State v. Wright

• Decision Date: 11 July 1935
• Docket Number: No. 34027.,34027.
• Citation: 85 S.W.2d 7
• Court: Missouri Supreme Court
• Parties: THE STATE v. WILLIAM WRIGHT, <I>alias</I> JOHN GAUESS, Appellant.

85 S.W.2d 7

THE STATE v. WILLIAM WRIGHT, alias JOHN GAUESS, Appellant.

No. 34027.

Supreme Court of Missouri.

Division Two, July 11, 1935.

Appeal from Jackson Circuit Court. — Hon. Brown Harris, Judge.

REVERSED AND REMANDED.

Chas. B. Jones for appellant.

(1) The evidence was insufficient to sustain a conviction. State v. Griffith, 311 Mo. 630, 279 S.W. 135; Sec. 22, Art. II, Mo. Const. (2) The evidence warranted the giving of a second degree murder instruction. State v. Lewis, 264 Mo. 420, 175 S.W. 60; State v. Bates, 239 Mo. 507, 144 S.W. 99; State v. Turner, 246 Mo. 598, 152 S.W. 313; State v. Phillips, 24 Mo. 475; State v. Hudson, 59 Mo. 135; State v. Eaton, 75 Mo. 586; State v. O'Hara, 92 Mo. 59, 4 S.W. 422; State v. Gregory, 178 Mo. 48, 76 S.W. 970; State v. Robertson, 178 Mo. 496, 77 S.W. 528; State v. Earnest, 70 Mo. 520. (3) The evidence warranted the giving of a manslaughter instruction. State v. Bates, supra; State v. Turner, supra; State v. Fletcher, 190 S.W. 315; State v. Earnest, supra. (4) The court erred in dismissing those of the panel who were challenged by the State when they stated that they had conscientious scruples against the infliction of capital punishment for the reason that they later qualified themselves and were entitled to remain on the panel. Sec. 3669, R.S. 1929; People v. Stewart, 7 Cal. 140; Savage v. State, 18 Fla. 930; Commonwealth v. Webster, 5 Cush. 295; Williams v. State of Miss., 32 Miss. 389; Boyington v. State, 74 Fla. 258, 76 So. 774; Stratton v. The People, 5 Colo. 276; Atkins v. State, 16 Ark. 568. (5) That the verdict is against the law in the case. State v. Venable, 177 S.W. 308.

Roy McKittrick, Attorney General, and Frank W. Hayes, Assistant Attorney General, for respondent.

(1) General assignments of error numbered 2, 9, 10, 18, 19 and 20 of appellant's motion for new trial are insufficient. Sec. 3735, R.S. 1929; State v. Vigus, 66 S.W. (2d) 854; State v. Williams, 71 S.W. (2d) 732; State v. Smith, 68 S.W. (2d) 696; State v. Hardin, 21 S.W. (2d) 758; State v. Copeland, 71 S.W. (2d) 746; State v. Lay, 61 S.W. (2d) 738; State v. Stogsdill, 23 S.W. (2d) 22. (2) The court did not err in permitting the State, under an information alleging murder in the first degree by shooting, to prove appellant killed the deceased while in the perpetration of a robbery. Sec. 3982, R.S. 1929; State v. Bobbitt, 215 Mo. 13; State v. Robinett, 279 S.W. 700; State v. White, 51 S.W. (2d) 109; State v. Meadows, 51 S.W. (2d) 1033. (3) The court did not err in refusing to instruct the jury on second degree murder and on manslaughter. Sec. 3982, R.S. 1929; State v. Baker, 278 S.W. 989; State v. Long, 253 S.W. 732; State v. Hart, 237 S.W. 482; State v. Auguelera, 33 S.W. (2d) 904. (4) The court did not err in excusing from the jury panel certain prospective jurors who had conscientious scruples against inflicting the death penalty. Secs. 3669, 3982, R.S. 1929; State v. David, 131 Mo. 390; State v. Hayes, 262 S.W. 1034; State v. Murphy, 237 S.W. 533; State v. Gilbert, 186 S.W. 1003; State v. Wooley, 215 Mo. 673; State v. Cooper, 259 S.W. 434; State v. Gore, 237 S.W. 995; State v. Bauerle, 145 Mo. 15; State v. Sherman, 264 Mo. 379; State v. Williamson, 106 Mo. 162; State v. Richmond, 12 S.W. (2d) 34; State v. Cade, 34 S.W. (2d) 82; Ex parte Johnson, 280 S.W. 702.

TIPTON, P.J.

The appellant, a negro, was convicted of murder in the first degree in the Circuit Court of Jackson County, Missouri, at the March Term, 1933, and his punishment assessed at death. He was charged in the information with the murder of Dr. J.T. McCampbell, a negro druggist, in his store located at the corner of Vine and Howard streets, in Kansas City, on March 15, 1933.

