# State v. Smith

> Supreme Court of Missouri · April 26, 1983 · 649 S.W.2d 417

URL: https://www.frixlaw.com/law-library/cases/9638549

## Case

- **Full name:** STATE of Missouri, Respondent, v. Gerald SMITH, Appellant
- **Court:** Supreme Court of Missouri
- **Decided:** April 26, 1983
- **Citations:** 649 S.W.2d 417; 1983 Mo. LEXIS 438
- **Precedential status:** Published
- **Opinion:** Concurrence by Seiler
- **Judges:** Rendlen, Welliver, Higgins, Gunn, Finch, Seiler, Donnelly, Billings, Blackmar
- **Cited by:** 152 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9638549

## Opinion text

SEILER, Senior Judge,
concurring.
In deciding whether the death penalty in this case is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant, § 565.014.3(3), RSMo 1978, the court again fails to state how or in what way this case differs from the many cases where the homicide was just as bad or worse, yet the jury elected life without parole for fifty years as punishment, not death. See the numerous cases set forth in No. 63569, State v. LaRette, 648 S.W.2d 96 (Mo. banc 1983) handed down March 29, 1983, and State v. Newlon, 627 S.W.2d 606, 628-633 , Seiler, J., dissenting.
Never before has this court had the authority to reduce a sentence on the ground it is disproportionate. Because a life is at stake and because of its concern that there be no arbitrary imposition of the death penalty, the legislature has imposed this duty upon us. The principal opinion, however, says no more than that “we have reviewed the records of the twenty-two [other] capital cases in which death and life imprisonment have been submitted to the jury”, without distinguishing any of them. All an observer learns from this is that to the values of the court there is nothing wrong with the death sentence here. No similar case or cases are pointed out or relied upon. Nothing is said as to why this death sentence is not disproportionate to the penalty imposed in similar cases. What is lacking is a demonstration that similar cases are not punished in Missouri less severely than the offense before us.
No information is given as to how this death sentence compares with the values of the community as reflected by the verdicts of juries in similar cases. Juries selected from the community determine the sentence in these capital murder cases. It is proportionality as to what juries do with similar cases which the statute calls on us to evaluate. This, as I have attempted to illustrate on earlier occasions, we are failing to do. I do not approve of this, but under compulsion of State v. LaRette, supra, I concur in the affirmance of judgment.
DONNELLY, Judge, dissenting.
In my view, this ease comes within the Godfrey interdiction.
I respectfully dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9638549. Public record. Not legal advice.