State v. WelchState v. Welch
2. EVIDENCE: Defendant‘s Intent: Illegal Effort to Justify Assault. Defendant, charged with feloniously wounding one Underwood with a club, is not entitled to testify with what intent he assaulted Underwood, where it is manifest that he is illegally attempting to get before the jury the fact that Underwood on some former occasion had had sexual intercourse with his wife and that he was justified in punishing him therefor.
3. ——: Assault: Justification: Remote Intercourse with Wife. In the trial of a defendant charged with felonious assault upon one Underwood, proffered testimony by defendant‘s wife, recently married and under sixteen years of age, that, fifty days before the assault, Underwood took her in his automobile to the country and there had sexual intercourse with her, and that she thereafter told her husband of the occurrence and from time to time portions of her experience, was too remote in point of time, and under the circumstances of this case constituted no justification for the assault, and was properly excluded.
4. ——: Cross-Examination of Defendant. Where defendant on direct examination had testified that when he committed the assault he had in his hand “a little salt bag with a little silver money in it,” it was not error to permit the prosecuting attorney to interrogate him on cross-examination with reference to statements made by him in the office of said attorney relating to the contents of said sack.
5. ——: Assault: Deadly Weapon. It may be inferred, from evidence that there was a three-inch gash on the head of the assaulted party, that the club with which the assault was made was a deadly weapon.
6. INSTRUCTION: Assault in Defense of Person. An instruction telling the jury that if they find and believe from the evidence that “the defendant, without any just cause or provocation and in defense of his person,” feloniously assaulted, etc., is, by the use of the word “and,” erroneous. If the word “and” had been followed by not or the word or used instead of “and,” it would have been proper; but as two other instructions given contain the same error, and all other instructions relating to the subject were refused, and defendant was convicted of a felony, the error was prejudicial.
7. ——: Omission of Right of Self-Defense. An instruction for the State which authorizes the jury to convict defendant regardless of
8. INSTRUCTION: Assault upon Bad Man. An instruction telling the jury that “in law it is the same offense to assault a bad man as to assault a good man” and that although the jury may believe that the person assaulted “was a person of questionable morals, this fact alone will not justify or excuse the defendant in assaulting him,” is not only a reflection upon the intelligence of the jury, but reversible error.
Corpus Juris-Cyc. References: Assault and Battery, 5 C. J., Section 304, p. 780, n. 66; Section 325, p. 787, n. 77 New; Section 332, p. 791, n. 26; Section 346, p. 797, n. 98; Section 350, p. 801, n. 26; p. 802, n. 35 New. Criminal Law, 16 C. J., Section 1096, p. 565, n. 69 New; Section 2027, p. 796, n. 55; p. 797, n. 55, 57 New; Section 2490, p. 1047, n. 65. Witnesses, 40 Cyc., p. 2687, n. 93; p. 2690, n. 97.
Reversed and remanded.
Clarence A. Barnes for appellant.
(1) The court erred in permitting the name of Dr. Jolley to be indorsed on the information on the second day of the trial, and near its completion.
Robert W. Otto, Attorney-General, and Harry L. Thomas, Special Assistant Attorney-General, for respondent.
RAILEY, C.—On February 26, 1924, the Prosecuting Attorney of Audrain County, Missouri, filed in the circuit court of said county a verified information, charging therein that appellant, in said county, on December 22, 1923, feloniously wounded one Carl Underwood, etc.
He was arraigned and entered a plea of not guilty. A trial was had before a jury and, on March 22, 1924, the following verdict was returned:
“We, the jury, find the defendant guilty of felonious wounding of Carl Underwood and we assess his punishment at imprisonment in the State penitentiary for a term of two years.”
Motions for a new trial and in arrest of judgment were filed and overruled; allocution was had, judgment rendered and sentence passed upon appellant in conformity to said verdict. An appeal was granted defendant to this court.
We have carefully read the record and bill of exceptions herein, and find that counsel for the State have made a careful, accurate and substantial statement of the facts in the case and referring to the record where such testimony may be found. As a matter of convenience, leaving off the references to the pages of the record aforesaid, we hereby adopt said statement of the case as follows:
“About nine p. m. on Saturday, December 22, 1922, Carl Underwood and his wife were walking west on Monroe Street in Mexico, Audrain County, Missouri. They had been shopping and were preparing to return to their home. As they passed in front of the display window of the Lewis Moore store and a millinery store they met Walter E. Welch, the appellant, and his wife, who were coming from the opposite direction. Mrs. Underwood
“Dr. G. J. Toalson stated that he examined Underwood on the 29th of December and that he was then nervous and restless and had a depression fracture three inches long on the top of his head. Underwood was then dazed and only momentarily conscious and grew worse for five days. His trouble appeared to be from a fractured blood vessel caused by the fracturing of his skull and he was in a very dangerous condition. The breaking of an abscess caused by the rupture later gave him relief and saved his life. No operation was performed.
