State v. Vincent, 46849

• Decision Date: 09 March 1959
• Docket Number: No. 46849,No. 1,46849,1
• Citation: 321 S.W.2d 439
• Parties: STATE of Missouri, Respondent, v. George Benjamin VINCENT, Appellant
• Court: Missouri Supreme Court

Page 439

321 S.W.2d 439

STATE of Missouri, Respondent, v. George Benjamin VINCENT, Appellant.

No. 46849.

Supreme Court of Missouri, Division No. 1.

March 9, 1959.

James J. Rankin, St. Louis, for appellant.

John M. Dalton, Atty. Gen., John C. Baumann, Asst. Atty. Gen., for respondent.

DALTON, Judge.

Defendant was charged and convicted of murder in the second degree of Emel Henderson and he was sentenced to 20 years imprisonment in the state penitentiary. He was prosecuted under the habitual criminal act. Two prior felony convictions, one for murder in the second degree and the other for assault with intent to kill were alleged. Proof was made from the records of the court as well as by the testimony of defendant himself, and defendant had served the sentences and been discharged, but the jury disregarded or disbelieved this evidence and returned a verdict without reference thereto. Defendant has appealed from the judgment entered against him, but he has not favored us with a brief and we shall examine the assignments of error contained in his motion for a new trial. Supreme Court Rule 28.02, 42 V. A.M.A.

Error is assigned on the trial court's refusal to sustain defendant's motion for judgment of acquittal tendered at the close of the state's case and again at the close of all the evidence. The error if any in overruling the first motion was waived since defendant subsequently offered evidence and testified in his own behalf. State v. Bigley, Mo.Sup., 247 S.W. 169, 171(2). The grounds stated in the second motion are that '* * * the evidence had failed to prove, or tend to prove that there was present any premeditation or malice aforethought in the circumstances in which the deceased lost his life * * *.' It was also stated: 'The most that the State proved, if its evidence were believed, was that the defendant was guilty of manslaughter only.'

If the evidence was sufficient to make a submissible case of manslaughter, the motion for judgment of acquittal was properly overruled, since the offense of manslaughter was included in the charge of murder in the second degree. State v. Ancell, 333 Mo. 26, 62 S.W.2d 443, 446(5, 6); State v. Reagan, Mo.Sup., 108 S.W.2d 391, 395. However, we shall determine the sufficiency of the evidence to submit the issue of murder in the second degree.

In testing the sufficiency of the evidence in a criminal prosecution by such a motion to direct a verdict of acquittal, the facts in evidence must be considered in a light most favorable to the state. State v. Lawrence, Mo.Sup., 280 S.W.2d 842, 846(2). Accordingly, we shall consider as true the evidence favorable to the state and the favorable inferences reasonably to be drawn therefrom and disregard all evidence and inferences to the contrary. State v. Benjamin, Mo.Sup., 309 S.W.2d 602, 604; State v. Thomas, Mo.Sup., 309 S.W.2d 607, 609.

The state's evidence tended to show that during the afternoon of March 30, 1957, Leon Spinks, Emel Henderson, William B. Swink and others were shooting craps in the front room of the Swink residence at 1016 North 22nd Street in the City of St. Louis. About 3:00 p. m., Spinks and Henderson got into an argument as to whether Spinks had made his point and won fifty cents. Henderson took the money, claimed it and retained it. Spinks then left the building, but Henderson stayed and was still shooting dice on the floor some fifteen or twenty minutes later, when Spinks returned with defendant Vincent. When they entered the room Henderson got up from the floor and defendant took a position to the right of Henderson, while Spinks stood to Henderson's left. When defendant entered, he had a pocket knife open and in his right hand. It had a long blade and he held it behind him as he entered the room. While defendant and Spinks stood on either side of Henderson, defendant asked Spinks who took his fifty cents. Spinks said of Henderson, 'This is him.' Defendant then asked Henderson, 'Why did you take his money?' Henderson said, 'I didn't take that money, I won it.' Defendant said, 'You're a damn liar. You took his money,' and hit Henderson twice with his knife. Defendant struck Henderson twice with the knife in front and on the left side of the chest. Henderson was not doing anything at that time, but after he was struck, both Spinks and defendant scuffled with him and both were cutting at him, 'up and down,' until Henderson ran from the room. One witness said he saw no knife or other weapon in Henderson's hands at anytime but he could not say how many times Spinks struck Henderson.

Another witness said that defendant was somewhat in front of Henderson and Spinks was behind him, when defendant asked Henderson why he had taken Spinks' fifty cents; and that Henderson had something in his hand, but no knife was seen.

