*1 290 justify the trial court nothing in record to the action of
We see Supervisor’s refusal attempting overturn mandamus the good respondent person because he was not a a license ruling he made that on facts moral character. The record shows be true. While reported subordinates which believed to his hearing where a provide 26 the 1934 Act does for notice and Sec. anywhere formal revoked, provide Act does not license is hearings reception a license proceedings or of evidence where applied requirement for. There no the form or character of is as to may rely. Supervisor Certainly the evidence which there is showing arbitrarily in no that he acted this instance. judgment
In our trial court erroneous All should be reversed. It is so ordered. concur. Ring, Appellant. W. (2d)
The State v. Amuel S. 57. 141 Banc, 11, Court en June 1940. *3 appellant. Ward & Reeves for
Boy McKittrick, Attorney General, Aubrey B. Hammett, Jr., Attorney General, respondent. Assistant for.
294 Privett, COOLEY, Ring, others, Robert Defendant, and three C. Tucker, charged with murder jointly Crow
Cleve and Arnold were killing degree the first N. C. Severances granted tried Ring and in this case was tried alone. Privett had been Privett, reported previously. That is in State v. convicted case may 575, opinion 344 Mo. be read con 1020; (2d) S. W. which In be nection with in the instant case. the case now defendant, manslaughter, sen Ring, fore us was convicted years’ imprisonment tenced to seven in the and has penitentiary appealed. appears, conceded, It seems that the fatal as to be (if Ring, sault any), Privett, defendant, was committed and that guilty, all, accessory. person as an is settled that aiding’ abetting charged as a homicide and convicted principal. Privett, The information is sufficient. v. supra.] [State contends, first, Defendant that the does not here evidence show Teroy’s and, Privett, death resulted from wounds inflicted sec that, ond, any event, not have criminal he did connection with *5 offense and his demurrer to the evidence should have been sustained— a requires contention that a detailed statement the facts. In of ruling a demurrer to the evidence facts favorable to State’s ease must true, together be taken as with such inferences favorable countervailing proved, and reasonably as drawn from facts in mind this established rejected. Keeping must be well evidence prove;. which the evidence tended to rule we the facts State’s state —(cid:127) 22, 1:30 or Shortly midnight May perhaps of about 1938— people 2:00 a. of were con- m. of the 23rd—a considerable number gregated Night Club, on the south place a Skinner’s located at called highway, Highway 84, paved an west about seven side of No. east and Defendant, others, was Hayti, miles there. west Missouri. with Teroy. fight A cause of fist started between Cleve Crow and The fight sep- is immaterial. and were obscure—and Crow they open an knife in his separated arated. "When Crow had were hand, which, use, try use, however, or, apparently, he did By including defendant, people, this time a number of deceased. congregated had beer about combatants. Defendant had a bottle hand, by “Stay in his holding said, which he was He neck. Cleve, (Crow) you,”
there are as one said— with witness —or “Stay Cleve, him, you always I am with like Wit- with was.” gave words, nesses used, different versions but to as to exact ‘‘ general said, Stay same effect. witness testified that defendant One Cleve,” (defendant) help would him. At —that holding time defendant was bottle the beer neck. Deceased “pushed” away. Defendant “ran “started” around” to hit said, deceased the beer bottle. About time Privett (to Teroy), “You himget boys,” can’t do and deceased turned that.— away, and ran pursued defendant, Privett, Tucker, Crow “running” who followed, after him. Others in the crowd immediately. not so The State’s evidence indicates that the four above mentioned pursuit followed hot ,to Back of the building, clubhouse there a small referred as a cabin, eight and about south, feet back as we understand that — the record—there was a barbed fence. wire South the fence there was a clearing beyond small that a pasture. woods East of the cabin there was north a and south barbed fence. The wire east west fence forty fifty yards back of the cabin was or from the clubhouse. cabin was not illuminated. There was some “re- lights flection” from in the light clubhouse but one only on the “out- side corner” of clubhouse, wherefore witnesses any did not see distinctly just too what occurred or about cabin after de- way, ceased ran pursued, stated, above defendant and the others above named. partly Witnesses heard saw several blows Privett
