State v. Williams

• Decision Date: 25 November 1975
• Docket Number: No. 59137,59137
• Citation: 529 S.W.2d 883
• Parties: STATE of Missouri, Respondent, v. Jerry L. WILLIAMS, Appellant.
• Court: Missouri Supreme Court

Page 883

529 S.W.2d 883

STATE of Missouri, Respondent, v. Jerry L. WILLIAMS, Appellant.

No. 59137.

Supreme Court of Missouri, En Banc.

Nov. 25, 1975.

M. Shebourne Bryant, Willard B. Bunch, Public Defender, James F. Speck, Asst. Public Defender, Kansas City, for appellant.

John C. Danforth, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., for respondent.

HOLMAN, Judge.

Defendant was charged with the offense of murder in the first degree. See Section 559.010. ¹ Under the provisions of Rule 26.01, V.A.M.R., defendant waived a jury and was tried by the court. He was found guilty of murder in the second degree and his punishment was fixed at imprisonment for a term of 12 years. No findings of fact were requested or made by the court and hence, under Rule 26.01(c) 'All fact issues . . . shall be deemed found in accordance with the result reached.' Defendant duly appealed to the Court of Appeals, Kansas City District.

The sole contention of defendant on appeal is that he could not be convicted of murder in the second degree because the evidence showed that he was guilty only of first degree felony murder. The appeals court filed an opinion in which it discussed the issue but made no disposition of the case. Instead, it pointed out that there was a conflict between the cases decided by this court and certified the cause here for examination of existing law in accordance with Art. V, Sec. 10, Mo.Const.

Section 10, supra, provides that 'Cases pending in the court of appeals . . . may be transferred to the supreme court by order of the participating district of the court of appeals, after opinion, or by order of the supreme court before or after opinion . . .' We deem it advisable to point out that the court of appeals in said section is given the power to transfer a case to the supreme court only 'after opinion.' The word 'opinion' has many meanings but when applied to a judicial proceeding it has been defined as 'the direct, solemn, and deliberate decision of the court upon the issues raised by the record and presented in the argument.' 21 C.J.S. Courts § 217, p. 401, and as 'The statement by a judge or court of the decision reached in regard to a cause tried or argued before them, expounding the law as applied to the case, and detailing the reasons upon which the judgment is based.' Black's Law Dictionary, Fourth Edition, p. 1243.

We have the view that 'opinion' as used in Section 10 means a document which announces a decision which in some manner disposes of the case. The 'opinion' filed in this case was actually a memorandum explaining the reason for transfer. We accordingly conclude that the court of appeals was not authorized to transfer this case under the circumstances indicated. However, we have decided that the situation detailed by the court of appeals would have merited a transfer by this court prior to opinion if such had been requested. We will therefore consider the action taken by the court of appeals as a request for transfer and accordingly will retain the case as though transferred by order of this court and will finally determine the cause the same as on original appeal. We affirm.

Defendant's brief contains the following statement: 'Appellant concedes that there is sufficient evidence in the record to sustain a conviction of felony Murder First Degree.' In view of that concession and for other reasons we have concluded that a brief statement of facts will suffice.

The principal witness used by the State in making its case against defendant was Deborah Clark. She testified that she was with Nathanial Johns, Sammy Lewis, Willie Dove and defendant on the night of May 12--13, 1973; that they spent several hours in two night clubs located in Kansas; that as they were returning in a car defendant suggested that they rob his neighbor, James Main; that defendant further said that Lewis and Dove could go in first and put something over his face because Main knew Johns and him; that after they had parked the car in defendant's back yard Dove and Lewis got out and went toward Main's place; that after 10 or 15 minutes defendant and Johns went over there and 15 or 20 minutes later returned to the car; that Lewis and Dove then came back to the car with Dove carrying a radio.

This witness further testified that all of these parties then drove over to her house where defendant and Dove got into a fight over some money defendant said Dove should give him.

