State v. Taylor

• Decision Date: 10 February 1958
• Docket Number: No. 46034,No. 1,46034,1
• Citation: 309 S.W.2d 621
• Parties: STATE of Missouri, Respondent, v. Louis TAYLOR, Appellant
• Court: Missouri Supreme Court

Page 621

309 S.W.2d 621

STATE of Missouri, Respondent, v. Louis TAYLOR, Appellant.

No. 46034.

Supreme Court of Missouri, Division No. 1.

Feb. 10, 1958.

Louis Taylor, appellant, pro se.

John M. Dalton, Atty. Gen., Russell S. Noblet, Asst. Atty. Gen., for respondent.

VAN OSDOL, Commissioner.

Defendant Louis Taylor, charged with murder in the first degree, was found guilty of murder in the second degree and his punishment was assessed at forty years' imprisonment in the penitentiary. He has appealed from the ensuing judgment.

Defendant-appellant had made seven assignments of error in his motion for a new trial, and, herein, now contends eight errors of the trial court. The basic contentions are that the evidence did not justify the submission of defendant's guilt of murder, and that instructions submitting the issue of his guilt of murder in either degree were, therefore, erroneously given. These assignments and contentions require a statement of the evidence tending to support the submission.

The State introduced evidence tending to show that one Fred Dotson lived in a small house of two rooms near the city dump south of Rolla. From time to time defendant Taylor, one Ralph Bailey, and deceased, William Burris, stayed at the Dotson house where, during the night of December 14 and the morning of December 15, 1955, a drunken brawl and fatal fight occurred in the south room of the house.

The outside door of the south room is in the south end of the room and, on the night of December 14th, there was a mattress on the floor at the southwest corner of the room. North of the mattress and against the west wall was a table with teakettle, a kerosene lamp, and other articles thereon; and in the northwest corner of the room there was a studio couch which was extended so as to form a double bed. There also was a cot or day bed in the southeast corner of the room, and north of the cot was a stove.

Fred Dotson testified that he and Bailey usually slept on the studio couch at the northwest corner of the room and that defendant Taylor and deceased had been sleeping on the cot and mattress. During the night of December 14th, Burris came to the Dotson house and entered the south room after Dotson, Bailey and defendant had gone to bed. Defendant was lying on the cot, and Burris 'got in on the mattress.' Defendant walked over and 'commenced fighting' Burris. Defendant was 'hitting him with either a stick of wood or stove shovel.' Doston was afraid to interfere--he said, 'Taylor told me if I didn't keep my mouth shut that he would give me some of it.' The fight lasted two or three hours. Following the fight Burris was lying on the mattress; he 'kept groaning and taking on,' and defendant threw him out of the house and poured water on him. A few minutes later defendant dragged Burris back into the house and poured kerosene on him; defendant said he was 'going to set him afire.' At about seven o'clock the next morning defendant left the Dotson house and went to the home of Dotson's neighbor, one Bone. While at the Bone home defendant said he was going back to the Dotson house and kill Burris.

A witness, one Heflin, testified that he went to the Dotson house early in the morning of the 15th. Dotson and Bailey were lying on the studio couch. Defendant was standing in the middle of the floor 'swearing at Bill Burris' who was lying on the mattress. Defendant said, "I oughta kill him. * * * I think I'll kill him." Defendant walked back and forth, and finally stepped up on the mattress and 'stomped' Burris on the face and neck. Defendant also threw sticks of wood at Burris.

A merchant at Rolla testified that at nine or nine-thirty o'clock in the morning of December 15th defendant came to the witness' store and said, "I killed Bill Burris * * * beat him to death," or "I hope I did, I left him out there for dead." Defendant told the witness that he (defendant) had done what he did to Burris "for what Burris did to Fred (Dotson) in your store here yesterday, trying to get those groceries." (There was evidence tending to show that sometime during the day of December 14th Burris had come to the witness' store and sought to procure some groceries that Dotson 'was supposedly to have sent him after.') December 14th, just about dark, defendant had said to another witness, "Hard telling what might happen down there for what he (Burris) had done."

Officers arrived at the Dotson house in the early afternoon of December 15th. Burris was lying on the mattress; he was unconscious, and died within a few minutes after he was hospitalized. A post-mortem examination disclosed numerous bruises, lacerations and abrasions; and there was a large swelling on the left upper front side of the head. When the skull was opened, the pathologist observed a large quantity of clotted blood between the dura and the tissues of the brain. The pressure of the subdural hemorrhage was the immediate cause of death. The hemorrhage could have been caused by a severe blow on the head, or any form of violence.

As we have said, defendant-appellant contends the trial court erred in submitting the issue of defendant's guilt of murder in either degree. It is urged that, at best, the State's evidence was substantial and sufficient only in justifying the submission of defendant's guilt of manslaughter. Since defendant was found guilty of murder in the second degree, it is unnecessary to consider the submission of first-degree murder. State v. Jenkins, 327 Mo. 326, 37 S.W.2d 433. And we bear in mind that the existence or nonexistence of malice determines whether a homicide is murder in the second degree or manslaughter. State v. Ferguson, 353 Mo. 46, 182 S.W.2d 38; State v. Lawson, 360 Mo. 95, 227 S.W.2d 642.

In considering the sufficiency of the evidence in tending to justify the submission or to support the conviction of murder in the second degree, we shall accept as true the evidence introduced which was favorable to the State and the favorable inferences reasonably to be drawn therefrom.

Intentional homicide with malice aforethought could be reasonably inferred from the State's evidence introduced in the instant case, particularly the evidence tending to show defendant's conduct in starting the fight, in striking and beating deceased with a stick of wood or a shovel or the fist intermittently throughout several hours, and in 'stomping' him when he was lying prone on the mattress, during some of which time the deceased was in an unconscious or semiconscious condition. We particularly note the evidence tending to show the statements of defendant indicating there was bad feeling on the part of defendant toward deceased and that defendant had done 'what he did to Burris' because Burris apparently had attempted to procure groceries to be charged to Dotson's account. Testimony of statements made by defendant in the late afternoon of December 14th, before the fight, and in the morning of December 15th, after the occurrences of the preceding night, was indicatory that prior to the fight defendant entertained a preconceived malicious design to kill. Nor was it fatal to the substantiality of the State's case that the evidence did not definitely tend to show by what specific means defendant struck the fatal blow. A stick of wood or a shovel may be a deadly weapon when used to cause death, and it is not an essential element of murder in either degree that the killing be done with a deadly weapon, or any weapon at all; the crime may be committed with the fist. State v. Lawson, supra; State v. Rizor, 353 Mo. 368, 182 S.W.2d 525.

We have the opinion that the State's evidence was substantial in tending to show that the homicide was committed intentionally and with malic aforethought, and that the trial court did not err in submitting the issue of defendant's guilt of murder in the second degree to the jury.

Defendant-appellant further contends the trial court erred in failing to give an instruction on manslaughter; and it is true that, if there was substantial evidence tending to show lawful provocation, defendant was entitled to such an instruction whether or not he requested it. State v. Creighton, 330 Mo....