State v. Robinson

• Decision Date: 05 February 1945
• Docket Number: 39264
• Citation: 185 S.W.2d 636,353 Mo. 934
• Parties: State v. James Lee Robinson, Appellant
• Court: Missouri Supreme Court

185 S.W.2d 636

353 Mo. 934

State v. James Lee Robinson, Appellant

No. 39264

Supreme Court of Missouri

February 5, 1945

Rehearing Denied March 5, 1945.

Appeal from Circuit Court of City of St. Louis; Hon. William L Mason, Judge.

Affirmed.

I Joel Wilson for appellant.

(1) The court committed reversible error in neglecting and failing to instruct the jury on the offense of manslaughter, as part of the law of the case. Sec. 4070, R.S. 1939; State v. Creighton, 52 S.W.2d l.c. 561; State v. Connor, 252 S.W. l.c. 718; State v. Starr, 38 Mo. l.c. 277; State v. Biswell, 179 S.W.2d l.c. 65. (2) The court erred prejudicially to defendant in neglecting, failing and refusing to instruct the jury upon the principle and doctrine of nicely gauging the amount of force which may be used in a moment of impending peril to one's life or great bodily harm in defending himself when unlawfully attacked by an assailant with a deadly weapon, although requested to so instruct by defendant. State v. Traylor, 98 S.W.2d l.c. 652; State v. Creed, 299 Mo. 307, 252 S.W. l.c. 682. (3) The court committed reversible error in neglecting, refusing and failing to give and read to the jury, at the request of defendant, defendant's proffered Instruction C upon and embodying the principle and doctrine of nicely gauging the proper amount of force which might be used by the defendant in a moment of impending danger to his life or person from an attack by deceased with a deadly weapon in defending himself. State v. Traylor, 98 S.W.2d l.c. 652; State v. Creed, 299 Mo. 307, 252 S.W. l.c. 682; State v. Hollingsworth, 156 Mo. l.c. 186; State v. Hopkins, 213 S.W. l.c. 128.

Roy McKittrick, Attorney General, and Harry H. Kay, Assistant Attorney General, for respondent.

(1) The court did not err in failing to instruct the jury that they could return a verdict of manslaughter, as the evidence did not warrant such an instruction. State v. Biswell, 179 S.W.2d 61; State v. Bongard, 330 Mo. 805, 51 S.W.2d 84; State v. Delbono, 306 Mo. 553, 268 S.W. 60; State v. Connor, 252 S.W. 713. (2) The instructions of the trial court on self-defense when read together, properly presented that defense, and were fair to the appellant, and the court did not err in refusing to give defendant's proffered Instruction C, nor to include in any instruction given the exact words: "the defendant was not required to nicely gauge the amount of force which might be used by him to repel an assault." State v. Traylor, 339 Mo. 943, 98 S.W.2d 628; State v. Hopkins, 278 Mo. 388, 213 S.W. 126; State v. Banks, 258 Mo. 479; State v. Hollingsworth, 156 Mo. 178; State v. Williams, 337 Mo. 884, 87 S.W.2d 175; State v. Miller, 346 Mo. 846, 143 S.W.2d 241; State v. Huett, 340 Mo. 934, 104 S.W.2d 252; State v. Havens, 177 S.W.2d 625.

OPINION

Ellison, P.J.

The appellant was convicted of murder in the second degree in the circuit court of the City of St. Louis and his punishment assessed by the jury at imprisonment in the State penitentiary for a term of fifteen years, for shooting with a pistol and killing one Alonzo Harris on March 6, 1943. The cause was tried in November, 1943, but not submitted on appeal in this court until the current January call, 1945. The first assignment of error in appellant's brief complains that the trial court erred in failing to instruct the jury on the crime of manslaughter as a part of the law of the case, under Sec. 4070(4), ^[1] despite the fact that appellant made no request for such an instruction and interposed no objection or exception at the trial to its omission. Other assignments complain of the giving of an improper instruction and the refusal of proper instructions on self-defense.

Preliminarily we note that the State's brief, filed on December 19, 1944, raises the point that the record failed to show any order by the trial court granting an appeal in the cause, in consequence of which this court is without appellate jurisdiction. But thereafter appellant filed suggestions in diminution of the record and a writ of certiorari was issued, in response to which the clerk of the trial court sent up a certified "full, true and complete copy of the record" for February 11, 1944, which shows that appellant filed his affidavit for appeal praying the court to grant him an appeal to this court from the judgment rendered, "which said appeal is by the court granted." It is further shown that at the same time the court sustained appellant's motion to appeal as a poor person. We think this record takes out of the case the point raised by the Attorney General.

