
    STATE of Missouri, Plaintiff-Respondent, v. Jerome BATES, Defendant-Appellant.
    No. 70297.
    Supreme Court of Missouri, En Banc.
    June 14, 1988.
    W. Bevis Shock, St. Louis, for defendant-appellant.
    William L. Webster, Atty. Gen., Deborah L. Ground, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   PER CURIAM.

Defendant, Jerome Bates, appeals from his conviction after a jury trial of assault in the first degree and armed criminal action. He was sentenced to a total of thirteen years imprisonment.

Defendant alleges on appeal that the trial court erred in refusing an instruction on excusable assault based on MAI-CR2d 2.28 offered by the defense. As a result of this refusal defendant argues that he was deprived of his right to have his defense fully presented to the jury. The court of appeals affirmed. We granted transfer on motion of the state, which was the prevailing party, and likewise affirm.

The defendant’s testimony elicited at trial presented a defense of accident. He stated that the shooting occurred during a “tussle” between himself and the victim. The evidence presented by the state supported a charge of first degree assault. The defense counsel prepared an instruction on excusable assault modified from MAI-CR2d 2.28 and based on Section 563.-070, RSMo 1978. The trial court refused the modified MAI-CR2d 2.28 instruction on the ground that the pattern instruction was withdrawn from MAI effective October 1, 1984, prior to the date of trial.

The refusal was correct. The defense of accident was presented in the evidence. Defendant took the stand in his own defense and testified that the shooting was an accident. Defense counsel, during her closing, argued that the shooting was an accident. The instruction that submitted first degree assault (MAI-CR3d 319.02) based defendant’s culpability on a purposeful act. Thus, the issue of “accident” versus “purposeful act” was properly framed by the instructions and was developed fully by the evidence for the jury. State v. Lakebrink, 689 S.W.2d 832, 834 (Mo.App. 1985). The defendant was entitled to present his “accident” claim under § 563.070, RSMo 1986, by evidence and argument, but evidence of accident refutes the essential elements of the offense as set out in the verdict director and a specific instruction is not necessary. MAI-CR2d 2.28 has been eliminated because it is redundant.

The judgment is affirmed.

All concur.  