State v. Smith

• Court: Missouri Supreme Court
• Writing for the Court: PER CURIAM; STORCKMAN, P. J., EAGER, J., and HUNTER; LEEDY
• Citation: State v. Smith, 310 S.W.2d 845 (Mo. 1958)
• Decision Date: 10 March 1958
• Docket Number: No. 46171,No. 2,46171,2
• Parties: STATE of Missouri, Respondent. v. Paul SMITH, Appellant

Page 845

310 S.W.2d 845

STATE of Missouri, Respondent. v. Paul SMITH, Appellant.

No. 46171.

Supreme Court of Missouri, Division No. 2.

March 10, 1958.

Cecil Block, Merle L. Silverstein, St. Louis, for appellant.

John M. Dalton, Atty. Gen., Winston Cook, Asst. Atty. Gen., for respondent.

BOHLING, Commissioner.

Paut Smith has appealed from a judgment imposing a sentence of life imprisonment for the murder in the first degree of Lee Bunch. Will W. Blakley, David Hill, Jr. and appellant were jointly charged in an information substituted for an indictment with the offense. Sup.Ct. Rule 24.02 (Secs. 545.290, 545.300. Statutory references are to RSMo 1949 and V.A.M.S.) The charge laid against appellant was under the habitual criminal act. Sec. 556.280. Appellant was granted a severance. Appellant complains of the submissibility of the State's case, the admission in evidence of his confession, an instruction given by the court, and the agrument of the State's attorney.

Between 5:30 and 5:50 a. m. June 18, 1855, Lee Bunch, a white man, was found in the neighborhood of 5123 Enright street, St. Louis City, Missouri, lying with his feet in the gutter of the street and his body in the space between the sidewalk and the curb. He was found by James Osler. Officers Edward Papin, Patrick McCord, and George Pate of the Metropolitan Police Department were soon on the scene. Their testimony established the following:

The man, later identified as Lee Bunch, was on his right side but rolled over on his back. He was unconscious, dirty, and was bloody about the head. His clothes were disarranged, dirty and soiled. His trousers were open at the fly and were down a couple of inches from the belt line. His pockets were inside out. Found near his body were two knives, two cigarette lighters, some keys, an electrician's pliers etc., which Mrs. Lee Bunch identified as her husband's property. She testified his billfold and money clip were not at the home, and they were not found. Bunch was taken to City Hospital No. 1. An excerpt from the hospital record under 'Impression.' '5. Acute alcoholic intoxication,' was read into evidence by appellant. Mrs. Bunch testified that, after her husband left their home June 17, 1955, she next saw him in the City Hospital; that he was unconscious and later was taken to the City morgue.

Dr. John J. Connor, Chief Pathologist for the coroner's office, performed a postmortem upon the body of Lee Bunch about 11:00 a. m., June 20, 1955. He testified, without detailing it, that Bunch sustained numerous contusions of the scalp, a laceration down to the skull in the left occipital region; that his death was the result of a fracture, a break, of the skull and the hemorrhagic softening of the brain, the result of trauma; that this condition could have been caused by a blow with a hard object, or by a fall caused by being struck with a fist, or a fall and striking something with a corner on it like a curbing, street, or an uneven surface.

Defendant was arrested at his home about 5:30 a. m. June 20, 1955. David Hill was arrested June 21, 1955, and Will W. Blakley on June 23, 1955. Officer Fred Grimes was assigned to the case and conducted the questioning of appellant. On the afternoon of June 23, 1955, after Hill and Blakley told of the robbery in appellant's presence, appellant made an oral statement to the officers. Appellant was then taken to the circuit attorney's office about 3:00 p. m. where a statement by him, in question and answer form, was taken by a stenographer. The stenographer was not able to finish the typing that afternoon. Appellant, after reading his typewritten statement and making several corrections in it. signed it at 10:40 a. m. June 24, 1955, with officers Grimes and Spencer as witnesses. The jury could find the following facts from his statement:

David Hill and appellant went to Jack Miller'Sec. tavern, 907 Academy, at approximately 11:45 p. m. July 17, 1955. A white man, Lee Bunch, came in, had several beers, made a telephone call, and went into the lounging parlor. Hill went in and talked to Bunch. Hill told appellant Bunch was looking for some prostitutes and he thought Bunch had a 'nice size roll' on him. Hill went back to where Bunch was, and the two walked out of the tavern. Appellant walked out of the tavern, and Hill called to him, using a 'phony' name. They told appellant Bunch was looking for a prostitute. After some conversation the three went to the 5100 block on Enright. Will Blakley came up while they were on Enright and asked: "What you all got--a trick," meaning a man they could rob, and appellant said: "Yeah." They walked down to in front of 5123 or 5125 Enright, and Bunch asked how much the girls would cost. Appellant told him $7; $2 for the room and $5 for the girl. Bunch said 'I can't pay that much.' This upset appellant because he thought Bunch had a big roll and he struck Bunch with his fist on the side of the head, and Bunch staggered back. Appellant 'thought maybe I had fractured my arm.' Hill or Blakley or both then 'flopped' Bunch to the ground. Appellant and Blakley searched Bunch. Blakley found Bunch's billfold with $5 in it. They left Bunch lying there. Blakley had the bill changed, gave Hill and appellant $1.50 each and kept $2. Sunday morning, the 19th, Blakley told appellant: "The fellow died."

