State v. Spencer

• Decision Date: 09 December 1957
• Docket Number: No. 46158,No. 2,46158,2
• Citation: 307 S.W.2d 440
• Parties: STATE of Missouri, Respondent, v. Irving Lawrence SPENCER, Appellant
• Court: Missouri Supreme Court

Page 440

307 S.W.2d 440

STATE of Missouri, Respondent, v. Irving Lawrence SPENCER, Appellant.

No. 46158.

Supreme Court of Missouri, Division No. 2.

Dec. 9, 1957.

Ronald J. Fuller, Rolla, Paul Taub, Overland, for appellant.

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

STOCKARD, Commissioner.

Irving Lawrence Spencer was found guilty of an assault with intent to kill or do great bodily harm by shooting James E. Blankenship with a rifle. Section 559.190 RSMo 1949, V.A.M.S. The punishment assessed by the jury was confinement in the penitentiary for a term of two years 'with recommendation that he be paroled that he may continue his education.' By reason of the disposition of this appeal, we need not consider the effect of this recommendation. Defendant has appealed from the ensuing judgment, and, among other things, contends that the trial court erred in overruling his motion for judgment of acquittal. For this reason we shall make a rather detailed statement of the events.

About midnight, or shortly thereafter, on Saturday, July 14, 1956, James E. Blankenship, Charles N. Neal and Evelyn Hall drove from Rolla, Missouri, in Neal's automobile to a nearby county, gravel road near a low-water bridge so that, according to their testimony, Blankenship could show Neal where he washed his automobile. Before leaving Rolla, Neal and Blankenship had purchased a pint of rum, and after they had parked near the low-water bridge they were drinking the rum mixed with a soft drink. The defendant, then age 22 and married, was a student at the Rolla School of Mines. Blankenship and Miss Hall also were students. The defendant had seen Miss Hall getting into the automobile with Neal and Blankenship near a drug store, and he followed them to the liquor store where the rum was purchased and then followed them out of Rolla to the county road where they were parked. The reason for his interest or the occasion for his following them is not disclosed. The defendant parked his automobile, and with a flashlight and a .22 caliber rifle walked toward the Neal automobile. As he neared it he heard the three occupants singing 'taps,' and he heard and saw them throw some bottles out of the automobile. He then heard Miss Hall say, 'Oh, I like that,' and then say 'no' twice. Defendant turned his flashlight on the occupants and told them to get out of the automobile, which they did. Apparently to obtain ready compliance with his instructions he fired one shot from his rifle into the brush. Defendant ordered the two men to get into the trunk of the automobile, but it was first necessary, apparently with the help of Miss Hall, to remove the spare tire and other articles to make room. After the two men were in the trunk of the automobile defendant told them that Miss Hall would not be harmed if they did as told. Miss Hall then closed the lid of the trunk as instructed by the defendant, but apparently she did not lock it, or at least it did not lock. Defendant then had Miss Hall remove her sweater and place it over her head so that she could not recognize him, and after taking her to his automobile he drove away from the area.

After defendant had driven a short distance, Miss Hall suggested to defendant that he should let Neal and Blankenship out of the trunk of their automobile because they might suffocate. Defendant agreed and indicated that it was his intention to do so anyway. He then drove back to Neal's automobile. However, in the meantime, Blankenship had opened the trunk of the automobile from the inside and got out, but Neal for some unexplained reason remained in the trunk. Blankenship obtained a .22 caliber pistol and Neal obtained a .22 caliber rifle which were in Neal's automobile. Blankenship saw the lights of an automobile approaching and he moved back into the weeds and lowered himself so that he was concealed and Neal lowered the trunk lid. The approaching automobile was that of defendant. He stopped about 20 feet from the Neal automobile and left the motor running, but turned off his lights except the parking lights. Miss Hall, who still had her sweater over her head, was told to remain in the automobile. Defendant approached the Neal automobile carrying his flashlight and rifle and said in a loud voice, 'I'm going to unlock the trunk.' He also stated that he did not want Neal and Blankenship to get out of the trunk for ten minutes, that they were not to notify the authorities until the next morning, and that he 'still had the girl.' He had inserted the key into the lock and was preparing to unlock the trunk, when Blankenship jumped toward him from the weeds at the side of the autmobile with his pistol pointed at the defendant and said 'No, I think we've got you.' According to the defendant he turned and struck at Blankenship with the butt of his rifle and hit his arm or hand, but Blankenship testified that defendant turned and fired at him and that he started firing back. Defendant's version was as follows: 'I fell back on my back to the side of the road, and I was in the weeds and he was firing at me from just to the left of where I was laying. I was laying perpendicular to the road with my feet toward the road and I tried to fire my weapon, and I pulled the trigger and nothing happened, and I tried to cock it or tried to pump it and it wouldn't pump; and then I knew the safety was on; and then I fiddled with the safety; then I fired about four shots or five shots directly in front of him.' As a result of this flurry of shooting Blankenship was hit in the left shoulder and defendant was hit in the right foot. When defendant heard Blankenship's pistol 'click on empty' he hobbled to his automobile and drove away, but as he started his automobile Neal, who was still in the trunk of his automobile raised the lid and with his rifle shot out the right front headlight of defendant's automobile. Defendant drove to his apartment in Rolla with Miss Hall, who in the meantime was permitted to remove the sweater from around her head. Miss Hall was acquainted with the defendant, and when she removed the sweater she recognized him for the first time, and after defendant drove to his apartment she voluntarily accompanied him inside, apparently to assist him in caring for his injury. After attempting unsuccessfully to remove the bullet from his foot, defendant called a doctor and the Highway Patrol.

