State v. Small

• Decision Date: 13 March 1961
• Docket Number: No. 2,No. 47822,47822,2
• Citation: 344 S.W.2d 49
• Parties: STATE of Missouri, Respondent, v. James SMALL, Appellant
• Court: Missouri Supreme Court

Page 49

344 S.W.2d 49

STATE of Missouri, Respondent, v. James SMALL, Appellant.

No. 47822.

Supreme Court of Missouri, Division No. 2.

March 13, 1961.

Thomas D. Dwyer and Willard S. Tucker, Springfield, for appellant.

John M. Dalton, Atty. Gen., Robert E. Hogan, Sp. Asst. Atty. Gen., for respondent.

BARRETT, Commissioner.

A jury has found that James ('Jimmy') Small shot and killed Leroy Stafford, that he was guilty of murder in the first degree and, accordingly therefore, his punishment has been fixed at life imprisonment.

Among the instructions was one which told the jury that 'voluntary drunkenness in any degree cannot justify, excuse, or mitigate the commission of a crime, and the fact, if it be a fact, that the defendant may have been drunk to any degree at the time of the homicide cannot be taken into consideration by the jury in making up their verdict.' The appellant insists that the instruction was improper in this particular case, that it was erroneous and in the circumstances he is entitled to a new trial. The appellant says that the instruction is erroneous because the 'defendant denied his guilt and admitted no overt act which he sought to excuse or mitigate by reason of such condition, and there was evidence that defendant was unconscious from intoxication only seconds before the fatal shot was fired.' In his argument it is stated that he 'was drunk,' 'gave no indication that he was aware of what was going on,' was apparently 'passed out' or 'oblivious' and therefore was 'physically incapable of committing murder.' In this connection it is said that generally the instruction is a proper statement of law (State v. Beasley, 353 Mo. 392, 182 S.W.2d 541), but it is contended that where the defendant denies guilt 'and the evidence of his stupefaction from drunkenness would tend to prove he was incapable of doing the act charged, it is error to give the instruction.'

To precisely point up the appellant's contention, it should be noted that he relies on State v. Buxton, 324 Mo. 78, 22 S.W.2d 635, 638 and State v. Barr, 336 Mo. 300, 78 S.W.2d 104, 105. In State v. Buxton the appellant and others were charged with robbery in the first degree. Buxton's defense was an alibi, that he was drunk, went to sleep in a chair, and was put to bed and was therefore not present at the robbery and of course did not and could not take part in it. In that case the court gave the conventional instruction that voluntary intoxication was no excuse for the commission of a crime. It was pointed out that the appellant denied the commission of any offense and 'did not offer proof of his intoxication in mitigation of or excuse for an admitted act. He made no pretense that he was so intoxicated that he did not know what he was doing.' In these circumstances the testimony as to his sodden drunkenness 'went to support his alibi and to show that he was physically incapable of being at the scene of and committing the robbery, * * * by reason of his complete stupefaction from intoxication.' Therefore, 'under the testimony in the record,' the instruction should not have been given. In State v. Barr the charge was murder, but again the defense was alibi, that in a drunken carousal he became helpless and was carried from a taxicab to his room and so, of course, was not present at the homicide. Consequently in that case an instruction which told the jury to 'entirely disregard defendant being drunk' was prejudicially erroneous. In view of the appellant's contention we are not immediately concerned with whether intoxication may be considered upon the elements of deliberation and premeditation in first degree murder, or with whether the 'volition' of a drunken man 'in forming and carrying out a design to murder, (is) different in criminal effect than that of a sober man.' Annotation 12 A.L.R. 861, 883, 886.

On December 6, 1958, Jimmy Small and Bobby Young got off from work at 4:30 in the afternoon and after a few errands they and two other young men purchased a half gallon of wine. They went to one of the boy's home, sat around, talked and drank. By 5:30 or 6 o'clock they got another half gallon of wine, got some sandwiches and went to Alice Murphy's house and played cards and drank. By 9:15 they all 'chipped in' and got another gallon of wine, took some of the group to their homes, rode around, and finally went to Joe Hayes' house. Joe was supposed to have a birthday party but 'nobody showed up' and at 11:30 Bobby and Jimmy got Bobby's car and drove to his home to get his shotgun and shells so they could go hunting early the next morning. In addition to wine they had 'some beer,' an unspecified quantity, and according to Bobby Young they were both drunk. But Bobby did not testify or give evidence from which it was a fair inference that Jimmy was 'passed out,' or 'oblivious,' or 'physically incapable of committing murder.' Just before Leroy Stafford, the deceased, fell, he said, 'Jimmy didn't look like he was asleep, to me.' Jimmy testified that he and Bobby were drunk, and while he remembered being in Jones Alley, around 8 o'clock, he thought, not 12 or 12:30, he did not see Leroy Stafford and he did not remember shooting him. He said, 'I don't think I did, because I thought, if I did, I think I would remember something about it.' He did remember having the gun in his hands while in Jones Alley and while he finally testified that he did not stoot Leroy, he insisted, 'I believe if I had of, I would have knowed something about it, anyway.' Also he says that he does not remember going to Greenfield after Stafford's death about 12:30 in the morning. But, when they went to Bobby's home for the gun at 11:30, Bobby's mother said, 'you could tell they both had been drinking. * * * Well, it was enough, you know, to tell that they had been drinking. I couldn't say that they were drunk, but----.'

