State v. Watson
202 S.W.2d 784
Mo.
1947
Check Treatment

*1 respondent will, verdict is If think the excessive. within ten We $3,000.00 judgment, a remittitur for as of the date of the days, enter affirmed; otherwise, will reversed will be it All concur. remanded. Watson, Burroughs, Watson 40190 . 202 S. W. Appellants . No.

Byron Kearby appellants. for Hayes, Assistant Frank Attorney General, Taylor, E. J. respondent.

Attorney General, *2 Joseph and Watson, Joseph Watson BOHLING, C . Robert to do with intent Burroughs convicted of were received Robert Watson appeal. this prosecute Reforma- in Intermediate years’ imprisonment of three sentence Bur- Watson and tory Boys Algoa, at Missouri. peni- years’ imprisonment roughs each to two were tentiary. submitting

Defendants contend instruction harm assault proof broader that it is was erroneous “for the reason 1939,* and the information.” an “assault” offense of of our statutes define the

Several sections here, they read: degrees. in different So far as essential ‘‘ Every shall, purpose and of person 4408: who on Section another with a or beat aforethought, at ... or assault shoot likely produce death by any force deadly weapon, other means or punished. great bodily harm, with intent- to shall be an Every persons who shall be convicted of assault Section 4409: great bodily harm, kill, or do with intent to prescribed” punished. shall be assault is not hereinbefore for which maimed, dis- person 4410: “If shall be wounded or Section act, procure- harm ... figured, or receive culpable negligence another, in cases which would ment or manslaughter ensued, person murder or death has constitute provided for, punished shall, cases not otherwise } } battery battery may an and a exist without actual an kill or and without

occur without specifically to Revised unless * References are Statutes otherwise indicated. Wat- Briefly feeling on the evidence. Bad between existed son and Defendants Carl the son of Leon Collard. They “flagged” it recognized ca.r. automobile the Collard p. August Poplar Bluff, Missouri, six -.30 m. down miles east of about 8 their only persons Mr. and Mrs. Leon were the Collard De- evidence, following: ear. The State’s establish if'believed, proceeded fendants the defendants automobile, Collard two of having know knives their Mr. and Mrs. did not hands. Collard response at When time. father, answered he struck that he was Collard’s Carl inquiry, twice on the face at ear. Collard while the wheel of the He immediatly got out on other side of ear. The defendants their got came the car him roadr Collard; around down in attacked ditch, side him, made several to kill threats and one more stamped defendants beat with their him on fists his shoulder shoes; causing days and throat with him spit their for three blood *3 speech fighting and to lose his stopped for two weeks. This when statements, after several convinced them fighting fighting Carl but were his father. This was to sub- sufficient mit issue of 672, felonious assault. Consult v. 266 Mo. State 680(I), 975, 182 W. 378, S. State v. 238 141 Janke, 1136. respect

With to facts the instant record: ele essential ment of an offense under See. 4408 charge is a that the assault was ’ ’ committed on aforethought. Harris, v. 33(3); State ex rel. 209 Mo. 440(III), 108 S. W. Sevier, v. 336 Mo. 2d 581 An essential ele 1238[1, 2], [1, 2]. ment of an charge offense under Sec. 4409 is a that the assault was “with intent to kill” or great “with intent bodily harm.” Johnson, 596, 603, ; 300 S. W. 704[6] Baird, 9, 13(I), 195 S. W. 1012 Gabriel, [I]; 301 Mo. 365, rel. ex A Sevier, supra. distinguishing feature here involved is under 4408 Sec. must exist while Sec. 4409 it under is sufficient if an great intent to kill or to do harm exists. A charge maiming, wounding disfiguring sec tion, allege need “that the act was done’willfully, intentionally, with malice, deadly or with weapon.” State v. Gabriel, supra, citing allegation cases. The assault was “with kill, great bodily distinguishes do harm” a charge under Sec. 4409 from one under Sec. 4410. Brown 267 S. W. 871, Note v. Tetrick, instructions 199 [3], 100, 97 S. of,the charging part The information under review read: “. . . feloniously defendants . . . did . . . assault one Leon Col- beating lard, by striking, wounding him with their fists 'and by heavy shoes, with kicking, and stamping with their feet shod great likely produce force and violence which would ” allegation . . no death . contained bodily harm. It was of an “intent” or to sufficient 81 W. under S. Sec. Porter Brown, supra. See State [4], beyond they found, a reasonable Instruction No. told the acting doubt, “that . . . . defendants . . [naming them], together . make an as- feloniously . , did sault upon one him some Leon with intent to do harm, and did then and the said Leon there strike [et cetera] Collard . and did inflict on said Leon Collard then and there great bodily you “guilty harm, then will find” of assault at not the information” assess exceeding years’ imprisonment. five Instruction No. told the by “the intent with which an act is done” be established direct evidence or be inferred from the and circumstances facts in evidence. Instruction No. whether defendants were by of the misdemeanor of common the offense'defined Sec. 4411. phrase great bodily “with intent to do him some harm”

brought instruction 1No. under Sec. 4409 and caused it to be broader improper. the information and emphasized the error. State v. Mo. 347, 355(III), 161 W. Consult also cases infra. Under the Missouri constitution prose accused not be cuted “otherwise than indictment (Art. information” I, 17), and is entitled to know “the nature and cause of the ac *4 (Art. I, 18a). cusation” Consult Art. I, Sec. 10. provides: “Upon Section 4845 an indictment for an with intent felony, to commit a or for a felonious the defendant of offense; be convicted a less and in all other cases . trying the or court the case find the guilty defendant not charged, of the offense as find of offense, the com- ’’ necessarily mission of which is charged included against him.

However, prior to the enactment of now Sec. (Sec.' 1879), a aof purpose assault “on aforethought” (Sec. 4408) would not sustain a conviction of the lesser of a offense intent kill (Sec. to 4409) Webster, 77 Mo. Consult State v. Davidson, 73 Mo. 428.

The court supra, considered an instruction higher degree which bad of the offense than charged information, in the but treated the instruction as placing-an addi- State and burden'on the the tional words importing greater offense surplusage from the fact verdict as found defendant guilty “ás1 been jury had that the reasoning not charged in the information.” proper. information judgment on the misled and that founded case. instant indulged reasoning Like cannot hypothesized therein facts as they No. 1 found the told information”; charged guilty “as defendants were to be found judgments separate as the guilty, verdicts of as well separate and the finding explicit sentences, upon jury’s imposing are assault with “guilty of felonious respective defendant was ’’ seen, was not offense, have This we charged in degree the offense information. It is not a lesser of 680(1), 182 S. W. the information. State v. Mo. allegations in It is not an offense included within [1]. purge' require information. The information did No. 1 and of which of the crime defined in instruction themselves giving imprisonment. now stand convicted Melton, prejudicially of the instruction was erroneous. State W. 139(1); v. Kester 201 S. 15 S. v. Littler W. 1014. Kyle, Instructions be resorted curing defects informations or indictments to for the of Smith, 1000) S. W. in- verdicts are (State statutory omitted essential of a supply elements offense effective-to States, 43; 104 Fed. 2d (Harris Hancock, United 273). 327, 7 is reversed and the cause is remanded. Westimes Barrett, (7(7.,concur. foregoing opinion by Bohling, C.,

PEE. adopted CURIAM: —The is the court. All judges' opinion of concur. Application Suspend Liquor or Revoke In re License No. Burke, Supervisor Liquor Control of the Edmund Appellant, v. Frances Coleman . No. 40020. Missouri, Martha