The above recital of the events clearly demonstrates that there is no merit to defendant's contention that the trial court should have sustained his motion for acquittal.

The defendant contends that prejudicial error resulted from the failure of the trial court to instruct on the law of self-defense. We find no material difference between the law of self-defense as applied in cases in which the defendant is charged with an aggravated assault and where he is charged with a homicide and is claiming self-defense as a complete excuse or justification. Compare 6 C.J.S. Assault and Battery Sec. 92, and 40 C.J.S. Homicide Secs. 114 to 121. Therefore, some of the cases cited will pertain to the latter offense.

Although the defendant offered an instruction on self-defense, we need not determine if it correctly stated the law because even if it were not correct, self-defense is a part of the law of the case where there is evidence putting it in issue, and by reason of Section 546.070 RSMo 1949, V.A.M.S., and Supreme Court Rule 26.02, 42 V.A.M.S., the trial court was required to instruct on it in such a situation whether or not requested to do so, and even though the instruction submitted or requested by defendant was defective. State v. Ford, 344 Mo. 1219, 130 S.W.2d 635; State v. Singleton, Mo.Sup., 77 S.W.2d 80; State v. Moncado, Mo.Sup., 34 S.W.2d 59.

Defendant contends that he was entitled to an instruction on self-defense because even though he acted wrongfully when he forced the two men into the automobile trunk and required Miss Hall to accompany him, he subsequently withdrew in good faith from the difficulty, and then when the attack was made on him by Blankenship he was entitled to the right of self-defense.

Generally speaking, one who was the aggressor or who provoked the difficulty in which he injured or killed his assailant cannot invoke the right of self-defense to excuse or justify entirely the injury or the homicide unless he had previously withdrawn in good faith from the combat in such a manner as to have shown his adversary his intention in good faith to desist. 6 C.J.S. Assault and Battery Sec. 92(4); 40 C.J.S. Homicide Sec. 117; State v. Melton, 102 Mo. 683, 15 S.W. 139; State v. Moncado, supra. The rule is so well stated in 40 C.J.S. Homicide Sec. 121, which is as applicable to the situation when the person seeking to invoke self-defense wounded his adversary as to when he killed him, that we quote therefrom. 'Where one who has provoked a combat abandons or withdraws from it in good faith, and not merely for the purpose of gaining advantage, and by his conduct clearly shows his desire to decline any further struggle, his right of self-defense is restored, and if thereafter he is pursued by his adversary, he is justified or excused in killing him if necessary to save himself from death or great bodily harm, although the whole transaction consists of but one combat or assault. In order that the right of self-defense may be restored to a person who has provoked or commenced a combat, he must attempt in good faith to withdraw from the combat. He must also in some manner make known his intention to his adversary; * * *. As long as a person keeps his gun in his hand prepared to shoot, the person opposing him is not expected or required to accept any act or statement as indicative of an intent to discontinue the assault.' See also State v. Gadwood, 342 Mo. 466, 116 S.W.2d 42; State v. Williams, 337 Mo. 884, 87 S.W.2d 175, 100 A.L.R. 1503.

The undisputed facts in this case are that without any...