*1 STATE of Missouri, Respondent,
Eugene FORD, Defendant-Appellant. 56286.
No. Missouri,
Supreme Court Division No. 1.
Sept. 11, 1972. Rehearing to Court or to Transfer
Motion En Banc Denied. Nov. 1972.
3 of Mo. 1945 3 Constit. Art. Sec. amended 1970. in the eyewitnesses
Four testified State’s The evidence can summarized case. quoting testimony first witness old, State, *3 young for the man at who testified on October Park, about 10:30 at Beckett St. P.M. Ford, Louis, Missouri, appellant saw he and Leon Singleton, Owens Ronald Giles next to the side- seated on a bench Jones park. He saw walk at the side park, one of walking along the three men Pursley, Jr., the de- whom was Nathaniel park. were on lights ceased. The Eugene what jury asked to tell When “Well, did, when Ford the witness stated: men, Eu- Eugene Ford ran down for the man, gene Pursley, Mr. ran toward one man, grabbed Eugene and hit the him and down, other men knocked him two started ‘Don’t kill him. Don’t hollering, picked up again, Eugene him kill him.’ and knocked him At that Giles down. boys got had Singleton and the rest of Eugene helping they down there so started man, Eugene pulled out a knife beat the so and then the man and he stabbed the man Eugene and ground, and so fell to the up again picked man Giles Owens back down and hit him and the man fell he boys Eugene and the rest started Singleton started on him. Ron stomping every- stomping on face and the man gave thing, Eugene Giles then when that’s Danforth, Gen., Atty. C. Neil Mac- John one the man the knife and stabbed Giles Farlane, Gen., Atty. City, Asst. Jefferson stomping and they all started time. Then respondent. lay- beating man and the man was Babione, Louis, Robert C. appel- they broke off ing ground and then lant. and ran.” Singleton, boys in- Ronald one BARDGETT, Judge. volved, at did not see testified first he Eugene Ford charged was deceased, indictment Ford stab the but as the testimo- with murder in the first ny of Nathan- proceeded developed it that Ford iel Pursley, A jury found Singleton him told testify (Single- that he Jr. as charged and punishment Thereafter, assessed at life did do it. not see Ford ton) imprisonment. Judgment and sentence saw Ford hit witness testified that he were rendered accordingly, and following Ford then man and knock him down. the overruling trial, of his motion for grabbed new hand and Pursley his left with appeals. Ford This jurisdiction. Court has his stabbed him a knife with with stayed Ford then handed knife to Pursley
hand. Giles Officer him until died with Pursley Singleton cut with it. at about 12:15 Giles A.M. did many not remember how times Ford Appellant’s ap on this Pursley,
used the many knife on nor how peal is permit that the trial court erred in Pursley times cut Giles Ford it. ting repeatedly “the inform the stabbed State the man in front or side of his panel venire tried body. Singleton Pursley hit in the face though as an adult even he fifteen at with his fist. the time of the incident in the in year boy Another 15 old testified that he formation.” knew him to Mr. believed During the voir dire examination of the years about forty-nine old. witness This panel panel told the that the running testified he Ford saw across defendant was fifteen old at the time park with a knife in his Ford “ran hand. *4 asking the preliminarily he was arrested to upon by grabbed the man and him his col- them, panel not of because whether or down, lar and hit him and knocked him defendant, give age the of the could not of again beating then he did it and started on the or the a fair im- State defendant and stomping. him and Leon ran down Jones partial age trial. The of the defendant kicking him and with he was him Nevertheless, put never in was evidence. too. Eugene grab Then I the man’s saw one, question proper surely the was a for it collar and take knife and stab him in the ” * * * recognized be it must that would be diffi- Pursley nothing stomach. did cult, impossible, people not some if provoke had the attack. The knife Ford person of in the young convict a murder “ladyfinger”- long like a was a —it only particularly the degree, when long. knife with about seven blade inches punishments imprison- were available life eyewitness, year The fourth a 14 old or, trial, ment of death. at the time this boy, testified he saw Ford run out Purs- ley grass. in and throw him down the him, him, Ford then stabbed hit and point, appellant of this part As stomped gave him and then the knife error the court complains that it was Giles, who took the knife and stabbed Purs- dire, during prosecutor voir allow the ley stomped and him. that repeated reference to the fact make “being an tried as the defendant was impeached None of these witnesses were telling panel in the “the Court adult” and respect. material be tried as has directed that this defendant Defendant testified in his defense and position that an adult.” It is § park stated that he had been in the on Oc- V.A.M.S., effec which became 211.271(3) up tober 1969 and he went to the that of Mis part Code tive as Juvenile jaw man and hit him on the and one time prior trial, prohibits any ref to this souri stabbing Pursley left. He denied and de- prior Court erence made Juvenile any knowledge stabbing. nied aof by the proceedings, and that the comments jury to believe prosecutor would lead the Officer arrived on the Jerome Johnson by the certified defendant had been that Pursley scene about 11:00 P.M. He found and, an adult for trial as Court Juvenile laying ground park on within with toas determination inferentially, that some bleeding cuts about his face and he was already been made. guilt his had from the He stomach. was unconscious. V. 211.271 was no violation Pursley Phillips There was taken to Homer § G. done nothing that was here Hospital in the A.M.S. because by and examined a doctor against the was used juvenile in the court emergency still uncon- room. trial of this cause. State defendant in the upon hospital scious and the arrival at the Arbeiter, Mo., by reading S.W.2d is death to be shown applicable. portion that Records of Coroner’s City Louis that contains the re- by The statement port per- post-mortem examination that “the Court has directed that this de phy- by signed by formed the coroner’s obviously fendant be tried as an adult” is Criscione, sician, grounds Dr. incorrect and should not have been made. opinion, the “cause of death” is an and not Although the juvenile action court in event”, act, “a record of an condition or dismissing petition provisions under the (Uniform within 490.680 