State v. Perkins
| Decision Date | 13 July 1964 |
| Docket Number | No. 2,No. 50090,50090,2 |
| Citation | 382 S.W.2d 701 |
| Parties | STATE of Missouri, Respondent, v. Jimmie Lee PERKINS, Appellant |
| Court | Missouri Supreme Court |
Thomas F. Eagleton, Atty. Gen., James J. Murphy, Asst. Atty. Gen., Jefferson City, fo respondent.
Robert G. Duncan, Simon & Pierce, Kansas City, for appellant.
This appeal is from a conviction of murder in the second degree. Since the defendant was found to have been previously convicted of two felonies, his punishment was assessed by the court and fixed at twenty years' imprisonment. The questions presented relate to the sufficiency of the evidence to sustain the conviction, the admissibility of photographic evidence, the propriety of the state's jury argument, and the refusal of an instruction offered by the defendant.
At about 3:30 a. m. on September 1, 1961, the defendant went to the home of his brother who lived on a farm in Howard County near Higbee where he obtained a British .303 rifle and several shells. The defendant told his brother he wanted to practice shooting in preparation for deer hunting and that he was going to Fayette. At about 7 a. m. on the same day the defendant was observed knocking on and trying to open a screen door at a side entrance of the house where the victim of the homicide, William Wallace Yeakey, was living at 307 Buchanan Street in Moberly. The house was a small one, all on one floor, apparently consisting of a bedroom, kitchen and bathroom. When no one answered the defendant went to the home of a next-door neighbor, Mrs. Iva Leona Young, and inquired who lived in the house where he had been knocking. Mrs. Young answered 'neighbor folks' or 'some friends'. The defendant then returned to the Yeakey home, knocked again and Mr. Yeakey came to the door. At this time the defendant had something in his hand which he did not have when he was at Mrs. Young's door.
While the defendant and Yeakey were talking at the side door of the Yeakey house, Mrs. Young heard a voice she thought was Yeakey's say he did not want any part of it and that he did not want any trouble with either one of them. Yeakey then tried to pull the screen door shut but the defendant grabbed it and Yeakey fastened the inside door, whereupon the defendant broke the glass in the door and with a blanket over his hands reached in and unlocked the door. Mrs. Young heard a shot fired when the defendant was outside the house and observed the defendant side-step or 'zig-zag'. She then went across the street to the home of Mrs. Kitchen who had a telephone, but who was too nervous to use it to call the police.
The defendant's wife, Grace Perkins, had been living with Yeakey as his wife for some time and was known in the neighborhood as Mrs. Yeakey. Some time after the trouble started, she left the Yeakey house and went to the Kitchen home where she called the police and waited for them to arrive. The police found Mr. Yeakey severely wounded and unconscious on an end table or vanity bench in the bedroom. There was blood on the bed which had been slept in. Blood was also on the floor directly under Yeakey's head and some was on two walls. There was a bullet hole in the wall just below the ceiling and there were fragments of bullets in a chest of drawers. A shotgun with a broken stock was laying on the bed, part of the stock was on the bed and the other part was on the floor. The magazine of the shotgun had been struck by a bullet from a rifle. A shell in the shotgun's magazine had been pierced by the bullet and shot from the ruptured shell were on the bed and elsewhere. The shotgun had been rendered inoperable by the bullet that hit the magazine.
Mr. Yeakey was taken to a hospital where he died shortly after arrival. At a funeral home pictures were taken of the body and an autopsy was performed. There were two curved lacerations on the left side of the head within the hairline. One was in front of and the other was directly above the left ear, both in the region where the bones of the skull are the thinnest. Beneath these lacerations the skull was shattered and there was a fracture across the base of the skull. Lacerations of the brain and hemorrhages were the immediate cause of death. Yeakey's left ear was almost severed. The side of the left jaw was fractured. There were multiple abrasions on the left cheek, slash wounds on the left side of the neck, the left upper arm, the right forearm, the left hand between the thumb and first finger, the palm of the right hand and above and below the left eye. His left shoulder was peppered with fragments of metal and the knuckles of his left hand were fractured and crushed. A pathologist testified that the fatal head wounds were caused by a heavy, curved, blunt object and considerable momentum was behind the blows. The wounds could have been caused by the butt of the Enfield rifle which was state's exhibit 9.
