State v. Robinson

Decision Date09 November 1959
Docket NumberNo. 47353,No. 1,47353,1
Citation328 S.W.2d 667
PartiesSTATE of Missouri, Respondent, v. Tony ROBINSON, Jr., Appellant
CourtMissouri Supreme Court

Morris A. Shenker, Bernard J. Mellman, St. Louis, for appellant.

John M. Dalton, Atty. Gen., W. Don Kennedy, Asst. Atty. Gen., for repondent.


The defendant, Tony Robinson, Jr., was convicted of manslaughter. The punishment assessed was seven years' imprisonment in the State Penitentiary. An appeal was taken to this court.

The offense was alleged to have been committed in the City of St. Louis, Missouri, at about three o'clock on the morning of July 23, 1958. The victim was Joseph H. Tilley. The trial was held in October, 1958. The verdict returned by the jury stated that the defendant was found guilty of manslaughter but that the jury was unable to agree upon the punishment. The trial court thereupon assessed the penalty.

The defendant filed a brief in this court which contains five separate assignments of error. The first three pertain to the question of whether the trial court erred in not instructing the jury that the defendant had the right to use such force as was necessary in resisting an attempt by the deceased to commit an act of sodomy on the defendant's person. In the fourth assignment, defendant stated that the trial court erred in instructing the jury that in case the defendant was found guilty and no agreement could be had as to the punishment, then, in the event, the court would fix the punishment. The fifth point briefed reads as follows: 'The Court erred in admitting into evidence over the objection of the defendant State's Exhibits Number Two, Three, Seven and Eight, and in permitting the jury to examine said exhibits, for the reason that said exhibits were gruesome photographs of the deceased taken at the scene of the alleged offense and at the City Morgue, that said photographs did not have any probative value in establishing any issue in the case, and operated only to inflame and prejudice the jury against the defendant.'

No point is made that the evidence was insufficient to sustain the verdict of guilty. The question before us is whether defendant's contention made in the first three points briefed is supported by the evidence. More to the point, were defendant's rights sufficiently protected by an instruction on self defense which the trial court gave? Or was defendant entitled to an instruction, refused by the trial court, requested to be given on the theory that he, the defendant, had the right to use such force as was reasonably necessary to prevent the deceased from committing an act of sodomy upon the person of defendant?

We shall state the facts necessary for a determination of the questions presented. On the morning of July 23, 1958, at about eight o'clock, the partly nude body of Joseph H. Tilley, a white person, was found lying between two cars in a junkyard or auto-parts lot at 4447 St. Louis Avenue where a number of old automobiles were on the lot and evidently had been there for some time. There were bruises on the head, arms, and chest of Tilley whose body was found lying near an old motor block. A number of empty wine bottles were found, a few of which were in the back seat of a car near the body. In the back seat of one of the cars, a social security card, a paycheck stub, and a laundry ticket were found. All bore the name or identification marks of the defendant, Tony Robinson, Jr., a Negro, living at 4481 St. Louis Avenue.

Tony was arrested and taken to police headquarters where he was questioned. Statements which he made to the police and prosecuting officials were substantially the same as defendant's evidence at the trial. When defendant was arrested, the officers found blood stains on his clothing and also a torn shirt. Tony testified that on the night of July 22, 1958, he had been at the Yukon Bar which was two or three blocks from the junkyard and that he had had 'ten or twelve shots of whiskey' and some beer; that when the place closed at about two-thirty o'clock on the following morning, he started for home; that he had in his shirt pocket the social security card and the other papers found by the police. He testified that on his way home, while passing the junkyard lot, Tilley, whom he did not know, accosted him and asked if he wanted a drink to which he replied that he did; that they went to a car, nearby which the body of Tilley was later found, sat in the back seat and drank a fifth of wine. Defendant further testified as to what occurred between him and the deceased much of which is immaterial to the point now before us. The material facts are, according to defendant's evidence, that deceased insisted on committing sodomy on the defendant; that defendant refused; that an argument which followed culminated in a fight between the two; that deceased grabbed defendant and tore his shirt; that deceased had his trousers down below his knees. What happened thereafter, according to the defendant, may be best stated by quoting his evidence 'Q. What happened after he grabbed the shirt and tore it? A. Started fighting, exchanged blows; he reached down and picked up a wine bottle.

'Q. Where were you sitting? A. Inside the car.

'Q. Did you exchange blows in there? A. Yes, sir.

'Q. Did you hit him at all? A. Yes, sir.

'Q. Did he hit you? A. Yes, sir.

'Q. What happened after you were scuffling around there? A. He picked up this wine bottle; I grabbed him by the arm and pulled him out.

'Q. You pulled him out where? A. Outside the car.

'Q. Let me ask you this. Which side were you sitting on in the car? A. I was sitting on the right side.

