*1 COURT MISSOURI, SUPREME OF State v. Welch. charges of every the statute and element of same as de- require- fined therein. meets the measure of the This charge statutory a ment of of a crime.
The record which mark the entries, course of the conformity trial court the case, in conduct of in this are procedure with our the afforded defendant such a hearing by isas accorded the Constitution. There is no complaint, regard cause of the therefore, same. Finding warranting judgment no error a reversal the affirmed. All concur. Appellant.
THE STATE v. WALTER E. WELCH, Two, Division December During Progress 1. WITNESS: In Rebuttal: Indorsement: of Trial: Discretion. assault, Defendant was tried for felonious physician days a for testified the State that seven after the.assault depression he examined the assaulted'man and found a fracture long top three inches his head. For defendant another physician testified that he treated the assaulted man on even- ing the assault and found no fracture and have been would able existed, X-ray photograph might had find one but that an injury day an skull if there was one. On show the second attorney prosecuting permission the trial asked to indorse the physician information, stating of a third on the name that he by him, upon rebuttal, by opinion by to show both wished X-ray photograph, that there been a fracture of the as- skull; man’s that he had learned the saulted facts which this wit- proceeded testify day, would after the trial had ness for whole anticipated that the witness and could not have for defendant would depression that there had been no fracture or of the skull. objected for defendant to the indorsement name of Counsel information, physician on the third for the reason this testimony rebuttal, surprise. be in and on would not account of objection, permitted indorsement, court overruled rebuttal, produced physician, State in later identified an day X-ray picture skull made him on first of the of the trial, it showed fracture tables and testified that of both of the showing photograph. skull, “starlike” No the fracture filed, application surprise was no for a continuance was affidavit - State v. Welch. objection made, physician and no was made to the ju- Held, when sound offered. that the trial did not court abuse permitting physician dicial to be in- discretion name receiving information, dorsed on the and no committed in error was *2 his in rebuttal. Justify Illegal 2. EVIDENCE: Defendant’s Intent: Effort to Assault. Defendant, charged feloniously wounding one Underwood with club, with a is not what he assaulted entitled to with attempting Underwood, illegally it is where is manifest that he get jury former before the the fact that Underwood on some oc- casion had had sexual intercourse and that he was with justified punishing him therefor. -: Assault: Justification: Remote Intercourse with In 3. Wife. upon charged trial With felonious assault one of defendant recently testimony by wife, Underwood, proffered mar- defendant’s years that, days age, fifty of before the ried under sixteen country assault, took her in his automobile to the her, had sexual intercourse with and that she thereafter told there portions the occurrence and from time time of her husband of point of-time, experience, was remote in and under the her too justification this constituted no for the as- circumstances of case sault, properly excluded. and W’as -: of Defendant. Cross-Examination on Where defendant direct 4. that he had testified when committed assault examination bag money his hand “a little salt little silver had in permit prosecuting attorney it,” error to interro- not gate with reference to statements him cross-examination made attorney relating of said to the contents him the office
sack. Weapon. may Deadly inferred, from --: It Assault: evidence 5. gash on the head of the assaulted a three-inch there was that party, was a club with which the assault made that weapon. Defense Assault in of Person. An instruction tell- INSTRUCTION: 6. they jury ing if find and believe from the that evidence just provocation any cause or in de- without “the etc., feloniously assaulted, is, by person,” the use of his fense “and,” “and” If the word had been followed erroneous. Word “and,” proper; it would been instead of have the word used not or error, given all contain same instructions two other but refused, subject relating were defend- instructions other prejudicial. felony, of a error was convicted ant Right An of Self-Defense. instruction for the -: Omission regardless jury to convict which authorizes 478 SUPREME COURT OE MISSOURI,
State Welch. self-defense, properly recognized existing by another given, instruction is erroneous. upon telling 8. INSTRUCTION: Assault Bad Man. An instruction jury that “in is law it the same' offense to assault a man as bad may good although assault a man” and that the believe person person questionable morals, assaulted “was a this fact justify him,” assaulting alone will not or excuse the defendant in only intelligence jury, a reflection but reversible error. Corpus Juris-Cyc. Battery, J., Assault and References: 5 C. Section p. 66; 325, p. 304, 26; Criminal 780, 787, New; 332, p. 791, n. Section n. 77 Section n. 346, p. 797, 98; 350; p. 801, p. 26; 802, n. Section Section n. 35n. New. Law, J., 1096, 565, p. New; 2027, C. Section n. 69 Section New; p. 796, tnesses, p. 797, 55, p. 2490, 1047, n. n. Section n. Wi- Cyc., p. 93; p. n. n. 97. Appeal from Audrain Circuit Court.—Hon. E. Gantt} S.
