State v. Peal

• Decision Date: 08 March 1971
• Docket Number: No. 54806,No. 2,54806,2
• Citation: 463 S.W.2d 840
• Parties: STATE of Missouri, Respondent, v. James PEAL, Jr., Appellant
• Court: Missouri Supreme Court

Page 840

463 S.W.2d 840

STATE of Missouri, Respondent, v. James PEAL, Jr., Appellant.

No. 54806.

Supreme Court of Missouri, Division No. 2.

March 8, 1971.

John C. Danforth, Atty. Gen., Dale L. Rollings, Asst. Atty. Gen., Jefferson City, for respondent.

Daniel V. O'Brien, St. Louis, for appellant.

MORGAN, Judge.

Charged as a second offender, defendant was tried to a jury and found guilty of murder, second degree. The court assessed punishment at ten years confinement. Section 556.280, V.A.M.S.

Three assignments of error are made against the trial court. They are: (1) Refusing to give an instruction on self-defense, (2) Refusing to give an instruction on the bad character of the deceased, and (3) Giving an accident instruction that did not place on the state the burden of proving the homicide was not accidental.

On the evening of October 11, 1968, several friends gathered at the home of (Miss) Sally Simmons who was the mother of seven children. The friends were: Margaret Newton; Margaret's brother, Henry Stewart, and his wife Earline; and the deceased, Albert Simmons, who was the father of one child but had been separated from Sally for approximately five years. All were drinking beer, gin or bourbon. Soon thereafter the defendant arrived. Presumably, he was the father of two of the children but had ceased living with Sally prior to the evening in question. Defendant and Sally went into the kitchen and talked. Defendant then left the house and returned in about fifteen minutes. Again, he and Sally walked into the kitchen. When they returned to the living room, defendant offered and the deceased accepted a drink from a bottle of gin. After some conversation relative to the children, defendant stood in the doorway and pulled a gun from his belt. When it fired, the bullet struck deceased in the heart causing death. Defendant ran from the house, drove off, and some distance away threw away the gun. The next day, accompanied by self-employed counsel, he appeared at the police station.

As noted, an accident instruction was given but defendant contends he also was entitled to a self-defense instruction. This contention is consistent with defendant's effort at trial to establish both defenses. For instance, after saying deceased was sitting on a stool during their conversation, defendant testified: 'Mr. Simmons (deceased), he came up real fast and I thought he had something in his hand. I had a gun. I pulled the gun to scare him off. Miss Simmons (Sally) grabbed my hand and the gun discharged.' He also was asked, 'Had you intended to shoot Mr. Simmons?' His answer was: 'Not at all. Up until the moment the shot was fired, me and Mr. Simmons was strictly friends all the way.' While detailing how nervous he was while in jail, defendant explained: 'This was emotion for my friend that I had killed accidentally.'

Even if defendant's self-serving statements were to be ignored, his testimony that the gun was discharged accidentally when Sally struck at it entitled him to an accident instruction. Since such an instruction was given, we are now concerned only with his complaint that the trial court refused to give an additional self-defense instruction. In this connection, it is not necessary to extend this opinion by detailing such of defendant's testimony as he claims established his right to the instruction. We will assume for the moment that it did. However, by the established law of this state, a defendant alone can not provide the basis for such inconsistent defenses. Either instruction relates to an explanation of the homicide, but they are totally inconsistent. If the shot was fired in self-defense, it required the voluntary act of defendant; conversely, if the shot was accidental it was involuntary. This is not to say, however, that both defenses may not be submitted to a jury under certain circumstances. For example, if a defendant by his own testimony provides the basis for an accident instruction, it must be given; but if to the contrary, testimony of others shows defendant acted in self-defense, he also is entitled to a self-defense instruction. Obviously, the converse would be true. Under comparable facts, the identical argument was considered in State v. Baker, Mo., 277 S.W.2d 627, and the court held, loc. cit. 629--630: 'It will be recalled that defendant positively testified that the shooting was accidental. The defenses of self-defense and accident are inconsistent. If proved by proper evidence, a defendant is entitled to have inconsistent defenses submitted to the jury. State v. Morris, Mo., 248 S.W.2d 847; State v. Wright, 352 Mo. 66, 175 S.W.2d 866. The rule in this state is that the testimony of a defendant against interest does not rise to the dignity of a conclusive judicial admission and hence, if justified by other evidence, he is entitled to an instruction on self-defense even though inconsistent with his own testimony. State v. Bidstrup, 237 Mo. 273, 140 S.W. 904. However, the evidence to justify the instruction on the inconsistent defense must be offered by the State or proved by third party witnesses for the defendant. State v. Wright, supra. In ...