Section 14.57 Justifiable Homicide Decisions

• Library: Criminal Practice 2012 Supp

g. (§14.57) Justifiable Homicide Decisions

Before the adoption of the Criminal Code, Missouri also recognized the common-law defense of justifiable homicide. Case decisions under that prior law may be helpful in the interpretation and application of the present codified defense. The common-law defense even covered excusable self-defense upon chance-medley or upon sudden combat. See State v. Partlow, 4 S.W. 14 (Mo. 1887).

In common-law self-defense, i.e., justifiable homicide, the defendant must have had a reasonable and immediate apprehension and fear of immediate danger, State v. Hicks, 438 S.W.2d 215 (Mo. 1969) (a defendant does not need to wait until the defendant is beaten or shot and may have had a right to attack); In re J___ M___, 812 S.W.2d 925 (Mo. App. S.D. 1991), but the defendant could not use unnecessary and excessive force after the victim had withdrawn from the attempt, State v. Sherrill, 496 S.W.2d 321 (Mo. App. S.D. 1973); State v. Adkins, 537 S.W.2d 246 (Mo. App. E.D. 1976). The defendant must not have been the aggressor or provoked the threat of force, State v. Aubuchon, 394 S.W.2d 327 (Mo. 1965), unless the defendant had first withdrawn from the combat, Sherrill, 496 S.W.2d 321, or had retreated as far as the defendant could under the circumstances, Partlow, 4 S.W. 14.

The basis of this defense was that, because malice was an element of murder, if the killing was in self-defense, there was no malice and it was not murder. See State v. Malone, 301 S.W.2d 750 (Mo. 1957). Justifiable homicide was not a defense to inflicting punishment for past wrongs, State v. McGee, 234 S.W.2d 587 (Mo. banc 1950), but it might be a defense even if the defendant bore express malice toward the deceased, State v. Matthews, 49 S.W. 1085 (Mo. 1899). Words, threats, or insults, whether uttered by the defendant or the deceased, were not sufficient to make either person the aggressor, and mere words did not justify killing. See State v. Robinett, 281 S.W. 29 (Mo. 1926). But see State v. Ball, 262 S.W. 1043 (Mo. 1924) (words used for purpose of bringing on the difficulty, and thus affording an opportunity to kill, were held to make the speaker the aggressor); State v. Graves, 182 S.W.2d 46 (Mo. 1944). The fact that the defendant was armed, even illegally, did not make the defendant the aggressor, but it did deprive the defendant of “imperfect self-defense.” State v. Ferguson, 182 S.W.2d 38 (Mo. 1944). An assault, without a battery, might be sufficient heat-of-passion provocation to reduce a murder to manslaughter. State v. Williams, 442 S.W.2d 61 (Mo. banc 1968). As to self-defense, a defendant does not need to wait until the aggressor gets “the drop on him.” Matthews, 49 S.W. at 1086; McGee, 234 S.W.2d 587.

It was held that entering into mutual combat deprives both the combatants of the defense of self-defense because they were both aggressors. State v. Williams, 87 S.W.2d 175 (Mo. banc 1935); State v. Hatfield, 465 S.W.2d 468 (Mo. 1971). But it might reduce a murder charge to manslaughter. State v. Fuller, 302 S.W.2d 906 (Mo. 1957). But Partlow, 4 S.W. 14, and cases after...