State v. Cook

Decision Date10 June 1968
Docket NumberNo. 2,No. 52924,52924,2
Citation428 S.W.2d 728
PartiesSTATE of Missouri, Respondent, v. Jessie Theodore COOK, Appellant
CourtMissouri Supreme Court

Norman H. Anderson, Atty. Gen., Jefferson City, Brunson Hollingsworth, Sp. Asst. Atty. Gen., Hillsboro, for respondent.

William H. Wendt, Springfield, for appellant.

PRITCHARD, Commissioner.

Appellant claims that the state's verdict-directing instruction (No. 7) ignored his defense of self-defense in this case of conviction of Assault with Intent to Kill with Malice Aforethought. Upon verdict of the jury and a finding that appellant was a second offender within § 556.280, RSMo 1959, V.A.M.S., a sentence of 20 years' imprisonment in the Department of Corrections was imposed. Other errors are assigned as hereinafter discussed, and by Point II appellant contends that his motion for judgment of acquittal should have been sustained because the state's evidence was not sufficient to sustain the charge against him (§ 559.180, RSMo 1959, V.A.M.S.).

The prosecuting witness is Olen Neal Lafferty. In the early morning hours of a Sunday, December 11, 1966, appellant and Olen were involved in a fight at the Little Reno Club in Springfield, Missouri. That place served 3.2% beer and provided dancing for patrons. It was then fairly crowded. Appellant had been in a storeroom in the building and was returning to the table and dance area. Joe McCormack heard appellant make a remark which he thought was directed at him. Olen was then returning to his table from the dance floor, and he understood the remark, coupled with a vile name, to be directed toward him. Olen reached over the shoulder of McCormack, struck appellant and knocked him to the floor, either with his fist, a bottle or other weapon. Several persons then grabbed Olen about his body and arms and restrained him. Appellant, being on the floor in close proximity to Olen, fired a shot with a two-shot .22 caliber Derringer Magnum which was in appellant's possession inside his coat. This shot struck Olen in his right shoulder at the armpit. There were no powder burns found in this area. A second shot was fired striking Olen in the left abdominal area about which were found powder burns. As a result of the wounds Olen was hospitalized for more than seven weeks.

Olen's testimony was that he arrived at the Reno Club shortly after midnight with Judy Abney. He first met appellant upon leaving the dance floor. Appellant and McCormack were standing between the dance floor and where Olen had been sitting. Appellant called Olen a vile name whereupon Joe McCormack testified that prior to the shooting he talked to appellant in the store room of the Little Reno Club. While they were in the storeroom, appellant showed McCormack a bottle and a two-shot Derringer Magnum pistol which appellant had in a shoplifter's coat he was wearing. They then went back into the club with appellant following McCormack. Appellant shouted something and some person reached over McCormack's shoulder and knocked appellant down. MeCormack thought appellant was talking to him and turned around to see what he said when appellant was struck. Olen was the assailant upon appellant, who was on the floor when a shot was fired, at which time someone was holding Olen. McCormack denied seeing any weapon in Olen's hand. A second shot was fired when appellant was getting up and when Olen was standing over him. He testified that 'they were holding on to Olen. He got loose, then the second shot was fired.' Appellant and Olen were 'almost against each other' when the second shot was fired.

Olen struck him with his fist, denying that he had any kind of implement in his hand. Appellant went down and others grabbed Olen when he was two feet from appellant. Olen was then shot in the shoulder and he saw appellant on the floor with a gun in his hand. In two to five seconds Olen was shot again in the side, after which he saw appellant in a position of getting up from the floor, about halfway up. Appellant had previously threatened to kill Olen, who was not on the night of the assault trying to find appellant. McCormack was between appellant and Olen when the latter struck appellant 'fairly hard,' enough to knock appellant backward off his feet, and was standing over him at the time of the first shot. Recently there had been a lot of hard feelings between Olen and appellant, but Olen denied having made threats toward appellant. Appellant's threats toward Olen and the hard feelings between them arose out of their mutual criminal activity, Olen having gotten his own shoplifting coat, which angered appellant.

Judy Abney heard the shots, a few seconds between them, and ran toward the location. She saw appellant getting up on his feet and falling backward, 'kind of slumped over.' She denied seeing any injury to appellant's head or a weapon in Olen's hand.

