State v. Brown

• Decision Date: 12 November 1973
• Docket Number: No. 2,No. 56780,56780,2
• Citation: 502 S.W.2d 295
• Parties: STATE of Missouri, Respondent, v. Henry BROWN, Appellant
• Court: Missouri Supreme Court

Page 295

502 S.W.2d 295

STATE of Missouri, Respondent, v. Henry BROWN, Appellant.

No. 56780.

Supreme Court of Missouri, Division No. 2.

Nov. 12, 1973.

Modified on Court's Own Motion.

Motion for Rehearing or Transfer to Court en Banc Denied,

Dec. 10, 1973.

John C. Danforth, Atty. Gen., Karen I. Harper, Asst. Atty. Gen., Jefferson City, for respondent.

Joseph Langworthy, Pacific, for appellant Henry Brown.

STOCKARD, Commissioner.

Henry Brown, charged as a second offender, was found guilty by a jury of murder in the second degree and sentenced by the court to imprisonment for a term of twenty years. By notice of appeal filed prior to January 1, 1972, he has appealed from the ensuing judgment.

The trial court instructed the jury on the issue of excusable homicide by reason of an accident. Appellant contends that prejudicial error resulted from the failure of the trial court also to give the jury an instruction submitting the issue of self-defense. This necessitates a detailed statement of the testimony.

Appellant, his wife, and Carl Barnell were sitting on a bench in a small park at the intersection of Washington Street and Grand Avenue in the City of St. Louis. According to the testimony of appellant, he had a radio on the ground near his feet. Barnell reached for the radio and said he was going to sell it. He also said, 'I am going to kill both of you.' Appellant got up, and Barnell then kicked him in the groin and took a pistol from his (Barnell's) waistband or pocket. When Barnell 'reached for his gun' appellant 'grabbed him' and he and Barnell 'began to scuffle' or 'tussle,' and while they were scuffling 'the gun went off just one time.' Appellant testified that when the gun fired, 'he had the gun and I also had the gun.' Barnell then stood there, lowered the gun, and it fell out of his hand. Barnell 'pulled his hand up in a judo chop,' which missed appellant, and he then turned and fell to the ground.

The State presented the testimony of three witnesses concerning the circumstances of the shooting.

Vernon B. Stansel, an inspector for a transit company, testified that he heard a sound like a 'backfire' and saw 'two men standing face to face, and one man throwing up his hands and * * * swiveling and falling backwards.' He then saw the other man, identified as the appellant, 'pick up something that was handed to him by someone sitting on a bench,' look at Barnell 'with a smirk on his face,' and walk away. Stansel did not see any weapon in the possession of either Barnell or appellant.

Mrs. Mary Harris was employed in a nearby shop. She testified that she saw two men facing each other, and that one, Barnell, attempted to kick appellant but he did not 'even come close.' Appellant then 'reached in his pocket' and 'brought this hand up and held out a gun and he shot him.' Barnell threw up his hands, stood there, and fell. Appellant laughed, shrugged his shoulders, and walked away. She saw no weapon in Barnell's hand.

Dr. Henry A. Waldschmidt, an optometrist, had just closed and locked the door to his office when he saw appellant sitting on a park bench drinking from a bottle. He then saw Barnell standing in front of appellant shaking his finger at him, and appellant slid over on the bench and 'took a swing' at Barnell who attempted to kick appellant but missed. Barnell stepped back, and appellant pulled something out of his pocket which he held in front of him and about two feet from Barnell. Dr. Waldschmidt then heard a 'pop,' and Barnell fell to the ground. After appellant picked up something from the bench he walked away. Barnell had no weapon.

We shall next examine the testimony of Malinda Brown, appellant's wife. She was a witness for the defense and was the only other person to testify concerning the circumstances of the shooting. She stated that the three of them were drinking wine when Barnell said, 'this is my radio and I want it.' He then 'snatched' at the radio, appellant got up from the bench, and Barnell kicked him in the groin. According to Malinda, 'the dude (Barnell) then came up with a gun * * * and they got to wrestling over it * * * (and) it went off.' She did not know who was holding the gun when it went off, but appellant never had possession of it. After the shot was fired, Barnell stood there with the gun in his hand. He then dropped the gun, advanced toward appellant, attempted to deliver a 'judo chop,' and fell to the ground.

