State v. Richardson

• Decision Date: 09 March 1959
• Docket Number: No. 2,No. 46757,46757,2
• Citation: 321 S.W.2d 423
• Parties: STATE of Missouri, Respondent, v. Herbert RICHARDSON, Appellant
• Court: Missouri Supreme Court

Page 423

321 S.W.2d 423

STATE of Missouri, Respondent, v. Herbert RICHARDSON, Appellant.

No. 46757.

Supreme Court of Missouri, Division No. 2.

March 9, 1959.

Cecil Block, St. Louis, for appellant.

John M. Dalton, Atty. Gen., W. Don Kennedy, Asst. Atty. Gen., for respondent.

BOHLING, Commissioner.

This is an appeal by Herbert Richardson from a judgment imposing a sentence of life imprisonment in accordance with the verdict of a jury on a charge, under the Habitual Criminal Act (Sec. 559.280) of the murder in the second degree (Secs. 559.020, 559.030) of Clay Greer Phelps. (Statutory references are to R.S.Mo.1949 and V.A.M.S.) No brief has been filed on behalf of defendant. We are convinced defendant's lengthy motion for new trial contains many assertions counsel would not have carried forward in a brief. The main complaints are against the admission of certain evidence and the instructions. The court instructed on murder in the second degree, manslaughter, the habitual criminal law, self-defense, accident, burden of proof, credibility of witnesses, et cetera.

The homicide occurred about 9:00 p. m., August 12, 1957, just after the start of a 'Rock and Roll' show in the Kiel Auditorium, in the City of St. Louis, Missouri. The parties are Negroes, and the persons in one group were strangers to those in the other groups.

Mr. and Mrs. Phelps, his sister, Mrs. Smith, and her two daughters, Mrs. Rachel Henderson and Mrs. Ethel Ware, and Mr. Ollie Wickerson were seated in the top row of a section of the lower balcony at Entry 14 of the auditorium. Mr. Wickerson occupied seat 1, the aisle seat, Mrs. Henderson was to his left, Mr. Phelps to her left, and others in the Phelps party occupied seats 4, 5 and 6 in said row.

Defendant took Flora Harris to the show. Flora carried a large leather purse. Defendant had a .45 caliber automatic pistol with a full magazine of ten bullets. Flora testified defendant had the gun in his side coat pocket. Defendant stated it was in the glove compartment of his automobile and he thouht someone might break into his car and steal the gun while they attended the show. He asked Flora to put the gun in her purse. She at first refused but, upon his threatening to strike her, allowed the gun to be placed in her purse.

Defendant and Flora Harris entered the auditorium. Flora proceeded to the ladies' room while defendant waited at the entrance. The State's testimony was that two or three boys were singing and dancing on the ramp at Entry 14. Flora placed the number at five or six and defendant at eight or ten. He testified that they were intoxicated; that Arthur Green (known in the record ab Bopeep and Bo) was the main one, freddie Sutton was another; that the boys addressed vulgar remarks to Flora upon her return, and that they ignored the remarks. The usher seated them in the row below and across the aisle from the Phelps party, defendant occupying the aisle seat, with Flora to his right.

Defendant was noticed to glance back over his shoulder several times after being seated. In about three to five minutes defendant had a struggle with Flora for the purse. Flora was trying to keep the purse. Defendant got the purse, took the gun and put it behind him. Freddie Sutton came down the aisle dancing, put his hand on a seat and turned around as though someone had called, and defendant (he is left-handed) struck Sutton with his left hand and knocked him back and down. Sutton called out 'Bo.' Green (Bo) came down the steps to within a foot or two of defendant. Defendant hit him with his left hand. At that time defendant had the gun in his right hand behind him. Green then struck or pushed defendant back into the seats. Defendant came up with the gun. He was facing the Phelps party. Green jumped aside and 'hit the floor.' Defendant fired one shot and then three in rapid succession. Defendant stated the gun jammed.

One bullet struck Mr. Wickerson's right leg; another struck Mrs. Henderson's left foot; another struck Mr. Phelps, and one went through the back of a seat in front of them. Mr. Phelps said: 'I am hit' and slumped to the floor. He was 42 years old. He had been wounded in the left upper quadrant of the abdomen and was dead upon arrival at the hospital.

Defendant stated to the officers he pulled the trigger intending to shoot Green, who was within a foot or two of him. The State's evidence was that Sutton, Green and defendant were the only persons involved in the affray; that neither boy made any threat against defendant; that neither had a weapon in his hand, and that defendant struck the first blow against Sutton and also against Green.

