State v. Shipman

• Decision Date: 04 September 1945
• Docket Number: 39340
• Citation: 189 S.W.2d 273,354 Mo. 265
• Parties: State v. Theron Shipman, Appellant
• Court: Missouri Supreme Court

189 S.W.2d 273

354 Mo. 265

State v. Theron Shipman, Appellant

No. 39340

Supreme Court of Missouri

September 4, 1945

Appeal from Greene Circuit Court; Hon. Warren L. White Judge.

Affirmed.

Omer E. Brown and L. L. Collins for appellant.

(1) It is a necessary and essential element in the committing of an offense that there be an absolute intent, and without that element there is no offense. The evidence showed that there was no such intent. Sec. 4491, R.S. 1939; Armstrong v Winstead, 61 Mo. 354; Sowers v. Walker, 182 S.W. 116; Sowers v. Walker, 192 Mo.App. 230. (2) It was the duty of the court to instruct upon all the law in the case and failure to do so, or to do so incorrectly, was error. It was charged in the information certain facts, as set forth in the information, proof of which was essential to conviction, and the court should have told the jury in clear statement of the law. Failure to do so made the remainder of the instructions confusing and unintelligible. Sec. 4070 R.S. 1939; State v. Mullins, 237 S.W. 502, Id., 292 Mo. 44; State v. Decker, 14 S.W.2d 617. (3) Matters of exception were properly preserved in the motion for a new trial, and are properly before the court. State v. Cox, 22 S.W.2d 797; State v. Murphy, 23 S.W.2d 136, Id., 324 Mo. 118. (4) Attempts to browbeat or to unjustly discredit the defendant before a jury will work a reversal of the case where prejudice is shown thereby. State v. Edelin, 231 S.W. 585, 288 Mo. 160. (5) Prosecutor's own opinion expressed will work a reversal. Prosecutor argued in this case that he knew that the defendant had been convicted. State v. Hance, 256 S.W. 534.

J. E. Taylor, Attorney General, and B. Richards Creech, Assistant Attorney General, for respondent.

(1) The information is sufficient in form and substance. Sec. 4440, R.S. 1939; State v. Lugar, 84 S.W.2d 614. (2) The verdict is responsive to the information and is in proper form. Sec. 4445, R.S. 1939; State v. Long, 108 S.W.2d 388, 341 Mo. 766; State v. Gibson, 300 S.W.2d 1106; State v. Steenbergen, 68 S.W.2d 684, 334 Mo. 880. (3) The judgment and sentence is in proper form and fully complies with the statutes. Secs. 4100, 4101, 4102, R.S. 1939. (4) Matters not preserved in a motion for new trial are not for consideration by reviewing court when first presented in brief of appellant. State v. Breeden, 180 S.W.2d 684. (5) Appellant's assignment number 1 of his motion for new trial that defendant was improperly cross-examined is not well taken. State v. Howe, 228 S.W. 477, 287 Mo. 1; State v. Bagby, 93 S.W.2d 241, 338 Mo. 951. (6) Appellant's assignment No. 2 in motion for new trial is too general to save anything for review. State v. Breeden, 180 S.W.2d 684. (7) The defendant's demurrer at the close of the whole case was properly overruled. Sec. 4440, R.S. 1939; State v. Lugar, 84 S.W.2d 614. (8) The verdict of the jury was not the result of bias and prejudice. Sec. 4445, R.S. 1939; State v. Quinn, 136 S.W.2d 985; State v. Bigley, 247 S.W. 169. (9) The trial court did not commit error in advising the jury with reference to the effect of a recommended parole by them. State v. Ackerman, 285 S.W. 739, 315 Mo. 219.

OPINION

Leedy, J.

Defendant was charged by an information filed in the Christian Circuit Court with the crime of burglary in the second degree in having on or about April 18, 1943, broken into the grocery store of Earnest Moore with the intent to commit larceny therein. The case was transferred on change of venue to the Greene Circuit Court, where, in Division No. 2 thereof, he was convicted, and sentenced to two years' imprisonment in the penitentiary, in accordance with the verdict.

