State v. Talbert

• Decision Date: 11 May 1970
• Docket Number: No. 54136,No. 2,54136,2
• Citation: 454 S.W.2d 1
• Parties: STATE of Missouri, Respondent, v. James TALBERT, Appellant
• Court: Missouri Supreme Court

Page 1

454 S.W.2d 1

STATE of Missouri, Respondent, v. James TALBERT, Appellant.

No. 54136.

Supreme Court of Missouri, Division No. 2.

May 11, 1970.

John C. Danforth, Atty. Gen., Michael L. Boicourt, Asst. Atty. Gen., Jefferson City, for respondent.

Ira M. Young, St. Louis, for appellant.

STOCKARD, Commissioner.

Defendant, charged under the Second Offender Act with murder, first degree, was found guilty by a jury of murder second degree, and was sentenced by the court to imprisonment for a term of twelve years.

From the evidence offered by the State a jury reasonably could find the occurrence of the following events.

On the evening of August 12, 1967, Boyd Snipes and Lelia Snipes, his wife, went to a drugstore on the corner of Cass and Jefferson Streets in the City of St. Louis. While there Mrs. Snipes purchased some beer, gin and wine, and Mr. Snipes had an argument, the subject matter of which is not known, with Wallace Connors, Jr. Mr. and Mrs. Snipes then left the drugstore and walked west on Cass Street. As they approached Leffingwell Street, Wallace Connors, Jr., and Arthur Hamilton 'jumped out' and stated, 'It's a holdup give me your money.' Mr. Snipes told them he had no money. Hamilton had a knife, described by Mrs. Snipes as a 'hookbill knife like a scythe.' Mr. Snipes 'pulled out' his knife and told his wife to go on down the street. Defendant then came out of a house and said, 'Is that the one, man?' Connors answered, 'Yes, man, he is the one.' Hamilton then ran to the house and picked up a rifle at the side of the building, and tossed it to defendant, who pointed it at Mr. Snipes and said, 'I will kill you if you don't give us your money.' Mrs. Snipes started to walk away, and then heard a shot. She looked over her shoulder and saw defendant pointing the rifle at her husband who was running eastward on Cass Street with Hamilton and Connors in pursuit. She then ran to a service station and called the police. Mr. Snipes was shot five times, one of the bullets passing through the heart, and he was dead when the police arrived.

Defendant testified and his version of what occurred was substantially different from that shown by the evidence of the State. According to defendant, he was at home when Hamilton came in and told him that there was 'a man out here killing a lady by your house.' Defendant went out and saw a woman down with a man standing over her with a grass scythe in his hand. The man told her to get up or he 'would cut her head off.' Defendant said: 'Mister, don't do that here. Take it down the street.' The man then said, 'Give me the gun, baby,' and when the woman made no effort to do so he 'ran his hand in his pocket,' and Hamilton 'quick hit him.' The man then left and Hamilton looked for him, apparently in the nearby areas. What then occurred is not clear, but the man, obviously Boyd Snipes, hit Hamilton with the scythe and Hamilton shot him. According to defendant the woman, apparently Lelia Snipes, was very intoxicated as evidenced by the way she was 'trying to help herself walk.' When the police arrived the scythe was lying right by Boyd Snipes's right hand, but the police did not pick it up. Apparently neither the gun nor the scythe was recovered by the police.

Defendant first contends that the trial court erred in admitting in evidence the testimony concerning the argument between Boyd Snipes and Wallace Connors, Jr., at the drugstore because it occurred out of the presence of the defendant, there was no conspiracy shown, and 'it permitted the jury to consider prejudicial and inflammatory evidence unrelated to any act of defendant.' He cites State v. Newcomb, 220 Mo. 54, 119 S.W. 405; State v. Kennedy, 177 Mo. 98, 75 S.W. 979; State v. Patrick, 107 Mo. 147, 17 S.W. 666; and State v. Woodward, 191 Mo. 617, 90 S.W. 90. In substance, these cases hold that a statement or act of a third party made out of the presence of the defendant is not admissible in the absence of the showing of a conspiracy. However, the State does not contend that the evidence established a conspiracy between defendant and Connors. The State contends that the fact of the argument between Wallace Connors and Boyd Snipes, immediately before the occurrence which resulted in what the State's evidence shows was an attempted robbery, constituted a material fact, part of the res gestae, tending to explain what later occurred, particularly in view of the question by defendant to Connors and his reply.

The general rule is set forth in 22A C.J.S. Criminal Law § 673 as follows: 'The statements and exclamations or acts and conduct of third persons are admissible in evidence when they are so closely connected with the crime as to constitute a part of the res gestae.' This rule is applicable to acts and conduct of third persons 'which precede the offense immediately or by a short interval of time and which tend to elucidate a main fact in issue * * *.' 22A C.J.S. Criminal Law § 675. In this case, the fact that Boyd Snipes had an argument with Wallace Connors immediately before the attempted robbery, together with the question by defendant and Connors's answer, tended to establish the motive or reason defendant became involved in the affair. However, assuming for the purpose of argument, that the testimony was not admissible for the above stated reason, it then would have been irrelevant and immaterial. In that event we do not see how the defendant could possibly have been prejudiced, and a judgment is not to be reversed because of the admission of irrelevant and immaterial evidence which clearly is not prejudicial. State v. Smith, Mo., 431 S.W.2d 74, 79; State v. Spica, Mo., 389 S.W.2d 35, certiorari denied 383 U.S. 972, 86 S.Ct. 1277, 16 L.Ed.2d 312.

Defendant next contends that the court erred in sustaining the State's objection to 'defendant's question on cross-examination of witness Lelia Snipes as to what statement she had made to the police officers who first arrived on the scene immediately following the homicide, thereby restricting defendant from inquiry into possible contradictory statements made by said witness.' Defendant cites State v. Arrington, Mo., 375 S.W.2d 186, but from our reading of that case we do not find it particularly helpful.

Certain background information is necessary. Lelia Snipes testified on direct examination that immediately after the shooting she had called the police and had met and directed them to the scene. She did not testify concerning any statement made by her to the police. On cross-examination she was asked what she told the police, and an objection was sustained. During the discussion at the bench, counsel for defendant indicated that he wanted to know 'whether she told the police what was later contradicted,' and he also indicated that h...