The evidence favorable to defendant is confusing but might be said to establish the following: Defendant was 27 years old. Sutton was intoxicated. He came down the aisle, stopped, leaned on the rail, and started cursing defendant and Flora. Defendant, asked him to step aside that he might see the show. Sutton threatened defendant, grabbed defendant, and struck him. Defendant then struck Sutton, knocking him down. Sutton called for Green. Defendant testified Green had a reputation of being a hoodlum and gangster. Sutton got up, defendant struck him again and Sutton fell. Defendant turned to Green, hit him with the back of his hand and saw several young boys climbing over the ramp trying to get to him. Green struck defendant on the jaw, knocking defendant against the seat, and the pistol fired. Green kept striking defendant with his fist, trying to get the gun. Defendant testified he had his finger on the trigger and that the gun, and automatic, kept on firing. Defendant struck Green with the pistol and Green released him. Defendant then left the auditorium by himself through Entry 14, passing out the 14th Street entrance, where, we understand, the boys were, with the gun in his belt. Defendant testified at the trial he did not intentionally pull the trigger of the gun at any time.

The charge against defendant under the Habitual Criminal Act (Sec. 556.280) was that he had been convicted, imprisoned and duly discharged eight times for the crime of larceny from the person under Sec. 560.195. Section 560.195 was repealed by Laws 1955, p. 507, and defendant claims error was committed by references to said prior offenses in the opening statement of the State's attorney and the instructions on punishment under the Habitual Criminal Act. Defendant's position is that said offenses were no longer crimes when the instant offense was committed on August 12, 1957, and were unavailable to the State under the Habitual Criminal Act. The punishment for violating Sec. 560.195 ranged from a penitentiary sentence to a fine and was a felony (Sec. 556.020). The contention was ruled against this defendant in State v. Richardson, Mo., 315 S.W.2d 139, 141.

Defendant drove across Eads Bridge after the shooting and threw his pistol into the Mississippi River. Frank B. Ruff of the St. Louis Metropolitan Police Force and an expert on the identification of firearms and ballistics identified a gun marked State's Exhibit 27 as a Colt .45 semi-automatic pistol. This gun was not offered in evidence. It was explained to the jury that it was not the gun used by defendant but was the type of gun he used. Witness Ruff explained how the gun operated; stated that it would not continue firing; that the trigger had to be pulled for each shot; that it was a difficult weapon to fire with accuracy by one not experienced in its use, and the type of weapon that fired .45 caliber copper-jacketed bullets found at the scene soon after the shooting and the bullet taken from decedent's body. Defendant contends the court should have sustained his request for a mistrial when, following the direct and cross-examination of witness Ruff with respect to State's Exhibit 27, his counsel first objected to the identification and use of State's Exhibit 27 on the ground it was not the gun used by defendant. We think the point not well taken for several reasons: Defendant's objection was not timely. State v. Cowan, Mo., 310 S.W.2d 939[3, 4]; State v. Burns, Mo., 280 S.W.2d 119, 121, 122; State v. Gaines, Mo., 261 S.W.2d 119. Further, we are of opinion the testimony and the use made of State's Exhibit 27 were competent under the record before us. It tended to meet defendant's testimony that he accidentally fired the shots. State v. Harlan, Mo., 240 S.W. 197, 201[2, 3]; 20 Am.Jur. 632, Sec. 760; Underhill, Criminal Evidence, (5th Ed.), Sec. 517. Additional allegations of error in defendant's motion for new trial were not presented to the trial court at the time of defendant's objection to State's Exhibit 27, and are not preserved for appellate review. State v. Harlan, supra ; State v. Lindsey, Mo., 80 S.W.2d 123, 125; State v. McGuire, 327 Mo. 1176, 39 S.W.2d 523, 526[9, 10]; State v. Hinojosa, Mo., 242 S.W.2d 1, 8.

Defendant's assignments do not point out in what specific respects the instruction on second degree murder failed 'to properly define the crime of murder in the second degree' or how it 'shifted the burden of proof from the State and required the defendant to establish his innocence'; and preserve nothing for appellate review. Sup.Ct.R. 27.20, 42 V.A.M.S.; Sec. 547.030; State v. Bledsoe, Mo., 254 S.W.2d 618, 62; State v. Jordan, Mo., 235 S.W.2d 379, 383. The court defined murder in the second degree, willfully, premeditatedly, malice, and malice aforethought, instructed on the facts, and required the State to prove its case beyond a reasonable doubt. This may account for the indefiniteness of defendant's assertions. The instruction has met with approval in the respects defendant mentions. Consult State v. Myers, 221 Mo. 598, 613(II), 121 S.W. 131, 135(2); State v. Hyland, 144 Mo. 302, 311(III), 46 S.W. 195, 198(3); State v. Baker, Mo., 277 S.W.2d 627, 630 .

Defendant's assertions that the instruction on manslaughter failed to properly define 'manslaughter' and the definitions of 'excusable...