State v. West

• Decision Date: 17 July 1940
• Docket Number: 36896
• Citation: 142 S.W.2d 468,346 Mo. 563
• Parties: The State v. Robert West, Appellant
• Court: Missouri Supreme Court

142 S.W.2d 468

346 Mo. 563

The State v. Robert West, Appellant

No. 36896

Supreme Court of Missouri

July 17, 1940

Appeal from Circuit Court of St. Louis County; Hon. John J Wolfe, Judge.

Affirmed.

I Joel Wilson for appellant.

The court committed error in failing to instruct the jury upon the offense of murder in the second degree, and it was also error for the court to fail to instruct the jury as to the proper punishment under the law and the evidence. State v. Liolios, 225 S.W. 947; State v. Jackson, 130 S.W.2d 597; State v. Young, 286 S.W. 31; State v. Curtis, 70 Mo. 600; State v. Kotovsky, 74 Mo. 249; State v. Speyer, 207 Mo. 552; State v Young, 286 S.W. 31; State v. Burrel, 252 S.W. 709; State v. Ellis, 74 Mo. 218; State v. Henke, 285 S.W. 339; State v. Lewis, 264 Mo. 420.

Roy McKittrick, Attorney General, and Max Wasserman, Assistant Attorney General, for respondent.

(1) The information is sufficient in form and substance. State v. Johnson, 26 S.W.2d 793; State v. Kenyon, 126 S.W.2d 245. (2) The verdict is responsive to the issues and is in proper form. State v. Batson, 342 Mo. 450, 116 S.W.2d 36. (3) Assignments general in character will not be considered. State v. Kennon, 123 S.W.2d 46. (4) Appellant's criticism of the court's action is not sustained by the record. (5) The evidence is sufficient to sustain conviction of first degree murder. (6) The sole submissible issue was murder in the first degree. State v. Barbata, 336 Mo. 362, 80 S.W.2d 868; State v. Adams, 323 Mo. 729, 19 S.W.2d 676; State v. Bobbst, 269 Mo. 214, 190 S.W. 260; State v. Paulsgrove, 203 Mo. 193, 101 S.W. 31. (7) Assignment that court failed to correctly instruct on all the law is insufficient. State v. Bagby, 338 Mo. 951, 93 S.W.2d 249. (8) Instructions are read together and considered as a whole. State v. Murphy, 338 Mo. 291, 90 S.W.2d 112. (9) Appellant's complain of Instruction 2 is unfounded as it is in an approved form. State v. Dollarhide, 333 Mo. 1087, 63 S.W.2d 999. (10) Missouri does not follow the doctrine of "uncontrollable impulse" in insanity cases. State v. Pagels, 92 Mo. 300, 4 S.W. 937; State v. Miller, 111 Mo. 542, 20 S.W. 243; State v. Soper, 148 Mo. 217, 49 S.W. 1007; State v. Dunn, 179 Mo. 95, 77 S.W. 848; State v. Berry, 179 Mo. 377, 78 S.W. 611; State v. Riddle, 245 Mo. 451, 150 S.W. 1044, 70 A. L. R. 675; State v. Miller, 225 S.W. 915.

Cooley, C. Westhues and Bohling, CC., concur.

OPINION

COOLEY

Appellant, defendant below, was convicted of murder in the first degree for the killing, on June 8, 1938, of Vivian Davidson (hereinafter referred to as deceased), and in accordance with the verdict of the jury, was sentenced to death. He appeals. While the record is voluminous, the legal questions presented for review are few. The defense offered was insanity. Defendant did not testify. It is practically conceded by appellant in his brief here that there was evidence to justify submission to the jury of murder in the first degree. The main contention on this appeal is that the court should also have submitted murder in the second degree which it did not do.

The State's evidence tended to show the following:

Defendant and deceased had known each other since their childhood, and practically grown up together and attended school together, had kept company with each other after they were old enough, and their respective families were neighbors and on friendly terms. Deceased was about twenty years old at the time of the homicide, defendant about twenty-two or twenty-three. A few years before the homicide defendant had been sentenced to the penitentiary for a robbery (one of several which evidence tends to show he had committed) and had been released, apparently on parole, after serving part of his term. It seems that prior to such sentence defendant and deceased were sweethearts and if not formally engaged at least contemplated marriage with each other. While defendant was in prison deceased married, but lived with her husband only about three weeks, when they separated, due to the husband's failure to provide for his wife, and she returned to the home of her parents, a Mr. and Mrs. Brewer, where she was living at the time of defendant's release from prison and at the time of the homicide. When defendant was released from prison he returned to his parents' home, and it appears deceased and defendant resumed their former friendly relations. Mrs. Davidson (deceased) had not obtained a divorce from her husband but intended doing so and she and defendant intended to get married. These matters were discussed between them. (There is no evidence of illicit sexual relations between defendant and deceased nor, on the part of the latter, with anyone else.)

