State v. Young
| Decision Date | 09 April 1974 |
| Docket Number | No. 35253,35253 |
| Citation | 510 S.W.2d 732 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Robert Jewel YOUNG, Defendant-Appellant. . Louis District, Division One |
| Court | Missouri Court of Appeals |
April 9, 1974. Appellants Motion for Rehearing or to Grant him a Hearing En Banc or for Transfer to Supreme Court Denied June 3, 1974. Application to Transfer Denied July 22, 1974.
John C. Danforth, Atty. Gen., G. Michael O'Neal, Robert L. Presson, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty. David P. McDonald, Ronald B. Safren, Asst. Circuit Attys., St. Louis, for respondent.
Daniel P. Reardon, Jr., St. Louis, for defendant-appellant.
A homicide case. Defendant appeals from a conviction of murder in the second degree for which he received a sentence of fourteen (14) years.
Much of the evidence as to the facts surrounding this homicide is undisputed. On May 20, 1972 the deceased, Jimmy Lewis, and the defendant met at a carnival. An altercation ensued (defendant claims the deceased tried to rob him and struck him with a pistol) which ended when the defendant asked a policeman to escort the defendant to his car. The following Monday, May 22, defendant was in the Municipal Courts Building in Saint Louis City and saw Jimmy Lewis there. The defendant obtained a purse containing a gun from a companion (his sister-in-law) and left the building. Another companion, Michael Kirk, accompanied the defendant. While walking toward his car, the defendant saw Jimmy Lewis. The defendant took the gun from the purse and fired at Lewis. He began chasing Lewis back toward the Municipal Courts Building when Lewis stumbled and fell. The defendant ran closer to the fallen man and fired two more shots as Lewis was trying to stand up. At the time these two final shots were fired, the defendant was about five to ten feet from Lewis and had been standing there for several seconds. Lewis collapsed after those shots were fired. Lewis was wounded four times, one of which was the cause of his death. The defendant proceeded into the Municipal Courts Building where, when confronted by police officers, he surrendered without resistance.
The defendant testified that Lewis was a member of the Fats Woods gang; had the nickname of 'Killer'; had made threats against the defendant the night at the carnival; and, had again threatened defendant that Monday morning in the building. The defendant stated that he had received threatening phone calls the weekend of May 20 and 21 but did not know who the caller was. He proceeded to testify that he shot Lewis because he feared Lewis was after him and was going to kill him and this fear was reinforced by the threats, the reputation of Lewis and the fact that Lewis was wearing a long shirt which could conceal a pistol. (No weapon was found on or near Lewis' body).
During direct examination, the defendant stated that Lewis had followed him from the building. A videotape statement made by the defendant shortly after the shooting was played for the jury which indicated that Lewis had left the building before the defendant. The defendant attempted to explain this inconsistency by stating he was nervous at the time he made the videotaped statement.
The court instructed the jury on first and second degree murder rejecting the defendant's request for instructions on manslaughter and self-defense. The jury found the defendant guilty of second degree murder.
The defendant's sole assertion on appeal is that the court erred in refusing his tendered instruction on self-defense. For reasons that will become apparent later, we feel it unnecessary to quote that instruction. It suffices to point out that the tendered instruction contained references to self-defense, communicated threats, and the decedent's 'rash, violent and turbulent disposition or character.'
The Missouri Supreme Court, in discussing the quantum of proof necessary to support an instruction on self-defense, has held:
'* * * This quantum of proof has been variously defined as 'substantial evidence,' State v. Rose, Mo., 346 S.W.2d 54; State v. Baker, Mo., 277 S.W.2d 627; State v. Singleton, Mo., 77 S.W.2d 80; 'evidence putting it in issue,' State v. Ford, 344 Mo. 1219, 130 S.W.2d 635; 'any theory of innocence * * * however improbable that theory may seem, so long as the most favorable construction of the evidence supports it,' State v. Kinard, Mo., 245 S.W.2d 890; 'supported by evidence,' State v. Robinson, supra (Mo., 328 S.W.2d 667); 'any theory of the case which his evidence tended to establish,' State v. Stallings, 326 Mo. 1037, 33 S.W.2d 914; 'established defense,' State v. Sumpter, Mo., 184 S.W.2d 1005; and 'evidence to support the theory,' State v. Shiles, Mo., 188 S.W.2d 7.' State v. McQueen, 431 S.W.2d 445, 448 (Mo.1968).
The right to kill in self-defense rests in real or apparently real necessity, and the doer of the homicidal act must have done everything in his power, consistent with his own safety, to avert the necessity. State v. Sherrill, 496 S.W.2d 321, 325 (Mo.App.1973). When self-defense is in issue, it is important to determine who was the aggressor and the reasonableness of the actor's fear. Consequently, an instruction on threats or violent character should accompany the self-defense instruction in the appropriate case. State v. Bounds, 305 S.W.2d 487, 490 (Mo.1957). We do not believe, however, that there was sufficient evidence in this case to require the giving of an...
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Young v. Wyrick, 77-0746-W-3.
... 451 F. Supp. 576 ... Robert Jewel YOUNG, Petitioner, ... Donald WYRICK, Warden, Missouri State Penitentiary, Respondent ... No. 77-0746-W-3 ... United States District Court, W. D. Missouri, W. D ... May 11, 1978. 451 F. Supp. 577 COPYRIGHT MATERIAL OMITTED 451 F. Supp. 578 Ron Minkin, Los Angeles, Cal., Toby H. Hollander, Hollander & Platke, St. Louis, Mo., for ... ...
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U.S. v. Scott
... ... ] self-defense as using force against another in the reasonable belief of defending against the imminent use of unlawful force by another); State v. Frost, 49 S.W.3d 212, 22021 (Mo.Ct.App.2001) (noting that imperfect self-defense is merely self-defense where defendant had an unreasonable ... Even accepting the truth of this testimony would not render the harm imminent. See State v. Young, 510 S.W.2d 732, 73435 (Mo.Ct.App.1974) (no evidence of imminence where the deceased had hit the defendant and threatened him two days prior to the ... ...
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State v. Thornton, KCD
... ... Further, that the defendant, before resorting to homicide in self-defense, had previously down everything in his power consistent with his own safety to otherwise avoid the danger. State v. Sherrill, 496 S.W.2d 321, 325--326(14) (Mo.App.1973); State v. Young, 510 S.W.2d 732, 734(1) (Mo.App.1974) ... The determination of defendant's first point also requires the application of the well-established rule, as stated in State v. Rash, supra, 221 S.W.2d at l.c. 124(1): ... '* * * Ordinarily self defense is in the nature of an affirmative ... ...
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State v. Jackson
... ... Young, 510 S.W.2d 732, 734(1) (Mo.App.1974)); 3) reasonable cause must exist for belief of such necessity (§ 559.040(2), RSMo 1969, V.A.M.S.; State v. Hicks, supra, 438 S.W.2d 215, 218(2) (Mo.1969)); and 4) the slayer must have done everything in his power consistent with his own safety to avoid the ... ...