State v. Chamineak, 47229

• Court: Missouri Supreme Court
• Writing for the Court: PER CURIAM
• Citation: State v. Chamineak, 328 S.W.2d 10 (Mo. 1959)
• Decision Date: 12 October 1959
• Docket Number: No. 2,No. 47229,47229,2
• Parties: STATE of Missouri, Respondent, v. Harry James CHAMINEAK, Appellant

Page 10

328 S.W.2d 10

STATE of Missouri, Respondent, v. Harry James CHAMINEAK, Appellant.

No. 47229.

Supreme Court of Missouri, Division No. 2.

Oct. 12, 1959.

Morris A. Shenker, John E. Bardgett, Lawrence J. Lee, Bernard J. Mellman, St. Louis, for appellant.

John M. Dalton, Atty, Gen., Robert E. Hogan, Sp. Asst. Atty. Gen., for respondent.

BARRETT, Commissioner.

A jury found that Harry Chamineak, in shooting and killing Harold Hogan, was guilty of murder in the second degree and fixed his punishment at ten years' imprisonment. Numerous problems have been briefed and argued but the meritorious question, determinative of this appeal, is whether Chamineak is entitled to a new trial because the court refused to instruct the jury upon the subject of self-defense, a question of law 'arising in the case' and 'necessary for their information' (V.A.M.S., Sec. 546.070), if there is any evidence in the record from which self-defense could be found. State v. Bidstrup, 237 Mo. 273, 140 S.W. 904; State v. Davis, 342 Mo. 594, 116 S.W.2d 110. The state does not challenge the general rule and the court's duty; the state contends that there was no 'substantial evidence' of self-defense. Specifically, the state contends that Chamineak's testimony, from which a jury could have found self-defense, was 'so inconsistent with the physical facts disclosed by the record that the Court was not obliged to accept it as substantial evidence.'

In so far as they have some bearing on self-defense only, these were the circumstances: Hieatt Hogan operated a restaurant at 6727 Lillian Avenue, Jennings, in St. Louis County, and his brother, Harold Hogan, was employed there as the 'fry cook.' Harold had once been married to Harry Chamineak's present wife, Agnes. Chamineak and Agnes were not married, however, until after Harold's death. At the time of the shooting Chamineak lived in the basement at 4226 Pleasant Avenue, in the City of St. Louis, Agnes lived on the first floor, and her mother and stepfather, Sam Bass, lived on the second floor. While Harold and Agnes were married they too operated a restaurant and, according to Agnes and Sam Bass, Harold left Agnes and the restaurant and failed to pay certain taxes due the government, the consequence being that some agent of the government was asserting a lien on Agnes' property, presumably the property at 4226 Pleasant Avenue. Because of the taxes Agnes was anxious to communicate with Harold, but neither she nor Sam Bass knew where he then lived or worked. Hieatt thought that Harold and Chamineak had had 'some trouble,' but Hieatt did not know Chamineak and had never seen him until March 1, 1958.

On that date, Mrs. Bass having gone to Florida, Sam, Agnes and Harry left home about 6:30 o'clock and went to a neighborhood restaurant, 'The Basket,' in Harry's automobile. There they each had a bottle of beer. After supper they went to a drugstore and Sam bought some personal toilet articles, including a safety razor, and a case of beer. On the way home Sam asked Harry to drive him out to Lillian Avenue and Jennings Road so he could find out whether Harold was working there. They took Agnes home and put the case of beer on the back porch. Agnes took a 'sleeping tablet,' went to bed and did not hear the shooting several hours later. Sam and Harry then drove out to Hieatt's restaurant in Jennings, arriving about nine o'clock. Harold was not there, but according to Hieatt, Sam created a disturbance in the restaurant and threatened him with the safety razor, in which Sam said there was no blade. Chamineak did not say anything offensive and did not threaten or challenge anyone in the restaurant. Not finding Harold, Sam and Chamineak left the restaurant and returned to 4226 Pleasant Avenue where they watched television in the first -floor quarters until eleven o'clock. At that hour Sam left Chamineak, still watching television, and went to bed and to sleep on the second floor and did not hear any noise until awakened by the police some time later.

About eleven o'clock Hieatt, Harold and their friend, Steingrubey, met at a tavern in Jennings, they were there an hour or an hour and a half and had four drinks. They then went to Steingrubey's filling station and he cleaned out the cash register and picked up a revolver. The revolver was not loaded and he says that he did not show it to the Hogans and Hieatt says that he did not know it was there. He laid the gun down on the floor of the back seat of Hieatt's automobile and the three of them in the front seat, with Hieatt driving, started out at 12:45 looking for Sam Bass in order that Hieatt might warn Sam to stay away from his restaurant. They drove to a tavern at Grand and Florissant but Sam was not there, then they drove to another tavern and Hieatt went in alone but did not find Sam. Incidentally, a defense witness who was acquainted with Harold--the owner-bartender of the 'Cosmopolitan Bar,' 2006 East Grand Avenue, said that Harold and a larger man (presumably Hieatt) came into his establishment looking for Sam Bass about 12:30 and he 'seen a handle of a gun there,' in Harold's belt. As they rode down the street Harold said, 'Let's go down here on Pleasant. I know where he lives.'

Hieatt drove west on Pleasant and parked opposite 4226 but down the street, 'a door or two.' He then went to the door on the first floor and knocked, Chamineak says 'a loud knock,' and asked for Sam Bass. Chamineak told him that Sam was not there but said that he, Chamineak, would come out and talk to them. Hieatt returned to his automobile and reported to Harold and Steingrubey, 'He's coming out.' But instead of waiting Hieatt drove around the block and at this point, thinking there might be some trouble, Steingrubey got in the back seat and when they returned Hieatt was in the driver's seat and Harold was sitting on the right side in the front seat with the window down. While the Hogans and Steingrubey were driving around the block, Chamineak got his shotgun from the basement stairway and when they returned, according to Hieatt and Steingrubey, he appeared at the rear of the automobile, 'asked my brother if he was looking for trouble, and my brother told him no,' raised the shotgun to his hip and shot Harold as he sat, unarmed, facing the windshield. And, as Hieatt got out of the driver's seat and stood on the pavement, Chamineak fired a second shot, the pellets striking Hieatt in the shoulder. Hieatt got back in the automobile and again drove to Steingrubey's filling station where Steingrubey called the police. The police went to 4226 Pleasant...