I. The appellant contends that the evidence is insufficient to sustain the verdict. The evidence on behalf of the State shows that on March 15, 1933, about five P.M., the appellant entered the drug store owned and operated by the deceased. At that time the deceased was engaged in a conversation with Dr. Hayden. The only other person in the store was Jerry Evans, who used the drug store as headquarters for his transfer business. When the appellant inquired for Dr. McCampbell, he came to the front part of the store, but refused to sell the appellant cigarettes for a dime. The deceased returned to the rear of the store and finished his conversation with Dr. Hayden, who then left the store. The deceased then went behind the cigar counter and there the appellant pointed his gun at the deceased and Evans, and said: "Hands up, this is a holdup," and ordered the two men to the rear of the store where the safe was located. The deceased was directed to open the safe and while in the act of opening it, two boys, Sandy White and Julius Richardson came into the store. The appellant pointed his gun at the boys and told them to put up their hands, at this time the deceased ran to the cash register and obtained his gun. The appellant shot at him several times and he returned the fire. The appellant was not injured but Dr. McCampbell was shot twice and died in about thirty minutes. After Dr. McCampbell was shot he ceased firing and the appellant took the gun belonging to the deceased and a small amount of change from the cash register and run out into the street. The appellant admitted these facts, but claimed it was a fake holdup to collect robbery insurance. His testimony will be more fully developed later in connection with the discussion of the action of the trial court refusing to give an instruction on second degree murder.

[1] Section 3982, Revised Statutes 1929, declares every murder committed in the perpetration of or an attempt to perpetrate a robbery or any willful, deliberate and premeditated killing to be murder in the first degree. Viewed in the light most favorable to the State, the evidence clearly shows that the deceased was killed by the appellant while the appellant was in the act of committing robbery. The evidence is sufficient to sustain a verdict of first degree murder as the killing was done in the perpetration of a robbery. [State v. Nasello, 325 Mo. 442, 30 S.W. (2d) 750; State v. Hershon, 329 Mo. 469, 45 S.W. (2d) 60; State v. White, 330 Mo. 737, 51 S.W. (2d) 109.]

[2] We also hold that the evidence is sufficient to show that Dr. McCampbell was deliberately and premeditatedly murdered. We think the facts and circumstances show that the appellant had planned to murder any person who might attempt to thwart his plan to rob or who might attempt to prevent him from escaping with his illegally obtained loot. The State's evidence shows that the appellant shot the deceased at the first sign of any resistance of the robbery. In the cases of State v. Lewis, 201 S.W. 80, 273 Mo. 518, and State v. Nasello, supra, we held under similar facts that the evidence was sufficient to show deliberation and premeditation so as to sustain a conviction of murder in the first degree. In the case at bar, this was the theory of the instruction given on behalf of the State that authorized the jury to find the appellant guilty of murder in the first degree. We rule this point against the appellant.

[3] II. Appellant's main contention is that under his evidence the court erred in refusing his request for an instruction on second degree murder.

The appellant testified that about noon on March 15, 1933, he met a young negro whom he had known only by the name of Bobbie who was with another negro boy unknown to the appellant. Bobbie told the appellant that Dr. McCampbell owned a drug store located at Howard and Vine streets; that he had been robbed several times and had taken out robbery insurance and wanted some one to execute a fake holdup so that he could recoup his former losses; that because of the bank moratorium he had quite a sum of money in his safe, at least two hundred dollars. The druggist, according to Bobbie, had agreed with him that he would cause no trouble and would be unable to identify whoever participated in the holdup. This testimony was not objected to on the ground that it was hearsay.

About 5:15 or 5:30 that afternoon the appellant went into the store and asked for Dr. McCampbell. He was told by Evans, the transfer man, that Dr. McCampbell was in the back of the store. In this way he learned that the man to whom he was talking was not the doctor.

He bought some tobacco and read the newspaper, waiting for Evans to leave, as he did not do so he proceeded with his plans. He pointed a gun at the two men and ordered the doctor to open the safe. Prior to this he looked across the street, saw the two boys and thought they would come into the store as they had planned. He ordered the doctor and transfer man to the rear of the store behind the prescription partition. As the doctor was opening the safe someone entered the front door. The appellant thought it was his companions but it was the delivery boy, Richardson, and a customer, Sandy White. When the appellant saw who it was he became confused as to what to do next. He told them to go back with the others. Just as he gave that order the doctor rushed across the room behind the partition and obtained a pistol. The appellant saw him get it but made no attempt to shoot him.

As the doctor reached the opposite side of the room he opened fire. Appellant tried to tell the doctor why he was there as he knew something was wrong and that the doctor had not been notified when the fake robbery was to be executed. The doctor was behind the partition and would lean out and fire and jump back. The appellant, at no time, fired directly at the doctor, always firing through the partition.

At this time Evans was standing by the safe. As soon as the firing ceased, the appellant walked towards Dr. McCampbell, who went behind the counter, with no outward appearance of being injured. He laid his gun on the counter in front of him. The appellant made no attempt to fire further and walked over and took the gun. By...