State v. Tinson

• Decision Date: 14 December 1970
• Docket Number: No. 55508,No. 1,55508,1
• Citation: 461 S.W.2d 764
• Parties: STATE of Missouri, Respondent, v. Robert Lee TINSON, Appellant
• Court: Missouri Supreme Court

Page 764

461 S.W.2d 764

STATE of Missouri, Respondent, v. Robert Lee TINSON, Appellant.

No. 55508.

Supreme Court of Missouri, Division No. 1.

Dec. 14, 1970.

Motion for Rehearing or to Transfer to Court En Banc Denied

Jan. 11, 1971.

John C. Danforth, Atty. Gen., J. Michael Jarrard, Asst. Atty. Gen., Jefferson City, for respondent.

Hubert I. Binowitz, Gary T. Sacks, Charles P. Bubany, St. Louis, for appellant.

HIGGINS, Commissioner.

Robert Lee Tinson, with a prior felony conviction of carrying a concealed weapon, was convicted by a jury of murder, first degree, of Willie C. Buchanan, and the court assessed his punishment at life imprisonment and rendered judgment and sentence accordingly. §§ 564.610, 556.280, 559.010, 559.030, V.A.M.S.

Appellant tacitly concedes that the state made a submissible case, but contends he should have a new trial because the court erred in failing to instruct the jury on manslaughter.

The circumstances surrounding the homicide, including the evidence most favorable to appellant's contention, are that on January 4, 1969, he was sitting on the passenger side of the front seat of his 1966 Chevrolet convertible automobile parked at Lawyer's Lounge, a tavern at Cockrill and Ella, St. Louis, Missouri. His friend, Kenneth McBee, was seated on the driver's side of the automobile. The tavern is a two-story building with living quarters on the second floor and the barroom on the first floor. Also on the first floor and to the north of the barroom, separated by a hall and partition, is a storeroom of 14 28 feet. The storeroom is entered through a door in the partition. A men's room is located adjacent to the south wall of the storeroom and its door is in its west wall close by the door between the two main rooms.

At about 2:40 p.m., defendant and his friend were preparing to enter the tavern when Willie Buchanan, known to defendant for about two and a half years, 'snatched open' the right-hand door of the automobile. Willie was a large man, five feet ten inches in height and two hundred fifty pounds in weight. He demanded that 'Little Robert,' defendant, take him to Richmond Heights. Upon defendant's refusal, Willie's demand was renewed and punctuated with such emphasis as 'Son of a bitch, you can take me to Richmond Heights.' Willie was at this time leaning on top of the automobile looking down at defendant who again refused the demand, after which Willie pulled his pistol and pointed it at defendant. Defendant repeated his refusal and told Willie to close the car door, whereupon Willie fired the gun into the ground in the space between the open door and the car. Two or three companions of Willie's then persuaded him to leave the area.

Defendant and his friend then entered the tavern and defendant went upstairs in search of Lawyer John Milloy, the proprietor. Defendant aroused Milloy and asked him for protection. Milloy would not give his gun to defendant but assured defendant he would keep Willie Buchanan out of the tavern. After some five or six minutes and with this assurance, defendant went into the storeroom where six to eight persons were standing around a table shooting craps. 'And we was back there about fifteen, twenty minutes and maybe a little less, when Buchanan came in * * * it was about four guys on each side of the table and it was two at the end where I were and the other end wasn't anyone there. * * * so we heard the door say 'Boom' and it came open. In come Buchanan and two of his friends * * *. And when he came in he just walked up to the table and laid over the table * * * and when he come out of his pocket to lay over the table he had the gun in his hand. So immediately when I seen the gun I backed away from the far end of the table, * * * and he looked at the guy on this end * * * and said, 'Anybody seen Little Robert?' No one said anything. He said, 'That damn Lawyer didn't want me to come in, talking about I shot at Little Robert on the outside, and Little Robert told him and he didn't want me to come in the damn place.' * * * Then he said, 'When I see him I'm going to put this on him.' So then the dude said, 'Put that gun up, man, and let's gamble.' So immediately I looked around like this (indicating), and the beer cases was lined off so there was a shotgun, it was a new shotgun lying there, so I grabbed it, and as I walked out I goes around the crowd and gets to the door and gets out the door and into the bathroom. While I'm in there checking it, I didn't have any shells or nothing, I said, 'If the dude starts anything I'm going to have to try to keep him off me.' And I tried to reverse the gun, and while we trying to reverse it, it goes off. * * * So, I said, 'I can't let them hear me up in here,' and I steps outside the door, and when I steps outside the door I looked and just as I looked he was standing in the door. The door was already open. So he said, 'Nigger, what are you doing shooting that gun in here?' I said, 'The gun went off, man.' So I turned slightly to go into the tavern, down to the tavern, when he said, 'Nigger, you're telling a god damn lie.' So I turned back around. I knew the expression from the sound of his voice that he had this on his mind, so I turned, as he said it he was coming from his hip pocket again, and I still didn't know was it any more bullets left in the gun, but I cocked it again and up, as he came up I fired. So it still, he didn't move, and he steady come up and when he come up further I shot again, at that time it hit him and drove him back * * *.' Willie later died from wounds received from the shotgun blast.

Defendant asked Lawyer Milloy to call the police but Milloy wished him to leave because...