State v. Washington

• Decision Date: 04 June 1963
• Docket Number: No. 49100,No. 2,49100,2
• Citation: 368 S.W.2d 439
• Parties: STATE of Missouri, Respondent, v. Alfred WASHINGTON, Appellant
• Court: Missouri Supreme Court

Page 439

368 S.W.2d 439

STATE of Missouri, Respondent, v. Alfred WASHINGTON, Appellant.

No. 49100.

Supreme Court of Missouri, Division No. 2.

June 4, 1963.

William C. Schock, St. Louis, for appellant.

Thomas F. Eagleton, Atty. Gen., Scott O. Wright, Sp. Asst. Atty. Gen., Jefferson City, for respondent.

LEEDY, Judge.

Alfred (Romeo) Washington was convicted of murder in the second degree in having killed Augusta Shepherd in the City of St. Louis on October 7, 1960, by striking, knocking, hitting and beating her with his fists with great force and violence. Punishment was fixed by the trial judge (upon finding that defendant had been convicted and sentenced for two prior felonies, as alleged in the information) at thirty years' imprisonment. Sentence and judgment went accordingly, and this appeal followed.

The motion for new trial contained four assignments, one of which has not been briefed on this appeal, and, therefore, has been abandoned. Another, the first, is that 'The verdict is against the law, against the evidence, and against the weight of the evidence.' It should no longer be necessary to cite cases holding this assignment wholly insufficient (for want of particularity under Rule 27.20 V.A.M.R.) to preserve anything for appellate review; but among the cases so holding are State v. Summers (Mo.), 362 S.W.2d 537, 540; State v. Roberts (Mo.), 332 S.W.2d 896, 898; State v. Daegele (Mo.), 302 S.W.2d 20, 22; State v. Schramm (Mo.), 275 S.W.2d 343. The two other grounds of the motion for new trial respectively complain of admitting in evidence certain photographs, and of the form of the manslaughter instruction (No. 3).

Defendant's brief concedes the sufficiency of the evidence to make a case for the jury on the issue of manslaughter, and then, under the guise of arguing ground one of his motion for new trial (held insufficient), treats said ground as having embraced and charged error 'in accepting a verdict of second degree murder from the jury, for the reason that the evidence was insufficient * * * [to prove the elements of deliberation and malice which are necessary to constitute murder in the second degree].' If sustainable under the record, this would have constituted plain error affecting a substantial right of defendant (the maximum punishment for manslaughter being ten years, whereas he has been sentenced to thirty for second degree murder), and hence might be considered under Rule 27.20(c), in the discretion of the court, even though not raised in the trial court, nor preserved for review. That rule has not been invoked, but we may say in passing that failure so to do will have worked no harm or prejudice in this instance because the record not only does not support the assignment, but, on the contrary, negates it. The facts clearly warranted the submission of the hypothesis of second degree murder, as will appear from our outline of those facts necessary to an understanding of the points hereinafter considered. They are sordid and revolting in the extreme.

Defendant, aged 25 at the time of trial, is colored, as was the deceased, Augusta (referred to in the record as 'Gussie,' and we shall so designate her), who was apparently a prostitute. She lived (presumably in a single room) on the second floor of a crowded, dilapidated old tenement house at 1831 Franklin Avenue in the City of St. Louis. At the rear of the building was an area called a courtyard. Access to the structure could be gained either through the entrance fronting on Franklin Avenue, or by going down an alley, then passing though a gangway into the courtyard and entering from the rear. In going to Gussie's room by the latter route, one would ascend the outdoor stairway to the upstairs porch, and thence alone the porch to the door to the hall leading to Gussie's room.

Pearlie May Trotter lived at the same address, but in the rear; that is, across the courtyard from, and opposite Gussie's place of abode. She testified the about 2:30 on the afternoon in question, she was 'in her front window looking out' when she 'seed Miss Gussie Shepherd and Romeo come through the alley,' and go through the gangway, and up the steps and to Gussie's door, 'but they didn't go in the house.' Witness then left the window, and went to her porch. She testified that at this juncture 'they was wrestling, and he hit her four or five times standing up, and then he knocked her down, and when he knocked her down he kept beating her--hit her four of five times--and he pulled down his pants and underwear, then got down on her * * * he tore her panties off, and he got on her, and he was still beating her, and she was hollering, 'Johnny, come help me." He also hit her four or five times as she was trying to get up. He continued to have or attempt to have intercourse with her for 'maybe five or ten minutes or longer, * * * then he got up off her and drug her in the house * * * by the arm.' He entered the doorway where Gussie lived, and witness saw them go to Gussie's room. While defendant was beating Gussie, the witness called the police, and also awakened her friend and guest, Marie Ivory, who came to the porch at once. The police arrived, but in the meantime another affray had broken out, a man and wife fighting in the alley, and the police directed their attention to this disturbance, and when told by Pearlie May of the real subject of the call, said they didn't have time to attend to it, and she put in another call for the police, but there was a twenty-five or thirty minute delay in their arrival. Meanwhile, defendant, who had remained inside until shortly before the police arrived, came out and left the premises. As he was leaving 'there was men in the gangway gambling, and he said to them they haven't seed anything and don't know nothing.' The witness did not know any of these men in the gangway. As he left, defendant 'had his [corduroy] coat tied around in front of him,' and was wearing a white shirt, khaki pants and 'had blood on his clothes.' Witness had been acquainted with defendant a year and a half or two years.

Marie Ivory was also called by the state, and in general her testimony followed very closely and corroborated that of Pearlie May. For this reason, we do not restate its purport, except to say that Marie was somewhat more specific in describing the delivery of some of the blows; that is, that defendant struck deceased on the left side of the face at least three times, and this seemed to render her unconscious.

When the police came, they went upstairs and 'found the door open, and on looking in observed the body of a woman partially nude and apparently dead. She was lying across the bed on her back with her legs apart and her clothing ripped off of her, and quite a bit of blood. The bed was splattered with blood and blood around on the floor.'

The autopsy disclosed the following with respect to the condition of Gussie's body and the cause of her death: That she had a contused wound at the temporal side of the right eye, a contused wound with a large hematoma involving the left side of the face and left side of the neck, a...