I cannot concur in the holding herein that the court was required to submit an issue on self-defense to the jury. I do not see how there can be any issue of self-defense in this case. No doubt the facts set out in the statement of defendant, given to the police and offered by the state, would have been sufficient to raise such an issue. Of course, the state offered defendant's alleged statement to show that defendant was the owner of the bloody knife found by the police. However, the state had the right to prove the falsity of any exculpatory statements therein (22 C.J.S. [873] 1478, Sec. 842); and the state did have evidence to show an entirely different state of facts under which there was no evidence to support an issue of self-defense.
If the defendant had not testified at all, so that an unrepudiated statement (supporting self-defense) and the state's version (showing no self-defense issue) were both before the jury, then unquestionably the court would have had to submit the issue of self-defense. But defendant himself completely repudiated all parts of the statement which could support a self-defense issue, saying that he "didn't tell them that". The defendant said he said he "never had no fight with Frank Stewart". He not only testified that the knife, identified by the statement as his knife, was not his but further stated that he did not have any fight with a knife that night at all and that he "never even had a knife". He also stated that he never signed the statement but only touched the pen when he was forced to do so. (He only admitted an argument with someone he did not know but insisted he had no fight.) Thus, both the state and the defendant claim that the only facts in defendant's alleged statement which could be a basis for a self-defense issue were not true and that nothing like that actually happened. How then can it be said that there is any substantial evidence in this case to show that defendant killed Stewart in self-defense? In this situation, it seems to me that submitting a self-defense issue to the jury would require them to determine a purely hypothetical issue not based on any substantial evidence in the case. *Page 77
It seems to me that the situation is very different here than in either State v. Bidstrup, 237 Mo. 273, 140 S.W. 904 or in State v. Creighton, 330 Mo. 1176, 52 S.W. 556. In both of these cases the defendant therein admitted doing the shooting, instead of claiming he had no part in the occurrence and did not have or use any weapon, as in this case. In the Bidstrup case the state's whole evidence, the testimony of the prosecuting witness himself, was held to show facts authorizing a finding that defendant acted in self-defense. In other words, the version and theory of the occurrence which the state claimed to be true reasonably authorized the inference that defendant acted in self-defense. In the Creighton case the defendant claimed that he acted in self-defense and testified to facts which would so show. The question was whether or not a manslaughter instruction should have been given as well as a self-defense instruction. Defendant had ample evidence to show violence toward him by the deceased which was corroborated by his statement given to the police and offered by the state. (He did not completely repudiate this statement as did defendant here.) Manslaughter was not inconsistent with the facts in evidence, claimed to be true, if the jury believed part of them but not all of them. In other words, the jury could well have found that defendant did not believe his own life was in danger, but still have found that the deceased did show hostility toward the defendant (as defendant claimed) sufficient to agitate and anger him.
In this case, the state's evidence shows an unprovoked assault with a knife upon deceased, an unarmed man; while the defendant's evidence was that he was never in any knife fight at all and did not even have a knife at that time. Moreover, the facts relied upon in defendant's statement, to support a self-defense issue, were not only denied and repudiated, but defendant said that he did not sign it at all; and further claimed that it recited a state of facts which did not occur and which he never told the police did occur. Thus, in the Bidstrup and Creighton cases, there was substantial evidence to prove the issue therein required to be submitted, because there was positive evidence of witnesses (who claimed such facts were true) upon which to base it. In this case, no witness claims the facts in defendant's statement (which alone would justify a self-defense issue) were true, but both the state and defendant claim they were not true; so that to submit this issue to the jury would be to authorize the jury to find a state of facts to be true which both parties say is not true. I cannot agree that the trial court committed error in failing to submit such an issue because I can see no substantial evidence on which to base it. Gantt, J., concurs. *Page 78