.

Patch, a cabdriver for Black and White, said he went to Pat and Rose's in response to a call. He started to drive away after Mrs. Henderson said something to him but defendant and his companion ran out and got in his cab. Defendant got in the front seat and held a revolver to the side of Patch's head and told him to drive to East St. Louis. They stopped there, told Patch to get out, and the other man took his cap and drove the car with Patch on the floor of the back seat. Defendant sat over him and held the pistol in his back. They drove back to St. Louis, stopped the cab at Menard and Julia Streets, and both men left, defendant having the pistol with him. (Bradley's Tavern was at the next intersection, Menard and Lafayette, a short block away.) Ten or fifteen minutes later, he saw defendant in the custody of two police officers at Menard and Lafayette. It was shown that defendant and his companion went into the Bradley Tavern about 9:00 P.M.

Comparing this testimony with the statement of facts in the Griffin case (336 S.W.2d loc. cit. 364) it is apparent that the Hendersons were not asked about the details of defendant's activities at Pat and Rose's, such as pointing the pistol at persons there and threatening to shoot them if his orders were not obeyed. Likewise Patch did not testify as he did in the Griffin case about defendant striking him with the pistol or robbing him of his money. It was relevant and necessary to refute defendant's alibi to show that he had a pistol at Pat and Rose's from which he fired a bullet there, which came from the same gun he fired at Bradley's to commit the crime with which he is here charged. It was also relevant and necessary for the same purpose to trace defendant from Pat and Rose's to Bradley's and to show that he...