*1 relating concerning argument the court accordingly assume damages we will Missouri, Respondent, STATE regard. error occurred in no
“ * * * Appellant. Moreover, AYERS, were if defendants Lee Robert applicable of the there no view that No. 52911. MAI that the one form and offered Missouri, Court offer a general too it was their En Banc. specific more one.” Sept. event, not, any do more would for a new trial lim- than remand this case being damages, not
ited to the issue of has demonstrated
convinced that defendant
any regard to the mea- prejudicial error in used or damage
sure of instruction returned, purpose
verdict we see no useful remand, par- in such a limited be served
ticularly is made one where no claim inadequate
side that the is or
the other that it is excessive. that the
Defendant’s final overruling
trial court erred in defendant’s statement.
motion a more definite peti
This is the assertion that the based on specifically
tion did not state whether
contract oral or written or what on,
alleged and that the fraud was based
petition date failed to set forth the when
plaintiff first learned defendant no error of the see owner stock. We
in the trial court’s It was clear action. petition
from the the fraud claimed was ownership representation as
false petition does it is true the
stock. While the contract was written
not state whether oral, easily
or have been deter could true as to by interrogatories, as is
mined plaintiff learned de
the date No doubt
fendant did not own the stock. its been within
the trial would have the mo
sound discretion had it sustained definite, it also
tion to make more ruling the its sound discretion
within Certainly the opinion. way, in our
other prej not constitute
trial court’s action does grounds for a new trial error or
udicial of this case. circumstances affirmed.
Judgment Judges
All of the concur. *2 Gen., Danforth, Atty. E. C. Gene John Gen.,
Voigts, Atty. A. First Asst. Gen., Blackmar, Atty. City, Asst. Jefferson respondent. for Marks, Marks, Murry For- Elliott & A. Elliott, Louis, appellant. riss D. St. DONNELLY, Judge. six-year- a appeal from is an Second Of-
sentence, imposed under the finding Act, upon fender man- Ayers, guilty of appellant, Lee Robert slaughter. V.A.M.S. reassignment,
opinion, written on which opin- adopt portions substantial we Welborn, C., in Division ion written of this Court. One Charles Gibson On June of a second-floor occupant tenant and 947 Laurel Avenue apartment at noon Shortly before City Louis. St. apartments date, residents of other apart- enter his building saw Gibson ment, by appellant. Sounds followed struggle heard dicating a were Gibson’s two were fired. apartment and then shots apartment of the first-floor occupant apart- noise in had heard the Gibson’s who apartment door went to the ment stairs, coming Ayers down the and saw and blood on his cloth- his shirt out away an Ayers He drive ing. watched automobile. officers called scene
Police
were
They
Gibson to
removed
at about 11:57.
pronounced
hospital
he
where
that death was
autopsy
dead. An
revealed
chest,
circumstances,
statements,
hemorrhage
coupled with the
by a
into the
caused
from which the
produced by gunshot
provide
wound of the heart.
sufficient evidence
man-
find
jury could
Ayers
shooting,
A
time after the
short
slaughter.
entered the Seventh District Police Station
*3
Appellant’s
point
the trial
Sergeant
second
is that
Harrington
and told
that
allowing
testify
court
in
Iris
to
just
he had
shot man
erred
West
a
on
The
Laurel.
she had no idea of
sergeant
Ayers
after she stated that
placed
under arrest and
him,
meaning
oath.
Iris was twelve
weapon.
the
of an
searched
but found no
After
December,
minutes,
trial,
twenty
years old at the time of
Harring-
about
Sergeant
at
1966. She testified to matters she saw
ton and
Brown left the Seventh
Officer
shooting,
Station,
June,
time of the
in
Ayers in
the
District
their custo-
dy.
station,
crying,
As
three left
the
the
sworn,
After she had been
defendant’s
hysterical
vicinity
the
woman was
the
of
objected
compe-
that
counsel
Iris was not
Ayers
steps.
front
said to
told
her: “I
testify.
tent to
At the court’s suggestion
going
her I
to
it if
do
she didn’t make
her,
inquiry
that
be made of
the circuit
up
me,
her
mind between him
who
attorney
her age,
elicited from her
her
wanted,
boy
she
me or the
The
friend.”
residence,
place of
that she was in the fifth
apartment
by
had been rented
Gibson and
grade of school and that she attended
represented
a woman whom he
be his
to
Baptist
every Sunday
Cabanne
Church
the
appellant.
wife
who was
wife of
hap-
believed in God. When asked what
truth,
pens
person
to a
doesn’t tell
who
the
The
court, upon
trial
an information
“They
replied:
go
the witness
will
to
charging murder in the
degree,
jail.” The
then suggested
court
that in-
structed
that
on
and on manslaugh-
offense
quiry
understanding
be made of her
of
ter. The
appellant guilty
found
of
meaning
the oath. She was asked the
of
the
court,
latter offense and the trial
replied
oath
the
and she
that
did not
she
finding the Second
applica-
Offender Act
know. The court overruled the motion
ble,
sentenced
years’
six
im-
to remove the witness.
prisonment.
appeal
followed.
contending
In
that the trial court’s rul-
Appellant’s
contention,
that
ing
erroneous, appellant
solely
relies
prove
evidence was
insufficient
upon the witness’s lack
knowledge
of
as
guilt
manslaughter,
of
is without merit.
to the meaning
Heavy
of the oath.
re-
arguing
wholly
the State’s case was
placed
liance is
upon
Jones,
State v.