Judge. *3 Reversed and remanded. appellant. for
Clarence A. Barnes (1) permitting The court erred the name of Dr. Jolley be indorsed on the on information the 'second day completion. its trial, of the and near R. S. 1919, opportunity given There no 3889. 3849, secs. the prepare testimony for meet or such defense to as Jolley. given by Dr. That he was a most material jury’s in the witness reflected verdict. The State advantage. unfair State obtained an v. Lawson, 239 App. Brown, State v. 163 591; 30; Mo. Mo. State v. Barrington, 198 Mo. Defendant made 69. his claim surprise. Webb, 205 S. State v. W. 187. The verdict of pre- the demonstrates defendant’s case was State,v. Jolley’s testimony. judiced by Dr. Julin, 292 (2) 273. defendant was Mo. entitled to he assaulted Underwood. with what State v. v. 573; Banks, Mo. 73 Mo. Palmer, 592; 88 State State Tyle, 317; 190 296 Fletcher, S. W. State Mo. 427. excluding (3) the The court erred 479 1925. Welch. State v. prosecuting Bessie that the wife of the Welch, raped on the second witness had defendant’s wife the approached day thereafter her her and November, inquiring had told on two if she or three occasions upon being had, informed that she husband, following the husband; would take care of her rape, her husband from time occurrence she told experiences portions that she had under- time sought society gone, of defendant’s and that he stopped on the street and endeavored to her Sanders, 188; her. with State v. State converse (4) Forsythe, per- The court Mo. 667. erred v. mitting 89 attorney prosecuting to cross-examine place prosecuting taking in the office of at- matters torney; requiring attorney prosecuting in not attorney for defendant the statement to submit attorney interrogated prosecuting about which possession prosecuting which was defendant attorney, which the about matters interrogated his direct examination. was not 4036; Hathorn, 166 Mo. sec. State v. 238; R. S. (5) Kyle, When Mo. assault is State charged deadly weapon made have been with that the assault inwas established fact made must be Humphries, weapon. State v. Mo. 221 Mo. '530; Fletcher, S. v.-Dunn, W. declare (6) did not all the The court law the “deadly weapon” did not define a the court in that case, although jury thereon, attention instruct defendant’s refused instructions. thereto called weapon” *4 “deadly correctly of a was definition The asked. instructions State v. given in 264 Miller, Wonsong, 146 Mo. Bowles, 6; State v: v. 395; State Mo. 50. Mo. 271 Attorney-General, Harry Otto, W.
Robert L. Attorney-General, Special Assistant Thomas, for re- spondent.
480 COURT OF MISSOURI, SUPREME y.
State Welch.
improper
(1)
to
be-
offered as
conduct
Evidence
properly-
appellant’s
was
tween Underwood and
appearing* from the evidence that the dis-
excluded,
covery
of a
remote to the
was
date
assault.
same
Privitt,
212 W.
Stewart,
857;
v.
S.
v.
175
State
State
(2)
Mo.
207;
France,
v.
76
Defendant
State
681.
Mo.