upon deceased, with a “stick” or club picked up which he as pursuit started implement deceased. The variously re- ferred to club, witnesses generally stick club, as de- being scribed long three to four feet and in varying diameter from about an inch to as thick as a man’s wrist —or as one put witness it, *6 296 though ás protuberances, oT big arm, as bis and with knots about as nails at two said had branches, it. One witness
from severed blows said the witness ten-penny the nails. One end, the about size of “hitting like they sounded hitting flesh, another that like sounded hitting they like sounded something that,” others or like mule exclamations there were Following the blows the cabin. side of the said' three witnesses evidently or two deceased—one from “Oh”— of the west fence south the east and ran into “Oh’s.” Deceased fence east north and back,” then the south cabin and “bounced into south- finally disappeared back,” of the and “bounced cabin —and suf- The evidence above mentioned. pasture ward into the woods to; that referred ficiently above struck the blows shows that Privett with defendant, deceased Ring, while not seen to strike was above three held, said, and other beer as he bottle which he the cabin latter ran toward pursuit in as the named Started get boys” or words like it, “Let’s him some and the back of fence back;” also standing that and there with a bottle drawed “he Crow, Ring, Privett that when evidence from one witness the four — region of together from the and Tucker —returned to the clubhouse fence, that he had defendant, Ring, the cabin and said to one Estel hit “him” There was evidence (deceased) with beer bottle. pur- Privett, defendant, as he Tucker and and started Crow Teroy, original suit en- place latter ran from the of the -Crow, having Privett, counter between him club, in his hands the and get Defendant boys,” “Let’s him similar said words. —or words, heard joined pursuit. those of the crowd and Others they followed toward cabin but indicates the State’s evidence a little distance pursuit were behind four were immediate who following evidence, merely eurosity. out of State’s a whole, judgment indicates four in our named were fol- lowing Teroy malignant purpose.
The State’s evidence is to the when effect that the four —defend ant, Privett, Teroy’s Tucker, got Crow and back the clubhouse escape, said, get in up” Privett “Let’s car and hunt —or get “Let’s in the car (Witnesses and find him finish him up.” differ used); as to exact immediately words the four —in- eluding got an “pulled into out from automobile defendant — under shed,” being again seen [They witnesses. —not going left -towards Hayti, Night of Skinner’s and east east Club Again where deceased later witnesses differ. Some said found.] they only saw two get into men—defendant not one of them— ear, others said all got jury. four in. -question for the way got somé over the and west south east fence cabin, or was knocked over it Later— disappeared. Privett hour, perhaps, an maybe being definitely time not less, so— Highway determinable^-he was 84 or a found about a mile mile who, with Night A Mrs. Pelts Club. of Skinner’s a half west aroused husband were there, she and her husband, testified lived her thought he said she “hollering.” She It was a man tongued” thick speech was “kinda man because his like a drunk talked doing, know what he was coherent —“he seemed seemed but his ideas lost, know where he on the road—he didn’t he seemed to be *7 by Mr. being informed west, but on highway.” He started on the to way went east wrong turned and going he Pelts he was the Pelts’ lived, fifty yards east of about a Mr. Mrs. Stout where and a Stout said Mr. did not. Mrs. home. Stout testified. Stout Mrs. of her Teroy)' from front (shown been man to have —“hollered” away from a asking that he turned help; house; that he Avas “holding leaning over, leaning and against which he had been was tree suffering; appeared to be (indicating) himself with his hand” —and enough to a man—-had sense know that he not act like drunken did pulled”— his teeth all wanted; he talked “like he had what he speak.” cost him an effort to “it Teroy Highway 84, on about Stout went west
