State v. Mitchell

• Decision Date: 14 November 1966
• Docket Number: No. 2,No. 52066,52066,2
• Citation: 408 S.W.2d 39
• Parties: STATE of Missouri, Respondent, v. James William MITCHELL, Appellant
• Court: Missouri Supreme Court

Page 39

408 S.W.2d 39

STATE of Missouri, Respondent, v. James William MITCHELL, Appellant.

No. 52066.

Supreme Court of Missouri, Division No. 2.

Nov. 14, 1966.

Norman H. Anderson, Atty. Gen., Jefferson City, Frederick E. Steck, Special Asst. Atty. Gen., Sikeston, for respondent.

Raymond A. Bruntrager, St. Louis, for appellant.

PRITCHARD, Commissioner.

Defendant, having waived his right to trial by jury, was tried to the court, found guilty, and sentenced to life imprisonment for the commission of the crime of murder in the first degree. He here contends solely that the evidence was insufficient to support such finding, having briefed the matter to this court by counsel who was present with him throughout the trial. The testimony of witnesses, bearing upon the judgment of conviction, follows:

On March 31, 1965, William DeVoto was in the Dutch Maid Grill, 1300 Hodiamont Avenue in St. Louis, in the early morning hours with some friends, Carl Skaggs, Bernie Neumann, and deceased, Everett Barton. While they were sitting around getting coffee, defendant was there and wanted to play the pinball machine, and was telling the lady behind the counter that she had to pay him off for the games he won. He had not yet put money into the machine. Defendant argued with the lady behind the counter, getting pretty loud. Barton, the deceased, was at the end (of the counter) closest to defendant. Deceased stood up and they started fighting, falling under the pinball machine in the corner. DeVoto saw that defendant had a pistol in his hand, so he and Bernie ran over and tried to take the gun from him, but they let him go. Defendant got up and everyone else sat down. Defendant came up and 'hollered' at Barton, 'Don't think I wouldn't shoot you.' Defendant shot into the air and left. About ten minutes later defendant returned and said, 'Don't think that I wouldn't kill you.' At that time Barton was standing with his back to the door, facing away from defendant who shot him. Ten minutes later the police walked back in with defendant, and showed DeVoto a gun which appeared to be similar to the gun he had previously seen in defendant's hand. Barton did not have any weapon in his hand.

According to DeVoto, Barton had four or five bottles of beer, but didn't appear to be drunk in the 3 1/2 hours he was in the group. Barton was seated next to DeVoto at the counter, and defendant was also sitting on a stool, five or six places away from them, and was going back and forth from it to the pinball machine. Defendant kept saying he wanted to get paid off for some pinball games, and she (the waitress) was saying they couldn't pay off on a pinball machine. Defendant started saying, 'I am from the West, and you can't tell me that.' They all stood up and defendant and Barton started fighting, rolling under the pinball machine. DeVoto never saw Barton raise a stool, or come down with it on the side of defendant's head. Barton was lying on his back on the floor, defendant was on top of him with a pistol in his ribs. DeVoto grabbed the pistol and tried to pull it away from defendant. Defendant was then 'mad' and excited. Everybody said just to forget everything. He and Barton had each other's hats, and defendant said, 'Give me my hat back.' They traded hats and everybody sat down. Defendant stood there for a minute and said, 'Don't think I wouldn't have shot you,' and he shot up in the air and walked out. Defendant said, 'Nobody pushes me,' or 'takes advantage of me,' or something, because 'I am from the West.'