On September 5, 1961, four days after Yeakey's death, the defendant's wife delivered to the Moberly police a British .303 Enfield rifle. While the rifle was no positively identified as the same one obtained by the defendant from his brother shortly before Yeakey was killed, it was the same make and model and had a hole in the butt identical in size to a hole which was in the butt of the rifle borrowed by the defendant. After talking to Mrs. Perkins on September 5, the police went to a motel at Centralia and arrested the defendant. While transporting him from Centralia to Moberly, Mr. Omar Winn, chief of the Moberly Police Department, asked the defendant about the events on September 1 and 'if he had used a knife on the man.' The defendant stated that he had not used a knife, that he only used the rifle. The defendant also told Mr. Winn that when he arrived at the house, he Mr. Winn also mentioned two parallel cuts about one inch apart on Yeakey's forearm about ten inches long and similar cuts on the left side of his face. The defendant said these cuts were apparently made by the sights on the rifle because he did not use a knife. When the defendant was arrested, there was no wound, bruise or abrasion on him except a slight scratch on one finger. The rifle and shotgun were examined in the State Highway Patrol Laboratory and a technician testified that the sight ramp of the shotgun or one like it made impressions found on the forestock of the rifle. There was evidence that Yeakey had a bad reputation for turbulence and violence. The defendant and his wife did not testify, and there was no evidence offered on his behalf.
The defendant asserts that the verdict is against the weight of the credible evidence and that the court erred in failing to sustain his motion for judgment of acquittal. An appellate court does not weigh the evidence in a criminal case and that part of the assignment preserves nothing for review on appeal. State v. Ramsey, Mo., 368 S.W.2d 413, 418; State v. Goacher, Mo., 376 S.W.2d 97, 103.
In determining the sufficiency of the evidence on a motion for judgment of acquittal in a criminal case, the reviewing court must consider as true the evidence favorable to the state together with favorable inferences that can reasonably be drawn therefrom and must disregard evidence and inferences to the contrary. State v. Sykes, Mo., 372 S.W.2d 24, 26; State v. Strong, Mo., 339 S.W.2d 759, 764.
State v. Baber, Mo., 297 S.W.2d 439, 441[1-4]. The evidence in the case and the reasonable inferences therefrom tend to prove a vicious and brutal assault upon Yeakey by the defendant and the delivery of the coup de grace by the defendant with the butt of the rifle after his victim had been disarmed and disabled. There is substantial evidence to support the verdict of murder in the second degree and the trial court did not err in overruling the defendant's motion for a judgment of acquittal. State v. Clark, Mo., 111 S.W.2d 101, 102; State v. Battles, 357 Mo. 1223, 212 S.W.2d 753, 756; State v. Bayless, 362 Mo. 109, 240 S.W.2d 114, 120; State v. Thomas, Mo., 309 S.W.2d 607, 608; State v. Tisdale, Mo., 353 S.W.2d 719, 721; State v. Goacher, Mo., 376 S.W.2d 97, 102-103[1, 5].
The defendant contends the state committed prejudicial error in admitting over his objection state's exhibits 10 and 12. These exhibits are photographs of portions of the body of the victim taken at the mortuary within two hours after the death. Exhibit 10 shows the bare body from the waist up. Exhibit 12 is a picture of the left side of the head. The assignment is that the pictures were 'gruesome and inflammatory and did not tend to prove or disprove any material issue.' The cases cited by the defendant as well as the state recognize the rule that photographs are admissible if they tend to establish or clarify any material matter at issue even though the exhibits are gruesome and tend to agitate the feelings of the jurors. State v. Floyd, Mo., 360 S.W.2d 630, 632[1-3]; State v. Moore, Mo., 303 S.W.2d 60, 66.
During a discussion in support of an objection, the defendant admitted that Yeakey's death was caused by a compound comminuted fracture of the skull, but the issues went beyond that. The court did...
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