From the home by quarter mile, a a he was struck an eastbound auto- half of where Teroy appears Up a Mr. to that mobile driven Gillam. time Teroy that he walk- conscious. Gillam testified discovered been line of the ing him a of the center black toward little the south fifty driving pavement him; feet from that he had when about fifty sixty ar an hour deceased in front miles when he but discovered- twenty-five immediately going applied he his brakes and was deceased; he hit that he tried to thirty or miles an hour when swerve again hitting left, right left—-in an effort to avoid deceased and '— right finally “glancing hit him a front fender did blow” with knocking car, pavement of his him from the onto the shoulder Strickland, a road. Gillam was corroborated Mr. who was with him, except thought one hun- Strickland deceased about was yards .testimony dred from the he first -him. The car when saw appeared stag- Gillam Strickland indicates deceased gering walking uncertainly appeared lights or when he automobile. Teroy stopped, up, hospital
Gillam backed and took to a he where day pick up died in a or so. He was unconscious when and never regained During day following night consciousness. of the May pool occurrences is on 23rd—a of blood related —that highway was on of the observed the shoulder where head deceased’s had lain the automobile. No blood struck was oN pavement. on the When served the automobile “up sideways upon knocked and over” toward and body lay ground grassy, stones, shoulder. Where the. with no gravel rough objects or. upon gravel other it and there was no or dirt upon Teroy’s pickéd or up. face head when he was no There.were body car and upon the radiator protuberances
ornaments or rather low was found upon it, but dent no blood stains were found sign of col- glass or no broken right on the front There was fender. signs of fender, and no the dented lision about car other than body having pavement. hit down” Teroy’s tongue protruding “hanging picked up When — tongue were clot- n — mouth and -apparently partially severed his trousers. shirt and “a lot of blood” on his ted blood. There was bleeding places Gillam observed several bruised —“licks” place or bruised Teroy’s and face and one called head them — his way hip half where “lick” about between knee the ear struck Iiayti he was examined
Gillam and took where Strickland Shirley Privett case. Shirey. given in the Dr. name is [The doctor give appears here it record. is the same We He deep wound across who testified in the Privett He found a blue ease.] forehead, caved right cheek, the nose broken —“ bruise in,” tongue out,” another “lolled other lacerations witness said— face, coming mouth. He said about the head and and blood from the *8 and judgment the wounds he in his to cause death saw were sufficient could have been or club above referred to. inflicted with stick He. Teroy, intoxicating liquor did nor did any not smell odor of about immediately Gillam, up be- Strickland or taxi driver drove who they pick up. hind Gillam him when Teroy
A unable jury member of the coroner’s had known was who .badly to reepgnize inquest at the because he so bruised about was and that had a head face. Deceased’s father testified deceased head,” jaw broken, “hole in knocked his that his his nose “caved in,” out, his teeth knocked had other wounds and bruises. stoutly urged case, ease,
It is in this as it in the Privett that justify finding did not a death the evidence deceased’s being caused blows struck rather than hit Privett fully question automobile. We into this in the went Privett case and conceding while question that the a seemed close held one we proposition there was evidence on sufficient to make it a jury. substantially for the In the instant case the evidence-was similar case, to that in except Privett that a Dr. Hubener who testified testify case, in the Privett case did not in this in some details we fully in set out the evidence as was done the Privett ease. allowing discrepancies testimony But for minor instant presents substantially case the same on this issue as facts did the Privett case for reasons there stated we adhere to the conclusion announced.