When Henderson left the house, he got in his car, a 1948 Oldsmobile, and drove away, but he shortly stopped, got out of his car and took a taxicab. Within three blocks the taxi driver stopped and called the police. When they arrived, they found Henderson in the front seat of the taxicab, slumped over, in an unconscious condition, bleeding about the chest. He was dead on arrival at City Hospital No. 2 and he was then taken to the city morgue, where a post mortem was performed and the cause of death determined to be hemopericardium. A stab wound was found over the left nipple which had penetrated some two inches to the pericardium and lacerated the left ventricle of the heart. The pericardium or sac in which the heart is located had filled with blood and compressed and stopped the heart. There was also a stab wound on the left shoulder.

After Henderson's death police officers found a long spring back knife in the seat of his car. It was closed. When it was examined in the police laboratory no blood was found on the blade, recess or outer plastic handle of the knife.

In a statement to the police after his arrest, defendant stated that Henderson 'had that old long knife on him and when he went to pull it out * * * I hit around with my knife. I hit him, I know because my knife broke and my hand was bleeding.'

Defendant testified at the trial in his own behalf. While his testimony tended to show a somewhat different state of facts concerning the start of the difficulty; and that he had acted in self-defense, he stated that he had a white handled pocket knife in his left-hand pants pocket when he went to the mentioned address. When he saw that Henderson had a knife, he got his own knife out; and, after Henderson grabbed him, he pushed him off, and as Henderson 'started back toward me, and that's when I struck him.' Defendant said that after Henderson grabbed him around the neck and reached for his knife, defendant wrestled and got a couple of feet away, 'far enough for me to reach and stick him.' At another time defendant spoke of opening his knife and striking at Henderson. On the issues presented here we need not further review defendant's testimony.

The trial court instructed on murder in the second degree, manslaughter and self-defense. The form of these instructions is not questioned in the motion for a new trial. Murder in the second degree is correctly defined in Instruction No. 1 as the killing of a human being wilfully, premeditatedly, and with malice aforethought, but without deliberation. State v. Shriver, Mo.Sup., 275 S.W.2d 304; State v. Baber, Mo.Sup., 297 S.W.2d 439, 441; State v. Murphy, 292 Mo. 275, 237 S.W. 529, 535(12). And see Secs. 559.010, 559.020 RSMo 1949, V.A.M.S.

As stated, defendant claims that the court committed error in instructing on murder in the second degree and in permitting the jury to consider whether defendant was guilty of that offense 'because the evidence had failed to prove, or tend to prove that there was present any premeditation or malice aforethought in the circumstances in which the deceased lost his life * * *.'

The evidence reviewed was sufficient to show that defendant intentionally and without provocation, stabbed Henderson with a knife with a blade long enough to penetrate to the heart and cause death; and that a deadly weapon was used upon a vital part of deceased's body. State v. Lawson, 360 Mo. 95, 227 S.W.2d 642, 644; State v. Bowles, 146 Mo. 6, 13, 47 S.W. 892. Whether defendant acted in self-defense was for the jury, since the jury could disbelieve that part of defendant's testimony and accept the state's evidence concerning the circumstances leading up to the stabbing. Premeditation and malice aforethought were sufficiently shown. The court did not err in refusing to direct a verdict of acquital at the close of all the evidence, nor in submitting the issue of murder in the second degree. State v. Gaters, Mo.Sup., 39 S.W.2d 548, 549; State v. Nord, Mo.Sup., 286 S.W.2d 775, 776(4); State v. Tourville, Mo.Sup., 395 S.W.2d 1, 5.

Defendant contends that the court erred in admitting State's Exhibits 3 and 4 in evidence. The motion for a new trial refers to these exhibits, a shirt and jacket allegedly worn by the deceased at the time of his death, as 'bloody garments' and states that the court permitted them to be displayed, waved and flourished in front of the jury. Defendant says they 'could only serve to prejudice and inflame the jury and prevent them from viewing the trial in an impartial manner and prevented the defendant from receiving a fair trial.' The exhibits were admitted in evidence, but the record does not support the other allegations. Such allegations do not prove themselves. State v. Crocker, Mo.Sup., 275 S.W.2d 293, 297(8); State v. Lindner, Mo.Sup., 282 S.W.2d 547, 553(14). This record shows that these exhibits were identified as the shirt and jacket worn by the deceased at the time of his death. Exhibit No. 3 was shown to have three slit holdes or knife marks, two in the upper left back and one in the front left. Exhibit No. 4 was shown to have two slit holes in the back. Defendant's counsel objected to these exhibits...