State v. Thompson

• Decision Date: 14 January 1963
• Docket Number: No. 49324,49324
• Citation: 363 S.W.2d 711
• Parties: STATE of Missouri, Respondent, v. Douglas Wayne THOMPSON, Appellant.
• Court: Missouri Supreme Court

Page 711

363 S.W.2d 711

STATE of Missouri, Respondent, v. Douglas Wayne THOMPSON, Appellant.

No. 49324.

Supreme Court of Missouri, En Banc.

Jan. 14, 1963.

Byron Kearby, Poplar Bluff, for appellant.

Thomas F. Eagleton, Atty. Gen., George W. Draper, II, Asst. Atty. Gen., Jefferson City, for respondent.

STORCKMAN, Judge.

The defendant, Douglas Wayne Thompson, was tried in the Circuit Court of Bollinger County on change of venue from Cape Girardeau County and was convicted by a jury of murder in the first degree. The court found that the defendant had been convicted of a prior felony and fixed his punishment at death. The defendant's motion for new trial was overruled and he has appealed. The victim of the homicide was Herbert L. Goss, a police officer of the City of Cape Girardeau, Missouri.

In the trial court the defendant was represented by counsel who has also briefed the case in this court. In general the questions presented for review are that the evidence was insufficient to justify submitting the charge of murder in the first degree to the jury; that the jurors were permitted to separate during the trial; and that the state was permitted to cross-examine the defendant on matters not brought out by his examination in chief.

On March 10, 1961, at about 9:15 p.m., automobiles No. 2 and No. 4 of the Cape Girardeau Police Department were dispatched to the Town Plaza Shopping Center in Cape Girardeau. From there they started in pursuit of a two-door 1955 Oldsmobile hardtop automobile north on U. S. Highway 61. During the pursuit the red flasher lights of the police cars were on and their sirens were sounded. When overtaken the Oldsmobile pulled off of the pavement and stopped on the east shoulder of Highway 61 facing north at or near the entrance of a drive-in refreshment stand. Police car No. 2 stopped on the shoulder about six feet behind the Oldsmobile. Car No. 4 was driven beyond, turned around, and stopped on the west shoulder of the highway headed south, practically opposite the Oldsmobile. The concrete highway was about twenty feet wide at this point.

Police Officers Donald Crittendon, Herbert L. Goss, and Hugo Lang, Jr., were the occupants of car No. 2 driven by Officer Crittendon. Police Officers Shannon Kelley and Robert F. Ross were in car No. 4 driven by Officer Kelley and parked on the west side of the highway. Officers Kelley and Ross remained in car No. 4 while the other three officers alighted from car No. 2 and approached the parked Oldsmobile from the rear. Officer Crittendon walked to the left door of the Oldsmobile and talked to the driver. Officer Goss went to the right side of the Oldsmobile and Officer Lang to the left and then to the rear of the Oldsmobile. The police officers were dressed in regular police uniforms. A flashlight in the hands of one of the policemen revealed in addition to the driver another man slumped down on the front seat as though he was asleep or resting. It was later established that the driver was Sammy Aire Tucker and the passenger was Douglas Wayne Thompson, the defendant in this case. Officer Crittendon asked Tucker the driver for identification and was shown a slip of paper. Crittendon examined the paper, handed it back to Tucker, and asked the men to step out of the car. As Tucker stepped out, he shot Crittendon who, although mortally wounded, was able to draw his gun and fire at Tucker. Immediately after Crittendon was shot Tucker turned and started firing at Officers Kelley and Ross across the road; they returned the fire. There was evidence that at the same time Tucker shot Crittendon the defendant Thompson, on the right side of the Oldsmobile, also fired his automatic pistol. Officer Goes was shot during the gunfire and died later that night due to hemorrhaging caused by a gunshot wound which severed the arteries in both of his legs. Tucker was wounded but he and Thompson succeeded in getting back into their car and they drove from the scene north on Highway 61.

