State v. Paxton

• Decision Date: 11 May 1970
• Docket Number: No. 54653,No. 2,54653,2
• Citation: State v. Paxton, 453 S.W.2d 923 (Mo. 1970)
• Parties: STATE of Missouri, Respondent, v. Carl Wayne PAXTON, Appellant
• Court: Missouri Supreme Court

Page 923

453 S.W.2d 923

STATE of Missouri, Respondent, v. Carl Wayne PAXTON, Appellant.

No. 54653.

Supreme Court of Missouri, Division No. 2.

May 11, 1970.

John C. Danforth, Atty. Gen., Richard L. Wieler, Asst. Atty. Gen., Jefferson City, for respondent.

Maurice Pope, Louis Kranitz, St. Joseph, for appellant (By Appointment of the Court).

BARRETT, Commissioner.

Carl Wayne Paxton has been found guilty of murder in the first degree and sentenced to life imprisonment. In view of his assignments of error it is again necessary to set forth that part of the information charging the substantive offense of murder in the first degree: that on June 16, 1968, in Andrew County, Paxton 'did then and there unlawfully, wilfully, feloniously, on purpose and of malice aforethought, while in the perpetration of a robbery, shoot and assault on Montford Lyle * * * with a deadly weapon, to wit: a .22 caliber revolver, thereby inflicting upon the said Montford Lyle * * * mortal wounds from which mortal wounds the said Montford Lyle * * * did die on June 16, 1968.' Thus plainly the information directly and properly charges Paxton, not as an aider or abettor as in some circumstances is sometimes done (State v. Porter, 276 Mo. 387, 207 S.W. 774), with murder in the first degree: 'and every homicide which shall be committed in the perpetration or attempt to perpetrate any * * * robbery * * * shall be deemed murder in the first degree.' RSMo 1959, § 559.010, V.A.M.S. Throughout the trial and upon this appeal it is claimed that while Paxton took part in the robbery of Mr. Lyle he was not a party to his murder which admittedly was by his accomplice in the robbery, Hunter, who in freeing himself fron Lyle shot him with a .22 caliber pistol. But even in these circumstances, whatever the proof, Paxton was as a principal or as an accessory 'charged, tried, convicted and punished in the same manner, as the principal in the first degree.' RSMo 1959, § 556.170, V.A.M.S.; State v. Spica, Mo., 389 S.W.2d 35. Here the fact of a homicide in a robbery was charged even though the fact of a robbery could have been shown upon the mere charge of a murder. State v. Sykes, Mo., 436 S.W.2d 32, 34.

In brief these were the circumstances of the robbery and of Mr. Lyle's death: Paxton was well known in the Amazonia community of Andrew County and counted himself a friend of Mr. Lyle, the owner-operator of 'Lyle's Tavern.' In fact the town marshal had seen Paxton in Lyle's Tavern on the preceding Friday and Hunter was with him. On June 15th between 12:00 and 12:15 the town marshal observed that Mr. Lyle wes turning out the lights and closing his tavern. He was not seen again until the following Monday when his waitress came to work and found him dead in front of the bar. He had been shot twice, once above the right ear and a second time 'two inches to the front.' The cash register was open and the drawer next to it pulled out and a Hershey box in which Mr. Lyle usually kept some money and valuables was missing.

Paxton and Hunter were drinking in Tura's Tavern in St. Joseph and they were talking about a place 'to get some money' or to rob and Paxton said that he knew 'an old man up in Amazona' who always had four or five thousand dollars (they divided $100.00 from the robbery but overlooked $800.00 in Mr. Lyle's living quarters). Paxton had told Hunter that the old man couldn't see too well but the night they 'cased' the place Hunter remarked 'that the old man seemed to find his way around the room pretty well.' The following Saturday night they left the tavern in St. Joseph and drove to Amazonia in Hunter's automobile; it was late when they arrived and the tavern was closed. They drove around the village and found that the marshal was in his trailer. They drove back to the tavern and could see Mr. Lyle in the corner of the barroom at a desk. Hunter gave Paxton $1.30 with which to buy a 'six-pack' and they stationed themselves on either side of the steps. Mr. Lyle responded to their knocking and while he went back of the bar for the beer they stepped inside. Paxton paid for the beer and then he said that as he turned to go out the door he heard a 'couple of smacks' and wondered if Mr. Lyle had gotten to the two by four he used to defend himself. Paxton got in the automobile with the six-pack and Hunter 'ran out of the tavern * * * got in and was carrying a Hershey box full of money and in the Hershey box was also a small pistol, and he said that Hunter at that time said, 'I had to kill the nosey old son-of-a-bitch. '"' They went out McArthur Drive, burned the checks, divided about $100.00, threw the gun and the six-pack away and drove to Atchison, Kansas, to the residence of 'these girls' who were to 'cover' for them by establishing an alibi. It may be interpolated that 'the girls' first said that Hunter and Paxton were with them the night and hour of the killing but upon reflection voluntarily went to the patrol officers, told the truth and one of them testified in this trial. This is but a brief outline of the circumstances which were established in great detail.

The appellant has briefed six principal points but for the most part the substance of his argument is all concerned with a single point or proposition. The essence of his claim is that the court should have sustained his motions for an acquittal because the evidence did not justify a submission that he was 'guilty of aiding and abetting his co-defendant Hunter in the alleged homicide or that he was even physically present when the homicide was perpetrated by Hunter or that he (defendant) had any knowledge of intention or purpose of defendant Hunter to assault and kill the victim Lyle.' It is for these reasons, chiefly the fact that he was in the automobile when Hunter killed Mr. Lyle, that Paxton contends that the court erred in giving Instructions 2, 4, 5, 6 and 9 which he says failed to 'require the jury to find that defendant and Bert Hunter had a common design and intent to commit murder' or that there was a 'prior conspiracy' or that defendant Paxton 'intentionally aided and abetted said Bert Hunter in the act of murder.' In this connection it is claimed that the court erred in Instruction 1 on circumstantial evidence in employing the word 'than' rather than 'except' (Instruction 1 was given prior to the introduction of any evidence and prior to submission). This was a long, general three-page instruction and in the eighth paragraph, of an eleven paragraph instruction, on circumstantial evidence it read 'unexplainable upon any other...