State v. Sharpe

• Decision Date: 20 December 1930
• Citation: 34 S.W.2d 75,326 Mo. 1063
• Parties: The State v. Fred Sharpe, Appellant
• Court: Missouri Supreme Court

34 S.W.2d 75

326 Mo. 1063

The State v. Fred Sharpe, Appellant

Supreme Court of Missouri

December 20, 1930

Appeal from Jackson Circuit Court; Hon. Allen C. Southern Judge.

Reversed and remanded.

Anthony P. Nugent for appellant; Maurice H. Dwyer of counsel.

Instruction No. 2, given at the request of the State, does not properly and sufficiently declare the law with reference to murder in the first degree, is not full and complete, and is not applicable to the particular facts in this case, and is not supported by the evidence Said instruction calls erroneously the jury's attention to homicide committed in perpetration of robbery or an attempt to perpetrate a robbery. Said instruction enlarges on the definition of "deliberately" by adding the words, "or to accomplish some other unlawful act." Secs. 3230, 3231 R. S. 1919; State v. Sommers, 12 Mo.App. 374; State v. Holmes, 295 S.W. 71, 317 Mo. 9; State v Robinett, 279 S.W. 696.

Stratton Shartel, Attorney-General, and Don Purteet, Assistant Attorney-General, for respondent.

(1) The case was submitted to the jury under two theories of murder in the first degree, to-wit, a homicide committed in the perpetration of a robbery, and a straight, deliberated and premeditated murder. (a) It is entirely permissible to submit a murder case under two theories of law if there is substantial evidence to support each theory. State v. Robinett, 279 S.W. 698. (b) If there is no evidence to support one of the two theories, such a case must be reversed. State v. Robinett, supra. (2) The evidence as a matter of law was insufficient to support the theory of murder committed in the perpetration of a robbery. State v. Sommers, 12 Mo.App. 374; State v. Holmes, 295 S.W. 71; State v. Spivey, 204 S.W. 261; State v. Parker, 262 Mo. 179; State v. Cantrell, 234 S.W. 802. Defendant when running was guilty of the crime of larceny. The question of whether the incidental killing of deceased was murder in the first or second degree would be determined by the facts actually attending the killing. State v. Hayes, 262 S.W. 1037. (3) These facts are sufficient to establish deliberation. Defendant fired point blank at deceased, under the State's evidence, two or three times, missed, fired again and killed him. This was sufficient to establish deliberation. The jury was under no duty to believe defendant's self-defense theory. Furthermore, one cannot invoke self-defense when fleeing from the commission of a felony. Appellant may contend that the case cannot be affirmed under this theory because of defendant's testimony to the effect that he was shot before he commenced shooting, thereby reducing the crime to second degree murder. This does not follow inasmuch as the court instructed the jury on second degree murder. State v. Lashley, 300 S.W. 732. (4) If it can be said that the words, "or it is any homicide committed in the perpetration or attempt to perpetrate any robbery," in Instruction 2 are just surplusage and, therefore, unnecessary, then, the case can be affirmed on the theory of a deliberate murder. The words are unnecessary to the instruction on murder in the first degree where the homicide is committed in the perpetration of robbery. State v. Nasello, 30 S.W.2d 132; State v. Williams, 309 Mo. 155; State v. Parr, 296 Mo. 406.

OPINION

White, J.

In the Circuit Court of Jackson County the defendant was charged with murder in the first degree, was found guilty by a jury, and his punishment assessed at life imprisonment in the penitentiary: he appealed.

The evidence shows that in January, 1929, Mrs. Nell Finnell operated what she called a rooming house at 1116 Holmes Street, Kansas City. One of the witnesses called it an "immoral house." Other witnesses were more specific in their characterization of the place. Men passing on the street were enticed into the house by girls tapping on the windows.

The defense showed that Mrs. Finnell and some of the girls rooming at her place had been convicted of liquor charges. The place had been raided four times within the memory of policemen who testified.

One Earl Durbin, the man who was killed, had known Mrs. Finnell for many years, and had known her husband who had died.

About eight o'clock in the evening, January 5, 1929, Earl Durbin and a man named Roy Ralph Watson paid a visit to Mrs. Finnell. They were there only a few minutes, in conversation with Mrs. Finnell, mainly, she said, about her deceased husband and his former association with Durbin. In about twenty minutes they left the house and started down the street.

