State v. Rodriguez
Decision Date | 11 September 1972 |
Docket Number | No. 1,No. 57046,57046,1 |
Citation | 484 S.W.2d 203 |
Parties | STATE of Missouri, Respondent, v. Roy Edward RODRIGUEZ, Appellant |
Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.
J. Arnot Hill, Hill & McMullin, Kansas City, for appellant.
HIGGINS, Commissioner.
Roy Edward Rodriguez was convicted by a jury of felonious striking of police officer Larry Mallot while engaged in performance of his duties. The jury was unable to agree on defendant's punishment; the court fixed his punishment at three years' imprisonment and rendered sentence and judgment accordingly. § 557.215, V.A.M.S.; Rule 27.03, V.A.M.R.
Appellant does not question the sufficiency of evidence to sustain his conviction, and a statement may be quoted from his brief which demonstrates the sufficiency of the state's case and serves also to present his first point.
'Patrolman Larry Mallot of the Kansas City, Missouri Police Department testified that on the 19th of December, 1970 at approximately 5 p.m., he and other officers had been pursuing a suspect who had been firing a gun at them eastbound on 12th Street and that said suspect was fatally wounded on the northwest corner of 12th and Michigan. * * * that immediately following said fatal shooting, he and other officers attempted to 'cord off' the area in order to preserve the evidence and that he picked up the suspect's pistol. * * * that a crowd gathered, that defendant was present and was using foul and abusive language. * * * that defendant was up next to the rope, * * * and that he became 'very large and belligerent, using several profane languages and such.' * * * that on numerous times he told defendant and others to refrain from that type language or they would be placed under arrest for disorderly conduct. He stated that they continued and that when a wagon arrived, he placed defendant and another party under arrest. He stated that as he reached for defendant, defendant pulled away, tearing his shirt sleeve and stated that at that time, defendant hit him with his right fist on the forehead, knocking him to the ground; that when he got back on his feet, other officers were holding defendant but that defendant pulled away and struck the witness on the right cheek, knocking him down again; that when he got up the second time, defendant had been subdued and placed in a wagon and taken to police headquarters. Police Officer Frank Seckinger * * * testified that he assisted in the arrest of defendant; that on one occasion, he saw defendant knock Patrolman Mallot to the ground. * * * that he, Officer Seckinger, attempted to kick defendant but did not know whether he connected or not. Sgt. Stanley David Horasek * * * testified that soon after the fatal shooting, he saw defendant along with two other people who were 'more or less trying to mess up the area, if anything.' He further stated he heard defendant using loud and abusive language and that he considered this to be disorderly conduct. He stated that he heard defendant ask Officer Mallot 'Are you the motherfucker that killed him?' That he heard Officer Mallot warn the defendant about this type of conduct; that Officer Mallot when he placed 'Bohanon under arrest' * * * he was struck by the defendant. He, referring to Officer Mallot, was standing beside Bohanon. The witness further testified that Officer Mallot was holding another subject by the arm when defendant struck Officer Mallot. Harold G. Bohanon testified for the defendant. * * * that at the time and place in question, he had been talking to Officer Mallot about removing the deceased from the 'sticker bushes' because he might still be alive; that officers then drug him over the barricade and put handcuffs on him and placed him under arrest. He stated that two policemen came up behind the defendant and were holding him; that while they were holding him, Officer Mallot came up to defendant and kicked him in the crotch, at which time the defendant struck Officer Mallot.
'Katherine Arlene Bohanon testified for the defendant. * * * that at the time and place in question while in her apartment, she heard shots fired; that she went down to where the body was lying; that about 200 people were there; that the area was roped off when she got there; that both she and her husband were placed under arrest prior to the time an attempt was made to arrest defendant; that at the time defendant was arrested, she saw a short policeman kick the defendant between his legs; that when this occurred, defendant hit the officer who kicked him.
'Cordelia Marie Williams testified for the defendant. * * * that she was present at the roped-off area when the defendant was arrested; that four police officers had the defendant down; that they beat him and kicked him and that they sprayed something in his face and put him in the 'paddy wagon.' * * *
The State's case was submitted by Instruction No. 3, which reads in part:
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