State v. Demaree

• Citation: 17 A.L.R.3d 312,362 S.W.2d 500
• Decision Date: 14 November 1962
• Docket Number: No. 48650,48650
• Parties: STATE of Missourl, Respondent, v. Chalmer O. DEMAREE, Appellant.
• Court: Missouri Supreme Court

Page 500

362 S.W.2d 500

17 A.L.R.3d 312

STATE of Missourl, Respondent, v. Chalmer O. DEMAREE, Appellant.

No. 48650.

Supreme Court of Missouri, En Banc.

Nov. 14, 1962.

Rehearing Denied Dec. 11, 1962.

Morris A. Shenker, Bernard J. Mellman, St. Louis, Joe Welborn, Bloomfield, Harry C. Blanton, Sikeston, for appellant.

Thomas F. Eagleton, Atty. Gen., Ike Skelton, Jr., Sp. Asst. Atty. Gen., Jefferson City, for respondent.

BARRETT, Commissioner.

A jury has found that in killing his estranged wife Chalmer Demaree was guilty of murder in the second degree. The sufficiency of the evidence to support the finding of second degree murder is not challenged and, therefore, it is necessary to detail only those circumstances illustrative of the two theories of the killing.

Demaree says that as he sat in a rocking chair across the room from his wife he was suddenly aware of a slight commotion and when he turned around his wife was standing in front of the chair in which she had been sitting holding a pistol in both hands. As he turned she said, "That will be the last present you ever bring up here for those children. * * * Damn you, I am going to kill you." Demaree says that he 'wasn't really scared' so he held his hands up and said, 'Sit down. Can't we talk this over,' but Mrs. Demaree 'started firing.' To 'protect my life,' he jumped up, took his 38-caliber revolver from his belt and 'started firing right back.' He does not know how many shots he fired but he stopped firing when she fell. The fact was that three bullets struck Mrs. Demaree, one in the left temple, one behind the right ear and one entered her right chest below the clavicle and coursed downward to her lower rib. There was also a bullet hole in the wall above the overstuffed chair. And there were two 32-caliber bullet holes in the south wall about 48 inches above the floor and it was the appellant's position that these were the shots fired by Mrs. Demaree. The state would have the inference drawn, however, that the appellant also brought the untraceable 32-caliber pistol along (the serial numbers had been destroyed) and himself fired the two shots into the south wall after he killed his wife. The state would also draw the inference from the chest wound and the bullet in the west wall that Demaree fired the first shots as his wife sat in the overstuffed chair and the other two shots into her head after she had fallen to the floor. In these circumstances the appellant of necessity admits that he shot and killed his wife but claims that he did so in self-defense and that he is entitled to a new trial because of the manner in which the court submitted his defense of justifiable homicide.

In the trial of this case there were the usual formal, defining instructions, and there were principal instructions on first and second degree murder and manslaughter. In addition, there was an instruction on 'previous good character' and instruction number 10 on self-defense. It is urged that this instruction is erroneous in several respects and that because of its errors the appellant is entitled to a new trial. The principal claim is that the instruction denied to the appellant 'the right to act upon appearances.' In the second sentence of the instruction the jury was told that if he 'had reasonable cause to believe and did believe that said Christine Demaree was about to take his life or do him some great personal injury, and further, that he has reasonable cause to believe and did believe that it was necessary for him to shoot and kill said Christine Demaree in order to protect himself from such danger, then he ought to be acquitted on the ground of self-defense.' It is pointed out that this phase of the charge does not refer to the right to act on appearances and fails to tell the jury 'that even if no real danger existed' he nevertheless, if he believed danger existed, would be justified in acting on his belief and, thereby, the instruction failed to cover the 'constituent elements of self-defense' and denied to the appellant the right to act on appearances. It is said that in employing the phrase 'to shoot and kill' the instruction is erroneous because it narrowed and restricted his right of self-defense to the single hypothesis that it was necessary 'to kill' in order to protect himself and thus there was excluded from the jury's consideration, in accordance with his testimony, 'that he was merely trying to stop her from doing injury to him.' In the last sentence the instruction told the jury that if it found and believed that the appellant shot and killed his wife 'unnecessarily' and when he did not have reasonable cause to believe that she was then about to kill him or do him great bodily harm or injury 'then there is no defense in this case and you cannot acquit the Defendant on that ground.' It is urged that the quoted language 'narrowed and restricted the defendant's theory of innocence and improperly prevented the jury's consideration of any other defense to the charge.'