The second contention so far as concerns the demurrer to the justified is that if it evidence be conceded or held that the evidence finding a Teroy finding that Privett killed it does not warrant deny this must therein. We Ring, or abetted defendant, aided original fight with encouraged Crow the Defendant contention. injury to fight serious Teroy. That did result Teroy fled, that followed. immediately to the fatal encounter led jury weapon, a lethal by Privett, armed with closely pursued two, other accompanied evidently found, and to giving expression words vengeful the defendant purpose, with stimulating the others, thus words and acts encouragement testimony that, but there was result. Not alone pursuit with its fatal striking fence, very Privett, at the cabin or time ‘' standing by beer bottle drawed deadly with the defendant was blows assault, encouraging Privett ready aid in the actual back” least with the struck at one blow “get him,” and that he said he had further, from the scene of himself; that he came back bottle engaged in that had been the fence with the others who assault at the avowed got and left with and, them, into an automobile assault think finishing murderous We purpose finding work. abetting, participa- aiding and if not actual all this makes a case of tion in the offense. refusal to sustain defend
Complaint is made of the court’s discharge juror. challenge juror Zareeor and to said ant’s named notwithstanding he had read if, Mr. Zareeor was asked what go disregard that. He re papers, jury into box and could ' ‘ ’’ I plied, suppose so. you guilt “Q. an or innocence?” Have formed anything except what I heard on the “A. I don’t know about it ’’ papers. street and read in the ‘' ’’ you Q. express any opinion ? Did form or Well, against thing.” prejudiced “A. feel like I am sort you guilt or inno- any opinion Have as to “Q. The Court: “No, cence?” sir.” Juror: — “Q. you thought “A. But it?” Juror: for Defendant: Counsel *9 “Q. No, say sir, positive opinion.” I couldn’t it was The Court: by newspapers people You understand that are tried the you you you, try instructions of the court. and will Can give case, impartial the defendant State a fair and trial and the testimony solely?” “Yes, By based on juror: sir.” de- The incompetent fendant’s counsel:-—-“We ask submit he is and that against “Prejudiced be excused.” . . . who?” T-he Court: “Against night place a crime that takes in a club.” The Counsel — you Juror, prejudice against “Mr. this defendant?” Court: “ ” ’’ ‘'No, sir, personally. Q. You know defendant? Juror :— No, any “A. I Later, questioning, don’t know of them.” on further said, just against Zareeor “I am prejudiced places”— kind of those places Night Following like Skinner’s coun- Club. defendant’s sel “My they against question (the jurors) prejudiced was are said — we night course charged at a club—-of person that is with a crime examination against There voir dire prejudiced all crime.”
are challenge denied juror for cause was of ended. Defendant’s nothing more rightly juror’s revealed think so. The examination we places toward good antipathy than the of all men toward crime erroneously commission foster the supposed rightly that are or —to — antipathy prejudice no or juror violation. manifested law hostility crime, personally only toward toward — fostered, tendency to be crime, they think it has a places as where and de- good men. Defendant and his associates is felt all might night feeling that guests Any club. ceased were all at said against either on account of have been entertained attendance The trial court must place, seem, equally must to all. apply would this kind. We in matters of be allowed some latitude of discretion refusing to perceive action no of discretion in the court’s abuse challenge allow the for cause. urged permitting State’s wit
It is that the court erred state, “after al ness, Nail, testify Jesse that he heard Privett leged he, Privett, times assault” that had hit “the son-of-a-bitch three fence;” also that he “was and the last time knocked him over the going daylight.” Complaint him is also made as up finish before Manning that testimony Taylor admission of witnesses immediately Teroy Privett “You can’t come before assault said to boys.” that, you got bleeding' -get him down here do Mr. Crow — hearsay The contention is that those and not bind statements ing considering assignments together, these defendant. We take them in reverse order.
