State v. Newman, No. 61608.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtPER CURIAM
Citation605 S.W.2d 781
PartiesSTATE of Missouri, Respondent, v. Jack Edward NEWMAN, Appellant.
Decision Date15 October 1980
Docket NumberNo. 61608.

605 S.W.2d 781

STATE of Missouri, Respondent,
v.
Jack Edward NEWMAN, Appellant.

No. 61608.

Supreme Court of Missouri, Division One.

September 9, 1980.

Rehearing Denied October 15, 1980.


605 S.W.2d 782

David Robards, Public Defender, Joplin, for appellant.

Paul R. Otto, Asst. Atty. Gen., Jefferson City, for respondent.

ROBERT R. WELBORN, Commissioner.

A jury in the Jasper County Circuit Court found Jack Edward Newman guilty of murder

605 S.W.2d 783
in the first degree in the death of Burnal Ray Brown in the perpetration of a robbery. § 565.003, RSMo 1978. This appeal is from the ensuing judgment and sentence to life imprisonment

Burnal Ray Brown, a resident of the Webb City area in Jasper County, made a practice of carrying on his person a considerable amount of cash in the form of a roll of bills, secured by a rubber band, and kept in the front pocket of his trousers. According to his wife, Brown usually carried from $1500 to $5000 in this fashion. On the morning of October 16, 1978, Mrs. Brown had seen her husband put such a roll of currency in his pocket.

At around 9:00 P.M., on October 16, 1978, Brown was in the Red Lion Lounge in Joplin. Don Van Hooser, an acquaintance of Brown's, asked Brown to cash a check for him. He gave Brown a check, signed by Van Hooser and made payable to "Cash" for $200.00. According to Van Hooser, Brown took a roll of bills from his front trouser pocket, took $200 from the roll and gave it to Van Hooser and returned the roll and check to his trouser pocket.

Brown called his wife from the Red Lion and asked her to pick him up there. She did so and they returned home around 9:00 P.M. Shortly after they got home, Mrs. Brown mentioned some difficulty about the spare tire on her car. Brown went out to examine it and when he returned, he brought a bank money bag containing a .38 caliber pistol which he had owned for some time. He remarked to his wife that he had forgotten that it was in the car and he placed the bag on a table in the den where he and his wife and his wife's father were watching television. Some 20 or 30 minutes after they got home, Brown received a telephone call from Junior Newman. Brown told Newman he could come out to the house or he would meet him anywhere. At 10:00 P.M., her father decided to go to bed and Brown and his wife went upstairs to their bedroom and watched television there.

After a short time, the Browns heard a commotion in the yard among their dogs and then a thump was heard on the sliding doors between the patio and the den. Brown, dressed in his trousers and without shirt or shoes, went downstairs to see what was going on and his wife followed. She stopped at the bottom of the stairs and Brown went into the den, turned on the light and opened the door to the patio. Mrs. Brown saw some men outside, one of whom she recognized as Junior Newman. After the dogs had been quieted, the men came inside the house. Mrs. Brown heard conversation between her husband and the visitors. "They were just talking and kind of joking a little bit or something, I couldn't really tell much of what was said. * * * I heard one of them say, `You're going to take the oil,' * * * and then a little bit later, * * *, Ray said something about giving them one or two hundred dollars to help them out and when they needed oil, they could apply it against it and then I heard the shots." She heard three shots, punctuated by screams. Two of the shots were fired at a close interval and the third a bit later. The men had been at the house some 10 to 15 minutes when the shots were fired.

Mrs. Brown went upstairs and looking outside saw two men enter an auto and leave. She then went back downstairs and found her husband "laying on his stomach with his face and shoulders scrunched up against the glass of the window, beside the sliding glass door." She called the Jasper County Sheriff's Department.