At about 10 p.m. on the same night, Bill Shambo was parked on a gravel road east of Jackson about seven miles from Cape Girardeau with his brother and cousin when an Oldsmobile drove up. The defendant got out of the Oldsmobile, approached Shambo's automobile, pointed a gun at the passengers, and told them to get out or he would kill them. The defendant got into the driver's seat of the Shambo car and Tucker, who was bleeding about the face and carrying a rifle, got out of the Oldsmobile and into the other automobile which was then driven away in the direction of Jackson. At about 11:30 the same night, defendant Thompson with a gun in hand went to the front door of the home of George Gray of Glen Allen in Bollinger County, asked Gray for the keys to his car and struck Gray on the left temple with his pistol. Tucker then entered the house with a rifle and threatened to blow Gray's wife Lena to pieces. Gray's son then gave the defendant the keys to his Ford automobile which Thompson and Tucker took and drove away in a northern direction. Seven days later on March 17, 1961, a member of the Missouri Highway Patrol arrested the defendant Thompson at a home about three miles north of Poplar Bluff The defendant was taken to troop headquarters where he signed a statement which was introduced in evidence. The defendant's Browning automatic pistol ejected spent shells. The police officers were using revolver-type guns. A search was made at the scene of the shooting for bullets and spent shells, but none were found. The defendant and Tucker also had a 30-30 rifle which the defendant denied he had fired as their car was driven away. When the Oldsmobile was found, there was a bullet hole in the rear end extruding outward at an angle which indicated the shot had been fired by a person in the passenger's seat. The defendant testified in substance that he did not fire a shot at the time in question and that he did not have any knowledge or indication that Tucker was going to shoot at the police officers. He admitted prior convictions in the State of California for the offenses of burglary and first-degree armed robbery.

Sammy Aire Tucker was tried and convicted of the murder of Officer Crittendon and his judgment of conviction was affirmed by this court. See State v. Tucker, Mo., 362 S.W.2d 509. The defendant Thompson was charged with first-degree murder by reason of the death of Officer Goss and his conviction is the subject of this appellate review.

The defendant's first two points are essentially the same in that they involve the sufficiency of the evidence to sustain the conviction of first-degree murder and they will be treated together. In testing the sufficiency of the evidence in a criminal prosecution, the facts in evidence must be considered in the light most favorable to the state, and the evidence favorable to the state and favorable inferences reasonably to be drawn therefrom must be deemed to be true, and all evidence and inferences to the contrary must be disregarded. State v. Strong, Mo., 339 S.W.2d 759, 764.

Murder in the first degree is defined by Sec. 559.010 RSMo 1959, V.A.M.S., as follows: 'Every murder which shall be committed by means of poison, or by lying in wait, or by and other kind of willful, deliberate and premeditated killing, and every homicide which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary or mayhem, shall be deemed murder in the first degree.' Thus, if the defendant fired the shot that caused the death of Officer Goss, and if such killing was 'willful, deliberate and premediated', then the defendant was properly convicted of first-degree murder. There is no doubt that Officer Goss was fatally wounded at the scene of the altercation between the Cape Girardeau policemen and the defendant and his companion Tucker.

The essential elements of murder in the first degree including willfulness, deliberateness and premeditation may be established by circumstantial evidence. State v. Lyle, 353 Mo. 386, 182 S.W.2d 350, 533; State v. Taylor, 347 Mo. 607, 148 S.W.2d 802, 805; State v. McCracken, 341 Mo. 697, 108 S.W.2d 372, 374; State v. Cade, 326 Mo. 1132, 34 S.W.2d 82, 83[2, 3]. If the defendant fired the shot that struck Officer Goss, the circumstances shown by the evidence were sufficient to support a finding that the homicide was a willful, deliberate and premeditated killing.

The defendant's chief contention is that he did not fire the shot that killed Officer Goss. He testified that he got out of the Oldsmobile with his hands in the air and his Browning automatic pistol in his waistband; that he did not fire a shot during the gun battle and did not attempt to and in fact did not fire the gun in Cape Girardeau County; that he had no knowledge that Tucker was going to shoot at the police officers; and that after the shooting started he dropped his hands, ran to the Oldsmobile and got in as Tucker was driving away.

The evidence shows without dispute that the defendant and Tucker had escaped from jail in California and had committed a series of armed robberies as they fled eastward across the United States to Missouri; that the defendant was on the right side of the Oldsmobile within a few feet of Mr. Goss at the time the officer was shot; that he had on his person a loaded automatic pistol; that he fled from the scene of the shooting and for seven days thereafter eluded capture by resort to acts of violence and thefts of automobiles. The presenece of the defendant at the time and place the crime was committed, a motive for resisting arrest, his possession of a gun which was the means of committing the offense and his opportunity to use it, and his flight from the scene of the shooting, are all circumstances tending to show guilt. 23 C.J.S. Criminal Law Sec. 907a, p. 556 and p. 558; State v. Johnson, 362 Mo. 833, 245 S.W.2d 43, 46; State v. Taylor, 118 Mo. 153, 24 S.W. 449, 451.

There was further evidence...