'Q. You were sitting on the right side? A. Right side.

'Q. He was sitting-- A. On the left.

'Q. Which door was he pulled out when he had this wine bottle? A. Right door.

'Q. Tell the court and jury after you pulled him out do you know what happened to that wine bottle? A. No, sir.

'Q. Do you know whether or not you knocked it out of his hand, or he dropped it, or if you don't know it, all right? A. I may have knocked it out of his hand. I don't know what happened to it.

'Q. And after that happened, what happened next? A. He was still coming at me and we started fighting again, and I don't know if I hit him and he fell or he slipped, but he fell and his head hit the motor block; he was grabbing at my feet; I kicked, trying to kick free--I hit the motor block and turned around and run.

'Q. Do you know where he hit the motor block? A. No, sir.

'Q. You don't know? A. I don't know, no.

'Q. You say, kicking at the motor block--how did you kick the motor block? A. I kicked with my foot, trying to get free, trying to get my feet free of this man, wrestling around my legs.

'Q. Do you know whether or not you kicked the man laying on the ground? A. No, sir.

'Q. All right. You--now, were you arrested when--about ten o'clock? Let me ask you this. What happened after you kicked free? A. I turned around and ran home.

'Q. What did you run home for? A. I was scared.

'Q. What were you scared about? A. The man was like a maniac.

'Q. And let me ask you this. Did you call the police or anything? A. No, sir.

'Q. Why didn't you? A. I didn't know he was hurt.'

After defendant's arrest, he was examined by a doctor who testified for the State that defendant had no bruises except on the big toe of the right foot. It was found to be fractured and placed in a cast.

The State introduced medical evidence showing the cause of death as discovered by an autopsy. It was listed in the report as subdural hematoma caused by a blow on the head. No skull fracture was found. Bruises were found on the face, arms, legs, and head of the body of the deceased.

The record shows the following to have occurred before the instructions were read to the jury:

'Mr. Shaw: At this time, your honor, the defendant will except to the giving of instructions One, Two, Three and Four for the reason that they do not correctly and fully cover the law in this case. The defendant further requests as part of the instruction on self-defense that the court give an instruction on the right of self-defense when one is threatened with being the victim of a felony. In this case the defendant was threatened with the commission of an act of sodomy by the deceased.

'The Court: All fixed, Bill? I will overrule the objection and deny the request.'

It is our opinion that defendant's request should have been granted. The court did give a self-defense instruction in the usual form to the effect that the defendant was justified in acting as he did if 'the defendant had reasonable cause to believe and did believe there was a design upon the part of the deceased to do the defendant some great personal injury or great bodily harm, and that there was reasonable cause for the defendant to believe that there was immediate danger of such design being accomplished and that to avert and prevent such apprehended danger, the defendant did strike, * * *.'

The State seeks to justify the ruling of the court on the theory that the deceased, to accomplish his alleged desire, would have been compelled to render the defendant unconscious; that, therefore, the self-defense instruction was sufficient; that the only immediate danger to the defendant was personal injury or great bodily harm. This argument overlooks the fact that the principal defense in this case was that the defendant claimed that all he did was to use such force as was...

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36 cases
  • State v. Dodson, 37584
    • United States
    • Missouri Court of Appeals
    • August 16, 1977
    ...of demonstrative evidence such as photographs of dead bodies lies within the sound discretion of the trial court. State v. Robinson, 328 S.W.2d 667 (Mo.1959); State v. Frazier, 550 S.W.2d 590 (Mo.App.1977); State v. McClain, 536 S.W.2d 45 (Mo.App.1976). Such evidence is properly admissible ......
  • State v. McMillin
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    • January 10, 1990 that, because he has stipulated to the fact that the victim is dead, the photographs have no probative value. See State v. Robinson, 328 S.W.2d 667, 671 (Mo.1959). Appellant's argument fails. The photographs of the crime scene depict details that corroborated testimony of various sta......
  • State v. Leisure, 69470
    • United States
    • Missouri Supreme Court
    • April 19, 1988 reversing a manslaughter conviction, this exhibit is "extremely obscene, offensive, vulgar, horrid, and repulsive" ( State v. Robinson, (Mo.) 328 S.W.2d 667, 671), and any relevant probative value it may have is far outweighed by the fact that it is needlessly and manifestly inflammatory......
  • State v. Jackson
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    • Missouri Supreme Court
    • October 8, 1973
    ...than there would be in almost any photograph of a dead body. Defendant cites State v. Floyd, 360 S.W.2d 630 (Mo.1962), State v. Robinson, 328 S.W.2d 667 (Mo.1959), and State v. Pearson, 270 S.W. 347 (Mo.1925). In Floyd, the photo was held to prove nothing. In Robinson, the photo was apparen......
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