With reference to appellant's assignment that the trial court erred in failing to instruct on manslaughter in conformity with Sec. 4070(4). This court en banc has ruled that under the statute such an instruction should be given if there is any substantial evidence upon which to base it, even though appellant failed to request it or to object or except to its omission -- if he presented the point in his motion for new trial. State v. Burrell, 298 Mo. 672, 678(I), 252 S.W. 709, 711(1). The record here shows the point was preserved in the fifth assignment in his motion for new trial. So we hold the issue is before us, in which view the Attorney General tacitly concurs for he has briefed the question on the merits.

This calls for a review of the evidence. The homicide grew out of a quarrel at a crap game in which a group of seven or eight young negro men were engaged at the home of Charles Lane on Carr Street in St. Louis about 3 a.m. on a Saturday night. The appellant picked up from the table a dollar that was claimed by the deceased Harris. The latter jumped up and struck appellant with his fist, or struck at him. But according to the State's evidence Harris was forcibly restrained by several in the group and inflicted no further damage (if any) on appellant, the latter likewise having been seized by others. Appellant told them to release Harris, and that he wanted to leave by the back door. The host or "game handler" Lane, warned appellant not to depart by that route because there were two savage bulldogs in the back yard. Nevertheless appellant took the chance and left.

The others in the group were still at Lane's home when appellant returned about 30 minutes later, knocked on the front door, and asked, "Where's the boys?" Lane falsely told him all had gone. Appellant said "Don't lie to me", and pressed Lane for the truth, but the latter stuck to his false statement, whereupon appellant left. His manner at the time was "rough", but to all appearances he was unarmed. Some ten minutes later the others, including the deceased Harris and another boy named Styles, departed, this being some 40 minutes after the original altercation. The next testimony accounting for appellant's subsequent movements came from Alonzia Bohannon, the common-law wife of the deceased Alonzo Harris. She said appellant came to the kitchen door of her home on the second floor at 2307 Franklin Avenue "somewhere around three o'clock." She asked who it was and understood the person outside to answer, "Alonzo." Having opened the door, she saw the man was not Harris and slammed it closed whereupon appellant left, saying "I am not going to hurt you lady."

The boy Willie Styles, who testified as a State's witness and who, as previously stated, had left Lane's home where the crap game occurred with the deceased Harris, said he and Harris went to a restaurant at 2211 Franklin Avenue for lunch. Afterwards they went out in front. Styles testified he saw the appellant and exclaimed "There comes Jack!" Appellant entered the restaurant without saying anything and Styles followed him and bought some tobacco. Appellant ordered chili but there was none. Presently he went out and reached for his bosom, commencing to shoot with a revolver as he emerged and saying "I got you now." Harris was standing on the outside of the curb of the walk about 8 feet from the front door. He was struck by three of the bullets, one entering his back, with fatal results. He had both hands in his pockets but was unarmed. Appellant ran away. No pistol belonging to Harris was ever found but appellant's counsel by innuendo in cross-examination sought to suggest it had been hidden by Styles soon after the shooting.

Some of the details of Styles' testimony were contradicted by another State's witness, Richardson, who said he sat next to the deceased Harris in the restaurant and went outside and stood with him a few minutes. He denied seeing Styles at all; and further denied seeing appellant either in the restaurant or outside until appellant walked out of a "gangway" or alley, saying "Alonzo, I got you," pulled a pistol out of his shirt and fired four shots. But a waitress in the restaurant corroborated Styles as to appellant's being in there just before the shooting occurred. Appellant himself confirmed this testimony except that at the trial he testified the deceased was armed and that he shot in self-defense. Richardson agreed with Styles that the deceased Harris was to all appearances unarmed and made no hostile demonstration.

Police officers were summoned to the scene of the homicide at 3:25 a.m. They found Harris lying in a doorway at 2213 Franklin Avenue and one door west of the restaurant (beyond and in the direction of the alley). He was not armed. The officers arrested appellant some 45 minutes later at his home. He admitted the homicide with the revolver offered in evidence (because of "trouble" with Harris) and directed the officers to the dresser drawer in which the weapon was found. He did not claim self-defense, and made and signed a written statement which is called for by the bill of exceptions but not inserted.

John Arthur Jones was a witness for the defense. He was...