266 Mo. 672 | Mo. | 1916
Lead Opinion
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
On the part of defendant the testimony tended to show that upon the return of his son from school at
“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
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.
Dissenting Opinion
(dissenting) — I am unable to concur in the majority opinion herein for three reasons, which I briefly summarize thus:
First. The doctrine announced in this case breaks down the distinction between a common assault and battery and a felonious assault, whereby maiming, wounding, disfiguring and great bodily harm ensues.
Second. Instruction numbered seven under the facts here (the producing cause and nature of the battery regarded) is misleading, erroneous and harmful.
Third. Instruction three is broader than the information, in that it fails to confine the jury in their consideration of the producing causes of the effects found to the causes pleaded in the information. I shall briefly set forth the reasons I have in mind for these views.
I am impressed with the view that the majority opinion by its application of the definition of a wounding under said section 4483;, and within the purview thereof, has not only trespassed upon the zone of demarcation which separates and distinguishes an ordinary assault and battery from the more serious and felonious assault and wounding, but has wiped out the boundary between the two utterly. Attend to the reasons for this view: The majority opinion says succinctly that within the purview of said section 4483, “it is not necessary to establish that the wounds inflicted were of a dangerous character, or such as are likely to produce death.” From such view it would seem logically to follow that any wound is sufficient. A wound, says Cyc., is “an injury to the person by which the skin is broken.” [40 Cyc. 2865.] So, the fault I find is that there are left no landmarks under the majority view in this case which point out the difference between one assault with the fists which constitutes a felony and another assault with the fists which constitutes but a mere misdemeanor.
The statute of this State defines by preclusion and denounces a common assault and battery thus: “Any person who shall assault, or beat or wound another, under such circumstances as not to constitute any other offense herein defined, shall,” etc. [Sec. 4484, R. S. 1909.] Under a definition of a wounding as contained in the majority opinion, any ^breaking of the skin is a wounding within the purview of said section 4483, whether done by old or young, weak or strong, healthy or unhealthy, by a single blow of the fist, or by many such blows. Given a blow by which the skin is broken and blood flows ever so little, a felony has been committed, if a prosecuting attorney so wills; because, forsooth he who is struck might have fallen
Discussing the expression “great bodily injury,” which confessedly is in pari materia with, but stronger than, the phrase “great bodily harm” of section 4483, of our statute, as well as another point important and germane to one phase of this case, the Supreme Court of Arkansas said:
“The phrase ‘great bodily injury,’ is difficult to define, for the reason that it well defines itself. It means a ‘great bodily injury,’ as distinguished from one that is slight or moderate, such as would ordinarily be inflicted by an assault and battery with the hand or fist without a weapon. To put one in danger of great bodily injury from an assault, something more than attack with the hand or fist would usually be required, and it would rarely happen that one might lawfully take the life of another to avoid an assault with the fist only. But cases might be supposed when it would be justifiable to do so; for an assault and battery by a powerful man with his fist upon a weak one might be carried to such extreme severity as to produce great bodily injury, and yet be unaccompanied by such circumstances as to make it a felony. One who intentionally commits a great bodily injury upon the person of another may or may not be guilty*688 of a felony, depending npon the circumstances; but, as such an injury may, under some circumstances, be committed, and still the offender not he guilty of a felony, it is therefore not accurate to define ‘great bodily injury’ as ‘a felony committed on the person.’ ” [Rogers v. State, 60 Ark. 76, 31 L. R. A. l. c. 468.]
It is a significant fact, though concededly not a wholly decisive one, that in all the suggested forms for indictments found in the' excellent local treatise of Judge Kelley, there is not one but which connotes the use of some instrument or implement of attack of a deadly or dangerous nature. Of an indictment under section 4483, for the use of nature’s weapons, there is no form given. [Kelley’s Crim. Law & Pr., sec. 580.] Likewise is it significant that there has never before been in this State a case wherein a prosecution was had for a battery accruing from the use of mere fists. At least, a fairly exhaustive search for such a one has not been rewarded. These are the cases and the instrumentalities : State v. Leonard, 22 Mo. 449 (a large stone, said to have been a “deadly weapon”); Johnston v. State, 7 Mo. 183 (a stick of timber); Jennings v. State, 9 Mo. 852 (a large iron auger); State v. Freeman, 21 Mo. 481 (an iron shovel); State v. Bohannon, 21 Mo. 4-90 (a rock, and that maiming occurred in that a thumb was bitten off); State v. Thompson, 30 Mo. 470 (a hoe handle); State v. Moore, 65 Mo. 606 (a knife); State v. Agee, 68 Mo. 264 (a pistol); Carrico v. State, 11 Mo. 579 (a large piece of wood); State v. Bailey, 21 Mo. 484 (a large block of wood); State v. Davis, 29 Mo. 391 (a knife); State v. Janke, 238 Mo. 378 (by beating with fists, choking with the hands and stamping on and kicking with the booted foot and by striking with a hard but unknown weapon); State v. Nieuhaus, 217 Mo. 332 (a raw-hide whip three-fourths of an inch in diameter and a heated iron stove lifter, nine inches long, an inch thick and weighing one pound); State v. Munson, 76 Mo. 109 (a pistol); State