Taylor’s testimony was to effect that the statement testified having just was made made Privett encounter, separated perhaps and Crow had been after their first or during it, and before had started to run toward cabin and fence, picked up and about the time when Privett the club and started pursuit; Ring “right him,” at the with beer side hand, Teroy. bottle in There pursuit his and started with him in Privett, Ring, was also evidence that as and Tucker started in Crow pursuit Teroy, Ring said, him, boys”, or of like “Get words import and that fatal assault thereafter at occurred the cabin pursuers caught up Manning’s fence when the had testimony substantially Taylor’s, except effect there same difference, immaterial, some which we consider exact words attributed to Privett.' In the which have mentioned circumstances in this think connection and detailed in our of the facts we statement question can be no but that said statement of Privett was ad- evidently Ring. missible. It was heard and acted part gestae. of the res
A presented testimony. more difficult to Nail’s *10 from “When he came back that was asked: Nail The record shows say you Mr. Privett cabin did hear fight back of the this around objection, overruled and ex- an which was anything?” There was “After came back he The answered: he ceptions saved. witness hit son-of-a-bitch three in hand and he said he the had stick his that ’’ fence. time he knocked him over times the last the hit say long thus “came back” it was after Privett Nail did not how that was made but from about the cabin or fence said statement been as four- that much as three or was other evidence at the or fence. was also evi- minutes after assault cabin There the Ring enough close jury from which the could find that was dence statement; he, Privett, to Privett that he must heard the together assault Crow and Tucker came back from scene of the hands; fence; that Privett still had stick or in his club get they suggestion they thus made came back in up;” sug- car and find and “finish him and that'such gestion acted (including Ring). the four In prejudicial these circumstances we are of that there nowas in testimony. Though (according error admission Nail’s theory, jury’s.finding) the State’s sustained the fatal blows yet inflicted, had those (still according been who .evi- State’s dence) legal in participated effect fatal had assault did not purpose accomplished acting know -their had and, still concert, on completing being were bent their This work.- true —and whether question jury true not was a for the us seems to —it Privett, statement of prior considered connection subsequent parties, conduct was so interwoven with the circumstances and events of the entire transaction or occurrence as tending be admissible as light to throw on purpose defendant’s conduct, whether we consider the technically itself as statement part gestae of the res or not. We are inclined to think it should be so peculiar considered in the and somewhat unusual circumstances holding ease—and we our confine that it was admissible to the particular facts and circumstances of the case before us. Shirey Dr. hypothetical was asked a question to whether .as man an automobile in the manner hypothesized could
or would have received injuries on therefrom observed de ceased. objected to as “not based the established facts” and “all of not testimony.” elements What “ele testimony” ments of the were omitted suggested. The doctor negative. answered Appellant says the court erred in overrul ing objection his authority but cites no in support of his contention. So far as the question went, at.least, it hypothesized facts which the -to"prove State’s evidence and, tended above, stated defendant did suggest what of the testimony,” any, “.elements were omitted. The witness was crossrexamined as to other: “elements the-testi- *11 302 In bis motion may bad in mind. have mony” counsel defendant’s testimony Sbirey’s was only Dr. states trial defendant for new prejudicial facts” of tbe incompetent in view “wholly ^conceded merely tbe trial be said objection at tbe In bis
to tbe defendant. facts and on established not based hypothetical “and was question prov tbe and invades all tbe of offense involve elements not does mo nor in bis objection at the trial bis jury.” In neither of tbe ince offense” suggest of tbe what “elements trial for new did be tion bis inform us in brief question. Nor from tbe does omitted were ad contention. In for bis be in mind or tbe reasons here what bad assignment tbe motion for regard tbe to tbe fact that we dition rulings of sufficiently repeated under recent as definite new trial not error in this incident. prejudicial no court think was we 480, 485, 291, Tarwater, 273, 239 S. W. State 293 State v. Mo. [See citing tbe 740, 671, 729, (2d) [9], 19 S. W. 675 Adams, 323 Mo. v. Tarwater ease.] refusing to assigned as ebror that tbe court erred