“Carl Underwood, the injured party, testified that he saw the appellant and his wife as he passed, but that nothing was said and that he did not look up at appellant. They spoke to Mrs. Underwood and went on. He did not know how far he had gone when he was struck on the head. His next recollection was of the time when they put him in a car at the Ford garage. The appellant did not say anything to him before striking the blow. Underwood was carrying a bundle under each arm when struck, and did not put his hand to his overcoat pocket with the intention to convey to the appellant the idea that he had a gun in that pocket.
“The evidence on behalf of the appellant is, briefly, as follows:
“Three witnesses testified that the general reputation of Carl Underwood for truth, veracity and morals was bad. Appellant‘s wife, Mrs. Bessie Welch, stated that she was sixteen years of age on the 19th of December, 1923, and that she first met Underwood in Warren County in May, 1923. She later moved to Mexico in June of the same year. An offer was made on the part of appellant to show by her testimony that on the 2nd day of November, 1923, Carl Underwood took her in his car to the country and there had sexual intercourse with her; that thereafter he approached her on two or three oc
“Dr. N. R. Rodes testified that he treated Underwood on the evening of December 22nd and on the following morning, and that Underwood was not at that time delirious. He did not find any facture and should have been able to find one from his examination had it existed. He could not tell that there had been any injury, but an X-ray photograph might show the injury. There might have been an injury of the inner skull without a fracture to the outer, and that an inner fracture often causes a blood clot on the brain which produces death unless the clot is absorbed.
“The appellant, testifying in his own behalf, stated that he had seen Underwood several times during the day of December 22nd, having seen him in business houses, around the square and at the home of one Jim Polsten. Mrs. Polsten is a sister of Underwood‘s wife and the mother-in-law of the appellant. He had also seen Underwood the day before the assault, when Underwood parked his car and whistled and jumped up and down in front of appellant‘s building. When they met just before the assault Underwood stepped a little ahead of his wife, smiled and sneered at the appellant, and put his hand in his right-hand overcoat pocket. ‘The smile
“In rebuttal for the State, Dr. F. J. Jolley identified an X-ray picture of Underwood‘s skull taken by him the day of the trial. Objection was made to the indorsement of Dr. Jolley as a witness on account of surprise, and to his testimony generally as being offered in rebuttal, but being in reality evidence in chief. Dr. Jolley testified that the X-ray photograph showed a fracture made within six months, the fracture being of both tables of the skull and showing star-like in the photograph.
“No rebuttal was offered by the appellant, but an offer was made to show by his testimony that his intention in striking Underwood was to punish him for attentions to appellant‘s wife.”
Appellant, in his brief, has presented for our consideration seven assignments of error under his “Points and Authorities,” numbered from one to seven inclusive, which we will proceed to consider in the order mentioned.
I. It is claimed that the trial court erred in permitting the name of Dr. J. F. Jolley to be indorsed on the information on the second day of the trial, and near its completion.
Under the circumstances aforesaid, the trial court was not guilty of an abuse of sound judicial discretion in permitting the above name to be indorsed on the information. [State v. Pearson, 270 S. W. 347, and cases cited; State v. Julin, 292 Mo. l. c. 272; State v. Stegner, 276 Mo. l. c. 438.] No affidavit of surprise was filed; no application for continuance was made, nor was the testimony of Dr. Jolley, when offered, objected to by defendant. The foregoing assignment of error is without merit and overruled.
II. It is contended that “the defendant was entitled to testify with what intent he assaulted Underwood.” Appellant cites in support of this contention the following authorities: State v. Banks, 73 Mo. 592; State v. Palmer, 88 Mo. l. c. 573; State v. Fletcher, 190 S. W. 317; State v. Lyle, 296 Mo. 427.
In State v. Palmer, 88 Mo. l. c. 572, it appears that “the defendant had testified that when he struck he did not intend to kill the deceased.” This court upheld his right to so testify.
In the case at bar, appellant testified as follows: “Q. At the time you struck Underwood did you intend to kill him? A. No, sir.”
In State v. Fletcher, 190 S. W. l. c. 321, Judge Walker said: “Counsel for defendant asked him on the witness stand whether he intended to kill the deceased when he struck him. Defendant answered, ‘No.’ Counsel for the State interposed an objection to the question, which the trial court sustained.” We held that he was entitled to testify as he did, and that the ruling of the trial court was erroneous. The case, however, was not reversed, as he got the same fact in another form before the jury.
In State v. Lyle, 296 Mo. l. c. 435, defendant was asked to state “with what intention he drove the Llewellyn car from in front of the Baptist church.” The court refused to permit him to testify as to any intent whatever, and we held it was error. The court did not call upon defendant, as in this case, to state to the court, outside the presence of the jury, what his intent was. In the present case, the defendant testified before the jury that he did not intend to kill Underwood. He was not asked if he struck Underwood in self-defense, or under great excitement without intending to inflict on him serious injury, but here is what the defendant informed the trial court, without the presence of the jury, he desired to give as testimony in the case: “Q. When you struck Carl Underwood with what intent did you strike him? A. Only to punish him enough so he would let my wife alone.”
