State v. Hicks
| Decision Date | 10 March 1969 |
| Docket Number | No. 1,No. 52783,52783,1 |
| Citation | 438 S.W.2d 215 |
| Parties | STATE of Missouri, Respondent, v. James W. HICKS, Appellant |
| Court | Missouri Supreme Court |
Norman H. Anderson, Atty. Gen., Jefferson City, Austin B. Speers, Sp. Asst. Atty. Gen., Kansas City, for respondent.
John T. Sluggett, III, Clayton, for appellant.
This is an appeal from a conviction of murder in the second degree and a sentence of ten years in the custody of the Department of Corrections. Sections 559.020 and 559.030, RSMo 1959, V.A.M.S. The defendant was found guilty by a jury which also assessed the punishment. The defendant was represented at the trial by counsel of his own choosing. The same counsel represents him on appeal. The contentions made on appeal in general are that the trial court erred in refusing to sustain the defendant's motion for a judgment of acquittal or in not granting him a new trial on the ground that the verdict was against the weight of the credible evidence; that the court erred in refusing to admit evidence of the victim's police record; and that the court erred in entering judgment immediately after verdict and prior to the filing of defendant's motion for a new trial and a ruling thereon, and in not granting the defendant a proper allocution.
The defendant admitted that he shot and killed one Thomas W. Muncher on August 17, 1966, but defended on the ground that the act was committed in self-defense and that the homicide was justifiable pursuant to the provisions of § 559.040(2), RSMo 1959. The evidence is not greatly conflicting.
The defendant lived in Sunset Hills, St. Louis County, Missouri. He worked as a boilermaker for General Steel Industries in Granite City, Illinois, and had been so employed for sixteen and one-half years. He had never been in trouble before other than for traffic violations. The defendant's hours of employment were from 11 p.m. to 7 a.m. In addition to his regular employment, the defendant owned and operated an automotive steam cleaning business on the premises of a service station at the northeast corner of Sarah and McPherson Avenues in the City of St. Louis. This neighborhood was described by witnesses as having a high incidence of crime, such as robberies, assaults, stabbings, shootings and other crimes of violence, and being frequented by alcoholics, known police characters, addicts, prostitutes and panderers.
The defendant's first encounter with Thomas Muncher was on August 15, two days before the shooting. The defendant had engaged a Mr. Lovett to deliver an air-conditioner to an address on Natural Bridge and had agreed to pay Lovett $5 for his services. Difficulties with the installation were encountered and the defendant went to the location in response to a call from Lovett. Thomas Muncher was there with Lovett but there was no trouble between the parties at that time. The air- conditioner did not operate and it was removed and apparently remained in Lovett's possession.
On the following day, August 16, the defendant received a call at his home from Ralph Bunche who was then operating the service station where the defendant conducted the business of steam cleaning automobile engines. Mr. Bunche told the defendant that a man was waiting for his money for moving the air-conditioner. The defendant went to the service station but instead of finding Lovett, as he expected, Muncher was waiting for him. Muncher was a big man, about 6 foot 6 inches in height and weighing about 240 pounds. He was a muscular man and known in the neighborhood as 'Slim' and 'Treetop'.
When the defendant saw Muncher at the service station on August 16, Muncher was drinking heavily from a bottle of wine. Muncher first attempted to borrow a dollar from the defendant, and when this was refused he demanded that the defendant pay him $5 for the delivery and installation of the air-conditioner. The defendant refused to do so saying his agreement was with Lovett and he would settle with him. Muncher then became very belligerent and threatening. He grabbed the defendant by his wrists and told the defendant he could snap the defendant's wrist 'like a peppermint stick'. The defendant was able to get away from Muncher and went to a telephone on the premises and called the police. Muncher came at him again as he was finishing the call. Muncher attempted several times to strike the defendant who avoided the blows by ducking away and running out of the door of the station. Muncher ran after him, chased the defendant through the gas pumps, around a parked truck, and east on McPherson for about three-quarters of a block where a police patrol car came by and Muncher was arrested. During the chase Muncher was threatening the defendant in violent terms.
