State v. Talbert

• Decision Date: 04 September 1945
• Docket Number: 39410
• Citation: State v. Talbert, 189 S.W.2d 555, 354 Mo. 410 (Mo. 1945)
• Parties: State v. William Edward Talbert, Appellant
• Court: Missouri Supreme Court

189 S.W.2d 555

354 Mo. 410

State v. William Edward Talbert, Appellant

No. 39410

Supreme Court of Missouri

September 4, 1945

Motion for Rehearing or to Transfer to Banc Overruled October 1 1945.

Appeal from Circuit Court of St. Louis County; Hon. John A Witthaus, Judge.

Affirmed.

Fred A. Gossom and Marvin Boisseau for appellantI. Joel Wilson of counsel.

(1)The court prejudicially erred in failing to require the jury in State's Instruction 3, that in order to find the defendant guilty, they must find and believe from the evidence beyond a reasonable doubt he had wilfully, deliberately, premeditatedly, and of his malice aforethought took the life of Martin Twillmann by shooting and wounding him in a vital part with a pistol, or pistols, charged with gunpowder and metal bullets.State v. Enochs,98 S.W.2d l.c. 688;State v. Crabtree,170 Mo. l.c. 654;State v. Strawther,116 S.W.2d l.c. 139;State v. Creed,252 S.W. l.c. 632;Sec. 4051, R.S. 1939;State v. Cannon,232 Mo. 205;State v. Spinks,125 S.W.2d 60;State v. Gregory,96 S.W.2d 47;State v. Galbraith,50 S.W.2d 1035;Acuff v. New York Life Ins. Co.,239 S.W. 551;10 R.C.L., secs. 8, 9, pp. 866, 867;2 Underhill on Criminal Evidence (2 Ed.), p. 31, sec. 17.(2)The court erred prejudicially to defendant in Instruction 3, by commenting on the evidence in assuming the fact to be that the defendant had used a deadly weapon, a pistol, loaded with gunpowder and metal bullets upon the deceased at a vital part of his body.Authorities under Point (1).(3)The court prejudicially erred in failing to direct and advise the jury in State's Instruction 3, that the State was required to prove willfullness, deliberation, premeditation and malice aforethought on the part of defendant beyond a reasonable doubt before they could convict him.Authorities under Point (1).(4)The court erred prejudically to defendant in State's Instruction 3, in making the only requirement to the establishment of defendant's guilt inferences of that fact from the evidence; and in failing to advise the jury in said Instruction 3, that they must acquit the defendant if the State failed to establish his guilt beyond a reasonable doubt from all the evidence in the case.Authorities under Point (1).Merkel v. Railway Mail Assn.,236 S.W. 299;State v. James,133 Mo.App. l.c. 303;1 Greenleaf on Evidence (14 Ed.), sec. 44;State v. Shalley,166 Mo. 616;State v. Tosher,119 S.W.2d 212;State v. McLane,55 S.W.2d 956;36 C.J., pp. 920, 921, secs. 527,528;State v. Buck,120 Mo. l.c. 495;State v. Skelly, 64 S.W.2d l.c. 272.

J. E. Taylor, Attorney General, and Will F. Berry, Jr., Assistant Attorney General, for respondent.

(1) The information in this case is sufficient in form and properly charges the offense of murder in the first degree.Sec. 4376, R.S. 1939;State v. Kenyon,126 S.W.2d 245, 343 Mo. 1168.(2) The verdict is in proper form, is responsive to the issues, and complies with Section 4378, R.S. 1939. Sec. 4378, R.S. 1939.(3) The record in the cause discloses that defendant was formally arraigned, was granted allocution after verdict, and was sentenced in accordance with the verdict of the jury.(4)The court did not err in overruling defendant's Assignments of Error Nos. 11, 15, 16, 17, 18 and 19 in his motion for new trial; said assignments of error being consolidated and designated Assignments of Error Nos. I, II, III and IV in appellant's brief on appeal.State v. Johnson,163 S.W.2d 780, 349 Mo. 910;State v. Nasello,30 S.W.2d 132, 325 Mo. 442;State v. Gaters,39 S.W.2d 548;State v. Allen,234 S.W. 837, 290 Mo. 258;State v. Little, 228 S.W. 793.

