State v. Woolford, KCD28313

• Decision Date: 29 November 1976
• Docket Number: No. KCD28313,KCD28313
• Citation: 545 S.W.2d 367
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Elmo Cecil WOOLFORD, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 367

545 S.W.2d 367

STATE of Missouri, Plaintiff-Respondent, v. Elmo Cecil WOOLFORD, Defendant-Appellant.

No. KCD28313.

Missouri Court of Appeals, Kansas City District.

Nov. 29, 1976.

Motion for Rehearing and/or Transfer Denied Dec. 23, 1976.

Application to Transfer Denied Feb. 14, 1977.

James R. Bickel, Nevada, for defendant-appellant.

John C. Danforth, Atty. Gen., Robert Presson, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Before DIXON, P.J., PRITCHARD, C.J., and WASSERSTROM, J.

DIXON, Presiding Judge.

Defendant was charged by information with first degree murder. A jury found defendant guilty of murder in the second degree and fixed his punishment at 10 years. The sufficiency of the evidence is at issue, so a detailed recitation of facts will be necessary.

The State's evidence was as follows. Around 7 p.m., on August 26, 1974, witness Patty Dobbs drove by the farm of the victim, Dick Graham, located on Hainline Road. When the witness returned back along Hainline Road from the opposite direction a short time later, she observed a green Oldsmobile blocking the road where it intersects with Highway 82. The portion of Hainline Road on which Dick Graham's house is located is intersected by only one road which is across from Dick Graham's house. The witness did not notice anything unusual when she passed by the victim's house the first time, but when she drove back by at around 7:15 to 7:20 p.m., she saw Dick Graham lying on the ground not far from the road and notified the police.

Patrolman Moore testified that at approximately 7:45 p.m., on August 26, he was proceeding to a reported one-car accident at the intersection of Hainline Road and Highway 82. On the way, he was stopped by Patty Dobbs and proceeded to the home of Dick Graham where he found the victim lying on the ground approximately five steps from the road. Graham had blood running down his face and on his chest, and there was no movement or breathing.

The chief of police, Ernie Clawson, testified that at approximately 7:35 p.m., on August 26, George Smith came to his home, and they had a conversation concerning defendant. Following this conversation, Chief Clawson started out in search of defendant when he was notified by his dispatcher of the discovery of Dick Graham's body. He proceeded to the victim's home, arriving there around 10--15 minutes after talking to George Smith. He then proceeded to the scene of the one-car accident where he observed a dark green Oldsmobile blocking Hainline Road where it intersects with Highway 82. He further testified that there are no roads which intersect Hainline Road between the point of the accident and the victim's residence.

Trooper Harper of the Missouri Highway Patrol testified that the dark green Oldsmobile blocking Hainline Road was registered to defendant's wife.

George Smith testified that he lives approximately one block from defendant. During the summer prior to trial, he was sitting in front of his house when he observed a dark colored Oldsmobile driven by defendant leave defendant's house, spinning its wheels. There were two passengers in the car. Defendant returned alone about three minutes later, went into his house and immediately came back out with a rifle or a shotgun. Defendant placed the gun in his car and left in a manner which was 'rough' or 'rougher than he was the first time.' When defendant left the second time, witness Smith went to the home of Chief Clawson to report the incident because he knew defendant 'and in past experience with him I figured that somebody was going to get hurt.'

Witness Durf Freeny testified that between 7:30 and 8:00 p.m. on August 26 she observed a dark green Oldsmobile with a driver and two passengers driving rather fast and pull into an alley where a girl either jumped or fell out and ran into a building. She then noticed that another man had gotten out of the car, after which the car 'took off driving rather reckless.'

Rudy Livengood testified that he was a good friend of defendant. On August 26, he first saw defendant at his own house around 9:30 a.m. They went to a tavern at some point during the day, but it was closed. Defendant and witness Livengood drank pretty heavily all day. In the afternoon, they went to defendant's house. Defendant's wife was upset about his drinking, and they argued. Defendant accused his wife of running around. Defendant had earlier remarked to Livengood that his wife was running around at the instigation of Dick Graham's wife. Defendant had never mentioned Dick Graham as the person who his wife might be seeing. After the argument, defendant made Livengood and his wife get into the green Oldsmobile with Livengood in the middle. As they were traveling along, defendant's wife jumped out and ran off. The next thing the witness recalls is being at home. He testified that he did not want to go in the car because he had never seen defendant act that way before and was afraid of him. The witness did not see a rifle in the car.