The next morning the defendant cleaned and fired the gun subsequently used in the shooting and put it in his pocket. He did not know what the police had done with Muncher. During the morning of August 17, Muncher was released from jail and returned to the neighborhood; he made two separate purchases of wine at a liquor store at the corner. He returned to the service station and sat on a step or walkway about 30 inches wide and 11 inches high along the front of the filling station with Sam Sykes and Alvin Cole, two other men of the neighborhood. Muncher was drinking wine and declared he was waiting for the defendant.
While Muncher and his companions were seated in front of the service station, the defendant Hicks was on another portion of the premises demonstrating how to steam clean an automobile motor. About noon the defendant and Glenn Murray passed in front of the place where Muncher and his companions were seated; they were going to defendant's automobile on the other side of the parking lot. As he walked by, the defendant said nothing to Muncher and did not look in his direction. When the defendant had reached the automobile, Muncher called him back. The defendant returned and stood in front of where Muncher was seated. Muncher demanded that the defendant pay him $5. The defendant said he wasn't going to pay him anything, that his business was with Mr. Lovett. There was general agreement by the state's witnesses that Muncher told the defendant among other things that someone was going to pay him and that he was going to get the $5 from the defendant 'or a part of his ass'.
One of the witnesses testified that Muncher made no move to get up; another testified that Muncher was waving his hands and arms while he talked and started to rise; another testified that Muncher put one arm back as if he was going to arise. The defendant testified that Muncher was coming up about two paces away when the defendant took the gun from his rear pocket and shot him. Only one shot was fired although there were additional shells in the gun. Muncher was shot in the left chest and was dead on arrival at a hospital. The defendant called the police and when they arrived he gave them his gun and admitted the shooting. The defendant was taken to headquarters where in the presence and acting on advice of counsel he made a complete statement as to what had happened.
The defendant Hicks testified that he was aware of Muncher's reputation for turbulence and violence, that he was afraid of Muncher and wanted to keep away from him, and that he did not intend to kill Muncher. The defendant also testified that he wore glasses, that he could not see without them, and if they were knocked off he could not even see to run.
The defendant contends that the trial court erred in refusing to sustain his motion for judgment of acquittal at the close of all the evidence. He also asserts that the trial court erred in not granting a new trial on the ground that the verdict was clearly against the weight of the evidence. These related points will be treated together. In testing the sufficiency of the evidence on the defendant's motion for judgment of acquittal, the evidence and all reasonable inferences therefrom must be viewed in the light most favorable to the state, and evidence and inferences to the contrary must be rejected. State v. Hughey, Mo., 404 S.W.2d 725, 729(3); State v. Papin, Mo., 386 S.W.2d 355, 359(7).
Section 559.040(2) provides, inter alia, that a homicide shall be deemed justifiable when it is committed in lawful defense of the person 'when there shall be reasonable cause to apprehend a design * * * to do some great personal injury, and there shall be reasonable cause to apprehend immediate danger of such design being accomplished'. All of the evidence including that of the state tends to prove that the defendant had reasonable cause to apprehend that Muncher had a design, that is, a purpose or intention to inflict some great personal injury on the defendant. No other interpretation could be put on the undisputed events of the day before. Muncher physically assaulted the defendant on the premises where the defendant conducted his business and where he had a right to be. See 40 C.J.S. Homicide § 130 a and c, p. 1015. While the defendant's physical makeup is not specified, it is clear from the record that he was no match for Muncher who was described as a 'giant' of a man. After the defendant escaped from the first assault, Muncher attacked again and the defendant avoided him only by running from the premises and down the street until Muncher was intercepted by the police patrol. The defendant's apprehension and recognition of his physical inability to protect himself and his desire to avoid Muncher are indicated by his conduct on the following day. He paid no attention to Muncher until Muncher called him to account.
The remaining question is whether the defendant at the time he shot Muncher had reasonable cause 'to apprehend immediate danger' of Muncher inflicting 'some great personal injury' upon him. The defendant relies heavily upon State v. Rash, 359 Mo. 215, 221 S.W.2d 124, wherein the defendant Rash killed Bryan Mullinax, his brother-in-law, who...
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