State v. Turnbough, 34966
| Court | Court of Appeal of Missouri (US) |
| Citation | 497 S.W.2d 856 |
| Docket Number | No. 34966,34966 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Gerald TURNBOUGH, Jr., a/k/a Jerry Jr. Turnbough, Defendant-Appellant. . Louis District |
| Decision Date | 22 May 1973 |
Page 856
v.
Gerald TURNBOUGH, Jr., a/k/a Jerry Jr. Turnbough, Defendant-Appellant.
Motion for Rehearing or Transfer Denied June 8, 1973.
Application to Transfer Denied Sept. 10, 1973.
Page 857
Hale W. Brown, Kirkwood, for defendant-appellant.
John C. Danforth, Atty. Gen., Jefferson City, James E. Darst, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
DOWD, Chief Judge.
The defendant, Gerald Turnbough, was found guilty by a jury of assault with intent to kill with malice. Defendant and another were jointly charged in the information but the defendant was tried separately.
Page 858
He appeals from the judgment sentencing him to a term of twenty-five years imposed under the Second Offender Act.He contends here that there was insufficient credible evidence on which the jury could base its verdict, and, therefore, his motion for judgment of acquittal at the close of the state's case should have been granted. This contention is without merit for two reasons.
First, after defendant's motion for judgment of acquittal was denied, he offered evidence in his own behalf. By so doing, he waived any claim of error as to this motion. State v. Hill, 438 S.W.2d 244 (Mo.1969).
Second, it is not the function of this court to weigh the evidence, as long as it is substantial enough to support the finding of the jury and the judgment of the trial court. State v. Talbert, 454 S.W.2d 1 (Mo.1970); State v. Taylor, 445 S.W.2d 282 (Mo.1969). Defendant attacks in particular the testimony of Arthur Mangrum as being inconsistent, and unworthy of belief. Mangrum was the owner of a tavern from which defendant and a companion were ejected for causing a disturbance a short time before the incident out of which the within charge arose. It was Mangrum who, looking out the front window of the tavern, saw the defendant and the same companion later drive up and park across the street from the tavern. He saw them get out of the car and open the trunk, and shortly thereafter, he heard the sound of two gunshots. When he ran outside, he observed one Kenneth King lying on the sidewalk, apparently wounded, 1 and saw defendant and his companion, one of them holding a long-barrelled gun, get back in the car and drive away.
It is true, as defendant contends, that there were inconsistencies in Mangrum's testimony, none of which needs to be set out here. However, his testimony constitutes circumstantial evidence. Defendant's contention that the evidence provided by such testimony is insufficient to support the verdict is not correct.
Our review is limited to determining whether there was sufficient evidence from which reasonable men could have found the results so found beyond a reasonable doubt. State v. Arnett, 370 S.W.2d 169 (Mo.App.1963). In making this determination we consider as true all evidence favorable to the verdict as well as all reasonable inferences to be drawn therefrom. State v. Cobb, 444 S.W.2d 408 (Mo. banc 1969). Where the evidence in support of the verdict is substantial, the effect of conflicts or inconsistencies in any testimony are questions for the jury. State v. Small, 423 S.W.2d 750 (Mo.1968). A jury may believe all the testimony of a witness or none of it, or may accept it in part or reject it in part, just as they may find it to be true or false when considered in relation to other testimony and the facts and circumstances of the case. State v. Wynn, 391 S.W.2d 245 (Mo.1965). Moreover, in a case based on circumstantial evidence, the circumstances need not demonstrate an absolute impossibility of innocence. State v. Phillips, 452 S.W.2d 187 (Mo.1970); State v. Thomas, 452 S.W.2d 160 (Mo.1970). The State is required to prove facts and circumstances consistent with the guilt of the defendant and inconsistent with any reasonable theory of his innocence. State v. Keller, 471 S.W.2d 196 (Mo.1971).
Obviously, Mangrum's testimony, if...
To continue reading
Request your trial
-
State v. Love, KCD
...of the witnesses whom he called and it obviously chose to do so. State v. Rose, 325 S.W.2d 485, 487 (Mo.1959); and State v. Turnbough, 497 S.W.2d 856, 858 (Mo.App.1973). The reasonable inferences which the jury was permitted to draw from the evidence compels the conclusion that there was su......
-
State v. Pinkus, 9972
...general propositions that the effects of conflicts or inconsistencies in any testimony are questions for the jury, State v. Turnbough, 497 S.W.2d 856, 858(5) (Mo.App.1973), and that a jury may believe all or none of the testimony of a witness, or accept it in part or reject it in part, just......
-
State v. Berry, 9444
...750, 751(2) (Mo.1968). The effects of conflicts or inconsistencies in any testimony are questions for the jury. State v. Turnbough, 497 S.W.2d 856, 858(5) (Mo.App.1973). The jury may believe all or none of the testimony of a witness, or may accept it in part or reject it in part, just as th......
-
State v. Green, s. 15830
...In such case, the rule of State v. Stuart with respect to plain error is not controlling. Mandina, supra, at 719; State v. Turnbough, 497 S.W.2d 856, 859 (Mo.App.1973). Defendant's claim of error in Point I was waived. State v. Delgado, supra, at 551. Plain error review under Rule 30.20 is ......