State v. Shuler

• Decision Date: 13 November 1972
• Docket Number: No. 57044,No. 2,57044,2
• Citation: State v. Shuler, 486 S.W.2d 505 (Mo. 1972)
• Parties: STATE of Missouri, Respondent, v. Bobby Lee SHULER, Appellant
• Court: Missouri Supreme Court

Page 505

486 S.W.2d 505

STATE of Missouri, Respondent, v. Bobby Lee SHULER, Appellant.

No. 57044.

Supreme Court of Missouri, Division No. 2.

Nov. 13, 1972.

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

Miller, Fairman, Sanford, Carr & Lowther, Irven L. Friedhoff, Springfield, for appellant.

HOUSER, Commissioner.

This is the appeal of Bobby Lee Shuler from a judgment of conviction and sentence to 99 years' imprisonment following a jury verdict of guilty of second degree murder. This Court has jurisdiction under § 3, Art. V, Constitution of Missouri, 1945, V.A.M.S., as provided by that section prior to the amendment adopted as the special election of August 4, 1970, since the notice of appeal was filed prior to January 1, 1972. Art. V, § 31.

From the evidence the jury could find these facts: A number of truck drivers for Tri-State Motor Transit Company, members of Teamsters Union Local No. 823, were on strike against Tri-State. Appellant, a striking truck driver for that company, borrowed a 30--30 rifle and some ammunition from another member of the union for the express purpose of firing at and disabling Tri-State trucks operating on the highways during the strike. He wrapped the rifle in a blanket to conceal it from view and put it in his car. On September 29, 1970 appellant left Joplin with a Mrs. Kimmel and Mr. and Mrs. Bowen in the Kimmel car. Before leaving Joplin appellant removed the borrowed rifle from his car and placed it in the Kimmel car. Appellant had been drinking beer and whiskey during the afternoon and evening before leaving Joplin. The four drove to Springfield, purchased an 8-pack of beer, and drove south, where they met a Tri-State truck coming from the opposite direction on Highway 65. At appellant's direction Mrs. Kimmel, driver of the car, turned around, overtook the Tri-State truck, and appellant leaned out of the right-hand front side of the car, aimed at the truck and fired two shots into the grille on the front of the truck. Mr. Bowen then fired a shot at the Tri-State truck, thereby disabling it. Ten days prior to this date, while traveling on the highway south of Springfield, with Mrs. Kimmel driving, appellant had fired two shots at a Tri-State truck, striking its grille. Sometime after 1 o'clock on the morning of September 30, while the Kimmel car was being driven west on Interstate 44 between Springfield and Joplin, two Tri-State trucks were observed driving east. The first was a flat-bed truck; the second a tractor-trailer-van type. At the next exit Mrs. Kimmel crossed from the westbound lane over into the eastbound lane and followed the two Tri-State trucks. The van-type rig carried four reflectorized 'EXPLOSIVES' placards on the side of the van. Appellant did not see the placards but, having driven Tri-State trucks for a year previously, he knew that about 50% of the cargo carried by Tri-State units consisted of explosives. The Kimmel car passed the two tri-State trucks and proceeded some distance ahead of the trucks, left the eastbound lane, went up the ramp and crossed over the highway to the ramp leading to the westbound lane. Mrs. Kimmel stopped the car part of the way down that ramp at the direction of appellant, who told her he had to relieve himself. This done, appellant reached into the car, picked up the rifle (which he knew was loaded) and as the first of the two Tri-State trucks approached, traveling at top speed, he aimed at it and fired. It kept moving and appellant fired a second shot into the grille. By that time the second Tri-State truck, driven by John A. Galt, 'was there' and appellant intentionally fired three shots into the grille of the second truck. On the third shot the bullet, traveling at from 2,000 to 3,000 feet per second, almost simultaneously initiated the detonation of 42,800 pounds of Gelex #1 dynamite then being carried in the enclosed van of the trailer. There was a tremendous explosion, a big blue flash, a big ball of fire which lighted up the sky all around 'like the whole world was coming apart.' The explosion blew the truck and its driver into bits (John Galt's left hand was found 465 feet from the site of explosion), blew out a crater in the highway approximately 50 feet wide, 70 feet in length, and 25 feet deep. The powerful concussion damaged or destroyed structures within a radius of several hundred feet, knocked appellant down, tore his shirt, blew the rifle out of his hands, totally shattered the windshield of the Kimmel car and blew it onto the front seat. The rifle was found approximately 263 feet from the rim of the blast crater, across the highway and by the westbound ramp, so that appellant was approximately 300 feet from the truck when he fired the rifle. One person seven miles from the blast felt wind and effects from the concussion. Appellant ordered the other three persons back into the car and, driving the Kimmel car himself, hastily left the scene of the explosion, driving on Interstate 44 to the next exit, where they left the interstate highway and drove on back roads. The car had a flat tire and appellant drove on the rim. The car finally came to a stop after running into an object in a farmyard. The four left the car, took to the open fields and fled in an attempt to escape, walking miles until daylight dawned. Finally, seeing airplanes flying about the area and hearing dogs barking, they gave themselves up.

