State v. Nutt

I respectfully dissent.

The principal opinion holds that the trial court erred in not submitting an instruction based on MAI-CR2d 2.37.1.3, a claim of “mistaken belief.” The principal opinion *585cites State v. Cummings, 516 S.W.2d 49 (Mo.App.1974), and State v. Scott, 649 S.W.2d 559 (Mo.App.1983), in support of its holding. Neither of those cases is factually similar. In Cummings the defendant was charged with stealing cattle and his testimony was that he bought the cattle from a person whom he believed to be the owner. This court held that the evidence required the giving of an instruction…