I. Appellant contends the court erred in refusing his motion for judgment of acquittal (Sup.Ct.R. 26.10) 'since all of the evidence introduced by the State failed as a matter of law to prove beyond a reasonable doubt that defendant committed or participated in the homicide, the State's entire case being founded on an inference which is based on another inference, neither inference being proven by direct evidence.' He stresses State v. Simon, Mo., 57 S.W.2d 1062[2, 3], and cites State v. Ross, Mo., 300 S.W. 717[2, 3]; State v. Taylor, 356 Mo. 1216, 205 S.W.2d 734, 736[1-5]; and State v. Knight, Mo., 296 S.W. 367[1-4].

Section 559.010 provides, among other things, that '* * * every homicide which shall be committed in the perpetration or attempt to perpetrate any * * * robbery * * * shall be deemed murder in the first degree.' It is well settled that a prosecution for first degree murder in the perpetration of any of the felonies enumerated in Sec. 559.010 may be maintained under a charge in the usual and common form, as in the instant case, of a willful, deliberate and premeditated killing. State v. Copeland, 335 Mo. 140, 71 S.W.2d 746, 752; State v. King, 342 Mo. 1067, 119 S.W.2d 322, 324[1, 2], among others.

The instant case is distinguishable in that in appellant's authorities supporting his contention there was no substantial probative evidence showing that the respective defendant participated in or was connected with the crime charged; that is, in the Simon case with carrying concealed a deadly weapon, in the Ross case with manufacturing moonshine corn whiskey, and in the Knight case with selling hootch, moonshine and corn whiskey.

In the instant case the jury could find that Blakley, Hill and appellant conspired to rob Bunch; that in the execution of the robbery they made an assault upon Bunch with force and violence, consisting of blows to the head and 'flopping' him to the ground, causing him to become unconscious, to bleed about the head, his skull to be fractured, and his brain to hemorrhage and soften; that they thereupon robbed Bunch and departed leaving him lying in front of 5123 or 5125 Enright, and that Bunch was there found unconscious about 5:30 that morning, and died without regaining consciousness.

The evidence in the instant case is not as direct as in the Taylor case, supra, cited by appellant, sustaining a conviction, but it established appellant's participation in the assault and robbery and is more substantial than the evidence held to be sufficient in State v. Ellis, 294 Mo. 269, 242 S.W. 952, 954 , 24 A.L.R. 682. See also State v. Frazier, 339 Mo. 966, 98 S.W.2d 707, 712; State v. Brinkley, 354 Mo. 1051, 193 S.W.2d 49, 54[4-8]; State v. Rizor, 353 Mo. 368, 182 S.W.2d 525, 528[7, 8]. The corpus delicti--the death of Bunch and the criminal agency of someone causing his death--and appellant's participation were established.

II. Appellant, in his brief, complains of the State's argument in two instances, towit:

'Mr. McMillian: * * * You have this also to think about--what about this man's prior convictions? He knows all about penitentiaries, he has been there, he confessed that he was up there for almost two years, and less then forty days on the street, where was he--he is still out trying to steal and taking another man's life.

'Mr. Draper: I will object to that as an attempt to influence the jury and I will ask that it be stricken and a mistrial be declared and the jury be discharged.

'The Court: Overruled.' And later:

'* * * He has been in the penitentiary, and it wasn't but forty days after he came out before he was back in trouble again, and considering all the evidence, why, this man should continue to live when Lee Bunch is dead? He left this life--he didn't even have a chance to make peace with his Maker----

'Mr. Draper: (interrupting) I will object to that, that is highly prejudicial and outside the scope of the record.

'The Court: Sustained.

'Mr. Draper: I will ask that the jury be discharged and a mistrial be declared.

'The Court: That will be overruled.'

The only assignment in appellant's motion for new trial complying with Supreme Court Rule 27.20 (Sec. 547.030) against the State's argument alleged error in the refusal of 'defendant's request for the discharge of the jury and the declaration of a mistrial' because the State's argument 'went completely outside the scope of the evidence and charged the defendant with being a thief and a rapist.' The ground alleged for this error in appellant's brief is that these 'remarks were not warranted or permissible since the habitual criminal act issues were not...