State v. Sykes, 49704

Decision Date13 January 1969
Docket NumberNo. 49704,No. 3,49704,3
Citation436 S.W.2d 32
PartiesSTATE of Missouri, Respondent, v. Fred SYKES, Jr., Appellant
CourtMissouri Supreme Court

Norman H. Anderson, Atty. Gen., Richard L. Wieler, Asst. Atty. Gen., Jefferson City, for respondent.

Robert G. Duncan, Lewis E. Pierce, Pierce, Duncan, Beitling & Shute, Kansas City, for appellant.


Appellant, hereinafter referred to as the defendant, was convicted in Circuit Court of the City of St. Louis, Missouri, by a jury, under Section 559.010, RSMo 1959, V.A.M.S., of murder in the first degree. In accordance with the verdict of the jury, he was sentenced to imprisonment in the penitentiary for life. In State v. Sykes, Mo.Sup., 372 S.W.2d 24, we affirmed the conviction. A review of the record proper disclosed that defendant did not have counsel when his direct appeal was heard; thus, we have heretofore set aside our judgment of affirmance and ordered the cause to be redocketed, and that counsel be appointed. Counsel has now been appointed, the case briefed and argued, and once again is here for decision.

Although defendant's motion for a new trial sets out six assignments of error, all of which were ruled upon in State v. Sykes, supra, he has briefed and argued on this appeal only three grounds. Consequently, pursuant to our Rule 28.02, V.A.M.R. (1959), 1 we shall treat as waived or abandoned all assignments of error not presented and argued in the brief. State v. Jones, Mo.Sup., 386 S.W.2d 111.

We have reviewed and we adopt the finding of facts as set out in the original appeal in State v. Sykes, supra. We, nevertheless, feel that a re sume of the salient facts is in order. Briefly, the State's testimony showed that the deceased, Walter Chappel, age 76, on January 3, 1962, had purchased a paper and some wine from a drugstore in the City of St. Louis. As he left, he was accosted from the rear, and a struggle ensued. In the struggle, defendant, who was identified by several witnesses, struck the victim who fell to the sidewalk. Defendant then raised the deceased from the sidewalk and struck him again; this time the victim's head struck an iron post. Thereafter, the defendant removed a sum of money from the pockets of the deceased, and left him injured on the sidewalk. The deceased, who was then taken to City Hospital, remained in a semiconscious and irrational condition until January 11, 1962, when he died.

Both the chief resident of the City Hospital and the pathologist for the coroner of the City of St. Louis agreed that the cause of death was a cerebral hemorrhage, which is a bleeding within the substance of the brain. A spinal tap taken on the date of the injury indicated bleeding in the victim's central nervous system. The chief resident physician testified that the blood vessels of the deceased were weakened by disease (sclerosis of the brain) and that a blow on the head was likely to produce the cerebral hemorrhage. The pathologist, who performed the autopsy, said 'any blow to the head might cause the blood vessels to rupture where the person struck is suffering from sclerosis of the brain, and excitement as well as sudden elevation or diminution of the blood pressure could produce a cerebral hemorrhage.'

The evidence indicated further that the deceased prior to his encounter with the defendant was conscious and going about his business; that after he had been knocked down the second time by the defendant, he became semiconscious and irrational and remained so until his death eight days later. Moreover, as we said before, on entry to the hospital, a spinal tap disclosed bleeding into the central nervous system indicative of the cerebral hemorrhage. Also, the physical examination showed a star-fashioned cut and a large bruise on the right side of the victim's head.

Defendant's claim that there was no substantial evidence to show that the deceased died from a mortal wound inflicted upon him by defendant is wholly without merit. First, in determining the sufficiency of the evidence to sustain the conviction, we must consider as true the evidence favorable to the State and favorable inferences which can be reasonably drawn therefrom, and reject evidence to the contrary. State v. Davis, Mo.Sup., 365 S.W.2d 577, 578; State v. Reagan, Mo.Sup., 328 S.W.2d 26, 29(5). A mere recital of the evidence, as digested here without even going into a fuller development, as did the Court on the first appeal, indicates that there was sufficient evidence from which a jury could have reasonably found from the medical testimony that Mr. Chappel's injury and death resulted from the blows delivered by defendant. State v. Morris, Mo.App., 307 S.W.2d 667, 673(6); State v. Brinkley, 354 Mo. 1051, 193 S.W.2d 49, 54(4); and State v. Frazier, 339 Mo. 966, 98 S.W.2d 707, 712(5). This assignment is denied.

Chosely akin to the above contention pertaining to the sufficiency of the evidence to sustain the charge, defendant argues that there was no substantial evidence to show that defendant, in fact, robbed the deceased. This, too, was a jury question. A jury could have reasonably found from the testimony given by that Count I of the substituted information and knocked down the deceased, he removed some money from the pocket of the deceased. State v. Davis, supra.

Next, we consider defendant's claim that Court I of the substituted information in lieu of an indictment was totally defective. As we see our duty under Rule 28.02, V.A.M.R., independent of any claim of error by defendant in this regard, we would review the sufficiency of the substituted information. In the instant case, the state substituted an information in two counts for the indictment as found and returned by the Circuit Court Grand Jury. Count II followed the approved practice charging murder in the first degree in the usual language that defendant 'did then and there with the specific intent wilfully, feloniously, deliberately, premeditatedly, on purpose and of his malice aforethought' assault and mortally wound Walter Chappel. Of course, under Count II, as has been the practice, the State could prove that the homicide occurred during the course of a robbery even though that fact was not charged in the substituted information. The reason, to be sure, as provided in Section 559.010, RSMo 1959, is that any homicide committed during the perpetration, or the attempt thereof of certain specified felonies, as in the instant case, robbery, the commission of the felony stands in lieu of, and is the legal equivalent of premeditation and deliberation, etc., which otherwise are the necessary attributes of murder in the first degree. State v. Meyers, 99 Mo. 107, 12 S.W. 516; State v. Nasello, 325 Mo. 442, 30 S.W.2d 132; and State v Messino, 325 Mo. 743, 30 S.W.2d 750. In any event, however, Count II was dismissed by the State and the case went to the jury under Count I.

Count I for our purposes states:

'* * * Fred Sykes, Jr. * * * did unlawfully, wilfully, feloniously, and with malice aforethought, make an assault upon one Walter Chappel (while in the act of committing a robbery upon said Walter Chappel) and did with his hands and first, strike and beat said Walter Chappel with great force and violence, thereby inflicting a mortal wound, from which the said Walter Chappel did languish; and languishing did live from the 3rd day of January, 1962, til the 11th day of January, 1962, and on the 11th day of January, 1962, the said Walter Chappel of the mortal wound * * * did die. (Brackets added by Court.)

'And so * * * Assistant Circuit Attorney, upon his oath do say that the said Fred Sykes, Jr. * * * the said * * * Walter Chappel in the manner and form and by the means aforesaid, feloniously, wilfully, deliberately, premeditatedly, and of his malice aforethought, did kill and murder * * *'

Granted, as contended by defendant, Count I failed to set out the constitutive requisites of robbery as we classically describe them. And as said by the Court in Titus v. State, 49 N.J.L. 36, 7 A. 621, which we cited with approval in State v. Meyers, supra, 'The mistake of the pleader in this instance is the common one of substituting an inference of his own from a...

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