Charged as a second offender, defendant was tried to a jury and found guilty of murder, second degree. The court assessed punishment at ten years confinement. Section 556.280, V.A.M.S.
Three assignments of error are made against the trial court. They are: (1) Refusing to give an instruction on self-defense, (2) Refusing to give an instruction on the bad character of the deceased, and (3) Giving an accident instruction that did not place on the state the burden of proving the homicide was not accidental.
On the evening of October 11, 1968, several friends gathered at the home of (Miss) Sally Simmons who was the mother of seven children. The friends were: Margaret Newton; Margaret’s brother, Henry Stewart, and his wife Earline; and the deceased, Albert Simmons, who was the father of one child but had been separated from Sally for approximately five years. All were drinking beer, gin or bourbon. Soon thereafter the defendant arrived. Presumably, he was the father of two of the children but had ceased living with Sally prior to the evening in question. Defendant and Sally went into the kitchen and talked. Defendant then left the house and returned in about fifteen minutes. Again, he and Sally walked into the kitchen. When they returned to the living room, defendant offered and the deceased accepted a drink from a bottle of gin. After some conversation relative to the children, defendant stood in the doorway and pulled a gun from his belt. When it fired, the bullet struck deceased in the heart causing death. Defendant ran from the house, drove off, and some distance away threw away the gun. The next day, accompanied by self-employed counsel, he appeared at the police station.
As noted, an accident instruction was given but defendant contends he also was entitled to a self-defense instruction. This contention is consistent with defendant’s effort at trial to establish both defenses. For instance, after saying deceased was sitting on a stool during their conversation, defendant testified: “Mr. Simmons [deceased], he came up real fast and I thought he had something in his hand. I had a gun. I pulled the gun to scare him off. Miss Simmons [Sally] grabbed my hand and the gun discharged.” He also was asked, “Had you intended to shoot Mr. Simmons ?” His answer was: “Not at all. Up until the moment the shot was fired, me and Mr. Simmons was strictly friends all the way.” While detailing how nervous he
Even if defendant’s, self-serving statements were to be ignored, his testimony that the gun was discharged accidentally when Sally struck at it entitled him to an accident instruction. Since such an instruction was given, we are now concerned only with his complaint that the trial court refused to give an additional self-defense instruction. In this connection, it is not necessary to extend this opinion by detailing such of defendant’s testimony as he claims established his right to the instruction. We will assume for the moment that it did. However, by the established law of this state, a defendant alone can not provide the basis for such inconsistent defenses. Either instruction relates to an explanation of the homicide, but they are totally inconsistent. If the shot was fired in self-defense, it required the voluntary act of defendant; conversely, if the shot was accidental it was involuntary. This is not to say, however, that both defenses may not be submitted to a jury under certain circumstances. For example, if a defendant by his own testimony provides the basis for an accident instruction, it .must be given; but if to the contrary, testimony of others shows defendant acted in self-defense, he also is entitled to a self-defense instruction. Obviously, the converse would be true. Under comparable facts, the identical argument was considered in State v. Baker, Mo.,
Nevertheless, defendant contends, “There was evidence in this case that the Defendant when pulling the gun from his belt was acting in self-defense.” Such an attempt to avoid the logic of the law by contending there was an “accidental shooting of self-defense” has been rejected by this court. The suggested approach would require a combination of two diametrically opposite theories, and “ * * * the law does not recognize the anomalous doctrine of accidental self-defense.” State v. Whitchurch,
Next, we look to see if the testimony of other witnesses provided a basis for submitting self-defense. Henry Stewart testified that when he returned from upstairs defendant and deceased were having a discussion and deceased was standing by the stool; that Sally said there was no need to argue as she was the one working and taking care of the children; that neither appeared angry; that deceased never moved nor took any steps toward defendant or made any gestures; that defendant stood in the doorway and said, “I know how I can
Since self-defense was not an issue in the case, it was not error to refuse an instruction bearing on the character of the deceased. His character was not material or relevant where the defense was accident. State v. Woods,
Relative to defendant’s third point which is directed toward the accident instruction, we observe that it has not been preserved for review. In the motion for new trial it was alleged “ * * * that the Court committed error in the giving of all instructions offered by the State * * As said in State v. Pope, Mo.,
The judgment is affirmed.