State v. Stubenrouch

• Decision Date: 16 October 1979
• Docket Number: No. 38700,38700
• Citation: 591 S.W.2d 42
• Parties: STATE of Missouri, Plaintiff-Respondent, v. George STUBENROUCH, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 42

591 S.W.2d 42

STATE of Missouri, Plaintiff-Respondent, v. George STUBENROUCH, Defendant-Appellant.

No. 38700.

Missouri Court of Appeals, Eastern District, En Banc.

Oct. 16, 1979.

Motion for Rehearing or Transfer Denied Nov. 20, 1979.

Application to Transfer Denied Jan. 15, 1980.

Lawrence J. Fleming, St. Louis, for defendant-appellant.

John D. Ashcroft, Atty. Gen., Paul R. Otto, Chief Counsel, Asst. Atty. Gen., Nanette Laughrey, Stanley Robinson, Asst. Attys. Gen., Jefferson City, Daniel M. Buescher, Pros. Atty., Franklin County, Union, for plaintiff-respondent.

STEWART, Judge.

Defendant was convicted by a jury of manslaughter and sentenced to six years imprisonment for the death of William Homfeldt, who died of a gun shot wound. He appeals from the judgment entered in accordance with the verdict of the jury. We reverse and remand.

Defendant concedes that there was sufficient substantial evidence to support the judgment. The primary issues presented are whether the court erred in refusing to give instructions submitted by defendant on the defenses of accident and self-defense.

On the issues presented we must view the evidence in the light most favorable to the defendant and give him the benefit of all reasonable inferences that may be drawn from that evidence. We ignore the evidence of the State except where it is favorable to defendant. State v. Cole, 377 S.W.2d 306, 307 (Mo.1964). Despite the fact that justifiable homicide and excusable homicide are inconsistent defenses, defendant is entitled to have both defenses submitted if there is sufficient evidence to support the submission and if defendant's personal testimony is not relied upon to support both. State v. Randolph, 496 S.W.2d 257, 262 (Mo. banc 1973).

With these principles in mind we first review the evidence favorable to defendant with respect to the defense of excusable homicide by reason of accident.

Defendant had retired from the Metropolitan St. Louis Police Department after 281/2 years of service. He purchased a home in Peaceful Valley, a lake development near Owensville in Gasconade County, and had been living there since 1970. At the time of trial in June, 1976, he was 64 years of age. When he moved to Peaceful Valley he was appointed a deputy sheriff by Sheriff Heberle and performed duties as a security guard at the lake development. He was not reappointed by Sheriff Gerloff, Sheriff Heberle's successor. He was an officer on the board of directors of the home owners association of the lake development but no longer performed the duties of security guard.

On the evening of August 16, 1975 some young people had a party at Owensville City Park. Among the group was the deceased, William Homfeldt, 23 years of age, Lee Kreter, 22 years of age, and Rosa Mueller, 19 years of age. Kreter had purchased a keg of beer for the occasion which he put in his van. Kreter and Rosa Mueller testified that the three of them had four to five beers. They also had some wine. Kreter and Rosa Mueller testified that they could feel the effects of the liquor. The deceased was found to have had .156 percent of alcohol in his blood which would make him legally intoxicated. § 564.442 1(3) RSMo (1972).

Homfeldt, Kreter and Mueller left the park at about 9:30 PM and went to Peaceful Valley. They were met at the gate by Vanis Thompson, a security guard. In order to gain entrance to the lake development property Kreter told Mr. Thompson that Rosa Mueller owned property in the development. Mr. Thompson checked the list of owners, found she was not listed, and refused them entrance. Kreter than stated that they were going to visit Bobby Flottmann, a friend who lived in the development. Mr. Thompson then admitted them and told them to go down and see if Flottmann was there. They were told that if he wasn't, they were to come right back. The trio drove by Flottmann's house, saw no lights and assumed he was not home. They then went down to the dock. After a short while Mr. Thompson went out to check on them. He went down to the dock and found Rosa was undressing. The deceased and Kreter had undressed and were in the water hidden behind a boat. Mr. Thompson told Rosa to get her clothes on. She said she was going swimming and took off the rest of her clothes. Mr. Thompson told them that they were on private ground and ordered them to get out. He then went to defendant to get help. He went to defendant because his supervisor was on vacation and "He (defendant) was in charge." When he aroused Mr. Stubenrouch, Thompson was nervous and visibly shaking. He told defendant that he had trouble with three young people who were drunk. He said that they cursed him and refused to leave. There had been trouble at Peaceful Valley with home burglaries, theft of equipment from boats, and with unauthorized persons drinking and having pot parties on the property. Because of Mr. Thompson's obvious concern and his description of the condition of the persons with whom he was having trouble Mr. Stubenrouch put a snub nose .38 revolver in his pocket. Mr. Thompson drove defendant down to the dock. They parked with the headlights shining onto the dock area. Defendant and Thompson got out of the vehicle and approached the dock. Kreter and Homfeldt were on the dock. They had their trousers on but no shirts. Rosa Mueller had her blouse on and was pulling up her jeans.

