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State v. Beck7/26/2005
he latter deals with the resulting harm from those acts.
Section 563.031 was enacted in 1978 as part of Missouri's penal code and became effective on January 1, 1979. Prior to its enactment, the only codification of when a person was justified in using force against another was the "justifiable homicide" statute, section 559.040, RSMo 1969 . It provided that homicide was justifiable in the following cases:
(1) In resisting any attempt to murder such person, or to commit any felony upon him or her, or in any dwelling house in which such person shall be; or
(2) When committed in the lawful defense of such person, or of his or her husband or wife, parent, child, brother, sister, uncle, aunt, nephew, niece, master, mistress, apprentice or servant, when there shall be reasonable cause to apprehend a design to commit a felony, or to do some great personal injury , and there shall be reasonable cause to apprehend immediate danger of such design being accomplished; or
(3) When necessarily committed in attempting by lawful ways and means to apprehend any person for any felony committed, or in lawfully suppressing any riot or insurrection, or in lawfully keeping or preserving the peace.
MAI-CR 2.40 (10-31-73) was the mandatory instruction used to instruct on justifiable homicide. And, while there was no statute governing self-defense or defense of others in assault cases, MAICR 2.40, Note on Use 2, provided that "with slight alteration MAI-CR 2.40 should be adapted and used in assault cases where applicable under the law and the evidence," recognizing that there was "no material difference in law between homicide and assault cases as to whether force (whether deadly or not) was justifiable so as to require acquittal," citing State v. Spencer, 307 S.W.2d 440, 443 (Mo. 1957) . MAI-CR 2.40 read, in pertinent part:
One of the issues in this case is whether the death of [name of victim ] was a justifiable homicide. By 'justifiable homicide' is meant the killing of another in lawful self-defense. On that issue you are instructed as follows:
1. The State has the burden of proving beyond a reasonable doubt that the defendant did not act in lawful self-defense. If the evidence in this case leaves in your mind a reasonable doubt as to whether the defendant acted in lawful self-defense, then you must find the defendant not guilty.
2. (If the defendant did not provoke the use or threat of force against himself, and if) (If) the defendant had reasonable cause to believe and did believe that he was in immediate danger of death or serious bodily harm and had reasonable cause to believe and did believe that it was necessary for him to act as he did to protect himself from such danger; then you are instructed that he acted in lawful self-defense and must be acquitted. . . .
Hence, like section 559.040, MAI-CR 2.40 spoke in terms of an "immediate danger of harm."
At the same time section 563.031 became effective, January 1, 1979, MAI-CR 2d 2.41.1 (1-1-79) became the mandatory patterned instruction for self-defense in assault cases, using physical force. And, just like section 563.031, it spoke in terms of "unlawful force," reading: "(If) the defendant reasonably believed it was necessary to use such physical force as he used in order to protect himself from what he reasonably believed to be the (use) (imminent use) of unlawful force by [ name of victim ], then the defendant acted in lawful self-defense and must be acquitted." MAI-CR 2d 2.41.1 . Although the "unlawful force" language of section 563.031 has not been amended since the statute's enactment in 1979, the present version of MAI-CR 3d 306.06, which is a
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