State v. Jackson
| Decision Date | 15 April 1975 |
| Docket Number | No. 35721,35721 |
| Citation | 522 S.W.2d 317 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Raymond McGuffery JACKSON, Defendant-Appellant. . Louis District, Division One |
| Court | Missouri Court of Appeals |
Charles D. Kitchin, Public Defender, James E. Wynne, James C. Jones, Asst. Public Defenders, St. Louis, for defendant-appellant.
John C. Danforth, Atty. Gen., Donald R. Bird, Paul Robert Otto, Asst. Attys. Gen., Jefferson City, J. Brendan Ryan, Circ. Atty., Thomas C. Muldoon, Asst. Circ. Atty., St. Louis, for plaintiff-respondent.
Defendant Raymond McGuffery Jackson was convicted of manslaughter (§ 559.070, RSMo 1969, V.A.M.S.). Since the jury was unable to assess punishment the court sentenced defendant to eight years imprisonment (§ 559.140, RSMo 1969, V.A.M.S.). Defendant, in this appeal, urges two assignments of error by the trial court. We find both contentions lacking in merit and affirm the trial court's judgment.
The evidence at trial revealed the following. On October 21, 1972, at 5:00 p.m., defendant was visiting Tommie Peyton at Peyton's apartment at 5107 Maple in St. Louis. Peyton's nephew, George Thomas, also arrived and soon after left the third floor apartment to go to the bathroom on the first floor. Upon returning, Thomas told Peyton and the defendant that he 'got into a scuffle downstairs with some dude that was trying to get him to leave the house and trying to put him out'. All three men then proceeded downstairs to the kitchen where they found Allen Stewart, the deceased, with whom Thomas had previously 'scuffled.'. An argument ensued, followed quickly by a 'first fight' between the deceased, Thomas, and Peyton. After a couple of minutes the defendant attempted to pull his two companions off the deceased whereupon he was hit with some object by the deceased. The defendant was knocked backwards, but did not fall, and as the deceased advanced on him the defendant pulled a knife from his pocket and stabbed him. The deceased's wife discovered him at the doorway of their home at 5010 Minerva at about 8:00 p.m. that night, about one block away from the scene of the stabbing. The deceased was taken promptly to Homer G. Phillips Hospital where he remained until his death caused by two stab wounds on November 3, 1972.
Defendant asserts the trial court erred in denying his motion for judgment of acquittal at the close of the entire case, contending the evidence showed the defendant acted in self-defense. What constitutes self-defense, of course, is not a question of fact for the jury, but a question of law. State v. Rash, 359 Mo. 215, 221 S.W.2d 124(1) (1949); 41 C.J.S. Homicide § 344, p. 108. But where the evidence is conflicting or of such a character that different inferences might reasonably be drawn therefrom, it is generally a question of fact for the jury to determine whether the accused acted in self-defense in a particular case. State v. Hammonds, 459 S.W.2d 365, 368(4) (Mo.1970); State v. Hicks, 438 S.W.2d 215, 219(4) (Mo.1969); State v. Vincent, 321 S.W.2d 439, 442(6), 444(11) (Mo.1959). Only when all the evidence is undisputed and clear should a court dispose of a murder or manslaughter charge by acquittal without tendering the issue of self-defense to the jury. State v. Rash, supra, 359 Mo. 215, 221 S.W.2d 124, 125(2) (1949). Rarely, then, is self-defense declared by law so as to bar the submission of the homicide offense altogether.
Generally, to support a plea of self-defense there must be 1) an absence of aggression or provocation on the part of the slayer (State v. Aubuchon, 394 S.W.2d 327, 334(15) (Mo.1965)); 2) there must be the presence of real or apparently real necessity to kill in order to save oneself (State v. Young, 510 S.W.2d 732, 734(1) (Mo.App.1974)); 3) reasonable cause must exist for belief of such necessity (§ 559.040(2), RSMo 1969, V.A.M.S.; State v. Hicks, supra, 438 S.W.2d 215, 218(2) (Mo.1969)); and 4) the slayer must have done everything in his power consistent with his own safety to avoid the danger and avert the necessity, and he must retreat, if retreat be practicable (State v. Sherrill, 496 S.W.2d 321, 325(14) (Mo.App.1973)).