360
circumstantial, appellant
di
overlooks the
723,
678,
Mo.
230 S.W.2d
where the trial
provided
rect
evidence
appellant’s
held
to have abused its discre-
voluntary statements. Appellant’s admis
tion in
five-year-old
permitting a
child
sion that he had
shot man on Laurel
testify.
court in
did
Jones
was direct
of
guilt.
State v.
ignorance
the witness’s
meaning
of the
Smith, Mo.Sup.,
377 S.W.2d
244 [3- of the
however,
oath.
importantly,
More
5];
Hutsel,
v.
State
357 Mo.
208 the court found from the witness’s testi-
S.W.2d
231-232
We need not mony
[9-10].
“incapable
that she
having
decide whether or not the circumstances
just
impressions of the facts respecting
might, without
appellant’s
consideration of
which she was examined or
relating
* *
statements, support
finding
guilt.
them truly;
*.”
element separate deliberation the of- concurs result in in fense is in degree. concurring murder the first opinion V.A. filed.
M.S. 559.010. § FINCH, Chief (concurring). Justice is
It
of the court to “instruct
writing upon
questions
in
all
I
principal
concur in the
opinion and
arising
law
in the case which are neces-
separate
file this
opinion only
out
sary for
giving
their information in
their
559.070,
that manslaughter is defined in §
* *
;
*.”
546.070(4)
V.A.M.S. §
1969, V.A.M.S.,
as
that
this
26.02, V.A.M.R.; Hardy
S.Ct. Rule
Mo.,
said
Williams,
in State v.
442 S.
State, supra.
W.2d
“There is but one definition
manslaughter
state,
case, appellant
In this
charged
supra.”
princi-
contained
If,
murder
degree.
as
pal opinion holds that
was incor-
Williams
case,
Sparf
supra (156
U.S.
rect in
holding
proof
there must be
been,
S.Ct.
278), there had
as a matter
facts tending
premedita-
to show want of
law, “an entire absence of evidence
manslaughter
tion and malice to warrant a
upon which to rest
a verdict of
instruction.
I do not
that it in-
understand
manslaughter,” the trial
prop
court could
*5
wrong in
tends to hold that Williams is
rec-
erly have instructed
jury only
as to
ognizing
definition of
that the correct
man-
murder
degree.
the second
Cf. State v.
is the one
out
slaughter
set
in §
Jones,
391;
64 Mo.
and
Bradley,
State v.
Hence,
principal opin-
in the
reference
361 Mo.
aforethought, deliberately.” Under manslaugh-
No. could convict of if "inten-
ter found defendant acted they
tionally, pre- malice and without without
meditation.” de-
Sec. V.A.M.S. manslaughter by
fines elimina- process of a killing
tion. It is to mur- not declared be
der. Murder is defined 559.010 Secs. deliberation, pre-
and 559.020and involves fortiori, man-
meditation malice. A slaughter not. Rosen, does Clayton, Clayton St. &
Louis, Guy Brown, legal Inmate Coun- F. movant-appellant. selor for Gen., L. Danforth, Atty. Richard C. John Gen., City, Wieler, Atty. Asst. Jefferson respondent. MORGAN, Presiding Judge. REDUS, Movant-Appellant, James 1966,movant entered On November degree plea charge of second to a Missouri, Respondent. STATE of *6 a term of murder and sentenced No. 56192. he years. twenty March On and sentence judgment to have the moved Supreme Missouri, Court of Rule V.A. vacated. Court Division No. 2. relief evidentiary hearing, After an M.R. Sept. 13, 1971. appealed. has was denied and movant vacate, (1) alleged: he In his motion to involuntary, he was (2) his confession counsel, provided assistance ineffective After coerced. guilty plea his (3) each court found hearing, trial a full merit. to be without contention reflects that two Factually, record had entered felony movant prior cases been committed. guilty and pleas of charged he instant case employer, his degree murder of made confession allegedly had he police. hearing, movant testified the 27.26
At interrogated over an extended he police; that he did time period of and, killing; that neither confess the attorneys him of the court advised nor However, jury. to trial before right