About five P. M. on the fateful June 8, 1938, defendant went to the Brewer home, where deceased then lived. As he arrived his cousin, Emil (Ace) Loane and wife drove up in a Ford car and stopped to speak. About that time defendant noticed deceased getting into a Chevrolet car owned by her uncle James Bunton, who was there visiting. The uncle, Bunton, and one Kenneth Buddemeyer, then a stranger to defendant, also got in the Chevrolet car, and they started to drive away. Defendant (stepping on the running board of the car as we understand the evidence) asked deceased where she was going and when she would be back, to which she replied she was going to "Uncle John's" (John Bunton, brother of James and uncle of deceased) and would be back in fifteen or twenty minutes, and those in the Chevrolet drove away. But instead of going to John Bunton's they went to the home of Alice Back, a sister of James Bunton, and all went into the house. The deceased and Buddemeyer in a short time got back into the automobile, with deceased behind the steering wheel. (It seems she was wanting to learn how to drive.)

When deceased thus left her parents' home with her Uncle James and Buddemeyer the Loanes invited defendant to go with them to their home for supper. He went but did not eat supper, saying he had already eaten. They invited him to go with them to a "medicine show" to be given that evening. He agreed to go but said he wanted first to go home and change his clothes and asked to borrow Loane's car for that purpose. Loane consented. Defendant drove to his father's home and asked his father for his (the father's) shotgun. The father asked why he wanted it and defendant said "Me and my cousin are going squirrel hunting." He got the gun and two shells, all the father had. Driving back past John Bunton's home and not seeing the Chevrolet car there he drove on and saw it at the Back place. He saw deceased and Buddemeyer in the Chevrolet car. He stopped, got out of the car he was driving, assembled the shotgun, which it appears he had dismantled or taken apart when he got it from his father, and approached the car in which deceased and Buddemeyer sat. Buddemeyer fled, leaving the car and going into the house. Defendant proceeded to the car in which deceased then sat. As he neared and introduced the gun into the car from the right side (deceased was on the left side under the steering wheel) deceased cried out "Oh, Bob, don't do that" and "put her head down in the seat cushions," but he fired, the charge striking her in the head and killing her. To make sure that she was dead he passed around to the left side of the car, intending to shoot her again if she had not been killed. Ascertaining that she was dead he tried to kill himself. (This evidence comes from statements and a written confession of defendant, from which it appears the gun barrel was too long for him to reach the trigger when he tried to shoot himself.) Failing in his attempted suicide he threw away the gun and hurriedly left the scene, going to the sheriffi's office where he surrendered himself. When Buddemeyer fled from the car he ran into the house, saying "Bob has a gun" or words to that effect and James Bunton ran out and called to defendant, "Don't Bob -- don't," and when about six feet from defendant said, "Stop." Defendant had already shot deceased and was apparently reassembling the gun, which had come apart after the fatal shot (details unnecessary, probably for the purpose of killing himself). Defendant shot Bunton, inflicting on him serious, though not fatal, wounds. It was immediately after shooting Bunton that defendant fled the scene and went to the sheriff's office and surrendered.

Defendant made an oral confession at the sheriff's office and also signed a written confession. They substantially correspond. From the written confession we learn some of the facts we have stated above, particularly as to the long and close acquaintance of defendant and deceased and the resumption of their friendship and association after defendant's release from the penitentiary and that they contemplated marriage as soon as deceased could get a divorce from her husband. Coming to the events immediately preceding the homicide defendant said he had seen "Vivian" (the deceased) on June 5th (three days before the shooting). He had been told that Vivian was "going out" with someone, "so I accused Vivian of going out with some fellow, I didn't even know his name and she admitted it but said she was only joking she didn't intend to go out with him. I said if she did it once she wouldn't do it again," and he took her home, agreeing that he would come to see her on the evening of June 8th (the evening of the homicide). Regarding the events which then transpired he said: "Just before I got to the driveway my cousin . . . Emil Loane and his wife Geneva pulled up in Brewer's driveway and stopped and talked to me. . . . Jim Bunton was in his car which was in the back. . . . Vivian got in with Jim and another fellow got in too, all three of...