It is on propounded cross- say, question to in- answer to permit Gillam picked be examination, saw and observed when that from what be striking highway on it was bis up him after tbe being from tbe auto injuries Teroy’s resulted struck on bead testifying such, expert, not as not an mobile. Gillam was being happened to to before bad no information as what bad “opinion,” for, Clearly his thus automobile. called tbe incompetent. on Gillam asked cross-examination if be bad Witness preliminary bearing at re not made certain statements defendant’s pavement bis garding just skid marks on tbe made ear after or Teroy. testimony at tbe striking His trial was to tbe before effect Teroy lay body marks west of where tbe tbe tbe skid on up collision, picked indicating when shoulder of the road tbe testified, had, as be bis put that Gillam brakes bard soon as be causing Teroy, actually striking l bis car skid him. discovered efore testimony may At tbe indicated that preliminary Gillam’s be have enough bard to make his applied just his brakes wheels skid until after be bad struck The difference have been material affecting speed impact of tbe at tbe moment of tbe automobile might possible consequences make iu tbe tbe tbe difference having given But tbe admitted person pre struck. witness at the testimony transcript liminary tbe which tbe offered showed be there only gave. tbe fact transcript Since that admitted which tbe fact than proved, other what was admitted to be fact, could could have perceive prejudiced how defendant cannot ex transcript Tbe transcript. only proved could clusion tbe things testified to certain preliminary. tbe witness had so testified. that be bad Evidence is not necessary was admitted legal might What the fact prove an admitted efect fact. question transcript us. The proved or admitted is a now before impeaching affecting purpose offered appears have been credibility of Gillam a witness. Woods, witness, A defendant and was called any Ring “being asked had ever heard trouble.” The objected being proper State as not form. The court objection. By sustained the This defendant’s counsel: followed:— *12 “I offer that 1930 prove intimately to this witness since he has been residing community people generally associated with the where Ring during Amuel period has resided and all of time he has any question reputation heard to of Ring, never made as Amuel permit except.” the court refuses to us to ask it and I There was ruling no further or statement from the court and no further offer might or exception defendant. be questioned whether or not proof sufficiently definite, defendant’s referring offer as it only “reputation” generally to specifying did without in what respect capacity, waiving or any conceding technical it to have been a sufficient- preceded, offer in view of what think justify reversal, the court’s action does not because: —Defendant witnesses, had used other character who testified that his reputation abiding good. as a law citizen was The State offered no counter vailing day evidence. When the for closed, Reeves, evidence Mr. defendant, for (to Hawkins, said Mr. of counsel State), “If ’’ you case, willing want to I am finish to close it. Mr. Hawkins By —“Well, insisting.” I am not “You have used three Court, By By character witnesses.” “I enough.” think is it Mr. Reeves, Mr., By object Hawkins —“I to what Mr. Reeves thinks.” pay any Court —“Don’t attention to counsel, the remarks of the ’’ ‘‘ By is not evidence. If ready Mr. Hawkins to close Reeves, Mr. By object will close.” got Mr. Hawkins —“I if that, any to he has witnesses I want him to use them.” Defendant’s counsel did^not indicate that he had other character witnesses desired to call. if He the case went morning said over till next and if a Mr. present was then him, Seebree he would then call but did not indicate what Mr. testify Seebree would to nor ask for procure further time to Seebree’s The attendance. evidence there closed. The court was not grant asked to further procure time to attendenee, Seebree’s did not so, refuse to and no exceptions do were taken or saved to court’s to failure do so of Contra, its own volition. defendant had indicated that he did not desire to call additional witnesses, character deeming unnecessary. it In think these circumstances we do not now charge successfully the trial court reversible error on account proved good incident. He character by three witnesses. The State offered no to contrary. evidence might Defendant called more witnesses on that issue. He not deem necessary did testimony since In these circumstances to so. care do did not by the controverted unimpeached, was witnesses, those three o£ by the prejudiced could defendant State, we do believe ad- technically, it if, testimony even Woods’ offered
rejection of error. not reversible error is Non-prejudicial missible. man- on 6,No. the instruction Appellant complains of Instruction sufficient evidence ground was not slaughter, on the aiding and present that defendant jury the submit to the jssue assault, any, upon de- fatal of the abetting commission Privet this con- sufficiently disposes of have said above What’we ceased. against appellant. It is ruled tention.' This assigned as error. No. 7 is giving Instruction The not seem Its form does on circumstantial evidence. instruction was motion objection it, as stated defendant’s to be criticized. proof of substance, that there a failure of trial, is, in for new finding manslaughter upon to base a facts circumstances which in de As elaborated against evidence. defendant circumstantial insuf point evidence was fendant’s brief here the seems be a fatal circumstantially, had committed show, that Privett ficient therefore, Teroy, that, could not assault evidence, having convicted, on aided and abetted