State v. Baker
| Decision Date | 11 April 1955 |
| Docket Number | No. 44484,No. 1,44484,1 |
| Citation | 277 S.W.2d 627 |
| Parties | STATE of Missouri, Respondent, v. Kenneth (Bob) BAKER, Appellant |
| Court | Missouri Supreme Court |
Joseph N. Miniace, Kansas City, for appellant.
John M. Dalton, Atty. Gen., Hugh P. Williamson, Asst. Atty. Gen., for respondent.
HOLMAN, Commissioner.
Appellant, Kenneth Baker, hereafter referred to as the defendant, was found guilty of the murder, in the second degree, of Jesse Leroy Miller, and his punishment assessed by the jury at imprisonment in the penitentiary for 25 years. From the ensuing judgment and sentence he has appealed.
It is admitted that Miller died on June 12, 1953, immediately after being struck by a bullet from a gun in the hands of the defendant. The incident occurred in Spring Lake Tavern which is located on Highway 51 in Bollinger County. The defendant had operated this tavern for several weeks prior to the shooting.
On the occasion in question Miller and seven of his friends met at defendant's roadhouse. They put two tables together and were having a good time drinking 3.2 beer, talking and dancing. One of the witnesses expressed the opinion Miller was drunk. A number of others denied that he was in that condition.
Seated at the bar was a customer, Truman Barks. It appears that on two occasions he and the deceased had had a discussion about fighting. Each inquired of the other as to whether he would like to fight. No fight occurred. Barks testified that he and Miller were good friends and that this was just good-natured banter between them.
Shortly before the shooting, Miller and one Lee Albert Cureton walked over to the juke box and stood there talking for some time. Defendant came out of the kitchen and noticed that several of his regular customers had left. He seemed to attribute this to the noise and confusion caused by Miller and others in his group. It is evident that defendant decided to cause the deceased and perhaps others in the party to leave the tavern. He obtained his gun and went to a point near Miller. According to the version of most of the witnesses, defendant pointed the gun at Miller and ordered that he get out, and then in just a few seconds the gun was discharged and Miller fell. The bullet entered the left side of his back and came out in his right chest. It then struck Cureton and he was wounded to some extent. The gun was held close enough to cause powder burns on the body of deceased. The witnesses for the State testified that deceased did not move between the time defendant approached him and the discharge of the gun.
Defendant testified that after he told Miller to leave, deceased took four steps toward him and then leaned on the juke box with his right hand on his hip pocket. Defendant said he then glanced at Cureton and when he again looked at Miller he was right on him. His testimony is not entirely clear as to how the gun happened to discharge, but it appears that he was pulling the hammer back and it slipped and caused the gun to fire. Defendant definitely stated that he did not intend to shoot Miller and did not knowingly and intentionally pull the trigger of the gun. He testified in one instance that the gun had a 'hair trigger,' indicating that it could be easily fired, but on cross-examination stated, 'I did not pull the trigger because you had to pull the trigger hard to make it fire.' In this connection, it should be noted that two experts testified that a gun of the type used by defendant could not be fired without pulling the trigger.
Immediately after the shooting, defendant was asked why he did it and he replied that it was an accident. He then pointed the gun at the others present and ordered all of them to leave. One of the men told defendant that he had better leave the country because Miller's friends and brothers would kill him. About 20 minutes later defendant left, and the next day was arrested in Lincoln, Illinois, and brought back to Bollinger County. He stated that he had thrown the gun out of the car while driving along the highway. A search was made at the place indicated by defendant but the gun was never found.
Defendant further testified that he was shell shocked in World War II and had been nervous ever since. He also stated that he did not drive to Illinois to avoid arrest, but because he feared he would be killed--apparently by friends or relatives of the deceased. Shortly after his arrest, defendant went to the tavern in the custody of the officers and re-enacted the occurrence. At that time, he stated that he cocked the gun and pointed it at Miller but that it went off accidentally. A little later, he stated again to Sergeant Little of the Patrol that after he cocked the gun the hammer accidentally slipped from under his thumb and caused the discharge of the weapon.
At the outset, defendant contends that the court erred in its failure to give an instruction on self-defense even though such was not requested. No such instruction was required unless there was substantial evidence upon which it could be based. To satisfy this requirement, defendant points to his own testimony to the effect that Miller, after being ordered to leave, advanced toward him with his hand upon his hip pocket. We have concluded that this evidence was not sufficient to require the giving of an instruction on selfdefense.
It will be recalled that defendant positively testified that the shooting was accidental. The defenses of self-defense and accident are inconsistent. If proved by proper evidence, a defendant is entitled to have inconsistent defenses submitted to the jury. State v. Morris, Mo., 248 S.W.2d 847; State v. Wright, 352 Mo. 66, 175 S.W.2d 866. The rule in this state is that the testimony of a defendant against interest does not rise to the dignity of a conclusive judicial admission and hence, if justified by other evidence, he is entitled to an instruction on self-defense even though inconsistent with his own testimony. State v. Bidstrup, 237 Mo. 273, 140 S.W. 904. However, the evidence to justify the instruction on the inconsistent defense must be offered by the State or proved by third party witnesses for the defendant. State v. Wright, supra. In the instant case, defendant relies upon his own testimony as a basis for the inconsistent defenses. This cannot be permitted. His positive testimony that the shooting was accidental and unintentional would clearly negative any possible inference of self-defense based upon other facts appearing in his testimony. In this situation, it follows that there was no substantial evidence upon which a self-defense instruction could have been based.
Defendant next asserts that the court should have given an instruction on the right of imperfect self-defense. What we have said in disposing of the preceding point applies with equal force to this contention. There was no substantial evidence upon which to base an instruction on that issue.
Next the defendant argues that the court erred in refusing to give the instruction he offered on manslaughter. It provided that if the jury found that defendant intentionally shot and killed said Miller but without malice or premeditation, then he should be found guilty of manslaughter. This would not likely be a proper instruction in any case and it certainly had no place in the instant case. If he intentionally shot Miller under the circumstances detailed by the witnesses for the State, he was guilty of murder. In harmony with the testimony of defend...
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