The State introduced a written statement given by defendant on August 29, 1974 shortly after his arrest. The defendant stated that on August 26 he drank wine with Rudy Livengood, returning to defendant's house around 5 p.m. His wife was mad because he had been drinking, and they argued. Rudy Livengood was angered by appellant's treatment of his wife and asked to be taken home. Defendant wasn't arguing with his wife about running around with another man. 'I wouldn't live with her if she ran around with another man we wasn't fighting about that I come in drunk and we always get to arguing she was afraid of me.' They left, defendant refusing to let his wife drive, with Rudy sitting in the middle and the wife on the outside. His wife opened the door before they got to Rudy's place and jumped out. After Rudy got out, he drove around to look for his wife. He was driving his wife's green Oldsmobile. He then drove by Dick Graham's place and asked Graham if he wanted to go with him. Graham answered that he would have to finish feeding and wash up and put some clothes on. Defendant then stated that he wanted to show Graham his new rifle. The rifle holds '17 in the tube' and maybe 'one more shot in the chamber.' It had been lying on the floor of his car as he carried it with him most of the time. As defendant was getting the rifle out of the car, it started going off while Graham was standing there. '. . . it went off I don't know if it was stuck on the door or it just kept going off and he said something I looked over he was just laying there.' Defendant was 'scared to death' and threw the gun into his car and left. He went down the road and up a hill and got out of his car, taking the gun, running back into the trees. He kept going, leaving the rifle at a place where he fell, and spent most of the next day at a certain spot. On August 28, he got a ride back into town. Defendant did not know if his finger was on the trigger when the gun went off. Defendant was acquainted with Dick Graham. They might have had words before but never had a fight. His wife and Mrs. Graham were friends, having worked together at a factory, but defendant didn't know her too well. He knew Mrs. Graham's first husband real well. Defendant wasn't mad at Dick Graham.

An expert testified concerning the operation of a twenty-two semi-automatic rifle. He testified that there is no such thing as a fully automatic twenty-two rifle. A twenty-two semi-automatic rifle operates by reloading and cocking itself after each shot but requires a new pull of the trigger to fire a new shot. He testified that he had experience with semi-automatics malfunctioning and becoming automatic but that in his experience, such a gun would jam on the fourth round so that only three bullets could fire by accident. He further testified that the bullet pattern from a twenty-two rifle malfunctioning into a wall at about ten feet would be one to four inches between each bullet.

Sergeant Murphy of the Highway Patrol testified that a twenty-two caliber slug was recovered from the victim. Dr. Sunderwith performed an autopsy upon the victim. The victim had been shot six times, in the buttocks area, in the area of the eleventh rib on the right side, under the right arm at the fifth rib, under the right arm at the third rib, in the right cheek and by the left ear. The cause of death was multiple bullet wounds, four of the six wounds being fatal.

The murder weapon was not recovered and, accordingly, was not in evidence.

Defendant presented no evidence.

Defendant attacks the sufficiency of the evidence to support a submission of either first or second degree murder and the sufficiency of the evidence to support the jury's verdict.

Defendant's complaint that it was error to submit an instruction on murder in the first degree must fail. 'A defendant who has been convicted only of murder in the second degree may not successfully urge error in the giving of an instruction on murder in the first degree, even if the instruction is not sufficiently supported by evidence.' State v. Strong, 339 S.W.2d 759, 765 (Mo.1960); State v. Sprout, 365 S.W.2d 572 (Mo.1963); State v. Adams, 497 S.W.2d 147 (Mo.1973).

Defendant urges that there was no evidence of intent to support a submission or a finding of guilty of second degree murder.

The record reveals the contrary to be true. Initially, there is direct evidence by defendant's own statement that he was holding the rifle when Dick Graham was shot. While that statement is exculpatory as to intent, the State is not bound by that portion of appellant's statement negating the required element of intent. State v. Clark, 494 S.W.2d 26 (Mo.banc 1973); State v. Goacher, 376 S.W.2d 97 (Mo.1964). The State showed that defendant had been drinking all day and that he had an argument with his wife a short time before the alleged murder. The fact of his wife's jumping from a moving vehicle gives rise to an inference that a...