As defendant approached the dock he removed the gun from his pocket and held it in his right hand at his side. He called out "Put your hands up" and Kreter and Homfeldt raised their hands. When Thompson and defendant got to the dock Kreter had put his hands down. Rosa was to defendant's left. She was glassy eyed and unsteady. When asked her name and age she said "I'm not going to tell you nothing." Defendant then grabbed her arm and pulled her around in front of him and then to his right with his left hand and told her to go up into Kreter's van. He was then holding the gun down at his right side. Homfeldt said "Take your hands off of her. You don't have to treat her like that," at the same time Homfeldt and Kreter started moving toward defendant. Homfeldt took two quick steps toward defendant and Kreter took about a half step. Defendant made a small backward motion, then forward. He started to raise the gun intending to fire a shot in the air. As he was raising the gun Rosa struck him across the forearm and the gun discharged. The bullet struck Homfeldt in the chest causing an injury that resulted in his death. Defendant did not aim the pistol at any one and did not intend to shoot Homfeldt.

In contrast to the evidence favorable to defendant, evidence on behalf of the State tended to show that as Homfeldt came toward defendant the defendant said "I'm too old to be hurt by punks like you." He then aimed the gun at Homfeldt and fired. Rosa did not touch defendant.

The statute which governs our consideration of the primary issue in this case is § 559.050 RSMo (1969). That portion of the statute applicable to this case reads:

"Homicide shall be deemed excusable when committed by accident or misfortune, in either of the following cases:

(1) In lawfully correcting a child, apprentice or servant, or in doing any other lawful act by lawful means, with usual and ordinary caution, and without unlawful intent;" This statute is a restatement of the common law on the subject. State v. Browning, 442 S.W.2d 55, 57 (Mo. banc 1969); State v. Cook, 512 S.W.2d 907, 910 (Mo.App.1974). Generally "the accident that will acquit a defendant is the accidental firing of the gun and not the accidental course the bullet takes." State v. Richardson, 321 S.W.2d 423, 429 (Mo.1959). See State v. Tatum, 414 S.W.2d 566, 568 (Mo.1967). In the case at bar the defendant did not intend to fire the gun at any person and he did not intend to fire the gun at the moment it was discharged. Defendant testified that he did not aim the gun at deceased and that he did not intend to shoot him. Rather, he raised the gun so that he could fire a warning shot in the air. He testified that Rosa Mueller struck his right arm as he was raising it to fire into the air and the gun discharged when his arm was struck. The inference, favorable to defendant, to be drawn from this evidence is that the act of Rosa Mueller in striking defendant's arm caused the gun to be discharged. There is thus sufficient evidence to warrant a finding that the gun was accidentally fired.

The State argues that the trial court correctly refused to give instructions on excusable homicide because defendant was engaged in an unlawful act. It has been held that under the statute and the common law an accidental killing is not a valid defense if the homicide is "committed in the perpetration of an unlawful act or through culpable negligence." State v. Aitkens, 352 Mo. 746, 179 S.W.2d 84, 93 (1944). The evidence favorable to defendant would warrant a finding, however, that defendant lawfully carried a gun after Vanis Thompson called upon him for assistance. The lake development property was private property. There had been trouble with burglaries and thefts and vandalism. When Mr. Thompson came to defendant's home to obtain assistance he was in an extremely agitated state. He told defendant that he had three drunks on his hands who would not obey his order to leave the premises. Defendant did not know what he might have to face in assisting the security guard. A person may lawfully arm himself in reasonable anticipation of an attack under such circumstances. See State v. Plassard, 355 Mo. 90, 195 S.W.2d 495 (Mo. banc 1946); State v. Welch, 37 N.M. 549, 25 P.2d 211 (1933).

The State further contends that defendant is not entitled to an instruction on excusable homicide because he was in the act of exhibiting a dangerous and deadly weapon and was therefore acting in an unlawful manner. A favorable reading of the evidence would justify defendant's exhibiting to avert an attack. As defendant pulled Rosa...