State v. Talbert

• Decision Date: 04 October 1943
• Docket Number: 38535
• Citation: 174 S.W.2d 144,351 Mo. 791
• Parties: State v. William Edward Talbert, Appellant
• Court: Missouri Supreme Court

174 S.W.2d 144

351 Mo. 791

State v. William Edward Talbert, Appellant

No. 38535

Supreme Court of Missouri

October 4, 1943

Appeal from Circuit Court of St. Louis County; Hon. John J Wolfe, Judge.

Reversed and remanded.

I Joel Wilson for appellant.

(1) It was error for the court to neglect and fail to instruct the jury on second degree murder as a part of the law of the case. Secs. 4070, 4377, R. S. 1939. (2) It was error for the court to neglect and fail to instruct the jury on manslaughter as a part of the law of the case. State v Palmer, 88 Mo. l. c. 572. (3) It was error for the court to neglect and fail to instruct the jury on misadventure as a part of the law of the case. Sec. 4380, R. S. 1939; State v. Crowley, 139 S.W.2d l. c. 475; 13 R. C. L., sec. 166, p. 864; 4 Warren on Homicide, sec. 340, p. 306; State v. Coff, 267 Mo. 14, 183 S.W. 287; State v. Martin, 162 S.W.2d l. c. 852. (4) The court erred prejudicially in refusing and failing to give defendant's proffered Instruction C because there was evidence that defendant had not entered into any conspiracy with Leo Lyles, Arthur Lee Butler and William Clayton or any of them to commit the offense alleged in the information filed against him; that defendant had not himself shot and killed deceased, and that defendant had not intended to shoot and kill deceased, and had protested against the commission of the alleged homicide. State v. Bidstrup, 140 S.W. 904; State v. Fraley, 116 S.W.2d l. c. 20. (5) The court erred prejudicially in refusing and failing to give defendant's proffered Instruction D because there was testimony in the case that defendant had not entered into any conspiracy with or aided and abetted Leo Lyles, Arthur Lee Butler and William Clayton or any of them in the commission of the alleged offense for which he was on trial. (See Authorities under Point (4).) (6) The court erred prejudicially to defendant in refusing and failing to give defendant's proffered Instruction H upon the hypothesis of an abandonment of the alleged conspiracy mentioned in the evidence to commit the offense charged, and defendant's protest against the commission thereof, there being evidence in support of such abandonment and protest. State v. Bidstrup, 140 S.W. 904; State v. Lewis, 201 S.W. l. c. 85. (7) State's Instruction 6, erroneously comment on the evidence in that it assumed the commission of the offense charged by the statement: "After the alleged offense was committed." State v. Burns, 268 S.W. l. c. 80. (8) State's Instruction 6 relating to extrajudicial statements of defendant was an erroneous comment on the evidence and was inapplicable to the facts in the case, in that it assumed the existence of facts in support of which there was no evidence, there being no beneficial statements to himself made therein by him. State v. Jones, 268 S.W. l. c. 87; State v. Duncan, 80 S.W.2d l. c. 153. (9) State's Instruction 6, was an erroneous comment on the evidence, in that it singled out defendant's unfavorable statements alleged to have been made by him in his alleged extrajudicial statements admitted in evidence and gave undue prominence to them to the exclusion of other material evidence in the case. State v. Hersh, 296 S.W. l. c. 436. (10) State's Instruction 6, was erroneous in that it directed the jury to consider the favorable statements of the defendant contained in his alleged extrajudicial statements together with the unfavorable statements therein notwithstanding there were no favorable statements to defendant contained in such extrajudicial. State v. Duncan, 80 S.W. l. c. 154; State v. Busch, 119 S.W.2d l. c. 268; State v. Luna, 162 S.W.2d l. c. 859. (11) State's Instruction No. 6, was erroneous in that it invaded the province of the jury to pass upon the facts and to determine the credibility of the witnesses and the weight to be given their testimony. See Authorities under point (10). (12) It was error to refuse and fail to give correct converse instructions C, D and H requested by defendant in view of the following insufficient concluding statement in State's Instruction 2: "and unless you find the facts to be as stated in this instruction you will acquit the defendant, William Edward Talbert, of murder in the first degree." State v. Fraley, 116 S.W.2d l. c. 20. (13) State's Instruction 4, is an erroneous comment on the evidence as there is no substantial evidence in the case that the defendant Talbert conspired with Leo Lyles, Arthur Lee Butler and William Clayton or any of them to kill deceased, nor that he himself killed or intended to kill him. See Authorities under Points (1) and (2). (14) State's Instruction 7, is an erroneous comment on the evidence, and misleading and confusing to the jury, and an invasion of the province of the jury to determine the credibility of the witnesses and the weight to be given to all testimony, in that it is a mandatory direction as to how the jury must consider the evidence. State v. Waller, 259 S.W. l. c. 445; State v. Martin, 124 Mo. 514, 522, 28 S.W. 12; State v. Barnes, 204 S.W. 264. (15) The court erred in giving, of its own motion, Instruction 10, which in effect erroneously advised the jury that inasmuch as they had not been able to agree upon the punishment to be assessed but had agreed upon a verdict of guilty, then in that event they should return a verdict finding the defendant guilty of murder in the first degree and leave the fixing of punishment defendant was to receive to the court, in that said instruction deprived the defendant of his fundamental right to have a fair trial. State v. Foote, 7 Mo. 502; State v. Gilbreath, 130 Mo. l. c. 505, 32 S.W. 1023.

