State v. Lusk, 54382
| Decision Date | 13 April 1970 |
| Docket Number | No. 54382,No. 2,54382,2 |
| Citation | 452 S.W.2d 219 |
| Parties | STATE of Missouri, Respondent, v. David Michael LUSK, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Charles A. Blackmar, Asst. Atty. Gen., Jefferson City, for respondent.
Henry G. Morris, St. Louis, for appellant.
STOCKARD, Commissioner.
David Michael Lusk (hereinafter referred to as defendant) and Duane Swiggart were jointly charged by indictment with first degree murder in the death of George Hassen. Defendant requested and obtained a severance. He was found guilty by a jury of first degree murder, and the jury assessed the punishment at death. Thereafter, pursuant to Supreme Court Rule 27.04, V.A.M.R., the trial court reduced the punishment to life imprisonment, defendant's motion for new trial was overruled, allocution was held and judgment entered. Defendant has now appealed to this court.
From the evidence offered by the State (defendant offered none) including defendant's confession, the jury reasonably could have found the occurrence of the following events. When Edna Thomas reported for work at Audie's Loop Bar as barmaid on the evening of February 28, 1968, Mr. Hassen, a brewery worker who was on vacation, was in his 'regular place,' sitting at the bar asleep. During the evening defendant and Duane Swiggart were in the Bar. Shortly before 1:30 o'clock the next morning when Miss Thomas was preparing to close she asked defendant to help Mr. Hassen to his automobile which was parked at the tavern. Defendant led him outside and Duane Swiggart said, 'Let's take him out and roll him.' Defendant and Swiggart then drove to a cornfield in St. Louis County. Mr. Hassen was highly intoxicated and appeared to be asleep. Swiggart dragged Mr. Hassen from the automobile and started hitting and kicking him. Defendant also 'punched' him while Swiggart held him up. Defendant removed Mr. Hassen's wallet and some change from his pocket, and Swiggart removed a ring. They then dragged Mr. Hassen out into the field about a hundred feet and left him there. Defendant and Swiggart found some credit cards issued to George Hassen in the wallet, and later that day they went to a Central Hardware Store and purchased a 20-gauge shotgun using a credit card containing the name of George Hassen. They then went to a second Central Hardware Store and attempted to purchase another shotgun, but because the clerk became suspicious and summoned the credit manager they left the store, leaving the credit card bearing the name of George Hassen in the possession of the clerk. A day or so later, the shotgun which was obtained from Central Hardware, and the ring which had been taken from Mr. Hassen, were sold by defendant to Robert McGuire for $50.00.
On the morning of March 2, Mr. Edward Shelton entered the field when he thought he saw something there, and found the body of George Hassen. The lower portion of the body was unclothed. The corn in the field had been harvested and the area around the body showed evidence of having been trampled down. A photograph, taken of the body while still in the field, indicates that the area around the nose and mouth was bloody. A pathologist testified that when he examined the body there was a brown discolored area on the right cheek, the nature of which he could not determine. There was also a bruised area on the left forearm which 'looked like an old injury, looked like it might have been a burn.' There were also vertical scratch marks over the buttocks and lower part of the back. There was a small hemorrhage, about an inch, into some muscle in the front portion of the chest which could not be seen externally and which probably had occurred prior to death. A test revealed that the blood alcohol content was '.39 grams percent,' which is 'markedly elevated' and indicated that at the time of death, which occurred 'at least 24 hours' before the body was found, he was 'considerably intoxicated.' The pathologist also testified that the autopsy of deceased had disclosed that he had an 'old heart disease' and 'some pulmonary disease,' but that there was no evidence that anything acute had happened pertaining to them. He also stated that in view of the known alcohol level and the known temperature of the area, which was 'almost at freezing point' and 'did dip below freezing point on the night before he was found,' it was his opinion that 'exposure was a strong factor and probably entered very highly into the death,' and that it 'contributed to' and 'hastened' the death.
Defendant first contends that there was insufficient proof of the corpus delicti, and for that reason no submissible case was made, at least without reference to his confession.
In homicide, the corpus delicti consists of two elements: (1) the death of the person alleged to have been killed, and (2) the criminal agency of someone other than the deceased caused the death. State v. O'Neal, Mo., 436 S.W.2d 241; State v. Meadows, 330 Mo. 1020, 51 S.W.2d 1033; State v. Hubbard, 351 Mo. 143, 171 S.W.2d 701. In this case the death of George Hassen is admitted, and it was proved without reference to or reliance on the confession of defendant. With respect to the causation, the evidence other than the confessions of defendant shows that George Hassen was alive, but intoxicated to the extent of being unable to take care of himself, when he was led from Audie's Loop Bar by defendant early in the morning of February 29. He did not go home, but on March 2 he was found dead in a cornfield a few miles distant under circumstances which indicated that he had been robbed, that his presence in the field was the result of acts of someone other than the deceased, and that exposure had contributed to or resulted in his death. Particularly applicable to this case is the statement in State v. Francies, Mo., 295 S.W.2d 8, where in referring to the facts of that case other than was shown by defendant's confession, it was said: 'the fact that the dead body of the deceased was found on a used car lot in a large city, in a nude condition, and that her clothes were found in an ashpit a block away, when considered in connection with the finding of the pathologist that she died of suffocation, would seem to be sufficient to indicate that her death resulted from the criminal agency of someone.' See also State v. McQuinn, 361 Mo. 631, 235 S.W.2d 396; and State v. Skibiski, 245 Mo. 459, 150 S.W. 1038. We conclude that the corpus delicti was sufficiently established.
Defendant challenges the verdict directing instruction which submitted murder in the first degree on the grounds that it was 'broader than the charge laid in the indictment' and it was not supported by the evidence.
The indictment charged that defendant and Duane Swiggart 'did make an assault upon one George Hassen, * * * with their fists and feet, and then and there * * * did strike, knock, kick, hit and beat with great force and violence at and upon the body of the said George Hassen thereby feloniously inflicting mortal wounds, from which said mortal wounds George Hassen did die * * *.'
Instruction No. 1, in its material parts, was as follows:
'* * * the court instructs the jury that if you find and believe * * * that the defendant * * * did make an assault upon one George Hassen with his fists and feet, as mentioned in the evidence, and if you further find and believe * * * that the defendant * * * did * * * strike, knock, kick, hit and beat, with great force and violence against and upon the body of the said George Hassen, and thereafter leave the said George Hassen exposed to the elements, * * * and if you further find and believe * * * that * * * the said assault upon the body of the said George Hassen or the subsequent exposure to which his body was subjected or both such assault and exposure, contributed mediately or immediately to the death of the said George Hassen * * * then you will find the defendant guilty of murder in the first degree as charged in the indictment * * *.'
We first note that by the indictment defendant was charged with having inflicted mortal wounds on George Hassen by means of an assault with fists and feet in that he struck, knocked, kicked, hit and beat him. The indictment did not charge that defendant caused or contributed to the death of George Hassen by causing him to be exposed to the elements, but this latter means of bringing about the death of George Hassen was submitted in Instruction No. 1 in the disjunctive as a contributing cause of death. In addition, Instruction No. 1 submitted in the disjunctive that the jury could find defendant guilty of murder in the first degree if it found that 'the said assault upon the body' of George Hassen 'contributed * * * to the death.' The evidence authorzes a finding that at the time defendant and Swiggart dragged Hassen from the automobile before they took him into the cornfield and abandoned him to the elements in his highly intoxicated...
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