The defenses of self-defense and accident are inconsistent, and 'the defendant alone may not provide the basis for submitting such inconsistent defenses to the jury.' State v. Randolph, 496 S.W.2d 257 (Mo.Banc 1973). If the shot was fired in self-defense, it required the voluntary act of appellant; if the shot was accidental, the act was involuntary. State v. Peal, 463 S.W.2d 840 (Mo.1971). However, under certain circumstances the defendant is entitled to both submissions. 'For example, if a defendant by his own testimony provides the basis for an accident instruction, it must be given; but if to the contrary, testimony of others shows defendant acted in self-defense, he also is entitled to a self-defense instruction.' State v. Peal, supra.

When the instructions were being considered the court announced its intention to instruct on accident, and specifically asked appellant if he wanted to request any other instruction. Appellant agreed that the proposed instruction on accident was correct, and did not mention the issue of self-defense. It was not until after the court started to read the instructions to the jury that appellant, for the first time, raised the question of an instruction on the issue of self-defense, but he did not then request that it be given in lieu of the instruction on accident. Appellant was not, by reason of his testimony, entitled to an instruction on accident and also on self-defense. If in addition to the accident instruction, which his testimony clearly authorized, he was entitled to an instruction on self-defense, it was only by reason of the testimony of one or more of the three witnesses for the State or of appellant's wife.

"The right to kill in self-defense is founded in necessity, real or apparent' * * * and before such extreme measure may be lawfully resorted to the record must show that the appellant acted 'under at least an apparent necessity, in order to save himself from death or great bodily harm." State v. Parker, 403 S.W.2d 623 (Mo.1966). The testimony of the three witnesses for the State, and the testimony of appellant's wife, does not in any way indicate that the firing of the gun was a voluntary act of appellant taken while acting under an apparent necessity to save himself from death or great bodily harm. At most, in taking the defensive action that he took, he 'had no more to apprehend than * * * (a) simple assault and battery * * * and that alone would not justify a killing in self-defense.' State v. Parker, supra at p. 627. There was no evidence which required the court to give an instruction on self-defense, and the court did not err in failing to do so. See State v. Hale, 371 S.W.2d 249 (Mo.1963); State v. Malone, 301 S.W.2d 750 (Mo.1957); and State v. Parker, supra.

For his second point appellant asserts that the court erred 'in permitting the jury to separate,' and in refusing 'at each adjournment * * * to give the admonishment to the jury' required by § 546.230, RSMo 1969, V.A.M.S. In the argument portion of appellant's brief no mention is made of an improper separation of the jury, unless it is the contention that any separation is improper when an admonishment is not given which meets the minimum requirements of § 546.230.

The admonishment by the court to the jury at the time of the first separation did not follow the precise language of the statute, but it was not necessary that it do so. State v. Harris, 477 S.W.2d 42 (Mo.1972). To any reasonable juror the admonishment given by the court adequately covered all matters required by the statute. At each subsequent adjournment the court instructed the jury to keep in mind the previous admonitions. Appellant's counsel interposed only a general objection on the ground that the admonishment was not complete, but he did not state in what respects he considered there was a deficiency, except on one occasion he apparently advised the court in some conference not shown in the record that he wanted the jury admonished not to form an opinion until they had heard all of the evidence. The court expressed its opinion that this had previously been covered, and it was correct in that respect, but it immediately so admonished the jury. Appellant makes no effort to demonstrate any improper conduct of the jury resulting from what he contends was a failure to comply with the statute. We are of the opinion that the admonishment to the jury was adequate under the circumstances, but assuming some deficiency, the error was harmless beyond a reasonable doubt. Morrow v. United States, 408 F.2d 1390 (8th Cir. 1969).

In his fourth and fifth points appellant asserts that in a hearing held on July 8, 1969 the trial court erred (1) in determining in a summary proceeding his competency to stand trial without permitting him full interrogation of Dr. Edward R. Telles; (2) in denying him the right to call any further witnesses or be heard in argument; (3) in depriving appellant of his 'liberty without due process of law, particularly his 'right to be heard;" and (4) in hearing further evidence when his counsel was not present.

Although not essential, it will be helpful to review the procedural history of this case. The indictment was filed on April 27, 1965, and at arraignment on June 18, appellant entered a plea of not guilty. On August 27, 1965, appellant filed a motion in which he requested that he be admitted to Missouri State Hospital No. 1 for examination, and he alleged therein that he had 'a mental disease or defect,' and that he lacked 'the mental capacity to...