Roy McKittrick, Attorney General, and Aubrey R. Hammett, Jr., for respondent.

(1) The information is sufficient in form and substance and fully apprises the defendant of the crime charged. Sec. 4376, R. S. 1939; State v. Conley, 164 S.W. 193, 255 Mo. l. c. 195; State v. Kenyon, 126 S.W.2d 245, 343 Mo. 1168. (2) The verdict is sufficient in form and substance. Secs. 4093, 4378, R. S. 1939; State v. Adams, 19 S.W.2d 671, 323 Mo. 729; State v. Hampton, 172 S.W.2d l. c. 5. (3) There is substantial evidence to support the verdict of murder in the first degree and the trial court committed no error by not instructing upon lower degrees of the crime. State v. Clymer, 159 S.W.2d 808; State v. Taylor, 148 S.W.2d 802, 347 Mo. 607; State v. Schrum, 152 S.W.2d 17, 347 Mo. 1060; State v. Ring, 141 S.W.2d 57, 346 Mo. 290; State v. Cohen, 100 S.W.2d 544. (4) The court committed no error in refusing to give converse instructions offered by defendant when said instructions failed to properly declare the law. State v. Messino, 30 S.W.2d 750, 325 Mo. 743; State v. Fraley, 116 S.W.2d 17, 342 Mo. 442; State v. Quinn, 130 S.W.2d 511, 344 Mo. 1072; State v. Tucker, 62 S.W.2d 453, 333 Mo. 171; State v. Parr, 296 Mo. 406, 246 S.W. 903. (5) The court committed no error in giving Instruction 6. Secs. 4093, 4378, R. S. 1939; State v. Adams, 19 S.W.2d 671, 323 Mo. 729. (6) The court committed no error in admitting the testimony of Arnold Willman, sheriff, when no objection was made by the defendant at the time such evidence was adduced. State v. Hepperman, 162 S.W.2d 878, 349 Mo. 681; State v. Rowe, 24 S.W.2d 1032, 324 Mo. 863. (7) The court properly gave Instruction 1 relative to the defendant acting with others with a common intent to commit a crime. State v. Pease, 133 S.W.2d 409; State v. Nasello, 30 S.W.2d 132, 325 Mo. 442; State v. Adams, 98 S.W.2d 632, 339 Mo. 926; State v. Ellis, 290 Mo. 219, 234 S.W. 845. (8) The court committed no error in giving Instruction 5. If anything, such an instruction was beneficial to the defendant and he therefore cannot be heard to complain. (9) Under the objection made by the defendant to the giving of Instruction 7, the court committed no error in giving such instruction. State v. Marlin, 259 S.W. 433; State v. Shelton, 223 Mo. 118, 122 S.W. 732; Chicago and E. R. R. Co. v. Michigan, 45 N.E. 290, 163 Ill. 305.

Bohling, C. Westhues and Barrett, CC., concur.

OPINION

BOHLING

William Edward Talbert was found guilty of the murder, in the first degree, of Martin Twillmann. The jury were unable to agree on the punishment and the court assessed the death penalty.

We briefly state the essential facts. Appellant and three other negro boys -- Leo Lyles, Arthur L. Butler, and Willie Clayton had trouble with an automobile they had stolen and proceeding on foot, approached Marvin Twillmann, who was a cousin of deceased and was watering his (Marvin's) stock at the time, and ordered Marvin, at the point of revolvers, into his truck. Lyles drove the truck down a one-lane road with two of the boys sitting on top of Marvin. Martin Twillmann was approaching in an automobile with his mother. He pulled to the side to let the truck pass. Lyles was not sufficiently careful in operating the truck and, in attempting to pull over and pass, the truck became stalled in the ditch after it had just passed the other car. Appellant, with a revolver, had Marvin Twillmann go to the rear and around the truck. In the meantime, Martin Twillmann and his mother had been ordered out of their car. Just as Martin Twillmann was about out of his and, so far as disclosed by the State's evidence, without apparent reason he was shot by Lyles and killed. Mrs. Twillmann screamed and started to run. She was shot. There was testimony that appellant fired a shot or shots at Mrs. Twillmann. Other events need not be narrated. Marvin Twillmann managed to escape. Mrs. Twillmann's wounds were not fatal.

Appellant attacks an instruction on statements, reading:

"The court instructs the jury that if you believe and find from the evidence that the defendant voluntarily made any statement or statements,...