Considerable research has been expended in unearthing the origin of this instruction, but it is undoubtedly a rescript of instruction 4 in State v. Greaves, 243 Mo. 540, 548, 147 S.W. 973, 974. However, in that case instruction 4 was followed by instruction 5 upon the subject of whether the defendant 'was justified in acting upon appearances.' There it was urged that the jury should have been told that the appellant had a right to act on appearances 'though it might thereafter turn out that the appearances were false.' But the court held that '(the) idea is certainly embodied in the instructions given.' Moreover, the court said that 'The (trial) court would no doubt, have given the additional instruction had the defendant in any way called its attention to it.' In this case instruction 10 was the only instruction on self-defense and, therefore, plainly could not conflict with any other instruction on that subject as was the fact in State v. Clough, 327 Mo. 700, 38 S.W.2d 36. These and other cases establish that a defendant charged with murder is entitled in self-defense to act on appearances, and, if the evidence justifies it, he is also entitled, if he requests it, to an instruction embodying that right in some form in a modifying instruction. State v. Traylor, 339 Mo. 943, 98 S.W.2d 628. Here there was no request for an additional or explanatory instruction on any phase of self-defense (State v. Eaton, 75 Mo. 586), and in State v. Traylor it was said that 'even if no real danger existed, yet if defendant had reasonable ground to believe and did believe that it existed' was 'substantially equivalent' to a direction that the defendant had the right to act on appearances. And in State v. Miller, 346 Mo. 846, 143 S.W.2d 241, 'It is not necessary to this defense that the danger should have been real or actual, or that it should have been impending and immediately about to fall upon him' was also said to be the equivalent of the right to act on appearances. The self-defense instructions in those cases are not similar to instruction 10, nevertheless, it does say 'whether the defendant had reasonable grounds to believe that such danger existed * * * you must determine from all the evidence in the case.' And, in the absence of a request for further explanation, that language is also the equivalent of the right to act on appearances. The point to this phase of the discussion is that technically the instruction is not erroneous, it does not in terms take away or deny to the appellant the right to act on appearances.

Thus in its terms the instruction is not a misdirection and as a matter of law is not manifestly erroneous in defining self-defense. And, there is a further qualification applicable here,--'While it is unquestioned law, at least in this state, that one may act upon appearances, although they turn out to be baseless, the trial court is not required in every instance to affix that qualification to an instruction for self-defense, but should only give it in a case when it would apply to (the) facts. Here the court's instructions apply to every phase of the evidence, and there was no appearance of any supposed danger, other than that on which the instructions are based.' State v. Smith, 125 Mo. 2, 8, 28 S.W. 181, 182.

And so it is here upon the facts, the only 'appearance' is that testified to by the appellant and hypothesized in the instruction--that his wife suddenly and without cause produced a gun and 'started firing' and therefore when he 'started firing right back,' he had 'reasonable cause to believe and did believe that said Christine Demaree was about to take his life or to do him some great personal injury.' There was no other circumstance for the appellant to apprehend or act upon, she, according to him, was suddenly firing a pistol, and it was not as if they had first engaged in mutual combat with their fists, or there had been a hidden knife (State v. Constitino, (Mo.) 181 S.W. 1155), and it was not as if he had had reason to apprehend 'an attack by some other person or persons' as was the fact in State v. Lowe, (Mo.) 260 S.W.2d 729. In short, as the court said in the Smith case 'there was no appearance of any supposed danger, other than that on which the instructions are based,' and in these circumstances the appellant was not as a matter of either law or fact deprived of 'the right to act upon appearances.'

In the instructions in which it has been employed, the phrase 'that it was necessary for him to shoot and kill,' or similar language, has also had a rather curious history. In State v. Lewis, 248 Mo. 498, 154 S.W. 716, there was an affray at a country church and the deceased had struck the defendant with his fists before he was shot. A new trial was granted on other grounds, but the court suggested that upon another trial the language 'to shoot and kill to protect himself from such apprehended danger' be changed to read 'that it was necessary for him to use his...