State v. Smith

• Decision Date: 21 January 1975
• Docket Number: No. 35514,35514
• Citation: 518 S.W.2d 665
• Parties: STATE of Missouri, Respondent, v. Jerome C. SMITH, Appellant. . Louis District
• Court: Missouri Court of Appeals

Page 665

518 S.W.2d 665

STATE of Missouri, Respondent, v. Jerome C. SMITH, Appellant.

No. 35514.

Missouri Court of Appeals, St. Louis District.

Jan. 21, 1975.

Charles D. Kitchin, Public Defender, John D. Bauer, James C. Jones, Christelle Adler, Asst. Public Defenders, St. Louis, for appellant.

John C. Danforth, Atty. Gen., G. Michael O'Neal, Ellen S. Roper, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., John F. White, Asst. Circuit Atty., St. Louis, for respondent.

KELLY, Judge.

Defendant was convicted of murder in the second degree on May 23, 1973 and the trial court assessed a sentence of 25 years in the Missouri Department of Corrections on the following day, May 24, 1973, and granted his counsel an additional 10 days to file a Motion for New Trial. On June 13, 1973, defendant's counsel filed a Motion for New Trial and on June 15, 1973, the motion was argued, allocution was afforded the defendant, and the trial court sentenced him to confinement in the Department of Corrections for a period of 25 years. Immediately thereafter defendant's motion to appeal as a poor person was sustained and this appeal followed.

The State in its brief points out that the verdict in this case was returned on May 23, 1973 and that the defendant was granted an additional ten (10) days to file his motion for new trial; however, since defendant did not file his motion for new trial until June 13, 1973, the State contends that nothing was preserved for this court to review. Rule 27.20(a) and Rule 31.01, V.A.M.R. The law in this State is clear that the rule requiring that a motion for new trial must be filed within 10 days after return of verdict is mandatory and where a motion for new trial is not filed in conformity with the Rule it is a nullity and preserves nothing for review. State v. Clark, 432 S.W.2d 279, 281(1, 2) (Mo.1968). The transcript of the record shows that the jury returned its verdict into the trial court at 6:45 p.m. on May 23, 1973, and after the trial court received the verdict and polled the jury, a recess until 9:15 a.m. the following morning was announced and both counsel were advised that at that time assessment of punishment would take place. On May 24, 1973, after the court reconvened, after some discussion the punishment was assessed at 25 years in the Missouri Department of Corrections. The trial court stated: 'I assume, Mr. Bauer, you'll be able to get your Motion for a New Trial in within ten days?' Counsel replied that he had two other major motions coming up and requested an additional ten days. The trial court announced: 'The court will grant you an additional 10 days. Give the Clerk a memorandum to that effect.' Calculating the extension granted in accord with Rule 31.01, if the trial court granted the additional 10 days from the date of the receipt of verdict, the motion for new trial was due to be filed on June 12, 1973, and was late when filed on June 13, 1973. If, however, the trial court meant an additional ten days computed from the time the request was granted, then the motion was timely filed. No date was specified in the order. The trial court pursuant to Rule 27.20(a) may grant an extension of time for the filing of a motion for new trial for an additional period of thirty (30) days, a total of forty (40) days after verdict. The trial court entertained the motion for new trial but made no definitive ruling thereon; after hearing argument he immediately granted allocation and imposed sentence in accordance with the assessment previously announced on May 24, 1973. There was no ruling at that time that he considered the motion untimely filed. With the record in this condition we do not conclude that we should find otherwise and proceed to consider the Points raised by the defendant in this appeal.

On appeal defendant contends that the trial court erred in failing to give an instruction on Manslaughter, in giving and reading to the jury Instruction No. 4--the verdict director with respect to murder in the second degree-because it did not require a finding that the homicide was done feloniously, willfully, premeditatedly and with malice aforethought, and the same Instruction was erroneous because if the jury found and believed from the evidence beyond a reasonable doubt each and every element set out therein they would have had to find the defendant guilty of manslaughter and not murder in the second degree. Because we agree with defendant's contention that he was, under the facts of this case, entitled to a manslaughter instruction we reverse and remand.

The defendant was charged in a substitute information in lieu of indictment with the offense of attempted robbery in the first degree by means of a dangerous and deadly weapon in Count I thereof and with murder in the first degree in Count II thereof. The information likewise contained allegations of a prior felony conviction pursuant to the Second Offender Act, § 556.280 V.A.M.S.

The defendant does not dispute that the facts support the jury's verdict, and the jury could, and did, find that shortly prior to midnight on July 20, 1972, the defendant entered Lou Jones' Liquor Store in the City of St. Louis, Missouri, and asked Norman Anderson, an employee of the liquor store, for some candy and potato chips, then pulled a pistol and announced 'This is it.' Lou Jones, the owner of the liquor store, who was sitting nearby, stood and approached the defendant after defendant had ordered him to do so, and defendant proceeded to pat-down Mr. Jones apparently in an effort to determine if Mr. Jones was armed. Mr. Jones attempted to grab defendant's arm whereupon the defendant fired at Jones. Jones then took his own gun out of a cigar box he was carrying and returned the fire. Mr. Anderson ran to the back of the store, heard several more shots and when he returned to the front of the store he saw Mr. Jones fall to the floor and the defendant was gone from the scene. Defendant was picked up by the St. Louis Police several blocks from the scene shortly after the shooting.

Defendant testified in his own behalf, and his testimony was that he was employed as a private security guard and on the night in question he was patrolling the area in the neighborhood of the liquor store. He admitted that although he was not licensed to carry a gun he did so and had one on him at the time. He further testified that it was the policy of the security service for whom he worked to permit its guards to drink liquor while on duty as long as they did not do so while in uniform. On the night of the incident defendant decided to get something to drink and preparatory to entering the liquor store he removed his uniform hat, shirt, night stick and time clock and left them in an alley. He did, however, keep his gun on him. He entered the liquor store and asked for candy and potato chips and inquired as to the price of a bottle of wine. The pistol, because of its length, protruded from his pocket and when he tried to push it further into his pocket Mr. Jones observed him, shouted to the defendant that he, the...