Defendant testified and stated that Lewis suggested the robbing of Main and that he and Johns refused to participate; that Lewis (who had a gun) and Dove went to Main's house and that he and Johns went in later because they heard him calling for help; that Dove was tying Main and Lewis was kicking him in the area of his head; that they tried to stop Dove and Lewis from continuing such conduct saying 'You are going to kill him' to which Lewis replied 'So what?' Defendant further stated that after the attackers had protested their efforts to stop the attack and Lewis had threatened to kill him if he 'snitched' he and Johns left the Main apartment.

After his arrest defendant gave a statement to the police in which the following appears:

'Q While you were riding back from Kansas, what was the conversation between the five of you?

'A Sammy Lewis was talking about making some money by robbing somebody. I told him I didn't want to do that but I would burglarize somebody.

'Q When did it come up in the conversation about robbing James Main?

'A When we got in the driveway, Sammy Lewis asked me about the dude that lived next door. I told him I knew him and I wasn't going in.

'Q What reason did you have for not wanting to go in?

'A Cause I figured I knew him and he knew me.

'Q Before Sammy and Willie went in, did you all have some sort of plan?

'A Yeah, I had it in mind going in and taking his TV.

'Q When were you supposed to go in?

'A I was supposed to go in when they came back to get me, but they never did come back and I heard Jim hollering, then me and Nate went in and tried to stop them. . . .

'Q Why was the deceased tied up?

'A Because they was supposed to tie him up so he couldn't see me and Nate. . . .

'Q How long would you say that you all were in the deceased apartment?

'A Sammy and Willie was probably in there about 15 minutes, myself about 3 minutes. . . .'

At about 3 p.m. on May 13, the police received a call requesting that they come to the address of the Main apartment. Upon arrival they found Mr. Main's body with hands and legs tied, a cord around his neck and a blanket covering his head. The cause of death was determined to be 'ligature strangulation of the neck.'

Section 559.010 (as it existed at the time of this offense) reads as follows: 'Every murder which shall be committed by means of poison, or by lying in wait, or by any 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.' And in Section 559.020 it is provided that 'All other kinds of murder at common law, not herein declared to be manslaughter or justifiable or excusable homicide, shall be deemed murder in the second degree.'

As indicated, defendant concedes that the evidence supports a conviction of murder in the first degree under the felony murder doctrine specified in Section 559.010, supra. He states, however, that since he did not aid or abet or in any other way participate in the actual killing of deceased he is not guilty of conventional second degree murder. And since he did not commit any felony other than robbery he is not guilty of second degree felony murder. Defendant argues, therefore, that since he was, in effect, acquitted of murder first and is not shown to be guilty of murder second, either conventional or felony, the conviction should be reversed and he should be discharged.

The State takes the position that murder second is a lesser included offense of murder first and hence the court could properly find defendant guilty thereof. Further, the State says that by reason of Rule 26.06 and certain statutes hereinafter discussed defendant is precluded from complaining of the fact that he was shown to be guilty of a higher degree of murder than that of which he was convicted.

Rule 26.06 provides that: 'A defendant in any criminal case shall have no just cause for complaint because: . . . (2) the evidence showed or tended to show him to be guilty of a higher degree of the offense than that of which he was convicted.' A similar provision is contained in Section 545.030 which states that: 'No indictment or information shall be deemed invalid, nor shall the trial, judgment or other proceedings thereon be stayed, arrested or in any manner affected: . . . (17) Because the evidence shows or tends to show him to be guilty of a higher degree of the offense than that of which he is convicted; . . .' (Emphasis ours). And more specifically applicable to the instant case is Section 556.220 which provides that: '. . . any person found guilty of murder in the second degree, or of any degree of manslaughter, shall be punished according to the verdict of the jury, although the evidence in the case shows him to be guilty of a higher degree of homicide.'

A case squarely in point is the early and leading case of State v. Bobbitt, 215 Mo. 10, 114 S.W. 511 (1908) in which the proof showed defendant guilty of felony murder first by arson and his conviction of second degree murder was upheld even though he did not participate in the actual execution of the offense. In holding that murder second was an included lesser offense under those circumstances the court stated at l.c. 517 that 'It has been repeatedly decided by this court that the statute dividing murder into two degrees is a statute of classification and not of definition, and that no homicide can be murder either in the first or second degree...