State v. Feast, 40169

• Decision Date: 04 September 1979
• Docket Number: No. 40169,40169
• Citation: State v. Feast, 588 S.W.2d 158 (Mo. App. 1979)
• Parties: STATE of Missouri, Respondent, v. Frank FEAST, Appellant.
• Court: Missouri Court of Appeals

Page 158

588 S.W.2d 158

STATE of Missouri, Respondent, v.Frank FEAST, Appellant.

No. 40169.

Missouri Court of Appeals, Eastern District, Division Three.

Sept. 4, 1979.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Oct. 15, 1979.

Application to Transfer Denied Nov. 14, 1979.

Shaw, Howlett & Schwartz, James J. Knappenberger, Clayton, for appellant.

John D. Ashcroft, Atty. Gen., Paul Robert Otto, Michael Elbein, Asst. Attys.Gen., Jefferson

City, Ronald L. Boggs, Pros.Atty., Charles E. Bridges, Asst. Pros.Atty., St. Charles, for respondent.

CRIST, Judge.

A jury convicted defendant of assault with intent to kill with malice and set punishment at five years imprisonment.We affirm.

Defendant's appeal maintains the court erred in giving the following instruction:

"As to Count II, if you find and believe from the evidence beyond a reasonable doubt:

First, that on or about December 1, 1976, in the County of St. Charles, State of Missouri, the defendant, Frank Feast, shot at Major Melbourne Gorris, and

Second, that he did so with malice aforethought, that is, intentionally and without just cause or excuse and after thinking about it beforehand for any length of time, and

Third, that he did so with intent to kill Major Melbourne Gorris, then you will find the defendant guilty under Count II of assault with intent to kill with malice aforethought.

However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of the foregoing, you must find the defendant not guilty under Count II of that offense.

If you do find the defendant guilty under Count II of assault with intent to kill with malice aforethought, you will fix his punishment at imprisonment by the Department of Corrections for a term fixed by you, but not less than two years nor more than life imprisonment."

Defendant argues the instruction is faulty because not supported by evidence the defendant"shot at" Major Gorris by shooting in his direction and because the use of the title "Major" may have misled and confused the jury by suggesting shooting at a major was a more serious offense than shooting at a private citizen.We disagree.

The evidence favorable to the state shows that the defendant"shot at" Major Gorris.On the night of December 1, 1976, Officer Rushing responded to a call to report to an address in O'Fallon, Missouri.He spoke momentarily with defendant's wife and son.Shortly after Officer Rushing arrived, the defendant fired a revolver in the direction of the officer.Defendant held the revolver in his right hand, and he stood in the doorway of his home when he fired.Officer Rushing called for assistance and asked that Major Melbourne Gorris, the police administrator of O'Fallon, be notified.The defendant again fired in the direction of Officer Rushing before the episode concluded one to two hours later.

When Major Gorris arrived, he first went to talk with defendant's wife and then took a position outside the defendant's house.Major Gorris identified himself to the defendant and endeavored to speak with defendant through a bullhorn.During the episode, defendant would periodically appear at his door or step out of his door.On one occasion, defendant opened the door and fired a shot.Major Gorris heard the blast, saw the flash, and heard what sounded like a bullet go past and hit just behind him.Gorris had "heard that before."

The police officers who testified maintained the shape of the flash produced when defendant fired his gun in the dark and the position of defendant's arm when he fired indicated defendant pointed the gun with his right hand and fired in the direction of Major Gorris and another officer rather than into the air.A neighbor confirmed the shape of the flash from defendant's gun.During the episode, defendant made threats to kill police if they did not kill him.One bullet did hit Gorris's car, leaving a crease in the car.The police also recovered a spent .38 caliber slug from the area in which Major Gorris had been during the shooting episode.This slug was identified as having been fired from defendant's gun.

The episode giving rise to the charges ended when Major Gorris wounded defendant in his leg and took defendant into custody.At the time defendant was shot, defendant was turning his right arm toward Major Gorris with a .38 caliber revolver in his hand.

It is axiomatic that an instruction must be supported by the evidence.State v. Carter, 559 S.W.2d 572, 574(Mo.App.1977).However, we believe the foregoing evidence sufficiently proves defendant shot in the direction of Major Gorris and supports the instruction requiring the jurors to find defendant"shot at" Major Gorris.The evidence need not be indisputable that the defendant aimed and shot at the particular prosecuting witness.State v. Duncan, 568 S.W.2d 598(Mo.App.1978)(evidence defendant discharged a shotgun in the direction of a police officer justified a conviction for an assault upon a different police officer also in that direction but unknown to defendant).

] We also disagree with defendant's contention that the instruction's reference to the prosecuting witness as "Major Melbourne Gorris" misled and confused the jury.Throughout the trial, the witness in question was referred to as Major Gorris.Further, during the shooting episode, the witness had identified himself as Major Gorris to defendant over a bullhorn.Appellant's contention has no merit.

Defendant's appeal also contends the trial court erred in failing to instruct the jury upon the lesser included offense of assault with intent to kill without malice because sufficient evidence was before the court to show lack of malice.

Our review of the transcript does not reveal evidentiary support for defendant's contention he was entitled to an instruction upon assault with intent to kill without malice.Defendant's evidence shows: Defendant heard someone call to him to come outside to talk.When he opened the door to his home, gun shots were fired.Defendant is left-handed and could not fire a gun with his right hand.He had a gun but only shot it up into the air and after the police had fired upon him.Periodically, shots would hit his house.He...