Busi- V.A.M.S. § frequently 211.071 has been V.A.M.S. § Act), ness Records and on the as Evidence “certifying characterized juvenile thereby ground further adult”, for trial “ordering ju as an denied the to be confronted venile to be tried as an adult” the charac witnesses, appearing cross-examine terizations are ju incorrect. All that the against him. venile court can do under V.A. 211.071 § qualifications authenticity petition is to M.S. dismiss the has which the medical records of the at Ho- deceased juvenile effect of relinquishing court Phillips Hospital report mer G. jurisdiction juvenile. over the this When physician post-mortem coroner’s jurisdiction relinquished is juvenile performed he examination under 490.680 § subject prosecution in the same manner stipulated parties, ap- were may others prosecuted. Whether *5 pellant right specific the reserving make prosecution not the is instituted how objections particular parts of the ever, is matter over which the prosecuting records. The Homer Phil- records of G. attorney grand or the jury jurisdiction, has lips Hospital were read with- into evidence but the court has jurisdiction no to insti objection diagnosis out and showed final prosecution tute the or to per order that a multiple pa- of the stab wounds and that son, against whom no indictment or infor 4, tient died 12:20 1969. A.M. October mation issued, has been to be tried at all. post-mortem report The examination There good is no why reason any refer objection, read into evidence ex- without ence should prior juvenile made court cept following, for the of death— “Cause proceedings, absent exceptional some cir aorta”, stab wound which of cumstances, in a criminal trial. Nor does objected supra. grounds on the set forth the use of the terminology that “defendant objection por- The was overruled and that being is tried any as an adult” legiti serve tion was jury. also read to the purpose mate in the voir dire examination in a criminal case when the defendant is a portions, objected The other juvenile, may as it specu jury cause the to, multiple revealed that the deceased has late on prior what the proceedings were or stab wounds and of one them lacerated the why tried, he is so when that is not post-mortem aorta. The examination re a matter for their consideration. In a port thorough reflects a examination of the close case statements as such those made proper deceased Dr. A ex Criscione. during the voir dire examination here pert opinion hospi medical contained in a could constitute prejudicial error. Because tal is record admissible under 490.680V. § of the overwhelming guilt evidence of A.M.S., supra, Allen v. Louis Public case, the instant we do not believe that the Co., 677, 663, Service 365 285 Mo. S.W.2d defendant was in way prejudiced 667, why no the same reason the to, remarks referred supra, and conse post-mortem should not be true of a exami quently they do not constitute reversible physician, nation of the coroner’s which is error point here. The required kept by provisions to be of the § Appellant’s second is that the Smith, Mo., court 58.451(2) V.A.M.S. State erred in permitting proof of the 516, cause of 384 S.W.2d 518. stabbing, plea, the time of
The
State at the
the tendered
the
Alford,
Johnson,
citing
of
testimony Officer
who
North
Carolina v.
U.S.
Jerome
25, 33,
stayed
for the
with deceased
short
91 S.Ct.
was, case, in this at most In cumulative. fact, it appear does not that the cause of really contested, PER CURIAM.
death though state, course, proof had the burden of Appellant asserts, alia, inter part issues as making a submissi- relating the facts ble case. The court holds that state plea tender of a lesser of proof sustained its burden of on the issue fense of murder in the second are without portion the benefit isolated part of on appeal the record in this case. post-mortem objection to which *6 made. transcript The of the trial itself is devoid plea. The reference tendered It cannot be said that there are no for alleges motion new trial that the court cases where the right confrontation accept plea erred in refusing guilty would be denied when none of the witness to murder in the second degree. At the es having knowledge of the cause of death court overruled the motion for appear testify. prac It is much better trial, the its ruling new court dictated into tice for the State pathologist to call the as record remarks the court a witness and not run the risk of a reversal indicate that there was an to plead effort non grounds. these second-degree murder at some point during the trial. The court’s However, remarks under the in plea indicate that the lesser offense this case defendant’s to be confronted of murder in degree the second was re- by his accusers materially not denied fused because the denied he stab- prejudiced and he not the admis bed The victim. court’s sion remarks do not into questioned evidence of the state forth set point charge whether had been re- ment. The position duced to murder second nor the Appellant’s third and point last respect alleged to the that the trial court erred in refusing a ten plea tendered to murder in the second de- plea dered of guilty to murder in gree. the sec The wholly record on this matter is ond and to refuse to judg render a insufficient holding to form a for basis imprisonment ment of fifteen that the trial court erred in refusing ac- accordance with the recommendation of cept alleged plea to the lesser offense. transcript appeal After court, was an affi in this
was filed attorney filed by appellant’s signed
davit attorney setting forth what
here al to the place with reference
claims took affi plea guilty.
leged tendered concurred agreed nor
davit was stipu constitute
by the state and did not supplement it suffice to
lation nor does supports his Appellant motion
record. styled “Affi
rehearing with a document original is the as the
davit” which same except defense counsel
affidavit stipulation purports
latter document Additionally, not.
whereas former does affidavit has the first nor second
neither accurately agreed
been state and,
setting forth the there events
fore, supplement cannot be considered as appeal.
to the record on
In these circumstances the court cannot is, appeal on this and it
consider
therefore, overruled. points in appellant’s other asserted
motion have been and are over- considered
ruled.
Appellant’s motion for rehearing
transfer to the court en banc is overruled. *7 Respondent, ELLIOTT,
Glenn
ST. LOUIS RAILWAY SOUTHWESTERN corporation, Appellant. COMPANY, a
No. 55772.
Supreme Missouri, Court of
Division No. 2. 13, 1972.
Nov.