Applying these elements, it is readily apparent this situation is not, as defendant contends, the rare and unusual case where the proof clearly and uncontradictedly demonstrates the defendant was forced to kill in order to defend himself as in State v. Rash, supra. Defendant asserts he was a peacemaker and in no manner the aggressor or provoker of the difficulty, but a contrary inference is certainly supported by the evidence. Defendant had knowledge of the previous scuffle between the deceased and George Thomas, yet he voluntarily accompanied Thomas and his uncle downstairs to confront the deceased. Had he remained in the third floor apartment, he would not have been in danger of attack; thus the situation is one in which the defendant placed himself in the midst of a fist fight on the first floor, a choice of his own making.
Nor does the evidence demonstrate a clear showing of the necessity of defendant's actions once he became physically involved in the affray. Something more than fear is required to justify such extreme conduct as the taking of another's life with a deadly weapon. Some affirmative action, gesture, or communication by the person feared indicating the immediacy of danger, the inability to avoid or avert it, and the necessity to use deadly force as a last resort must be present. State v. Brown, 502 S.W.2d 295, 299(3) (Mo.1973); State v. Young, supra, 510 S.W.2d 732, 735(4) (Mo.App.1974). Defendant testified he was 'afraid' of the deceased, but fear of simple assault and battery is not sufficient to justify homicide. State v. Jackson, 511 S.W.2d 771, 777 (Mo.1974).
Defendant saw no weapon on the deceased and none was found in deceased's clothing, although defendant did allege he was struck with an 'object' which was never identified. In fact, the only relevant circumstance to cause fear was the deceased's large size. But that alone cannot justify a killing. State v. Parker, 403 S.W.2d 623, 627(4) (Mo.1966). Furthermore, as the state points out, both of defendant's friends were in the immediate area and able to assist him, and apparently they did not feel their smaller size precluded them from physically overpowering the deceased since they voluntarily argued and fought with him.
It cannot be said, therefore, as a matter of law, that what occurred in this case was justifiable homicide and nothing else. But rather the issue of self-defense was a question properly submitted to the jury with appropriate instructions. State v. Hammonds, supra at 368(4); State v. Hicks, supra at 219(4); State v. Vincent, supra at 442(6). In fact, there have been many cases where the inferences to be drawn from the evidence were much less likely to differ and where the evidence of self-defense was much more persuasive, yet the self-defense issue was still not declared by the court, but was sent to the jury for determination. See e.g. State v. Ford, 491 S.W.2d 540 (Mo.1973); State v. Hicks, supra; State v. Austin, 367 S.W.2d 485 (Mo.1963). The trial court was not in error when it overruled the defendant's motion for acquittal.
The defendant's second contention raised on appeal is that the trial court erred in receiving the jury verdict because it was not agreed to freely and voluntarily. Admittedly the jury did have some difficulty arriving upon their verdict, 'guilty of Manslaughter * * * unable to assess the punishment', but we do not find it to have been coerced or in any other manner influenced by the trial judge's conduct.
The circumstances leading to the verdict are as follows. The jury retired to deliberate at 12:42 p.m. on August 21, 1973. At 5:10 p.m. the jury returned to the courtroom and the foreman reported a decision had been reached as to guilt but that they were unable to assess punishment. The judge refused to hear the details of the jury's difficulties, but gave them the 'Hammer' instruction, reminding the jury of the desirability of reaching a verdict, and sent them back to deliberate. At 5:55 p.m. the jury again returned to the court-room, still without a verdict, informing the court that all twelve jurors agreed as to the issues of guilt and the particular crime, but could not assess punishment. When the judge inquired as to why Instruction No. 6 1 had not been followed in regard to finding the defendant guilty but unable to assess punishment, the foreman explained one person was troubled by a 'small technicality' and would not agree. The judge read this instruction to the jury again, and then directed them to once again return to the jury room and to execute 'the form of verdict that suits the crime that you agree upon and which states that you are unable to agree upon the punishment.' Upon their return at 6:05 p.m. with the signed verdict, the jury was polled. As the tenth juror was polled, the following colloquy occurred:
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