State v. McQueen

• Decision Date: 18 July 1968
• Docket Number: No. 3,No. 51211,51211,3
• Citation: 431 S.W.2d 445
• Parties: STATE of Missouri, Respondent, v. Rodger Lee McQUEEN, Appellant
• Court: Missouri Supreme Court

Page 445

431 S.W.2d 445

STATE of Missouri, Respondent, v. Rodger Lee McQUEEN, Appellant.

No. 51211.

Supreme Court of Missouri, Special Division No. 3.

July 18, 1968.

Rehearing Denied Sept. 20, 1968.

Lashly, Caruthers, Rava, Hyndman & Rutherford, William I. Rutherford, Erwin S. Barbre, St. Louis, for defendant, appellant.

Norman H. Anderson, Atty. Gen., Jefferson City, Walter S. Drusch, Jr., Asst. Atty. Gen., Cape Girardeau, for respondent.

J. DONALD MURPHY, Special Judge.

The defendant was convicted of murder in the second degree in the Circuit Court of the City of St. Louis on October 2, 1964, and sentenced to imprisonment for life. The conviction was affirmed by Division One of this court (State v. McQueen, 399 S.W.2d 3) but the affirmance was set aside because the defendant, an indigent, was not furnished counsel upon appeal. Able counsel, appointed by the trial court, has now briefed and argued the case anew, alleging errors neither raised in the motion for new trial nor considered by this court on the prior hearing.

Defendant now contends that the trial court erred in failing to instruct the jury that the use of reasonable force to prevent an attempt to commit an act of sodomy upon the person of the defendant was justifiable homicide, and that such failure was plain error affecting substantial rights of the defendant and resulting in 'manifest injustice or miscarriage of justice' under Supreme Court Rule 27.20(c), V.A.M.R. No such instruction was requested in the trial court nor was the point preserved for review in the motion for new trial. A self-defense instruction in the usual form was given, stating that if the defendant 'had reasonable grounds to believe and did believe that George C. Francis was about to take his life or do him some great personal injury--and that it was necessary for him to use force in order to protect himself from such danger' he should be acquitted on the ground of self-defense. Only the details of the homicide necessary for a determination of this alleged error need be restated.

The defendant shot and killed one George Francis on October 23, 1963, in the latter's apartment in the City of St. Louis. Death was caused by three gunshot wounds. According to the defendant he and the deceased had been acquaintances prior to the time the defendant served a term in the Missouri Penitentiary in 1962 and 1963 for the offense of obtaining a narcotic drug under false pretenses. He testified he had been in the home of the deceased as many as fifty times and had associated with him socially. Francis had on occasion supplied the defendant with narcotics, to which the latter at the time was addicted. There was evidence from defendant and from a witness for the prosecution that Francis was a homosexual. Defendant denied using any narcotics subsequent to his release from the penitentiary and also denied that he was a homosexual. Within days after defendant's release from the penitentiary he met Francis and was subsequently invited to the latter's apartment to talk about a job for defendant. The defendant testified he went to the apartment of Francis about 11:30 p.m., October 22, 1963; that Francis answered the door and told him that one Donald Cole, described by the defendant as the 'lover' of the deceased, was visiting him and asked that he return the following morning; that defendant then left the apartment and returned as requested about 7:15 a.m. the next day; that deceased answered the door and was 'wobbling over the hallway like he had too much to drink' and was 'evidently upset'; he 'was evidently mixing vodka and coffee together'; that deceased 'was talking about killing himself over a quarrel he had with Cole the night before' and that when they went upstairs to the bedroom of the deceased he saw a pistol on the dresser.

Defendant further testified as follows:

