State v. Prigett

• Decision Date: 28 June 1971
• Docket Number: No. 2,No. 55874,55874,2
• Citation: 470 S.W.2d 459
• Parties: STATE of Missouri, Respondent, v. Freddie PRIGETT, Appellant
• Court: Missouri Supreme Court

Page 459

470 S.W.2d 459

STATE of Missouri, Respondent, v.Freddie PRIGETT, Appellant.

No. 55874.

Supreme Court of Missouri, Division No. 2.

June 28, 1971.

Motion for Rehearing or for Transfer to Court En Banc Denied

Sept. 13, 1971.

John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Special Asst. Atty. Gen., St. Louis, for respondent.

Fred Leicht, Jr., Armstrong, Teasdale, Kramer & Vaughan, St. Louis, for appellant.

STOCKARD, Commissioner.

A jury found Freddie Prigett, appellant herein, guilty of murder in the second degree.The Court, under the Second Offender Law, fixed the punishment at imprisonment for a term of twenty years.This appeal followed.

A jury reasonably could find from the evidence that after appellant had engaged in a dice game with Clinton Pierce an argument occurred when appellant desired to quit the game and thought he had fifty cents in change due him.Pierce produced a switch-blade knife and chased appellant across the street.Appellant then obtained a bedpost and returned to the place where Pierce was gambling in a doorway with other persons.According to appellant, he returned to obtain a dress which he had left in an adjoining doorway, and he took the bedpost for purposes of protection.What thereafter occurred is not entirely clear, but appellant, claiming self-defense, struck Pierce in the head with the bedpost, and a person by the name of Russell Cooper kicked Pierce in the head as he attempted to get up, and he then removed a wallet from Pierce's pocket.Appellant and Cooper left together, but were shortly thereafter placed under arrest.Pierce sustained multiple fractures of the head and died a few days later.

Appellant first contends that the trial court erred in submitting InstructionNo. 2 on second degree murder because (1) it was confusing in that it 'first told the jury that 'deliberation' was not an element * * * and subsequently required a finding that the assault was made 'deliberately;" (2) the instruction 'linked defendant's acts with those of Russell Cooper' and told the jury it could find appellant guilty if it 'merely found that he was 'either acting alone or jointly with another's without a finding that defendant acted with such other person 'with a common intent' in the commission of the crime;' and (3) the reference to self-defense by appellant did not set forth proper guidelines because there was no differentiation between appellant's acts based on his self-defense testimony and those of Russell Cooper who obviously did not act in self-defense.

The trial court instructed the jury on murder in the first degree and also on murder in the second degree, and in the latter instruction the jury was told that 'Murder in the second degree is the killing of a human being feloniously, willfully, premeditatedly, and with malice aforethought, but without deliberation.'In the next paragraph of the instruction, the jury was told that if it believed that the defendant'either acting alone or jointly with another * * * did feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought, make an assault upon * * *' etc. it should find him guilty of murder in the second degree.The inclusion of the word 'deliberately' was erroneous.However, this contention of error was not presented to the trial court in the motion for new trial, and it is not such plain error affecting substantial rights as to call for relief pursuant to Rule 27.20(c), V.A.M.R.In fact, the error was favorable to appellant in that it required the jury to find more than the law required before it could render a verdict of guilty of murder in the second degree.In these circumstances there was no error prejudicial to appellant.

We do not agree with appellant's contention that the jury was told that it could find appellant guilty if it found only that he acted alone or jointly with another without finding that he acted with the other person with a common intent.All the instructions are to be read and considered together, State v. Vainikos, Mo., 366 S.W.2d 423, and as such they constitute a single charge.State v. Gailes, Mo., 428 S.W.2d 555.InstructionNo. 1 provided that 'all persons are equally guilty who act together with a common intent in the commission of a crime, and a crime committed by two or more persons acting jointly is the act of all and each one so acting.'That part of InstructionNo. 2, referring to appellant'either acting alone or jointly with another,' must be read in connection with the quoted portion of InstructionNo. 1, and when so read the instructions properly presented all that was required.SeeState v. Cooley, Mo., 387 S.W.2d 544.

InstructionNo. 2 provided that 'if you find that the assault, if any, made by the defendant upon Clinton Pierce was made in self-defense, as set out in InstructionNo. 4, you will acquit the defendant, Freddie Priggett, of murder in the second degree.'There is no challenge to Instruction 4, and we note that it correctly submitted that defense based on appellant's testimony.We find no error.

Appellant next contends that the court erred in submitting the case to the jury and overruling his motion for acquittal because the verdict was 'against the overwhelming weight of the evidence,' and there was 'insufficient evidence that the victim's death was caused by a blow struck by defendant.'

This court on appeal does not weigh the evidence, but only determines whether there was sufficient evidence, as a matter of law, to submit the case to the jury.In this case, as demonstrated by our previous statement of the facts, there obviously was a submissible case of murder in the second degree.We need not consider whether there was a submissible case of first degree murder because appellant was not found guilty of that offense.It is true that the jury could have found that appellant acted only in self-defense, but it resolved that issue contrary to appellant's contention.

There was testimony that Pierce died of multiple fractures of the head, that he would have had to have been hit at least once on each side of the head, that appellant hit him at least once with an eight pound bedpost, and that Cooper kicked him in the head.There was also sufficient evidence from which the jury could find that appellant and Cooper were acting together with a common intent in the assault on Pierce.In that event, as the jury was instructed, it was not necessary for the State to establish that it was the injury resulting from the blow struck by appellant that was the immediate cause of death.

Appellant's third contention is that the court erred in permitting the State to file, after the taking of all the evidence, a second substitute information in lieu of indictment to allege therein that in addition to the assault on Clinton Pierce being committed 'with their fists and feet,' it was committed 'with their fists and feet and bedpost.'

We note that in addition to the State's evidence, appellant testified that he struck Pierce with a bedpost.The amendment conformed the information to the proof as to the means used in making the assault which resulted in the death of Pierce, and the offense charged in the information both before and after the amendment was murder in the first degree.Therefore, the amendment was permitted by Criminal Rule 24.02, V.A.M.R.See alsoState v. Williams, Mo., 420 S.W.2d 280.

Appellant's next contention is that the trial court should have quashed the indictment because he'was denied the effective assistance of counsel during the critical investigative stage of the proceedings.'

Appellant...