to his
entitled to
as
intent in
Lyle,
commission
is
charged. State
He was and entered of not A trial before a March and, on following verdict was returned: guilty jury,
“We, the the defendant find felonious . wounding punish- of Carl assess his Underwood we imprisonment penitentiary ment at in the for ’’ years. term of two judgment Motions for a trial and in arrest of new judgment were filed' and overruled; allocution was had, passed upon appellant rendered and sentence in con- formity appeal granted to said An verdict. de- fendant to this court. carefully
We have read the record and bill ex- ceptions herein, for find counsel the State have careful, made a accurate and substantial statement of referring the facts case and to the record where testimony may such be found. As a matter of con- leaving pages olf the venience, references hereby adopt record aforesaid, we statement of the case as follows: Saturday, nine on “About 22,-1922, p. December m. walking
Carl his wife were west Mon- County, They roe Street in Audrain Mexico, Missouri. shopping preparing had been and were to return to their they passed home. As display front of the window millinery they of the Lewis Moore store and a store met appellant, Walter Welch, E. wife, who were coming opposite from the direction. Mrs. Underwood Sup. —31. OF SUPREME COURT MISSOURI,
State v. Welch.. walking They slightly in advance her husband. spoke greeting, to her and she returned their but her speak. did not husband She her husband continued *6 gone only to walk west and had a when short distance she blow, of a heard sound and turned around to appellant beating see the her in the back husband and appeared over head with to be club a what about long. foot and one-half She did not see the first blow attempted get away, struck. Underwood but was post by lamp followed appellant in the middle street him he who continued to at until missed strike rejoined appellant away a blow. The and then turned his staggered wife. on a distance Underwood short fell on garage, known his face front of Ford what thirty away. During beating,
about feet try ap- Underwood did not to strike the raise his hand pellant. He three-inch wound in forehead received a He was three black across his neck. bruises conscious got they until him to where he remained for bed, about weeks, two later to his room for five or confined in all wére struck, six weeks. About twelve blows appellant appeared club in both the drawing have the hands swinging he if were
it over the shoulder as carrying bundles axe. two when as- Underwood knocked down. saulted. None of the blows him The forty by from a of about feet assault was seen distance appellant turn, one Ernest who saw run Garrett, him. west strike toward Underwood and staggered, got up again. and was hit This witness fell, appellant’s anything hand and did not see testified assault that the first from side. blow was by were within four also witnesses who seen three other They appellant or five men saw feet of the at time. past going west, him run them from saw the east and They facing hitting west. start who was then Underwood, before he fell on testified that after the assault garage, Underwood'did not col- face front of the^Ford anything. testified that after lide with of them One
State v. Welch. beating- appellant something came back and said to Mrs. Underwood, and another stated that Mrs. Underwood ‘ ’ him said to Oh, that time, he never it. done
“Dr. O. J. Toalson stated that he Under- examined then, wood the 29th of December and that he was depression nervous and restless and had a fracture three long top inches on the of his head. Underwood was only grew then dazed momentarily conscious and days. appeared worse for five His trouble from fracturing fractured blood vessel caused of his very skull and he was in a condition. The dangerous breaking rupture gave anof abscess caused later operation per- him relief and saved his life. No formed. injured party,
“Carl Underwood, the testified that appellant passed, saw the and his wife as he but that *7 nothing- ap- was said and that he up not look did pellant. spoke They to Mrs. Underwood and went'on. gone He did not know far he how had when he was struck on the head. His next recollection was of the time put they garage. when pellant ap- him in a car at the Ford say anything did striking to him before the carrying blow. Underwood was a bundle under each put arm struck, when and did not hand his over- pocket coat convey appellant with the intention to the gun pocket. the idea that he had a in that appellant “The evidence briefly, on'behalf the of is, follows: general “Three reputa- witnesses testified that the veracity tion of Carl Underwood for truth, and morals Appellant’s was bad. wife, Mrs. Bessie Welch, stated years age that she was sixteen of 19th on the of Decem- ber, 1923, and that she first met Underwood Warren May, County later She moved to Mexico in June year. of part the same An ap- offer was on made the of pellant by testimony day to show her that on the 2nd of November, Carl Underwood took her in his car to country the and there sexual had intercourse with her; approached'her that thereafter he on two or three oc- 48é SUPREME COURT OF MISSOURI, y.