It is manifest that defendant was illegally attempting to get before the jury the fact that Underwood, on
III. The assault made by defendant on Underwood occurred about December 22, 1923. Appellant complains of the court‘s ruling in refusing to permit him to prove by his wife, Bessie Welch, that on November 2, 1923, defendant took her to the country and had sexual intercourse with her at that time, while she was under sixteen years of age, etc. The above, and other attentions alleged to have been shown by Underwood to defendant‘s wife prior to the date of the injury, were properly held by the court to be too remote in point of time, and in view of the facts disclosed by the record, constituted no justification for the assault complained of in this case. The authorities cited by appellant have no application to a case of this character. The above assignment is accordingly overruled. [See authorities last cited.]
IV. The trial court is charged with error in sustaining the right of the prosecuting attorney to interrogate defendant with reference to statements made by him in the office of said attorney, and about which he was not interrogated upon his direct examination. This assignment is clearly without merit. Defendant, on direct examination, testified that when he hit Underwood he had in his hand “a little salt sack with a little money in it.” The cross-examination complained of related to the contents of the same sack, and no error was committed in respect to said matter. [State v. Lemon, 263 S. W. 186; State v. Edelen, 288 Mo. l. c. 174; State v. Foley, 247 Mo. l. c. 638.]
VI. It is contended that the court failed to properly define a “deadly weapon.” Instruction 3, given by the court, reads as follows:
“The court instructs the jury that if you find and believe from the evidence, beyond a reasonable doubt, that on or about the 22nd day of December, 1923, at the County of Audrain and State of Missouri, the defendant, without any just cause or provocation and in the defense of his person, as set forth in instructions numbered one and two herein, did then and there feloniously, wilfully, on purpose and of his malice aforethought make an assault upon one Carl Underwood with a club, and that said club was a deadly weapon, that is to say, a weapon likely, as used, if you find the same to have been used, to produce death or great bodily harm, and that the said defendant did then and there with said club feloniously, wilfully, on purpose and of his malice aforethought strike and beat him, the said Carl Underwood, and did then and there and thereby give to him, the said Carl Underwood, in and upon the head, neck and body of him, the said Carl Underwood, with the club aforesaid, certain wounds, with the felonious intent then and there him, the said Carl Underwood, feloniously, wilfully, on purpose and of his malice aforethought to kill and murder, then you will
“The word ‘feloniously’ as used in the information and in the instructions herein means wickedly and against the admonition of the law.
“The terms ‘wilfully’ and ‘on purpose’ mean intentionally and not by accident.
“The term ‘malice aforethought,’ as used in the information and in these instructions, means that one intentionally does what he knows to be a wrongful act, and that he has thought of it and determined to do it for any length of time beforehand, however short.”
This instruction is erroneous in using the italicized word “and.” It would have been proper, if “and” had been followed by “not,” or had the word “and” been changed to “or.”
Instructions 5 and 6, given by the court, contain the same error as Instruction 3, pointed out supra. As the instructions of defendant relating to the above subject were refused, and no other instructions given properly declaring the law thereon, we are of the opinion that a new trial should be granted, as defendant was convicted of a felony.
VII. In his motion for a new trial appellant charges the court with error in the giving of Instruction 4, which reads as follows:
“The court instructs the jury that if you find and believe from the evidence, beyond a reasonable doubt, that the defendant did make an assault upon Carl Underwood with intent to kill him, the said Carl Underwood, or to do him greatly bodily harm, but that such assault, if made, was made without malice aforethought or that the weapon used, if you find the same to have been used, was not a deadly one, or one likely as used, if you find the same to have been used, to produce death or great bodily
This instruction leaves out of consideration the right of defense claimed by defendant, and recognized as existing, in the State‘s instruction numbered one. We are of the opinion that Instruction One properly declares the law. However, Instruction Four above mentioned authorized the jury to convict the defendant on the facts mentioned, regardless of his right of self-defense, and without any reference to said instruction.
VIII. Instruction numbered 7, given by the court, is assaulted in the motion for a new trial. It reads as follows:
“The court instructs the jury that in law it is the same offense to assault a bad man as to assault a good man, and although the jury may believe from the evidence that the prosecuting witness, Carl Underwood, was a person of questionable morals, yet this fact alone will not justify or excuse the defendant in assaulting said Underwood, if he did assault him.”
The giving of this instruction was held to be reversible error in State v. Rozell, 225 S. W. l. c. 934, and the ruling in the Rozell case later followed in State v. Archie, 301 Mo. 392. Aside from what has been heretofore said of this instruction, we think it is a reflection upon the intelligence of a jury to give it, as we are loath to believe that any jury would convict a defendant because he was a bad man.
IX. Other matters are discussed in the briefs of counsel which are not likely to occur on a re-trial of the
Per Curiam:—The foregoing opinion of Railey, C., is adopted as the opinion of the court. All of the judges concur.