Wallace 'Wad' Stillings saw Olen hit appellant, but before that he did not hear appellant say anything. The two were a foot or two apart and appellant was coming up off the floor when Stillings got there. Just a second or two elapsed between the first and second shot. He saw no injury to appellant's head. Stillings had told Olen of appellant's presence in the club, and Olen said that 'he could handle a punk like that with his hand.' He saw Olen hit appellant over McCormack's shoulder and saw appellant fall.

Appellant's mother, Myrtle Stapp, testified that Olen had made numerous threats to kill appellant, 'as high as five calls during the night,' within the last year and a half. One threat was received a week before trial. She told appellant of each call. She picked up appellant after the incident at the club and described him as 'all busted open * * * just as bloody as he could be.' His eye was black and bloodshot, and his shirt was bloody.

Joyce Blake testified that Olen struck appellant in the head with a bottle and appellant fell to the floor. Joyce was 15 to 20 feet away from the altercation when it occurred.

Glen Medlock testified that there was a scuffle, somebody threw something or somebody was hit. Shortly after that there were two explosions.

Luther Gaba testified that Olen had said to a Bud Perryman, two to three weeks before the shooting, that the last thing he was going to do was to kill appellant. James Marvin Fields testified also to threats made by Olen with reference to appellant, and Stella Greason, whose husband was in Texas, was alone in the Little Reno Club the night of the shooting, having never been there before. She ordered a coke, paid for it, but before she could sip from it Olen grabbed it and reached around a man's shoulder and knocked a man down. She heard a shot as she went out the door in a hasty exit as she did not want to be around the law. Glen Medlock heard several crashes of glass when a scuffle occurred and then, shortly, two explosions. He left immediately. Robert Wesley Moore also heard a glass break like a bottle, and left when he heard the shots.

that he saw Olen strike appellant with an object, a gun or knife, in his hand.

The foregoing facts bear upon the actual shooting and the events immediately preceding. The transcript is replete in its recital of testimony concerning the past criminal records and misconduct of certain witnesses both for the prosecution and the defense. It would serve no purpose to set forth that testimony here as it goes only to the credibility of witnesses shown to have such records.

Appellant's Point II argument on the submissibility of the state's case against him is, 'the prosecuting witness was the aggressor, having struck the first blow without provocation and knocking Appellant to the floor thereby placing Appellant in a position of having to defend himself and as a matter of law Appellant's defense of self-defense became perfect and the State thereafter failed to make a submissible case.'

No case is cited by appellant holding that as a matter of law he is not guilty of the offense of assault with intent to kill with malice aforethought where the victim is the first aggressor either with fists or with a bottle used as a weapon (as the jury might find under the evidence). In 6 C.J.S. Assault and Battery § 127b, p. 998, it is said, 'Whether the circumstances are such that accused was justified, and therefore whether he was acting in self-defense, in defense of others, or in defense of his property is ordinarily a question of fact for the jury. It is also for the jury to say * * * whether the circumstances would have excited the fears of a reasonable man; * * * whether the amount of force used was suitable and moderate, or excessive in any particular case, * * * or when used in defense of self, * * *.' In the analogous situation in the homicide case of State v. Singleton, Mo., 77 S.W.2d 80, 83(3, 4), it was said, 'Taking human life in self-defense is an affirmative, intentional act. (Citing cases.) In order to justify that extreme measure, where the accused has used a deadly weapon upon a vital part of the body of the deceased, two things are necessary, viz: He must have believed that such act was necessary, and he must have had reasonable grounds for such belief. (Citing cases.) It is not sufficient that he may have so believed. It is further necessary that he should have had reasonable grounds for such belief, and whether or not he had such reasonable grounds is generally a question for the jury. That is too well settled in this state to require citation of authorities.' See also State v. Swindell, 357 Mo. 1090, 212 S.W.2d 415, 417(1--3). And further in 6 C.J.S. Assault and Battery, § 92(2) and (3) p. 946, it is said, 'The one assaulted is entitled to use such force as is reasonably necessary to repel an assault, and the test is whether the force used would have been deemed necessary by a reasonable person in a similar situation.' 'In view of the rule set out in the previous subsection that a person is not justified in using...

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