State Welch.. upon inquiring if had her husband, she told casions, that he informed she had that would stated take following husband; that care of her the occurrence she portions from time told her husband time of her ex- perience, that it would shown appellant night difficulty that on Underwood grinned bringing appellant, having to mind, at the bringing purpose of to mind, intent and Underwood’s improper relations with Mrs. and further Welch, that completed story husband'only her Mrs. her Welch had days assault, a few before the and that Underwood on the second November several occasions between society sought her had assault time and had objection stopped offer, street. The her rejected. Similar were State, was made in offers with other connection witnesses. testified that he
“Dr. N. R. Rodes treated Under- evening 22nd of December and on on the wood follow- ing morning, was not at and that Underwood time any not find facture should He did have delirious. one from his examination been able to find existed. any injury, there had been tell that but an He could not might injury. might X-ray photograph show the There injury inner skull without a have fracture been inner fracture often that an causes a outer, produces death brain which unless on the clot blood clot is absorbed. testifying appellant, in his behalf, own stated
“The during several times he had seen having seen him day 22nd, December business *8 square the home' of and at one the Jim around houses, a sister of Underwood’s Mrs. Polsten Polsten. appellant. the He had of also mother-in-law the and day assault, when before the Under- the Underwood seen jumped up parked whistled car and appellant’s and and his wood building. they When met in of front down stepped a little just the assault Underwood ahead before put appellant, the and and wife, smiled sneered.at his of pocket. right-hand ‘The overcoat smile in his hand his TERM, 1925. v. Welch. caught him’ and lie all followed Underwood, went over him about. his arm and turned Underwood then and he returned blow and him, in all struck hit only any any times. Tie did not have three club of kind, have a salt sack silver dollar but did with and some change in it. He did not small know how he held this during away passed he assault. As turned sack and ‘He said, she didn’t do it.’ Mrs. Underwood On cross- partially that examination he stated Underwood was facing him him struck at the left and with hand as he pursued about ten whirled. He feet, could have that Underwood known who he admitted turning nothing around, before and that was by following day either of them. The assault he prosecutor that had hit Underwood told the money containing some had thrown a sack silver being appellant recalled, at him. On denied dollar kill Underwood. that he intended to Jolley Ur. for F. J. State, “In rebuttal identified X-ray picture skull taken him Underwood’s an Objection day made to of the trial. indorsement surprise, Jolley account a witness on of Dr. generally being testimony in offered rebuttal, to his reality Jolley being evidence chief. Dr. testified but photograph X-ray a fracture made showed with- that both the fracture in six tables* months, photograph. showing star-like in the skull "by appellant, offered but “No rebuttal was inten- made to show offer was punish him striking for atten- Underwood was tion appellant’s wife.” tions presented for
Appellant, con- has our brief, in his assignments error under his “Points sideration seven inclusive, from one to seven Authorities,” numbered proceed Order mentioned. to consider will which we per- erred in the trial court I. It claimed is mitting Jolley be in- Dr. F. J. the name Indorsement day oh second information dorsed of Witness. completion. near its trial, *9 486 COURT SUPREME OF MISSOURI,
State v. Welch. respect occurred at the trial Here in to this is.what prosecuting attorney The matter: asked leave to in- the name Jolley, dorse' on the information of Dr. J. F. physicians two “for the reason that testified for de- opinion that in their fendant there was no fracture of the prosecuting skull.” He to witness’s the court, by physician, offer in rebuttal we to “Now, show this Jolley, there Dr. J. F. is a fracture the defend- opinion by by X-ray photo- both skull, ant’s graph.” appellant, open orally Counsel for court, objected Jolley’s Dr. to the indorsement of name because his information, would not be-in-re- prosecuting attorney, buttal, etc. when asked court, when he first learned that he wanted Dr. Jol- ley “I morning witness, as a said: learned it this proceeded day yesterday. after the trial all I could anticipate testify what these witnesses would to, proper especially of rebuttal, it is a matter itas refers expert testimony.” appellant’s The court overruled permitted objection, and the name of said to be witness indorsed on information.
Under the aforesaid, circumstances the trial court judicial guilty of an abuse of was not sound discretion permitting on, name the above to be indorsed the in [State Pearson, v. 270 S. formation. W. and cases Stegner, 292 Mo. c. cited; Julin, 272; State v. l. State v. surprise 438.] l. c. filed; Mo. No affidavit of no application made, for continuance was nor was the tes objected timony Jolley, when offered, of Dr. de assignment foregoing fendant. The of error is without merit and overruled.
