State v. Malone

• Decision Date: 08 April 1957
• Docket Number: No. 45451,No. 2,45451,2
• Citation: 301 S.W.2d 750
• Parties: STATE of Missouri, Respondent, v. Clifford Pickett MALONE, Appellant
• Court: Missouri Supreme Court

Page 750

301 S.W.2d 750

STATE of Missouri, Respondent, v. Clifford Pickett MALONE, Appellant.

No. 45451.

Supreme Court of Missouri, Division No. 2.

April 8, 1957.

Motion for Rehearing or to Transfer to Court en Banc Denied

May 13, 1957.

Eugene V. Krell, St. Louis, for appellant.

John M. Dalton, Atty. Gen., Richard R. Nacy, Jr., Asst. Atty. Gen., for respondent.

BOHLING, Commissioner.

Clifford Pickett Malone appeals from a judgment imposing a sentence of life imprisonment for the murder, in the first degree, of Willie Stewart. Appellant's contentions (there being twenty-seven main points in his brief, some with several subdivisions) will be developed in the opinion.

Fred T. Stewart, of Fresno, California was visiting Willie Stewart, his brother, at 2605 Lucas avenue, St. Louis, Missouri, in October, 1954. Three steps lead from the sidewalk into the yard at 2605 Lucas and then there is a small walk, about 10 or 12 feet long, leading to four steps to the house. The two had not retired when about 2:30 a. m., October 14, 1954, they heard a vendor on the street and Willie wanted Fred to try a pig-ear sandwich. Fred went downstairs to the vendor on the sidewalk. Robert Dryden came by, asked where Willie was, and, informed Willie was upstairs, handed Fred a dollar bill and told Fred to bring him two sandwiches. Dryden started upstairs to see Willie. Fred did not know three men who were making 'a lot of racket' in front of the house. Willie came out on the house steps and asked 'if they would mind keeping the racket down some because his landlady was sick.' One of them said "You don't own this sidewalk." Willie answered: "I know I don't, but I pay rent here, and that's my landlady; I am asking you to keep the racket down." Fred, with the sandwiches, passed his brother and started upstairs when he heard a shot. Fred went back to the door, saw his brother staggering off the steps of the house and the three men running. He went upstairs to get Dryden, whom he knew, and when Dryden and he returned, Willie was lying face down on the sidewalk. Fred knelt down and lifted Willie's head and shoulders; and asked for the police and an ambulance.

Willie Washington, C. J. Reed and appellant were the three men making the noise. Washington and Reed testified for the State. Appellant had a revolver, which he had shown his companions. They had stopped to get some pig-ear sandwiches. Washington testified that Willie Stewart came out on the house steps and told them to 'get away from the front of his house, they had been making too much noise'; that he did not hear Willie Stewart say anything more; and that Willie Stewart did not threaten appellant. Washington remarked: 'Must be mean, or something like that.' Appellant, standing in front of the pig-ear man, pulled out his revolver, started up the steps to the yard and said to Stewart: 'You are not tough.' Reed told appellant: 'Let's don't have no argument.' Stewart had his right hand in his trouser pocket, standing in the yard by the steps to the house. Appellant backed Stewart up to the house. Washington testified he saw appellant shoot, saw the flash and heard the report, and appellant was three feet from Stewart when he shot him. Stewart then stumbled backwards from the house and fell on the sidewalk at the street.

The jury found and it is not questioned that the shot killed Willie Stewart. It is not necessary to detail the path of the bullet.

All the testimony is that Stewart was not armed. He did not have a knife or other weapon. Appellant testified that he had pulled his revolver on a person who had pulled a knife on him just before reaching the sandwich man.

The officers arrived in a few minutes. Patrolman Leo Stremlau testified that Fred was holding Willie's head and shoulders; that Fred was 'unconscious, apparently dead'; that Willie, with Fred, were taken to the Homer G. Phillips hospital, where Willie was pronounced 'dead on arrival.'

Four photographs of the scene, taken by the officers, were introduced in evidence, and witnesses pointed out the position of the parties and objects. Defendant has not produced these exhibits.

Willie Stewart was wearing a shirt, trousers and some old rubbers. After the homicide a man's right-foot rubber was on the third step leading into the house; a left-foot rubber was in the yard just east of these steps; and in the yard right close to the house steps was a blood spot and a large blood spot was on the sidewalk near the curb.

Appellant, wearing a red, white and black plaid shirt, went to Julia Mosby's, 2802 Lucas, and had her give him one of Washington's white shirts. She picked up appellant's shirt the next morning and found a gun in it. Appellant came back during the day and she told him she wanted him to take the gun away. Appellant testified he threw the revolver in the Mississippi river.

