State v. Talbert

• Decision Date: 20 May 1975
• Docket Number: No. 35898,35898
• Parties: STATE of Missouri, Respondent, v. Arthur Gene TALBERT, Appellant. . Louis District, Division Two
• Court: Missouri Court of Appeals

Page 58

524 S.W.2d 58

STATE of Missouri, Respondent, v. Arthur Gene TALBERT, Appellant.

No. 35898.

Missouri Court of Appeals, St. Louis District, Division Two.

May 20, 1975.

John C. Danforth, Atty. Gen., K. Preston Dean, II, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Paul Allred, Jr., Asst. Circuit Atty., Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.

Charles D. Kitchin, Public Defender, John F. Bauer, Asst. Public Defender, St. Louis, for appellant.

CLEMENS, Presiding Judge.

A jury convicted defendant Arthur Talbert of felonious assault by shooting Michael Turner, a fourteen-year-old neighbor. After deliberating four hours the jury returned a guilty verdict, and the trial court sentenced defendant to 15 years' imprisonment. On appeal, the crucial issue is whether there was substantial evidence defendant fired the shot that lodged a bullet in the victim's back.

The State's evidence: Defendant and Michael Turner lived in the same residential neighborhood. Michael had known defendant for years and was a friend of defendant's son. There had never been trouble between them. On the afternoon of June 16, 1973 Michael was walking west toward his home on a sidewalk along the north side of the street. Defendant was also going home, driving east toward Michael at about five miles per hour. As defendant's car passed him, Michael heard defendant say something he did not understand. Michael looked back and 'I seen his arm come up with something black.' Michael then turned his head away, felt a sting in his back and fell to the ground. A Mr. Perkins, visiting in the neighborhood, heard a shot, not from defendant's car, but from that direction. Perkins went to help Michael as he lay on the sidewalk. Neither Michael nor Mr. Perkins nor several persons nearby saw defendant with a gun or make a 'shooting motion.'

Police arrived within ten minutes and arrested defendant, who was sitting in the hallway of his home. Defendant was unarmed and 'cooperative.' A police search of defendant, his car and the scene produced neither weapon nor spent ammunition. The police declined an invitation to extend their search into defendant's home.

Defendant testified he did not speak to Michael Turner or shoot him and had no gun. Two others, defendant's mother and a neighbor, testified they saw defendant drive up to his home and walk in; neither saw defendant with a gun.

At the threshold of this appeal lies defendant's challenge to the sufficiency of the evidence. It must be sufficient for the jury to determine, beyond a reasonable doubt, that defendant did shoot Michael Turner. Here we distinguish between the weight of the evidence and the substantiality of the evidence of defendant's guilt. The weight of the evidence is for the jury if, but only if, this court can first say there was substantial evidence of guilt. As was said in State v. Donnington, 246 Mo. 343, 151 S.W. 975(4) (1912), 'we are not unmindful of the settled rule of appellate procedure that it is the province of the jury to weigh the testimony and to determine the facts. Nevertheless, when the question of the sufficiency of the testimony is properly presented, an appellate court cannot escape responsibility by shifting it to the jury.' This principle was followed in State v. Madison, 177 S.W. 347 (Mo.1915): 'But where, as in this case, the direct proof is meager and not supported by a well-connected chain of circumstances, we are authorized in setting aside the verdict on the ground alone of the insufficiency of the evidence.'

This distinction between a jury's weighing the evidence and a court's passing on its substantiality was re-examined in State v. Gregory, 339 Mo. 133, 96 S.W.2d 47(1--6) (1936): '. . . since the test of substantial evidence is whether a jury reasonably could find the issue thereon, the result must depend in some measure upon the degree of persuasion required. In a criminal case liberty and sometimes life are involved, and there cannot be a conviction except upon a finding of guilt beyond a reasonable doubt. Necessarily, therefore, it becomes the duty of an appellate court as a matter of law to decide whether the evidence was sufficient to induce a belief of the defendant's guilt beyond a reasonable doubt in the minds of jurors of average reason and intelligence; and in resolving that question the court undoubtedly can pass on the credibility of the testimony to the extent of determining whether it was substantial in the sense above explained. In no other way can the rights of the defendant be protected. It would be an incongruous situation if the court were compelled to let a conviction stand as being supported by evidence warranting a verdict of guilt beyond a reasonable doubt, when for any reason made manifest on the record the court is convinced the evidence reasonably could not support a conviction.'

The Gregory court noted that the appellate court must consider 'all the circumstances of the case.' Our court adhered to that comprehensive principle in Elam v. Allbee, 432 S.W.2d 379(1) (Mo.App.1968), when we said: 'In determining the sufficiency of plaintiff's case, he is entitled to all favorable evidence and inferences. A review of the evidence, however, is not limited to isolated statements: it embraces all evidence adduced by plaintiff.'

In the light of these principles, we examine fully the evidence the State contends supports its charge defendant shot Michael Turner.

No one but Michael Turner testified to defendant's conduct: Michael said defendant was slowing down as he drove toward him. As the car passed, Michael looked back in response to defendant's voice and saw defendant's 'arm come up with something black.' He testified defendant's car was then quite close, 'about from here to that desk.' After Michael looked forward again, he heard and felt a shot. As he fell to the ground and lay on his back Michael saw defendant parking his car nearby, 'about from here to that brown chair.' Michael then saw defendant get out and walk into his house. This testimony was the only evidence supporting the State's charge that defendant shot Michael. By this account, while bringing his car to a stop defendant would have to have turned around in his car, pointed a gun and fired behind him. Such movement and physical contortion are incompatible with accurate marksmanship. Defendant supposedly did this in broad daylight and in full view of numerous witnesses, none of whom saw the act. We add that there was a total absence of other incriminating evidence: No motive, ¹ no gun, no ballistics report to show the type of weapon from which the shot was fired, no evidence of the angle of entry of the bullet or the distance from which it was fired, no paraffin test of defendant to determine whether he had recently fired a gun.

Our examination of the record compels our conclusion the evidence was not 'sufficient to induce a belief of the defendant's guilt beyond a reasonable doubt in the minds of jurors of average reason and intelligence.' State v. Gregory; supra, l.c. 52.

The judgment is therefore reversed.

KELLY, J., concurs.

STEWART, J., dissents.

STEWART, Judge (dissenting).

I would sustain the judgment.

Where the sufficiency of the evidence to sustain a conviction is questioned '. . . we accept as true all evidence in the record tending to prove the defendant guilty, whether such evidence is circumstantial or direct in nature, together with all favorable inferences that can reasonably be drawn therefrom. (citations omitted) It is not the function of this court to weigh the evidence; our review is...