Myrtle Simmons was a waitress at the Dutch Maid Grill on March 31, 1965, at about 1:30 a.m. Four men and one woman came in, sat down and ordered coffee. A little later another man, the defendant, came in and ordered coffee too, and complained that it was not fixed the way he wanted it. She put sugar (or cream) in his coffee as he asked, and he went over to play the pinball machine and got into an argument with the other employee. One of the first group complained that defendant was talking too loud, after which he and defendant began to scuffle and fight. Defendant had a gun in his hand and 'had it on' the man while they were fighting. Three men who were with the first group tried to break it up and when they saw the gun, they quit. The defendant and the man broke up the fight themselves, after which defendant left. He walked down the street a little way and in a minute or two he came back, walked up behind the first man and shot through the ceiling. He left again and in about the same amount of time came back, saying something like 'I'm going to shoot you,' and shot the man in the back. Barton, the man who was shot, said nothing on the last occasion. Myrtle's version was further that she saw a counter stool in Barton's hand when he was advancing on defendant before the fight started, but she did not see him hit anyone with the stool, or swing it. She did not see any marks, cuts or bruises on defendant. On cross-examination she testified that she didn't know whether Barton brought the counter stool down on defendant's head. When defendant came back into the grill the second time (after a moment or two) he was upset and angry--he was not calm or cool. In the interim a man in pajamas came in to object to the noise--before the shot was fired in the ceiling.

Patrolman Charles Farrell assisted in defendant's arrest, and upon search found a loaded pistol in his left inside coat pocket. The pistol was identified and there was evidence that the bullet taken from deceased's body was fired from it.

Leroy Williams was the man who appeared in pajamas at the Dutch Maid Grill, over which he resided. His testimony was that he was awakened by a noise; seemingly somebody was fighting, and he put on his bathrobe and ran downstairs to see what the excitement was. He saw defendant there with a gun in his hand, with which he shot up in the ceiling. Defendant then walked out and Williams went out also. He told defendant to go on home, and defendant replied, "I am not going home, I'm going to kill me' a so and so.' Defendant went back inside the restaurant and fired one shot into Barton's back. At no time did Williams see any marks, cuts or bruises on defendant. Defendant seemed to Williams to be quite nervous, but was not agitated. Defendant had walked a half block to an alley and back before shooting Barton.

Olin McCrary was in the Dutch Maid Grill on the occasion here in question. He heard defendant say to the effect, as he came in the door, 'I am from the west coast, and where I am from I get service.' After ordering coffee, defendant went to the pinball machine and asked the waitress if it paid off. She said that it did not. Defendant said, 'Well, if I win, if I win, I want my money, I want the machine to pay me.' He said also, if he won and didn't get his money he would shoot the boss. Someone of another group which had come in (either before or after defendant) said, 'Oh, shut up,' and defendant) walked over to them. McCrary saw a stool in the air, and it seemed to him that the guy was hit on the shoulder. Later, outside the grill, McCrary overheard defendant say 'that he should shoot that so and so.' He saw defendant with a gun in his hand both inside and outside the building. He then saw defendant go back into the restaurant and fire a shot into the ceiling. Defendant came back in about a minute, and McCrary heard a shot, looked around the partition of the kitchen (where he was) and saw deceased fall.

Dorothy Hornbeck was at the time of the homicide employed by the Dutch Maid Grill. She saw Barton and four others come into the grill and order coffee. They were sitting there drinking coffee and playing the juke box when defendant came in and ordered coffee with cream and sugar. She served him with cream only and he told her that where he came from they put sugar in his coffee and 'he made a big issue of it.' Dorothy walked away from him and Myrtle put sugar in the coffee. Defendant then went to the pinball machine and put a nickel in it and asked Dorothy if it paid off. She told him no, that it was for amusement only. Defendant then said, 'If I win, I will get my money or I will blow somebody's head off.' At that time he pulled back his coat lapel and showed her his pistol. He followed her and she went to the telephone to call the police, during which time defendant and Barton got into a scuffle, wrestling on the floor, and when she returned defendant was on top of Barton with a gun on him. The others tried to separate the two, but defendant and Barton broke up the fight themselves. They had their hats mixed up so they exchanged, shook hands, and defendant told Barton he was lucky he didn't kill him. Barton said, 'Yes, I am,' and he laughed. He turned around to drink his coffee and defendant left. In two or three minutes he returned, fired a shot into the ceiling and left again. In...