I. Appellant says he was committed to prison and not brought to trial before the end of the third term of court after the indictment was found and, since the delay was not on his application or for want of time to try the case, his motion for discharge, filed October 12, 1955, should not have been overruled. Appellant relies on Secs. 545.890, 545.900, 545.910 and 545.920. Statutory references are to RSMo 1949, V.A.M.S., unless otherwise indicated. Following Ex parte Donaldson, 1869, 44 Mo. 149, 152, now Sec. 545.920, applicable here, appeared as Sec. 1925, R.S.1879, and expressly refers to the other sections. They are to be construed together.

The terms of court involved begin on the first Mondays of February, April, June and December, and on the second Monday of September, Secs. 478.100, 478.230. The indictment is marked filed December 3, 1954. The December, 1954, term began December 6, 1954. Taking the record approved by the attorneys: Appellant pleaded not guilty December 14, 1954. Thereafter the cause was twice continued to the next term 'for the State' and twice continued 'for want of time to try the case.' At the September, 1955, term appellant was convicted.

While Sec. 545.920 in authorizing the discharge of an indictee committed to prison, subject to the exceptions stated in appellant's contention, if not brought to trial until after the third term uses the expression 'after the indictment was found,' (similar expressions are found in the same context in Secs. 545.890 and 545.900), Sec. 545.890 is by specific reference incorporated into said Sec. 545.920, and the discharge is conditioned upon the accused being 'indicted for any offense, and committed to prison.' In State v. Bithorn, Mo., 278 S.W. 685, 686, the information was not filed until four terms of court had passed after the filing of the justice's transcript. We said: 'The charge must be filed and the issue tendered by the state before the defendant can demand a trial, or before the state is subject to the operation of the statute.' Under like reasoning, one should be in prison under the indictment. It is common knowledge that persons indicted for offenses are not always apprehended and committed during the term the indictment is found. The term at which the indictment is found or the information filed is not counted. Robinson v. State, 12 Mo. 390, 392; State v. Schyhart, Mo., 199 S.W. 205, 210; State v. Wigger, 196 Mo. 90, 94, 93 S.W. 390, 391. It follows, whether or not appellant, as he claims, was in prison under a 'bench warrant' at the September, 1954, term, he was not entitled to his discharge at the September, 1955, term of court as two of the continuances were within the exception of 'want of time to try the case.' Consult State v. Newstead, Mo., 280 S.W.2d 6, 10; State v. Nelson, Mo., 279 S.W. 401, 402[1-8].

II. Appellant makes the point the court erred in the overruling of his motion for judgment of acquittal at the close of the State's case. Appellant offered evidence in his behalf and the State offered evidence in rebuttal. The point presented was waived. State v. Scott, Mo., 299 S.W.2d 526; State v. Willhite, Mo., 159 S.W.2d 768. Clearly, the State made a submissible case. Proof of motive is not essential to a conviction. State v. Logan, 344 Mo. 351, 126 S.W.2d 256, 260, 122 A.L.R. 417; State v. Taylor, 356 Mo. 1216, 205 S.W.2d 734, 737[6, 7]. The State did not depend on Washington's testimony for a conviction. However, inconsistencies in or contradictions of this witness' testimony were for the jury. State v. Gentry, 329 Mo. 282, 44 S.W.2d 27, 31; State v. Allison, 330 Mo. 773, 51 S.W.2d 51, 53, 85 A.L.R. 471. As to appellant's intent, see State v. Littlejohn, 356 Mo. 1052, 204 S.W.2d 750, 752.

III. Appellant contends veniremen Stratmann and Knese should have been struck from the jury list for cause. The whole of the voir dire examination of Stratmann is not before us. Mr. Stratmann on examination for appellant, stated he did not 'have any feeling against the defendant because he has been hailed into court in this case. * * * Q. As you sit there now do you have any feeling this defendant must have committed the crime charged? A. Yes, sir, I do.' Appellant's counsel, after questioning the other veniremen, stated: 'I would like to excuse for cause Mr. Stratmann.' The State's attorney thought Mr. Stratmann misunderstood the question and upon further examination, the juror stated, among other things, he understood that the State had to prove the charge beyond a reasonable doubt; that he knew of no reason whatsoever why he could not, after hearing the evidence and the instructions of the court, make up his mind as to appellant's innocence or guilt; and that he could give the State and the defendant a fair trial. When veniremen Knese stated he had a wrenched back which bothered him when he sat in one position for any length of time, appellant's counsel stated he was in favor of Mr. Knese being excused. Upon the State's counsel stating he would peremptorily challenge the juror rather than take the time to qualify another venireman, appellant's counsel...