OPINION

Leedy, J.

The conviction in this case is for murder in the first degree, the punishment for which the jury assessed at the extreme penalty.On defendant's former appeal a like judgment and sentence was reversed and the cause remanded for the giving of an erroneous instruction.State v. Talbert,351 Mo. 791, 174 S.W. 2d 144.The same error inhered in the first trial of one of his co-defendants, resulting, also, in the reversal and remanding of that case.SeeState v. Lyles,351 Mo. 1174, 175 S.W. 2d 587.The affirmance of the second conviction of Lyles is reported in 353 Mo. 930, 185 S.W. 2d 642.

Defendant does not question the sufficiency of the evidence, and as the question to be determined on this appeal does not involve the facts, they need not be restated here other than by reference to the opinions in the three former appeals just mentioned.The sole point urged for reversal is that the court committed reversible error in the giving of State's instruction No. 3.Said instruction reads as follows:

"The Court instructs the jury that he who wilfully, that is, intentionally, uses upon another at some vital part, a deadly weapon, as a pistol charged with gunpowder and metal bullets, must, in the absence of qualifying facts, be presumed to know that the effect is likely to be death; and, knowing this, must be presumed to intend death, which is the probable and ordinary consequences of such an act, and if such deadly weapon is used without just cause or provocation, he must be presumed to do it wickedly and from a bad heart.

"If, therefore, the jury believe from the evidence that defendantsLeo Lyles, William Edward Talbert, Arthur Lee Butler and William Clayton, or any of them, while acting together with a common purpose (if you so find they were so acting together as defined in these instructions), took the life of said Martin Twillmann by shooting and wounding him in a vital part with a pistol, or pistols, charged with gunpowder and metal bullets, with a manifest design to use such weapon, or weapons upon him with sufficient time to deliberate and fully form the conscious purpose to kill, and without sufficient cause, reason or provocation, then such killing is Murder in the First Degree.And while it devolves upon the State to prove the willfullness, deliberation, premeditation and malice aforethought, all of which are necessary to constitute Murder in the First Degree, yet these need not be proved by direct evidence, but may be deduced from all the facts and circumstances attending the killing, and if the jury satisfactorily and reasonably infer their existence from all the evidence you will be warranted in finding the defendant guilty of Murder in the First Degree, and should so say in your verdict."

The instruction is assailed for a variety of reasons which are developed under four separate assignments.One of the assignments is: "The court erred prejudicially to defendant in InstructionNo. 3, by commenting on the evidence in assuming the fact to be that the defendant had used a deadly weapon loaded with gunpowder and metal bullets upon the deceased at a vital part of his body."This contention is made solely upon a construction of the language of the first paragraph of the instruction, as will appear from the following excerpt from defendant's brief.After setting out the paragraph just referred to, the brief says: "By the language above quoted the court has assumed the facts to be that beyond a reasonable doubt the defendant had shot the deceased with a pistol in a vital part of his body.This was a question of fact solely and peculiarly within the province of the jury to decide, and in assuming their existence the court invaded the province of the jury, and erroneously commented upon the evidence to the great prejudice of the defendant."

We do not think it is subject to this criticism.As will be seen, the sentence of the second paragraph which actually hypothesized the defendants' use of a deadly weapon upon the body of the deceased at a vital part, began with the hypothesis "If, therefore, the jury believe from the evidence that," etc., thus affirmatively requiring the jury to find the existence of the facts so hypothesized as a prerequisite to a conviction.

The other three assignments are so closely related and over-lapping as to require that they be treated together.They severally complain of the instruction as...