recognizing that “self-defense is not a defense to homicide committed in the perpetration of arson, rape, burglary, robbery or other felony”
How later courts described this case
- recognizing that “self-defense is not a defense to homicide committed in the perpetration of arson, rape, burglary, robbery or other felony”
- approving jury instruction stating defendant must have had intent to commit underlying felony when killing occurred
- disqualification motion based on prosecutor’s personal and professional relationship with murder victim and victim’s family
Written by the judges who cited it.
The opinion
ON MOTION FOR REHEARING
PER CURIAM:
Appellant’s motion for rehearing points out the court’s opinion overlooked his complaint that Instruction No. 6 hypothesized a killing “* * * in robbing or attempting to rob * * *” and that since the evidence showed either a completed robbery or no robbery at all, there was no evidence to support a submission based upon a killing in attempting to rob.
A similar objection was considered and rejected in State v. Bradley, 361 Mo. 267 , 234 S.W.2d 556, 562 [18, 19] (1950). In that case, in rejecting the contention that the evidence showed only a completed robbery and not an attempt which failed, the court noted that the charge was murder, not robbery, and stated: “* * * [I]t is immaterial (on the issue of defendant’s guilt or innocence of murder) whether the shown homicide was committed in ‘an attempt’ to rob or in ‘robbery.’” 234 S.W. 2d 562 . As pointed out in Bradley , cases (such as State v. Baker, 276 S.W.2d 131 (Mo.1955), relied upon by appellant) which hold that where the evidence shows that a crime was consummated, the defendant cannot be convicted of an attempt .to commit the crime are inapposite insofar as submission of the underlying felony in felony murder is concerned.
The instruction given followed the language of MAI-CR 15.12. Its use in this case was not error.
Motion for rehearing overruled.