Officers arrived at the Brown house around 11:00 P.M. They found Brown lying in a pool of blood, dead. He had received three gunshot wounds. One was from a bullet which entered the left cheek and exited in the back of the neck. The second had entered at the base of the neck at the left side and exited at the right shoulder. The physician who conducted an autopsy was of the opinion that neither of those wounds would have been fatal and that the death was caused by a bullet which entered the back of the head and exited at the left eyebrow.

Three spent .45 caliber shell casings were found in the room along with three spent

605 S.W.2d 784
bullets. One of the bullets was found in a wall, some two feet above the floor in the vicinity of the sliding doors where Brown's body was found

The officers searched Brown's clothing and discovered a small amount of change, some car keys and a billfold containing a $20 bill.

Officers were promptly dispatched to the Junior Newman residence. After keeping the house under surveillance for 20 to 25 minutes, they went to the house and were admitted by Junior's wife. Junior and his brother, the appellant Jack Newman, were in a bedroom. The officers told Junior that he was wanted for a homicide investigation. Appellant started to walk out of the room and one officer saw a .38 caliber revolver in his inside jacket pocket. Another officer made a pat down search of appellant and a .45 caliber pistol fell to the floor. According to the officers, appellant was cooperative and told them that he had engaged in a "shoot out."

The Newmans were taken to the Joplin City Jail. There Jack's personal property was inventoried. His clothing contained $1,790.67 in cash in three different pockets and a $200 check. At the trial, Van Hooser identified it as the check he had given Brown.

According to the officers, in the early morning hours of October 17, Jack gave them a statement which an officer reduced to writing, but Jack refused to sign it.

According to the statement, Jack had called Brown the previous afternoon about $1300 Brown owed him for oil. At around dark, Brown called Jack and told him to come out and he would pay him. Jack went to Brown's alone and saw Brown at the patio doors. Brown asked him to come in and Jack walked in in front of Brown. Jack turned around and saw Brown grab a .38 caliber pistol out of a money sack and point it between Jack's eyes. Jack took a .45 automatic from his belt and shot two or three times at Brown's face area as fast as he could. He also grabbed the gun from Brown's hands. Jack left through the door he entered. When he left, Brown was on his feet but staggering. Jack drove back to the Newman residence and remained there until the police arrived. He took no money from Brown.

A short time later, Junior made a statement which the police reduced to writing and Junior signed. According to it, Brown owed the oil company where Junior worked some $1300 and the company had been "getting on" Junior. After he and Jack had been drinking, they went to Brown's and discussed the debt briefly. Brown suddenly pulled a gun and pointed it in Junior's face and said he was going to blow his head off. When Brown cocked the gun, Jack drew a gun and fired. Junior fled to the car and Jack followed shortly. He later saw that Jack had Brown's gun.

At his trial, appellant and Junior testified to a somewhat different version of the occurrence. According to appellant, he had become acquainted with Brown as a customer of his brother's oil hauling business, appellant having hauled oil to Brown. He had given Brown $1300 for an automobile several weeks before the shooting, but Brown had not delivered the vehicle. According to appellant, he had made a trip to Colorado and Texas for Brown, accompanied by an employee of Brown named Graham. He had returned to Joplin on Saturday. Brown had asked him to call when he got back (appellant thought it was about the car) and appellant asked his brother to call Brown. At around 9:00 P.M. on Monday appellant returned to Junior's and asked whether Brown had called. Junior called Brown and Brown asked them to come out. When they left Junior's, a dog jumped in the car with them. Junior went along to show appellant where Brown lived. They first drove into a neighbor's driveway and she told them Brown lived next door. When they got to Brown's, Junior got out and went into the house. Appellant started to go in, but the dog which had accompanied them got into a fight with Brown's dogs. The fighting dogs pinned appellant against his car so he got a .45 pistol he had in the car to protect himself from the dogs. With Brown's help the dogs were quieted and appellant went into the house.

605 S.W.2d 785

"I went into the house, I walked around, my brother walked on the far side * * * of the card table. I heard Mr. Brown holler: `I'll blow your blankety-blank head off * * * I looked and I seen Mr. Brown pulling up * * * that little pistol right there and heading directly towards my brother's face. I hollered, `No, don't' at Mr. Brown. Mr. Brown come at me directly with it and about the time he got to my face with it, I fired * * * two real fast times. * * * My brother was heading for the rear door which is 180 degrees from where I was...

