State v. Ferguson

• Decision Date: 30 April 1979
• Docket Number: No. KCD,KCD
• Citation: 581 S.W.2d 132
• Parties: STATE of Missouri, Plaintiff-Respondent, v. John Thomas FERGUSON, Defendant-Appellant. 30255.
• Court: Missouri Court of Appeals

Page 132

581 S.W.2d 132

STATE of Missouri, Plaintiff-Respondent, v. John Thomas FERGUSON, Defendant-Appellant.

No. KCD 30255.

Missouri Court of Appeals, Western District.

April 30, 1979.

R. J. O'Hanlon, Lee, O'Hanlon & Brady, St. Louis, for defendant-appellant.

John D. Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, Earl W. Brown, III, Special Asst. Atty. Gen., Kansas City, for plaintiff-respondent.

Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.

DIXON, Judge.

Defendant appeals his conviction of second degree murder. Defendant was tried under the provisions of the Second Offender Act, § 556.280 RSMo 1969, and, upon a jury finding of guilt, the trial judge imposed a sentence of thirty years.

A single issue is presented. The defendant asserts that the trial court erred in refusing defendant's instruction on self-defense predicated upon a theory of "appearances."

Defendant struck and killed the deceased with an iron pipe in the course of an altercation on the business premises where the defendant was employed. The deceased, in company with two of his daughters and three other persons, had been engaged in a daylong drinking bout. The party went to several taverns and ended up at a tavern across the road from the automobile agency where defendant was employed. One of the daughters of the deceased had purchased a motor vehicle there and had been having difficulty with it. The deceased walked across the road and spoke to the manager about when repairs would be undertaken. The manager answered, but the deceased apparently did not hear the response. Defendant then spoke to the deceased, and the deceased told the defendant to "shut up because he wasn't talking to him." While this exchange occurred, the deceased's vehicle was driven to the rear of the office by someone in the company of deceased. Besides the five persons in the deceased's party, there were several other witnesses to the events. Because of the nature of the defendant's claim of error, it will be necessary to set forth in some detail the accounts of the various witnesses, both substantively and sequentially.

Stating the chronology of events and their relationship to the place where the altercation occurred is difficult because the witnesses referred to an exhibit in placing the various events and the participants, and the exhibit has not been filed in this court. As best as may be gleaned from the descriptions of the witnesses, the business premises where the defendant was employed consisted of a front room, or showroom, which contained a small partitioned office; the balance of the front was open space with an opening to the showroom. A partition or semi-partition separated the showroom from the rear of the building which was utilized as a shop.

The witnesses, including the defendant, are all in agreement that the verbal altercation between the deceased and the defendant commenced at or near the office space in the front or showroom portion of the building. By one means or another, the two participants maneuvered to a position near the partition between the shop area and the showroom area where there was an opening in the wall or doorway, apparently of substantial size. As noted, the deceased was accompanied by his two daughters, Viola and Terry, as well as one Bob White, his wife, Candy White, and a person named Gary Pierce.

The testimony concerning the movements of the five persons in the company of the deceased is confusing, but it appears that when the deceased first entered the premises he was accompanied by his daughter, Terry, and Bob White. The other three in the party remained in the car. Terry, the deceased's daughter, apparently left before the verbal altercation and told her sister to move the car to the rear of the building, the car having been parked in a no parking zone. When she returned, the defendant had obtained the pipe, and she saw him strike her father. She then ran to get a ball bat from the car, but her sister had already obtained the ball bat and was entering the premises. She took the keys to the car from her sister, and Bob White went to the vehicle to get a rifle which was in the trunk of the car. All of this occurred after the deceased was struck. Gary Pierce says he went in the building after the defendant had the pipe and saw the fatal blow struck, but did not see the rifle. Viola corroborated Terry's testimony that she stayed outside, although she said four persons initially went into the building. Viola said Terry came out and told her that the defendant had struck her father.

When Viola entered the premises with the ball bat, Ferguson was almost to the front door carrying the pipe. Her claim is that Bob White came in with a gun after the defendant was struck and while she was striking at the defendant with the ball bat she was carrying. Bob White, on the other hand, contended that he had gone outside to look at a car and did not enter the premises until after the deceased was struck and was on the floor. He admits that he went to get the gun and says that he did not take the gun inside and did not load it. He denied making any threats against the defendant or taking the gun into the building. Candy White, his wife, entered the building while the defendant was striking the deceased, and after the deceased had fallen to the floor, she went to call an ambulance. She claims she did not see any rifle at the scene.

There were three witnesses who were not connected with the group accompanying the deceased. A man named George Pace, who was a customer at the automobile agency, saw the defendant and deceased arguing, and he saw the deceased after the blows had been struck with the pipe; but he did not see the actual striking by the defendant. He claimed that he did not see a man with a rifle either in the shop or aiming a rifle into the shop.

Harold Davis was another employee at the business; his testimony is that he was in the back part of the shop working on an automobile, and that the defendant retired from the showroom portion of the building, part of which Davis could see because of the wide opening in the partition. Davis said there was a group of people with the deceased and that he offered to help the defendant, it being obvious to him that an altercation was in progress. He said the defendant told him to stay out of it, and he did; but he observed the defendant pick up a "cheater" pipe or a length of pipe one inch in diameter and 16 to 18 inches long. At that point, according to the witness Davis, the people with the deceased had stopped in the opening separating the shop from the front. At that point, Ferguson invited the deceased to go out into the alley; there was some name calling and the defendant prodded the deceased in the stomach with the pipe. The deceased...