State v. Zweifel, 39555

• Decision Date: 22 August 1978
• Docket Number: No. 39555,39555
• Citation: 570 S.W.2d 792
• Parties: STATE of Missouri, Respondent, v. Merle Edward ZWEIFEL, Appellant. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 792

570 S.W.2d 792

STATE of Missouri, Respondent, v. Merle Edward ZWEIFEL, Appellant.

No. 39555.

Missouri Court of Appeals, St. Louis District, Division One.

Aug. 22, 1978.

Motion for Rehearing and/or Transfer Denied Sept. 15, 1978.

Application for Transfer Denied Oct. 10, 1978.

Zenge & Smith, Canton, for appellant.

John D. Ashcroft, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Daniel Lyman, Jefferson City, William O. Green, Pros. Atty., Scotland County, Memphis, for respondent.

SMITH, Judge.

Defendant appeals from his conviction of manslaughter by a jury. The jury assessed punishment at ten years imprisonment; the trial court reduced the sentence to five years.

The victim, Mr. Erwin, was the superintendent of the Gorin R-III School. Defendant's son, Carl, was a junior in that school. Erwin had a discussion with Carl in a shop class during which he made statements which Carl interpreted as indicating a doubt in Erwin's mind of the truthfulness of an excuse for an absence which Carl's mother had sent to the school and a doubt of the truthfulness of Carl's explanation of the absence. Carl left the school and went home to report the conversation to his parents. His father, defendant, returned to the school with him. There is no evidence that defendant's intentions were other than peaceful. When defendant and Carl arrived at the superintendent's office, Erwin was not there. Shortly Erwin came up the stairs (24 in number). A discussion ensued followed by a scuffle between Erwin and defendant. Erwin was 59, six feet or taller and weighed 230 pounds or more. Defendant was 36, five feet six or eight, and weighed between 150 and 170 pounds. The initial scuffle was broken up by several teachers. Some further talk ensued initially between Erwin and Carl and then between Erwin and defendant. While no profanity was used, the exchange between Erwin and defendant could be considered provocative from both sides and resulted in a second scuffle. While defendant's evidence was that Erwin was the aggressor in the second scuffle, there was evidence upon which the jury could believe defendant charged into Erwin and was the aggressor. The two men, locked in combat, fell into Erwin's office onto a desk and then to the floor with defendant on top. There was testimony, contradicted by defendant's evidence, that defendant choked Erwin while on the floor. The men were quickly parted and defendant and Carl left the school. Erwin was coughing and having difficulty breathing and two of the teachers attempted to provide first aid. Erwin died almost immediately from circulatory failure caused by cardiac arrest.

The results of the autopsy established that ten to twelve days before his death, Erwin had sustained a myocardial infarction, apparently unknown to him or anyone else.

Defendant's first contention on appeal is that the state failed to establish that the altercation between defendant and Erwin was the producing cause of Erwin's death. This contention is based upon the medical testimony in the case that in the case of a man who had had a recent myocardial infarction, as Erwin had, it is impossible to pinpoint exactly the stress which produced the cardiac arrest. While the state's medical expert conceded it was possible that the action in climbing the stairs or that even no stress at all could have triggered the arrest, he stated it was more probable that the physical altercation with defendant was the cause.

In State v. Brinkley, 354 Mo. 1051, 193 S.W.2d 49 (1946) l. c. 54, the rule to be applied was stated as follows:

"The applicable rule, as stated in Guthrie v. City of St. Charles, 347 Mo. 1175, 1188, 152 S.W.2d 91, 97(8), is that where a plaintiff shows a casualty resulted from one of several causes, for only part of which the defendant was responsible, no case is made unless the evidence also shows a Greater probability that the proximate cause was one for which the defendant was liable." (Emphasis in original). See also State v. Null, 355 Mo. 1034, 199 S.W.2d 639 (Mo.1947) (10).

The evidence here meets the test set forth in Brinkley. Although conceding the possibility of another cause for the death, the medical expert testified the altercation was the more probable cause. Additionally, the evidence was that the fatal heart attack occurred either during or immediately after the altercation. The evidence was sufficient to support the jury verdict.

Defendant's second point is that the court erred in not permitting counsel to cross-examine a medical expert on allegedly inconsistent statements made by the expert at the preliminary hearing. The record does not contain the transcript of the preliminary hearing and the transcript was not offered into evidence. In such posture the matter has not been preserved for review. State v. Hughes, 562 S.W.2d 140 (Mo.App.1978) (2). From the record before us and the colloquy between counsel and court we are unable to determine whether the doctor's testimony at the preliminary hearing was inconsistent with that at trial. The trial court held it was not and we have no basis to disagree.

Defendant also premises error upon the trial court's failure to sustain an objection to the prosecutor's closing argument. The argument is set forth in the margin. ¹ Again the matter has not been preserved. The court stated it wished to hear the rest of the statement before ruling. No further objection was made and under the circumstances the trial...