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29 practice notes
  • Metheny v. State, No. 149
    • United States
    • Court of Appeals of Maryland
    • July 24, 2000
    ...People v. Brannon, 194 Mich.App. 121, 486 N.W.2d 83, 85-86 (1992), app. denied, 441 Mich. 887, 495 N.W.2d 384 (1992); State v. Newman, 605 S.W.2d 781, 787 (Mo.1980); State v. Montgomery, 191 Neb. 470, 215 N.W.2d 881, 883-84 (1974); People v. Joyner, 26 N.Y.2d 106, 308 N.Y.S.2d 840, 257 N.E.......
  • Batiste v. State, No. 2010–DP–00510–SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • May 16, 2013
    ...statute requires only that the defendant intended to commit the underlying felony at the time the homicide occurred.”); State v. Newman, 605 S.W.2d 781, 787 (Mo.1980) (approving jury instruction stating defendant must have had intent to commit underlying felony when killing occurred); State......
  • State v. Copeland, No. 73774
    • United States
    • United States State Supreme Court of Missouri
    • August 20, 1996
    ...attorney and appoint another attorney to prosecute a criminal case lies within the sound discretion of the trial court. State v. Newman, 605 S.W.2d 781, 787 (Mo.1980); State v. Fleer, 851 S.W.2d 582, 601 (Mo.App.1993); State v. Choate, 722 S.W.2d 643, 647 Judge Webber disqualified Roberts i......
  • Nicholas v. Sammons, No. 17919
    • United States
    • Supreme Court of West Virginia
    • November 19, 1987
    ...a substantial personal interest which disqualified him from prosecuting the defendant. The Missouri Supreme Court in State v. Newman, 605 S.W.2d 781 (Mo.1980), refused to find the prosecutor disqualified where he was a personal friend of the deceased and a pallbearer at his funeral. His law......
  • Request a trial to view additional results
29 cases
  • Metheny v. State, No. 149
    • United States
    • Court of Appeals of Maryland
    • July 24, 2000
    ...People v. Brannon, 194 Mich.App. 121, 486 N.W.2d 83, 85-86 (1992), app. denied, 441 Mich. 887, 495 N.W.2d 384 (1992); State v. Newman, 605 S.W.2d 781, 787 (Mo.1980); State v. Montgomery, 191 Neb. 470, 215 N.W.2d 881, 883-84 (1974); People v. Joyner, 26 N.Y.2d 106, 308 N.Y.S.2d 840, 257 N.E.......
  • Batiste v. State, No. 2010–DP–00510–SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • May 16, 2013
    ...statute requires only that the defendant intended to commit the underlying felony at the time the homicide occurred.”); State v. Newman, 605 S.W.2d 781, 787 (Mo.1980) (approving jury instruction stating defendant must have had intent to commit underlying felony when killing occurred); State......
  • State v. Copeland, No. 73774
    • United States
    • United States State Supreme Court of Missouri
    • August 20, 1996
    ...attorney and appoint another attorney to prosecute a criminal case lies within the sound discretion of the trial court. State v. Newman, 605 S.W.2d 781, 787 (Mo.1980); State v. Fleer, 851 S.W.2d 582, 601 (Mo.App.1993); State v. Choate, 722 S.W.2d 643, 647 Judge Webber disqualified Roberts i......
  • Nicholas v. Sammons, No. 17919
    • United States
    • Supreme Court of West Virginia
    • November 19, 1987
    ...a substantial personal interest which disqualified him from prosecuting the defendant. The Missouri Supreme Court in State v. Newman, 605 S.W.2d 781 (Mo.1980), refused to find the prosecutor disqualified where he was a personal friend of the deceased and a pallbearer at his funeral. His law......
  • Request a trial to view additional results

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