State v. Webb

182 S.W. 975, 266 Mo. 672, 1916 Mo. LEXIS 14

• Court: Supreme Court of Missouri
• Decided: February 9, 1916
• Status: Published

Opinions

REVELLE, J.

Prosecution by information filed in the circuit court of Audrain County, charging felonious assault upon D. E. Tugel. Trial, verdict of guilty, assessment of punishment at fine of $200; appeal in regular form.

Evidence on the part of the State: The assaulted was at the time of the difficulty superintendent of public schools at Vandalia, in Audrain County, Missouri, and defendant was an inhabitant of that town, having a son who attended the school over which prosecuting witness exercised superintendence. From record mdicia it seems that the prosecuting witness had, in the morning prior to this assault, administered some punishment to the son of defendant, and that, after the noon recess, and as prosecuting witness was returning to the school, was accosted by defendant, who said: “I want to see yon.” When close enough defendant seized prosecuting witness by the coat and vest and asked him if he had slapped his boy. Upon receiving an affirmative reply defendant struck the prosecuting witness, who with two packages of books which he held attempted to ward offs and shield himself from defendant’s blows. After being struck several times the prosecuting witness went to the ground, which is described as hard and dry and a road belabored with much traffic. Defendant then pounced upon and straddled the prosecuting witness and beat him over the head, striking him frequently in the eyes, ears and face. After prosecuting witness had twice stated in reply to defendant’s two inquiries that if he had been wrong he would apologize to the son, defendant, either voluntarily, or because of the interference of others (the evidence is not clear), desisted from further assault. With the aid of others, the prosecuting witness was then placed on his feet and taken home, where an examination of his injuries disclosed the following: His eyes were bloody, bruised, sore and badly swollen, and he was unable to recognize the parties who had escorted him to his home. The lid of one eye was cut entirely through, and he was unable to use his right eye at 'all, with very little use of his left eye. The teeth on the right side of his jaw were loose, and the left side of his back, face and ear were bruised for considerable time thereafter. Even at the time of the trial his hearing was seriously affected. He felt unable for a week and a half after the assault to perform his regular duties, and for- quite a while suffered from nervousness and pain. The evidence also discloses that defendant usually wore a heavy finger ring bedecked with sets, and that at the time of the assault this ring was on one of his fingers.

On the part of defendant the testimony tended to show that upon the return of his son from school at the noon hour he was informed that the. prosecuting witness had punished him in school, and that' soon thereafter he encountered the prosecuting witness on the street and asked him “why he had beat his boy over the head,” to which the prosecuting witness replied: “I am running that school'” After some little conversation on this subject the prosecuting witness became angry and struck the defendant, whereupon a fistic fight ensued. Upon being told by the prosecuting witness that he would apologize' for the punishment that he had administered to the son, the defendant voluntarily withdrew from the difficulty.

, Assault”8 I. Instructions on both common and felonious assault were given, but defendant insists that there is no evidence upon which to predicate the instruction on felonious assault, or the verdict which convicts him of that offense. The facts are fully set out in the preceding statement and repetition would but encumber. In disposing of this and other assignments it must be borne in-mind that the information is bottomed, the cause was submitted, and the verdict based upon section 4483, R. S. 1909, which is the maiming or wounding statute, and which prescribes a different and less offense than that defined by either section 4481 or 4482. Under, this section it is neither necessary to charge or prove malice, or that the assault was made and the wounds inflicted with a dangerous weapon. All that is required is that the infliction of the wounds or great bodily harm be under circumstances which do not render it excusable or justifiable, and which would constitute murder or manslaughter if death had ensued. [State v. Bailey, 21 Mo. 484; State v. Nieuhaus, 217 Mo. l. c. 348; State v. Janke, 238 Mo. l. c. 38-2-3.] This assault was clearly committed, if the State’s evidence be given credence, under circumstances which would have made it murder or manslaughter had death' ensued, and this notwithstanding that the wounding and maiming were done only with the fists. [State v. Hargraves, 188 Mo. 337, and cases supra.] That the prosecuting witness was wounded and received great bodily harm abundantly appears from the facts. [State v. Leonard, 22 Mo. 449; State v. Nieuhaus, 217 Mo. l. c. 347.] To support this charge it is not necessary to establish that the wounds inflicted were of a dangerous character, or such as are likely to produce death. [State v. Agee, 68 Mo. 264; State v. Bailey, 21 Mo. 484; State v. Nieuhaus, 217 Mo. l. c. 347; State v. Janke, 238 Mo. 378.] The evidence is sufficient to sustain the verdict and we cannot invade the j pry’s function.