Moreover, the majority opinion seems to treat section 4483 as if the fact of wounding by a mere breaking of the skin is the only prerequisite, and as if there were five offenses denounced by said section, viz., (a) maiming, (b) wownding, (c) disfiguring, (d) inflicting great bodily harm, and (e) acts endangering the life of another. On the contrary the three first words are obviously ejusdem generis, so they may all be charged in the conjunctive in the same count of a single indictment. If they are not ejusdem generis, and if they do denounce five separate and distinct crimes, then the information in the instant case, as well as all of the known and used forms of indictment under this section, have offended for duplicity (Kelley’s Crim. Law & Pr., sec. 580; State v. Janke, supra; State v. Nieuhaus, supra; State v. Munson, supra; State v. Van Zant, supra; State v. Brown, 60 Mo. 141; State v. Moore, supra; State v. McQuaig, supra); and practically all, if not all, others cited supra, for they charge in one count two, three and more, often four, of the alleged distinct crimes; besides, it has been specifically held that such an indictment (i. e., an indictment charging a wotmding, disfiguring and the infliction of great bodily harm) charges but one offense. [State v. Herreford, supra.] That there is one case wherein the contrary is held in an obiter dictum, after an ample reason for the holding there was apparent and was given, does not alter this view. The conclusion therefore is inevitable that the wounding connoted by said section 4483 is a maiming-and-disfiguring, wounding, from which great bodily harm ensues, and
Comprehensively examined it is fairly manifest that section 4483 is a statutory “catch-all,” designed to cover and forbid criminal acts, productive of hurt and harm to others where life was put in jeopardy whether such acts were done with or without malice; that is, whether done intentionally or by culpable negligence. Thus it was designed to supplement, and not to supplant other germane statutes, wherein the strict letter, for lack of specific averment, fell short of defining the acts which constitute the offenses aimed at in section 4483. It not only includes acts which in other jurisdictions are designated as “aggravated assaults,” but also other acts, done with imputable but not express, malice, with or without an assault. It is not necessary under this section that there should be any actual injury, if the life of another be intentionally endangered (State v. Agee, 68 Mo. 264); nor that life be actually endangered if there be a wounding and disfiguring to the extent of inflicting, or from which great bodily harm ensues (State v. Nieuhaus, 217 Mo. 332); or obviously if there be a maiming, or a wounding, or a disfiguring from which great bodily harm ensues; provided, the circumstances are such that if death had occurred the tortfeasor would for his acts have been guilty of either murder or manslaughter. It is clear that an intentional assault whereby life is endangered, or whereby great bodily harm ensues is already fully covered by sections 4481 and 4482; that an intentional assault which produces a maiming or disfiguring in designated serious aspects, is likewise forbidden by section 4480, while a common assault and battery is covered by section 4485. But it is not so clear that assaults with deadly or dangerous instrumentalities resulting in wounding, maiming or disfiguring from which bodily harm, greater in degree than
I am not contending that under the “ aggravated assault” features of said section 4483 it is impossible to offend by an intentional battery committed with the bare fists. I am conceding, as in the beginning I forecast, the possibility of doing this under a proper information, present proper facts. But I do contend that there is neither such a pleading nor such facts here, and that absent such necessary concomitants, the ancient landmark's ought not lightly to be destroyed, merely because the acts of the defendant happen to be unusually reprehensible and the punishment richly merited.
“The court instructs the jury that the lata 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 assaulted D. E. Tugel in a manner likely to cause death or great bodily*692 harm, the law presumes that he intended to hill him or do him some great bodily harm.”
Here nothing was used but the fists, one of which bore a finger ring. Neither the fists nor the ring will be judicially noticed to be either a deadly or dangerous weapon as such is known to the law, absent specific proof of the fact. But in such state of the facts the jury are told that “the law presumes that a person, intends the natural and probable consequences of his acts.” It has been said that in a criminal case the law raises no such presumption. [State v. Stewart, 29 Mo. 419, wherein the instrument of assault was a walking-stick.] In this case Judge Napton said: “But the instruction in reference to the intent of the defendant was calculated to mislead. The intent of the de- ■ fendant in making the assault was a question of fact for the jury. The law raises no presumption about it, and it was error for the court to tell the jury that ‘the law presumes that every man intends the natural, necessary, and probable consequence of his acts.’ ”
I do not contend that in a proper case the giving of a proper instruction involving the presumption of intent from the use of a deadly weapon upon a vital part of the body of him who is assaulted, is forbidden by law. But that is not the question here. The human fist, even when aided by a finger ring, is not judicially noticed as being a deadly weapon (Little v. State, 61 Tex. Crim. App. 197), and therefore its use could not be judicially noticed (and presumptions are necessarily bottomed on judicial notice), as being followed by the inevitable consequence 'of death or great bodily harm, for such consequences are neither the natural nor the probable sequelae of such use of the fist as it is ordinarily used in a battery. Such consequences are but remote possibilities, because in human experience they occasionally happen; they do not always happen; and we repeat, if the fist or the manner of the use thereof in this oase was such as to take it out
The instruction which I contend is bad for a toógreat broadness, in pertinent phrase read thus: “The court instructs the jury that if you find and believe
If it be urged that this widening of the issues was harmless because of lack of evidence of other sources of injury besides the fists and the ring of defendant, the answer is that there is more than a suggestion in the evidence that the hardness of the ground on which Tugel lay contributed to some extent to the injuries which he is said to have sustained. This the majority opinion concedes, arguendo; yet the information did not charge it.
For these reasons and others which might be set forth but for the lack of space, I dissent from the majority opinion and the conclusion therein reached.