circumstantial *13 any. argument is, assault, The in of such if Privett the commission facts, The ingenious, judgment in our not' sound. perhaps, rather but evidence, as by that Privett the State’s tended show shown They held in State v. to show—as saulted Privett, tended deceased. proved cir supra such assault fatal. The facts and —that by State’s evidence in the instant case tended cumstances shown by inference,” .prove by “piling upon inference facts —hut —not reasonably to be therefrom in this case proved and inferences drawn feloniously Privett assaulted and that the latter’s death that feloniously therefrom, that aided and abetted resulted That from the such assault. several inferences drawn same facts, supported proved each is and not proved by, de facts pendent upon of one fact to be from establishment drawn inference other, only by inference, too some shown is well established fact So, case, .require citation of authorities. in if the this facts shown resulting prove Teroy, sufficient to that Privett assaulted are death, sufficiently proved latter’s the facts and circumstances herein finding justified a that defendant aided abetted assault with “piling out inference inference.” painstakingly presented reviewed the
We contentions by If defendant’s able the decision announced in v. counsel. State sufficiency of Privett, supra, as to'the the evidence in that ease to Teroy’s contention death was due tlie:State’s to wounds /sustain by Privett, than upon rather to the result inflicted of the auto- present tbe opinion, then, in tbe writer’s is correct mobile collision affirmed. must be judgment by thoroughly considered point, so agree on that IWhile well on that question Privett, supra, v. J., in State Ellison, rightly that the was there believe,' him, close, I is issue difference between the not sufficient so,, I think there is If decided. for a different conclusion to call there decided law as facts and the by the fact that this latter statement to make impelled I am herein. has brother Commissioners highly esteemed my one of learned by reached of the conclusion the correctness expressed doubt as to duty, Privett, supra. It is our v. point in State Court on this understand it, to write law we Commissioners, as understand we affirmed. judgment below should be I think the it to be. and believe so ordered. recommend it be adopted is foregoing opinion PER CURIAM: The C., Cooley, J., Gantt, Leedy, Ellison and Banc. C. en as the of the Court JJ., adopt the dissent and JJ., concur; Douglas Tipton, Claris, Says, J., C., Two; absent. dissenting Westhues, in Division opinion of agree that is said in the WESTHUES, (dissenting) to all C. —I my ex- opinion prepared by learned brother Commissioner Cooley, to show cept reached, the conclusion evidence sufficient Privett caused the blows death have been ample by being rather hit the automobile. The evidence was than The of a felonious assault. appellant to convict and his confederates ease, years’ imprisonment punishment assessed seven merited, writing are penitentiary, may well case, guidance proven The in this law for of future trials. facts correctly deceased, pertaining injuries are sustained Briefly opinion. are: After the deceased had they revealed difficulty. much In fact been assaulted he was able to walk without intelligently, to talk he did walk about a mile and half. He was able along highway. help because he asked for at two different houses justified cuts and the inference he had sufferd evidence *14 appellant at the hands of and his associates. He so stated bruises help. complained he for that he had beaten and when asked He been bleeding. Within a cut and was few minutes he had asked for time, going highway, the second and as he was down he aid traveling speed struck a ear estimated to at a of from thirty fifty Deceased, per thereafter, spoke again. miles hour. never day. He died the next stated that attempted Witnesses the deceased just to talk but could be understood. -was said he mumbled. following injuries After he was struck the car were found penetrated his head: had a in his head which skull; He hole to the jaw; fractured; he had a broken his nose was caved teeth out; tongue knocked there was a severe fracture his skull and his injuries above all of the man very Could badly cut. intelligently have talked did, and could as he have walked certainly That askijig help? for he did said when witnesses State’s did walk and is, fact that he significant A improbable. highly seems by “hollering,” before he was Pelt aroused Mrs.
talk, fact again and was unable spoke car, thereafter never struck change in his condition anyone. That recognize sudden or to to stand injuries than all the his severe loudly cause speaks more striking say Who can witnesses. opinions doctors as the frac- injuries, such most serious the cause the ear was not cases, damages actions for In civil skull, jaw nose? ture of question uncertain leaves if the evidence personal injuries, the defendant injury, for one of which of the to one causes two. case recovery In this who not, a will be denied. liable, the other could and the deceased say, evidence is there and what can ? there- the ear lived if he had not been would JJ., Tipion, Douglas, concur. respectfully dissent. fore must (2d) 141 W. 66. Crow, Appellant. S. State v. Cleve 11, Banc, en 1940. Court June