Thus to summarize, and with deference to counsel, there is no evidence in this record that Jimmy was in a state of 'stupefaction,' 'passed out,' or that by reason of drunkenness he was incapable of loading, aiming and firing a shotgun, or, as his counsel say, 'incapable of doing the (physical) act charged.' State v. Bartley, 337 Mo. 229, 237, 84 S.W.2d 637, 641. It will clearly appear in another connection that the plea of drunkenness in this case did not and could not have had the force and effect that it had in State v. Barr and State v. Buxton, supra. Therefore, in the circumstances of this record, instruction six was not improper or prejudicially erroneous for the reasons advanced.

Also in connection with the essential merits of the case, it is urged that the evidence is insufficient to warrant a finding of first degree murder because there is no direct evidence of deliberation and, it is said, no facts or circumstances from which deliberation may be inferred. V.A.M.S. Sec. 559.010. It is contended that 'the utmost,' 'the state's evidence tended to prove was that deceased was killed by a deadly weapon held in the hands of defendant, which act, even if intentional, raises only a presumption of second degree murder,' and, standing alone, does not permit the submission and finding of murder in the first degree. In brief, the appellant contends that the circumstances of this case fall within and are governed by the circumstances and rules applied in State v. Snow, 293 Mo. 143, 238 S.W. 1069, and State v. Kyles, 247 Mo. 640, 153 S.W. 1047, 1050. 'From an intentional killing with a deadly weapon, nothing more appearing, there arises a presumption that the act constitutes murder in the second degree.' State v. Kyles, supra. Hence, 'nothing more appearing,' as the absence of evidence which 'would tend to characterize the act,' to show deliberation, it is improper to submit first degree murder. The state has the burden of proving first degree murder, including the elements of premeditation and deliberation (40 C.J.S. Homicide Sec. 192, p. 1091), but as the Snow and Kyles cases recognize, 'premeditation' (thought of beforehand) and 'deliberation' (the cool blood) may be inferred and established circumstantially or 'from the circumstances of the homicide.' State v. McCracken, 341 Mo. 697, 701, 108 S.W.2d 372, 374; State v. Cade, 326 Mo. 1132, 1137-1139, 34 S.W.2d 82, 83-84. Thus the problem here is what inferences are reasonably permissible from this record, particularly from the circumstances of the homicide.

When Bobby and Jimmy got the singlebarreled 12-gauge shotgun, against the mild admonition of Mrs. Young, Bobby also got nine live twelve-gauge shells, all that he had left from a full box. He kept six of the shells and gave Jimmy three. Bobby placed the shotgun in the rear of his automobile, 'had the butt of the gun on the floor * * * and the rest of it was pointing up against the back rear window,' and he and Jimmy resumed their rather desultory wandering. They left Bobby's and drove down to Graham's barbecue, then they stopped at Jimmy's house, went back to Graham's but there 'wasn't nobody up there' and so they started down to Tommy Brown's on Jones Alley. Jones Alley is a short, very narrow paved street in Springfield, it is so narrow that automobiles traveling in opposite directions cannot pass one another. Bobby, with Jimmy in the front seat beside him, headed his automobile south into Jones Alley and when he was about 20 feet into the alley there was Harold Huddleston with his automobile headed north. Harold, incidentally, had driven into the alley about 100 feet. Harold and Bobby blinked their car lights at one another, honked horns, 'jowled' and cursed one another, each demanding that the other back out of the alley, Bobby finally bumping his automobile into the front of Huddleston's Mercury. Jimmy Small took no part in any of this argument, he sat silently in the front seat. While this argument was in progress a third car, also headed south, drove into Jones Alley but, of course, could not proceed and the driver, Franklin Mitchell...