'I thought I had him talked out, you know, raving and screaming and everything. And he stated--he looked at me kinda' funny and he says, 'It is all your fault.' I said, 'All my fault for what?' He says, 'Because Cole is made at me.' I said, 'Well, I don't see how it is my fault. I haven't did anything, you know.' So he said, 'Cole don't want me to get you a job.' I said, 'Well, that is up to you, you know,' and he said, 'Cole don't want me to see you. He is very jealous because you are not one of us.' I said, 'Well, I can't help that. I knew you quite a while now. And if you are going to do me a favor,' I says, 'if you can't do me a favor, don't be wasting my time and yours.' I said, 'I don't even have enough money for bus fare. I would like to get a job pretty soon. I have just been out of prison for twenty-seven days.' He informed me that Cole would raise quite a commotion about me coming at that time of the night before 12 o'clock at night, and that he had left that morning, he was very mad and upset with Francis and me, and he kept looking at me and he said, 'It is your fault, all your fault. If it wasn't for me trying to do a favor for you or something, all this wouldn't have come about, you know.' And then I said, 'Well, you have just been drinking too much. Forget it and go on to work.' Well, he bent over like he was going to take off--took off one of his shower shoes, like he was going to put on his sock. He was kind of like in a stupor or something trying to put his sock on, you know. And he had one of these shoehorns. You have seen these long shoehorns with--for a lazy man getting his shoes on, tall, have a catch on about this long (indicating). And he says, 'I ought to just bust your head for putting me in that position.' I said, 'Now, wait a minute. You just forget about this,' I says, 'You have been drinking too much and taking them pills and everything. Just let me--' I said, 'Forget about the job; forget about everything, and I'll leave and I'll go on out.' He said, 'No, you are not going to leave.' He said, 'You are in my house. I am going to do with you what I want.' He reached over and grabbed my hand. He said, 'If I can't have Cole, I am going to have you.' He grabbed my hand and tried to put it on his private parts. And when I jerked my hand back I jerked off the bed trying to get him back away. So then he had that shoehorn in his hand and just kept coming at me.'

The defendant further testified that the shoehorn was about two feet long and made out of shiny iron; that Francis kept coming at him; that he, the defendant, was nervous and 'scared'; that Francis 'commenced talking about suicide, taking his life and his lover left him and all that'; that he, the defendant, picked up the gun from the dresser and moved toward the door. He testified further:

'I told him, 'George, you are high. Forget it.' And I seen him. He was just like a madman, crazy, all I could think. And he kept coming at me with that thing. I remember squeezing the trigger and backing out of the door, and he kept coming straight at me.'

According to the defendant the deceased was eight to ten feet away when the first shot was fired, three feet away at the time of the second, and 'right on top' of defendant at the time of the third, with the shoehorn raised over his head. The defendant was 'right at the threshold' of the room when he fired the third shot. There was testimony that the defendant weighed 135 to 140 pounds and the deceased over 200 pounds. After the shooting the defendant took some narcotic pills and sticks of marijuana and a watch belonging to deceased from the top drawer of a dresser, and left the apartment. According to defendant the fly of the deceased's slacks was not open and there was no evidence that deceased attempted any sexual assault upon defendant other than as related by the defendant in the language above quoted.

The question is whether under this evidence an instruction was required on the right to use reasonable force to prevent an attempted act of sodomy. If it was we hold the requirement to be a part of the law of the case whether or not an instruction on the issue was requested by the defendant. Section 546.070 ¹, and S.Ct. Rule 26.02; State v. Spencer, Mo., 307 S.W.2d 440, 443; State v. Ford, 344 Mo. 1219, 130 S.W.2d 635; State v. Rose, Mo., 346 S.W.2d 54; State v. Browers, 356 Mo. 1195, 205 S.W.2d 721, 722.

Section 559.040 reads in part as follows:

'Homicide shall be deemed justifiable when committed by any person in either of the following cases: (1) In resisting any attempt to murder such person, or to commit any felony upon him or her * * *.'

Sodomy is a felony under our statute. Section 563.230.

In State v. Robinson, Mo., 328 S.W.2d 667, a homicide case, the court held that the defendant therein was entitled to have submitted to the jury as a defense the right to use reasonable force to prevent the commission of an act of sodomy upon his person and that a self-defense instruction in the usual form submitting the use of reasonable force to prevent great personal injury or great bodily harm was not in compliance with this requirement. The court said:

'Whether or not such defense was true or false was a question for the jury under proper instructions. The defendant's theory should have been included in the self-defense instruction. * * * The defendant was entitled to an instruction submitting to a jury his theory of justifiable homicide which theory was supported by evidence,'

citing § 546.070, subsection (4). In the Robinson case the evidence of the defendant, if believed, did establish an attempted sodomitical attack and the defendant did request and was denied an instruction based on this defense.

The defense against an attempted felony--in this case sodomy--is analogous to the usual self-defense. Both are forms of justifiable homicide. § 559.040. And the quantum of proof necessary to support or require the giving of an instruction thereon is the same. State v. Robinson, supra; Washington U.L.Q. 353, 369 (June 1963). This quantum of proof has been variously defined as 'substantial...