While they were there the defendant, Sharpe, twenty-six years of age, who introduced a record showing his service in the United States Navy and honorable discharge therefrom, was passing along the street. Someone tapped on the window, and he went in. The evidence as to subsequent events and as to the arrangement of the rooms in the house is not exactly clear. His own story was that he found three girls in the living room -- not the room where Durbin and his companion were. One of the girls asked him what he wanted and he said beer. He gave one of them fifty cents for beer, which he and the girls drank. In producing the fifty cents he inadvertently flashed a twenty-dollar bill. Then he directed one of the girls to get cigarettes. He felt in his pocket for money with which to purchase cigarettes and found that his twenty-dollar bill was gone. He followed the girl who had the fifty-cent piece and was taking it into the kitchen to Mrs. Finnell. When the girl handed the money to Mrs. Finnell the latter opened a pocketbook in which she had a good many bills. It afterwards developed that the pocketbook contained several hundred dollars. In the meantime Durbin and Watson had left the house. Mrs. Finnell held the pocketbook under her arm. The defendant snatched it and started to run. He said he first demanded a return of his twenty-dollar bill. Mrs. Finnell swore there was no preliminary conversation. She turned upon him and saw he had a pistol pointed towards her. That did not frighten her, however, for she grabbed him by the coat, and her hold was broken loose by one of the girls named Lena Reames or Lena Rush. Defendant's explanation was that he found the revolver in the pocket book which he had snatched; that in some way it was broken and cartridges dropped out. Cartridges afterwards were found on the floor. It was the theory of the State that the defendant had a revolver of his own which he displayed at the time. Mrs. Finnell all the time was screaming, following him out on the street. Other persons in the house joined in pursuit. Durbin and Watson, who had not gone far, and others on the outside joined in the hue and cry. A noisy chase began in which a number of shots were fired. The defendant was shot in the chest. He fired several shots and one took effect in Durbin's neck, causing almost immediate death. The defendant was afterwards arrested in St. Joseph.

The evidence for the State is very meager as to what occurred between the defendant and the girls when he bought beer, though it tends to show that the defendant did not have a twenty-dollar bill in his pocketbook; that he said to some one that he had only a dollar and a half.

The defendant introduced evidence to show good character.

Of the errors assigned in the motion for new trial the only one of importance, and argued at length in the brief of appellant, was the alleged error in giving an instruction defining murder in the first degree.

After an instruction in approved form authorizing a verdict of murder in the first degree if the jury should find premeditation and deliberation in the commission of the homicide, the court, by the instruction complained of, No. 2, defined the terms used, as follows:

"It is the duty of the court to instruct you on all questions of law arising in this case, and your duty to receive such instructions as the law of the case, and to find the defendant guilty or not guilty, according to law, as declared by the court, and the evidence as you have received it under the direction of the court.

"The court therefore instructs you as follows:

"Murder in the first degree is the willful, felonious, deliberate, premeditated killing of a human being with malice aforethought, or it is any homicide committed in the perpetration or attempt to perpetrate any robbery.

"As used in these instructions, the word 'willful' means intentional, not accidental.

"'Deliberately' means in a cool state of the blood; it does not mean brooded over or reflected upon for a week or a day or an hour, but it means a conscious purpose to kill formed in a cool state of the blood, and not under a violent passion aroused by some real or supposed grievance, but in the furtherance of a formed design to gratify a feeling of revenge, or to accomplish some other unlawful act.

"'Premeditated' means thought of beforehand for any length of time, no matter how short the time.

"'Malice' as used here, does not mean mere spite or ill will as generally understood but signifies an unlawful state of the mind and such state of mind as one is in who intentionally does an unlawful act without just cause or justification.

"'Aforethought' means thought of beforehand.

"'Feloniously' means wickedly and against the admonitions of the law, unlawfully." [Italics ours.]

I. It was the theory of the State that the homicide occurred in the perpetration of a robbery and therefore it was murder in the first degree without proof of deliberation. It is necessary to determine whether the evidence for the State tends to show robbery or merely larceny which is not mentioned in Section 3230, Revised Statutes 1919. In order to constitute robbery the taking of property must be accomplished by force,...