State v. Nance
| Decision Date | 09 April 1974 |
| Docket Number | No. 34747,34747 |
| Parties | STATE of Missouri, Respondent, v. William NANCE, Appellant. . Louis District, Division One |
| Court | Missouri Court of Appeals |
Madigan, Hadican & Maloney, St. Louis, for appellant.
John Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Thomas C. Muldoon, St. Louis, for respondent.
Appellant was convicted of the offense of assault with intent to kill with malice aforethought, Sec. 559.180 RSMo 1969, V.A.M.S., and, the trial court having determined that he had previously been convicted of the offense of robbery in the first degree and was, therefore, subject to the provisions of Sec. 556.280 RSMo 1969, V.A.M.S., more commonly known as The Habitual Criminal Act, reserved sentencing to the Court until the jury returned its verdict finding appellant guilty of the charge of assault with intent to kill with malice aforethought. The Court then assessed defendant's sentence at 40 years in the Missouri Department of Corrections. A motion for new trial was filed, heard and overruled; allocution was granted and appellant was sentenced in accordance with the verdict of the jury and the sentence assessed by the trial judge. This appeal followed.
On appeal two points are presented, both attacking instructions read to the jury by the court. The first point is that the State's verdict-directing instruction, Instruction No. 2, was prejudicially erroneous because it ignored the issue of self-defense in the case. The second point is that the self-defense instruction read to the jury by the trial court is prejudicial because it does not inform the jury that the burden of proof on this issue is upon the State.
We conclude that there is no merit to either of these contentions and affirm the judgment of the trial court.
Appellant does not attack the sufficiency of the evidence to support his conviction. A short statement of the relevant facts is therefore sufficient for our purposes in considering the errors alleged.
At sometime between 1:00 a.m. and 3:05 a.m. on the morning of April 18, 1971, in the City of St. Louis, Missouri, and in the vicinity of 4911 Natural Bridge Avenue, Gary Maufas, an off-duty Metropolitan St. Louis Police officer, was driving an automobile with a fellow police officer, Jerome Johnson, riding as a passenger. Both officers were on vacation, had been out together that evening for some 'lounge hopping,' and Maufas was driving Johnson home. When the officers arrived in the 4900 block of Natural Bridge Avenue and were proceeding westwardly past the Embassy Hall at 4911 Natural Bridge Avenue, Maufas observed a man in front of a crowd gathered outside the hall 'flourishing a weapon.' Maufas stopped the car he was driving, double-parked it, and alighted from the driver's side of the car and approached the man with the gun. Maufas was in civilian clothes at the time and so was Johnson. As Maufas approached the armed man he pulled his wallet out of his pocket and exposed his badge to identify himself as a policeman, announced that he was a policeman, and almost immediately thereafter he was shot by the man, subsequently identified as the appellant. Maufas suffered four gunshot wounds: one in the stomach, one in the left arm, one in the left hip or leg, and one in the lower back.
Appellant testified that he was wearing a watchman's uniform and was on duty as a security guard at a dance being held in the Hall; that he did not know Maufas and Johnson were policemen and that the altercation erupted when he, the appellant, asked them to move their double-parked car so that a patron of the dance could leave. Appellant further testified that he turned his back, started to walk away, and Maufas started towards him. An exchange of words followed, and as appellant proceeded to walk towards the sidewalk he heard a friend call out that Maufas had a gun. Appellant turned, observed a '.38 nickel plated chrome revolver' in Maufas' hand, and he then pulled his gun out of his holster and shot Maufas.
There was conflict in the testimony, but this was resolved by the jury in their verdict, adversely to appellant's theory of the case, to-wit: accident and self-defense.
Appellant's argument with respect to Instruction No. 2, the State's verdict director, is that it is prejudicially erroneous because it ignores the self-defense issue, does not refer to the self-defense instruction given, Instruction No. 3, and does not require the jury to find any fact negativing that defense.
If appellant were correct in his argument and the State's verdict-director ignored the self-defense issue, the trial court would have committed error which would not be cured by submitting a separate instruction on the self-defense issue. State v. Clary, 350 S.W.2d 809, 813(5) (Mo.1961). However, as in State v. Clary, supra, the State's verdict director here defined 'malice' as 'the intentional doing of a wrongful act without just cause or excuse' (emphasis supplied) and that has been held sufficient. Appellant relies on State v. Winn, 324 S.W.2d 637 (Mo.1959), but that case affords him no succor here. A...
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Maggitt v. State, 39538
...has been rejected in State v. Cooksey, 499 S.W.2d 485 (Mo.1973) (5, 6); State v. Tindall, 496 S.W.2d 267 (Mo.App.1973); State v. Nance, 508 S.W.2d 517 (Mo.App.1974) (2); State v. Robinson, 516 S.W.2d 40 (Mo.App.1974) (1, 2); Duncan v. State, 520 S.W.2d 123 (Mo.App.1975) (6). We reject it Si......
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State v. Robinson, 35724
...of the defendant to a fair trial. 496 S.W.2d at 271. See also State v. Cooksey, 499 S.W.2d 485, 490 (Mo.1973) 7, and State v. Nance, 508 S.W.2d 517, 519--520 (Mo.App.1974). Unlike State v. Minnis, supra, this instruction did not authorize a finding that the defendant was guilty unless the j......
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Nance v. State
...conviction. That conviction was appealed to this court on the grounds of prejudicial instructions and was affirmed in State v. Nance, 508 S.W.2d 517 (Mo.App.1974). Movant now seeks relief by a post-conviction Rule 27.26 motion wherein he alleged his sentence should be vacated because he did......