, . . Means of Assault. II. Complaint is made of instruction number 3, because it did not confine the means by which the assault was made to “a certain large finger ring and with hands and fists,” which is the allegation in the information. In answer to this contention is suffices to say that, in the first place, it was not at all necessary to allege in the information the particular means by which the maiming and wounding were done as this may be accomplished by any means; and, in the second place, it is well settled that an assault may be charged to have been committed by different means, and proof of any will sustain the allegation. [State v. Nieuhaus, 217 Mo. l. c. 344; State v. Hottman, 196 Mo. 110; State v. Myers, 198 Mo. 225.] Aside from this and if it be conceded that the instruction is somewhat broad, we do not believe, in view of the theories and evidence upon which this case was submitted and the other instructions given, that the defendant was thereby prejudiced. In fact, the main insistence of defendant here is that- the means alleged in the information and by which the proof discloses the assault was made is of such a character that a felonious charge cannot be bottomed thereon. This assignment must be ruled adversely to defendant.

. Provocation. III. It is also said that error was committed in withdrawing from the jury’s consideration the record indicia that the prosecuting witness had, • , some hours prior to the assault, and as superintendent of schools, chastised defendant’s son for some infraction of school rules. It cannot be, and it is not, seriously contended that this could justify the assault. In the first place had death ensued as a result of this assault, the fact of this chastisement would not have reduced the crime from murder to manslaughter, for it constituted no lawful provocation as distinguished from just provocation, which is necessary to reduce. In fact, when we consider the time that had elapsed, and the conduct of defendant after he had learned of the chastisement and before he made the assault, it can hardly be said that the punishment administered to his son amounted to even just provocation had death ensued, but this is unimportant, for even had his provocation been sufficient to reduce from murder to manslaughter, in the event of death, it is neither a defense to nor in mitigation of this charge, because it is written that the offense is complete when committed “in cases and under circumstances which would constitute murder or manslaughter if death had ensued.” The most that can be said of this evidence is that it tended to establish an unlawful motive for the assault, and while it was insisted in argument that no person would commit murder or inflict great bodily harm because of this provocation, the records of this court and human experience establish the contrary. [State v. Heath, 221 Mo. 565; State v. Heath, 237 Mo. 255.] The exclusion or withdrawal of this .evidence, if error, was error in defendant’s favor, and of it he cannot complain.

instruction: Probabie quences of Assault. IV. It is finally insisted that instruction number 7 should not have been given. This instruction is as follows:

“The court instructs the jury that the law presumes that a person intends the natural and probable consequences of his acts, and if you believe from the evidence in the case that defendant asjp jp Tugel in a manner likely ° . ^ to cause death or great bodily harm, the law presumes that he intended to kill him or do him some great bodily harm.”

No fault is found with its form, the complaint being that there was no evidence from which the jury could reasonably find that the defendant made the assault in a manner likely to cause death or great bodily harm. In this connection counsel for defendant say: ‘ ‘ He was not and there was no proof that he was greatly maimed, wounded or disfigured. The glaring fact that the result of his fists did not cause death or great bodily harm refutes the presumption that defendant intended to kill or do great bodily harm.” With this we cannot agree. The evidence discloses, as heretofore stated, that defendant assaulted the prosecuting witness, violently struck and severely beat him over the head, eyes, ears and other parts of the body where serious, great and permanent bodily injury could be easily inflicted. Oil one of his fing’ers he wore a heavy ring, and his statements after the difficulty disclose that he had used such force and violence as to injure his own finger and hand. Without going into detail as to the character of the injuries inflicted, it is sufficient to say that they constituted great bodily harm. Considering "also the fact that at the time they were being inflicted the prosecuting witness’s head was on hard, dry ground, it cannot be said that his acts did not warrant the conclusion that he intended to do great bodily harm. While it is true that this instruction is given generally in cases where a deadly weapon is used, yet it is not because of the use of such a weapon that the instruction is proper; it is because the use of such a weapon is one fact tending to show his intention, but this does not mean that such an intention cannot be reasonably inferred from other facts and other means of attack. There is nothing whatever in this record to indicate that defendant did not intend to inflict the wounds which he did, nor is there anything to show that such were not the natural and ordinary consequences of his acts. It is our opinion that the evidence is sufficient to warrant the giving of this instruction. In this connection it might be further said that the information contained two counts, and that the State was entitled to have the law upon both counts fully declared. The first count charged assault with intent to kill, or do great bodily harm; while the second count, as heretofore stated, charged a wounding and maiming. This instruction was perhaps given more particularly in connection with the first count, on which defendant was acquitted, and to that extent he cannot complain. In view of the disclosures that the prosecuting witness was in point of fact severely injured, and nothing appearing to indicate that these injuries were not intentionally inflicted, it cannot be said that this instruction was prejudicial or improper.

We have reviewed "the entire record in this case, and are of the opinion that the defendant has had a fair trial, and that the verdict is warranted by the evidence. The judgment is therefore affirmed.

PER CURIAM. — This cause having been transfer red. to Court'in Banc from Division Two, on the dissent of Faris, J., and having been reargued and submitted, the foregoing opinion of Revelle, J., is adopted as the opinion of the court.

Bond, Walker and Blair, JJ., concur; Woodson, C. J., and Graves and Faris, JJ., dissent. Faris, J., dissents in separate opinion in which Woodson, G. J., and Graves, J., concur.