II. that “the It is contended defendant was en- testify what titled intent assaulted Under- ’’ support Appellant cites in this conten wood. intent following Banks, tion authorities: State 573; 88 Mo. l. c. 592; Palmer, State v. Mo. Lyle, S. 190 W. Fletcher, State Welch. In the court the Banks held case, case has the a criminal as to *10 always vitally prompts is “where the intent which act important.” appears 572,
In v. 88 Mo. l. c. Palmer, State “the defendant testified that when he he did had struck upheld kill the court not intend to deceased.” This testify. to so appellant In case testified as follows: bar, you you time struck did intend At the “Q. kill him? No, to A. sir.” Judge In l. c. Fletcher, 321, S. W. Walk him for defendant asked on the wit said: “Counsel
er kill ness stand whether he intended to the deceased when ‘No.’ answered, he him. Defendant for struck Counsel objection question, interposed an the State which held he the trial court We that was entitled sustained.” ruling testify did, he of the trial to as and that court case, was not however, reversed, erroneous. was jury. got in another form before he same fact as Lyle, l. c. In v. State what intention he drove to state “with asked Baptist Llewellyn from of the church.” car in front permit any in him to as to refused to The court The court did we held it was error. whatever, tent this to state case, in to call jury, presence his intent what of the outside the court, present before testified case, the defendant In the Was. jury kill Underwood. He intend to did not that he self-defense, in he struck Underwood asked if was not intending to inflict on great without under excitement in injury, him the defendant here is what but serious presence jury, trial without court, formed the give “Q. case: When he desired you you intent did what struck Carl Underwood enough Only punish him would so him? A. strike ’’ my alone. let illegally attempt- that defendant It manifest Underwood, fact that get ing before SUPREME COURT OF MISSOURI,
State Welch.
occasion,
some former
had
sexual
intercourse with
(defendant’s)
justified
pun
wife,
that he
ishing
opinion,
him therefor.
We are
that the
proffered testimony, supra, on
the facts
evidence, was
properly
[State
excluded
the court.
Stewart,
cited;
S. W. l. c. 857 and eases
State v. Privitt, 175 Mo.
l. c.
France,
III. The assault made defendant on Underwood Appellant complains occurred about December ruling permit refusing prove of the court’s him to by his Bessie wife, Welch, that on 2, 1923, November de- country took her to
fendant and had time, Justification: sexual intercourse with her at that ' Intercourse years age, while she was under sixteen with wife. The above, etc. and other attentions al- *11 leged by to have been shown Underwood to defendant’s prior injury, properly to the of date were held by point be court to too remote in of and in time, by view of the facts disclosed the record, constituted no justification complained for the assault of in this case. by appellant application have no authorities cited assignment a case of this character. The above is ac- cordingly [See overruled. last cited.] authorities charged
IV. The trial court is
error
with
in sus
taining
prosecuting attorney
to interro-
gate defendant with reference to state-
,
Cross-Examination
„n
„
,.
by
ments made
him m
office
of said
of Defendant.
attorney, and about which he was not
interrogated upon
assign
his direct examination. This
clearly
Defendant,
ment
without merit.
is
on direct ex
amination,
hit
testified that when he
Underwood he had
money
a
in his hand
little
salt sack with little
in it.”
“a
complained
The cross-examination
of
related
the con
no
sack,
of the same
and
error
tents
respect
was committed in
Lemon,
[State
to said matter.
v.
State Weieli. by appellant insisted that Ms demurrer to V. It is ground been on the evidence should have sustained was as- that Underwood that not show did weapon. deadly The evidence saulted with a DeadlyWeapon. part to show that on the the State tends a heretofore assault made club. The evidence gash a on the set there out discloses that three-inch by that in head of juries made Underwood, defendant, dangerous may character. It were of a inflicted weapon a the evidence that inferred from produces. l. [State Stewart, 278 Mo. c. result it 6.] The demurrer Bowles, properly evidence was overruled. prop- the court failed to
YI. It is contended that given weapon.” “deadly erly Instruction 3, define a as court, reads follows: you if find and “The court instructs that beyond doubt, a reasonable evidence, believe from the day December, 1923, that on or at the the 22nd about County Missouri, Audrain and State any just provo- Assault cause without in Defense person, cation m the ana detense. of Person. numbered one set forth instructions feloniously, wilfully, then there herein, did two aforethought purpose make an as- his malice club, one Carl Underwood with sault weapon say, deadly weapon, that is club was you likely, to have been used, if find the same used, bodily produce great harm, the said death or *12 feloniously, club and there said did then with defendant aforethought wilfully, purpose malice strike on and of his Underwood, then Carl did him, and beat the said thereby give Underwood, Carl him, to there upon body him, the said Carl neck and head, in and wounds, aforesaid, certain with Underwood, with the club there said Carl him, intent then felonious wilfully, purpose feloniously, and of Underwood, you aforethought then will murder, to kill and malice COURT SUPREME OP MISSOURI, State \. Welch. -with, guilty find defendant assault, kill aforethought punishment malice and assess his term, imprisonment penitentiary for of not less years. than two ‘feloniously’ word