Appellant testified that he did not mean to do any bodily harm to anyone; that he did not know what the truck was carrying; did not know that there was dynamite in the truck, but did know 'the danger of doing anything with dynamite' within the 2,000 foot range of the rifle; that he considered all explosives dangerous and had hauled dynamite a half dozen or dozen times, but in shooting at an enclosed tractor-trailer unit he never considered the possibility that it might be carrying dynamite; that he was wanting to disable the truck; that he did not fire at the trailer portion of the rig but was aiming at the grille, intending to disable the tractor; that it never entered his mind that he might hurt someone by shooting into the grille; that although the grille is about 2 1/2 feet from the driver it never entered his mind that by shooting into the grille he would be shooting close to where the driver would be sitting; that the grille is 1 or 2 feet from the windshield but that in shooting at the grille he never considered the possibility of shooting a foot or two too high and striking the windshield; that he was shooting low to hit the motor block; that the fuel tank was about 6 feet from the front of the cab but that in shooting at the grille he never considered the possibility that in shooting at a low angle he might hit the fuel tank; that he never considered the possibility of striking a tire and causing a serious accident.

The jury was instructed under the felony-murder doctrine to find accused guilty of murder in the second degree upon a finding that he caused the death of John A. Galt by willfully and maliciously shooting a bullet from a 30--30 rifle in an attempt to shoot into a tractor motor vehicle pulling a trailer.

Appellant complains that the court erred in submitting the case solely under the felony-murder doctrine and in failing and refusing to give an instruction on manslaughter; that a manslaughter instruction must be given whenever there is any indication of a lack of malice and whenever the evidence, however slight, indicates that the crime was manslaughter; that his testimony as to his intentions would support a finding that he fired the rifle without malice; that if the jury found no malice under § 562.070 (which specifically requires malice) the underlying crime would not have been available as a felony on which to base a felony-murder submission, but the jury was not permitted to consider the possibility that the attempt to disable the tractor was made without malice. Appellant further contends that the crime of shooting into a motor vehicle is not statutorily defined as a felony and was not a felony at common law, and therefore the felony-murder doctrine was improperly applied.

Appellant was charged with second degree murder under the felony-murder doctrine. This state follows the common-law rule that where a person is killed by one who is perpetrating or attempting to perpetrate a felony the criminal act is murder. State v. Jewell, Mo.Sup., 473 S.W.2d 734, 738--739(1--5). The evidence establishes that this homicide was committed in the perpetration of a felony, namely, willfully and maliciously shooting into a motor vehicle in violation of § 562.070. ¹ The felony in question is not one of those listed in § 559.010 and therefore the crime could not be first degree murder under that section. It is not manslaughter within the statutory definition of that offense. § 559.070. See in this connection State v. Davis, Mo.Sup., 400 S.W.2d 141, cert. den. 385 U.S. 872, 87 S.Ct. 142, 17 L.Ed.2d 99. Here the existence of legal malice is conclusively shown. Accordingly, it is murder in the second degree under $559.020, which provides that all other kinds of murder at common law, not declared by statute to be manslaughter or justifiable or excusable homicide, shall be deemed murder in the second degree. State v. Robinett, Mo.Sup., 279 S.W. 696.

All the evidence including appellant's own testimony proves conclusively that this shooting was both willful and malicious. 'Willfully' means 'intentionally' or 'knowingly.' State v. Marston, Mo.Sup., 479 S.W.2d 481. Appellant frankly admits that he borrowed the rifle for the express purpose of shooting at Tri-State trucks; that he traveled the highways in search of Tri-State trucks and after sighting the Tri-State unit driven by John A. Galt laid in wait and fired point-blank at it. 'Maliciously' means 'the intentional doing of a wrongful act without just cause or excuse.' State...