State v. Watts , 618 S.W.2d 190 ( 1981 )

ROBERT R. WELBORN, Special Commissioner.

Kenneth L. Watts, charged with first degree murder (§ 565.003, RSMo 1978) and first degree robbery, was found guilty by a jury on both charges and sentenced to life imprisonment for murder and 25 years for robbery. The conviction was reversed under Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). 595 S.W.2d 766 (Mo.App.). Upon retrial the robbery charge was dismissed and defendant again found guilty of murder in the first degree in the commission of robbery. Again a sentence of life imprisonment was imposed and this appeal followed.

On the evening of June 19, 1977, appellant, Bill Dudley and Rodney Kennedy observed Richard Freeman “flashing” money in the vicinity of the Magic Disco at 59th and Prospect in Kansas City. Appellant, Dudley and Kennedy decided to rob Freeman. Dudley provided a weapon and appellant offered to “do it.”

Dudley and Kennedy started shooting dice and Freeman asked to get into the game. As the three were playing, appellant approached with a weapon and said “Everyone go down there.” He took money from Dudley and Kennedy and grabbed money from Freeman’s hand. Holding the gun in Freeman’s face, he asked “Where is the rest of it?” Freeman attempted to get the gun out of his face and appellant fired the weapon, producing a mortal wound.

On appellant’s trial, Kennedy testified for the state to the incident. The deceased’s nephew, 16 years of age at the time, who was present, also testified to the incident.

On this appeal the sole complaint of appellant is of error on the part of the trial court in refusing to instruct the jury on manslaughter. Appellant requested such an instruction and it was refused. Appellant duly preserved the objection in his motion for new trial. State v. Flenoid, 617 S.W.2d 75 (Mo. banc) decided June 11,1981, is here controlling and requires reversal of the conviction.

Reversed and remanded.

PER CURIAM:

The foregoing opinion by ROBERT R. WELBORN, Sp. C., is adopted as the opinion of the court.

MORGAN, P. J., DONNELLY, C. J., and RENDLEN, J., concur. BARDGETT, J., not participating.