“The as used in the information wickedly and in the instructions herein against means the admonition of the law. ‘wilfully’ purpose’
“The ‘on terms mean in- tentionally and not accident. aforethought,’ term
“The ‘malice as used in- formation and these instructions, means that in- one, tentionally wrongful does what knows to be a act, thought and that he has of it and determined to do it for any length of time beforehand, however short.” using
This instruction erroneous the italicized proper, word “and.” It would have if “and” been been “not,” followed had the word “and” been “ ” changed to or. given by Instructions 5 and the court, contain the pointed supra. same error as Instruction out As the relating subject instructions of defendant above given properly were refused, and no other instructions declaring opinion thereon, the law we are of the that a granted, new trial should be was convicted felony. a appellant charges In
VII. his motion for a trial new giving the court with error in Instruction 4, which reads as follows: you
“The court instructs the that if find and beyond believe from evidence, reasonable doubt that the defendant did make an assault Carl Un him, derwood kill with intent to the said Carl Under bodily greatly wood, him or to do harm, Self -Defense assault, if made, but that such was made weapon aforethought or that without malice used, you if find the same been used, to have was not you likely if used, or one find the one, same produce great bodily death or used, have been *13 ' 491
State Welch. guilty you the defendant will find assault harm, malice kill without and -assess his imprisonment penitentiary punishment in for a years exceeding'five and not of not than two term less jail years, county than months, or in the not less six or imprisonment fine than the coun- a not less in $100 by ty jail months, a than three fine not less not less than $100.” right out of consideration the
This instruction leaves recognized claimed as exist- of defense ing, in one. We the State’s instruction numbered are of opinion One.properly that Instruction declares the Pour above mentioned au- However, law. Instruction jury the facts thorized the to convict the regardless of self-defense, mentioned, any reference to said instruction. without given by the court, VIII. numbered Instruction a new It in the motion for trial. reads as is assaulted follows: jury that in
“The law court instructs good man a bad as to assault same to assault a offense may although jury from the believe man, and prosecuting witness, that the Carl Un- evidence BadMan. person questionable morals, derwood, ’was justify not or excuse the defend- alone yet will fact this assaulting if he did assault him.” Underwood, ant giving instruction was held to he of this reversi Rozell, l. S. W. c. error ble later ruling Archie, followed Rozell case in the what has been Aside heretofore said from Mo. think it is reflection instruction, we this give jury are as we loath intelligence it, to be any a defendant convict because would lieve man. bad awas are discussed briefs of matters Other
IX. likely re-trial occur on a are not which counsel COURT OF SUPREME MISSOURI,
State Lee. we case and, hence, have' ^considered same. On *14 account heretofore errors pointed out, the cause is reversed and for a remanded new trial. Higbee, C., con curs.
PER CURIAM: The opinion foregoing Railey, adopted opinion as the C., court. All of the judges concur.
THE STATE v. C. CARTER LEE, Appellant. Two,
Division December Knowledge GAS COMPANY: Act of Another: DEFRAUDING of Defend- defendant, charged ant: Instruction. A feloniously defraud- ing gas company by preventing correctly measuring a meter from gas registering him, used was not entitled to an instruc- directing acquit they- tion if found that some one else improper directly company’s had made the pipe connection from the premises knowledge, without his where it is shown that knowingly using company’s gas had been without measure- eighteen months before fraud ment for was discovered and had gas pay for the consumed. made no offer Juris-Cyc. Gas, Corpus J., 79, p. 605, References: 28 C. Section n. from St. Louis City Circuit Appeal Court. —Hon. F.
Anthony Ittner, Judge.
Affirmed.
Robert Otto, W. Attorney-General, W. F. Frank, Assistant Attorney-General, for respondent.
It was not error
to refuse defendant’s
requested
Instruction “A”.
R.
Sec.
S.
Blocker,