The testimony adduced on the trial showed that on the Saturday night in question the grocery store of Earnest Moore, located on the Northeast corner of the public square in Ozark, was forcibly broken into. Entry was effected by breaking a pane of glass in the east or side door, and unlocking said door. There was blood at the door, and a trail of blood that led into the store, and up to the cash register. There was blood as well as smeared finger prints on the cash register, and on the counter beside it. There were traces of blood "all around the building" -- inside and out -- and in the street and on the sidewalks. A rock was found at the store which had blood on it. Moore had locked the doors when he closed his store that night, and he had left a light burning. Shortly after midnight it was discovered that the place had been broken into. The night watchman had passed the store several times earlier that night, and he found the doors closed. Moore testified that, so far as he could tell, no money or property had been taken.

A highway patrolman arrived on the scene about 8:30 a.m., and he spent several hours in an investigation. The evidence shows that he, in company with the sheriff, a deputy and the marshal, traced spots of blood to the Shipman residence about a mile from town where defendant lived with his father and mother. There they found a "pool of blood" by the gate, and blood on the walk and porch. The officers found defendant in bed. It was then about 2 p.m. He was not intoxicated at that time. The officers told him they wanted to talk to him, and for him to go with them. He insisted he would talk to them there. All the while he remained in bed with his hand under the cover. When directed to remove the cover, he refused, and the patrolman pulled it back, and it was discovered that there was blood on his hand. His right hand had been cut. There was blood on his trousers. He explained that he had hurt his hand on some milk bottles. He was taken to the sheriff's office, and shown the glass and rock found at the store, and he made a written statement (in his own handwriting) in which he stated that as he passed the store he "stumbled on a rock, it made me mad. I picked it up and slung it through the window of the rear door, there was a light shining in the store. When I seen what I had done I went into the store, looked around and then tried to open the cash register. I didn't get anything out of the store. I came outside and then went straight home."

The statement was taken to troop headquarters at Springfield where it was typed and the typed copy signed by defendant. The night watchman testified that he saw defendant on the night in question, but prior to the time the store was entered; that defendant was drunk at the time, but that he seemed "to be able to know what he was doing -- getting around, and so on;" that he threatened to lock him up if he didn't go home, and, in fact, started to take him to the "cooler," but released him on defendant's promise to go home.

Defendant, 22 years of age, a high school graduate, and recently discharged from the army because of tuberculosis, did not expressly deny the breaking and entering, but testified he was drunk, and did not remember anything about it; that if he did so, it was not with the intention of stealing anything. He further testified he did not remember when he went home, or what time it was, nor what he did after he got home. His parents testified that he got home about 1 a.m., and that he was in a highly intoxicated condition as a result of which "he pulled the telephone from the wall, kicked over a stove, went out on the back porch and broke some fruit jars," and when they finally got him to bed, he was found to be cut by glass and bleeding profusely. Defendant also called two character witnesses in his behalf.

The first (and what appears to be the principal) ground for reversal is an attack upon the sufficiency of the evidence defendant's contention being that there was no evidence of an intent on his part to commit burglary or larceny. This upon the theory that at the time he broke into and entered the store he was so intoxicated that he was incapable of entertaining an intent to commit larceny therein. The two cases cited in support of this proposition are Armstrong v. Winfrey, 61 Mo. 354, and Bowers v. Walker, 192 Mo.App. 230, 182 S.W. 116, neither of which involved any question of intoxication. We have held many times that voluntary drunkenness of an accused is no excuse for the commission of crime. See 9 West's Mo. Digest, Criminal Law, Sec. 53. In the recent case of State v. Pinski, (Mo.), 163 S.W.2d 785 it was said: "Broadly speaking, voluntary intoxication, regardless of the subject's intellect, is not a defense to a criminal charge and has no bearing on it except in certain instances not involved here." Our holdings on the precise question here involved (voluntary intoxication as precluding one from entertaining the specific intent constituting an essential element of the crime with which accused is charged) appear to represent a minority view. See 22 C.J.S., Criminal Law, secs. 66-68, pp. 130-133. In such cases we have said that voluntary drunkenness cannot be considered in determining whether the...