State v. Sherrill, 9425

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: BILLINGS; TITUS
• Citation: 496 S.W.2d 321
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Jackie SHERRILL, Defendant-Appellant.
• Docket Number: No. 9425,9425
• Decision Date: 05 June 1973

Page 321

496 S.W.2d 321 STATE of Missouri, Plaintiff-Respondent,
v.
Jackie SHERRILL, Defendant-Appellant. No. 9425. Missouri Court of Appeals, Springfield District. June 5, 1973.

Page 323

John C. Danforth, Atty. Gen., Daniel P. Card II, Assistant Atty. Gen., Jefferson City, for plaintiff-respondent.

Dorman L. Steelman, Salem, Morton K. Lange, Cuba, for defendant-appallant.

BILLINGS, Judge.

Jeckie Sherrill was convicted by a jury of the second degree murder of George Oliver Wilkerson and his punishment fixed at twenty-five years imprisonment. Wilkerson was fatally shot while in his station wagon in front of the 49 Club, a beer tavern, in Iron County on the night of July 9, 1971. We affirm.

The defendant and two brothers, John Mills and Tom Mills, were jointly charged with the first degree murder of Wilkerson. Defendant's motions for a severance and change of venue were granted and his trial followed in Crawford County.

Because of defendant's challenge to the sufficiency of the evidence to support the charge and jury verdict against him it is necessary to detail the evidence relied upon by the state. However, in testing the sufficiency of the evidence the facts and evidence and favorable inferences reasonably to be drawn therefrom must be considered in the light most favorable to the state and all evidence and inferences to the contrary must be disregarded. State v. Strong, 484 S.W.2d 657 (Mo.1972); State v. McClinton, 418 S.W.2d 55 (Mo.1967); State v. Burrage, 418 S.W.2d 101 (Mo.1967). And the scope of our review extends only to a determination of whether there is sufficient substantial evidence to support the verdict. It is not our function or prerogative to weigh the evidence to determine whether the charge has been proven beyond a reasonable doubt; that is a function of the jury. State v. Strong, supra; State v. Crawley, 478 S.W.2d

Page 324

344 (Mo.1972); State v. Odom, 353 S.W.2d 708 (Mo.1962). With the foregoing principles in mind, the jury could reasonably find the facts giving rise to Wilkerson's death to be as hereinafter outlined.

Wilkerson, from St. Louis, was a comparative stranger to the locale and arrived at the 49 Club in the early evening of the night in question. He was driving a 1960 Ford station wagon and in this vehicle was a .22 caliber Mossberg rifle.

Inside the tavern Wilkerson and John Mills engaged in a game of pool and an argument ensued over the results of a wager between them. This was apparently resolved by a tavern employee instructing Wilkerson to pay John Mills, which Wilkerson proceeded to do. About this time defendant and Tom Mills entered the tavern whereupon John Mills 'got a little loud'. The employee then asked Wilkerson to leave. As Wilkerson walked out the door the defendant said 'Get that son-of-a-bitch.'. The Mills brothers immediately went out the door after Wilkerson. Defendant went to the doorway, began throwing beer bottles at Wilkerson and called out that 'there were some guns in the front seat of the car.'

The area in front of the tavern was illuminated by a light. Tom Mills began firing a pistol at Wilkerson, John Mills was throwing large rocks at him, and defendant continued to hurl beer bottles. Wilkerson was near his station wagon and obtained the rifle and began firing it in the direction where the Mills brothers were located. During a lull in the battle Wilkerson got in the station wagon with the rifle, started the motor, and started backing it away from where it had been parked. The station wagon's movement was halted by a vehicle parked behind it and when a slight collision occurred the station wagon stopped.

The Mills brothers ran to the driver's side of the station wagon and grabbed and began striking Wilkerson with their fists. Defendant left the doorway of the tavern and ran to the opposite of the station wagon. He threw a beer bottle through the open front window and then 'he reached in the car and got the rifle' and 'stuck it right back in the car (station wagon)' and fired the rifle. Defendant withdrew the rifle, wiped it off, and laid it in the back seat.

Wilkerson was then pulled from beneath the steering wheel of the station wagon by the Mills brothers who proceeded to kick and stomp him as he lay on the ground. His death was due to a bullet from the rifle which entered his body through his right abdomen.

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