State v. Welch , 311 Mo. 476 ( 1925 )

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 was walking slightly in advance of her husband. They spoke to her and she returned their greeting, but her husband did not speak. She and her husband continued to walk west and had gone only a short distance when she heard the sound of a blow, and turned around to see the appellant beating her husband in the back and over the head with what appeared to be a club about a foot and one-half long. She did not see the first blow struck. Underwood attempted to get away, but was followed to a lamp post in the middle of the street by appellant who continued to strike at him until he missed a blow. The appellant then turned away and rejoined his wife. Underwood staggered on a short distance and fell on his face in front of what is known as the Ford garage, about thirty feet away. During the beating, Underwood did not raise his hand or try to strike the appellant. He received a three-inch wound in his forehead and three black bruises across his neck. He was conscious until they got him to bed, where he remained for about two weeks, being later confined to his room for five or six weeks. About twelve blows in all were struck, and the appellant appeared to have the club in both hands drawing it over the shoulder as if he were swinging an axe. Underwood was carrying two bundles when assaulted. None of the blows knocked him down. The assault was seen from a distance of about forty feet by one Ernest Garrett, who saw the appellant turn, run west toward Underwood and strike him. Underwood staggered, fell, got up and was hit again. This witness did not see anything in appellant's hand and testified that the first blow was from the side. The assault was also seen by three other witnesses who were within four or five feet of the men at the time. They saw appellant run past them from the east and going west, and saw him start hitting Underwood, who was then facing west. They testified that after the assault and before he fell on his face in front of the Ford garage, Underwood did not collide with anything. One of them testified that after the beating appellant came back and said something to Mrs. Underwood, and another stated that Mrs. Underwood said to him at that time, ``Oh, he never done it.'

"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 occasions, inquiring if she had told her husband, and upon being informed that she had he stated that he would take care of her husband; that following the occurrence she told her husband from time to time portions of her experience, and that it would be shown by the testimony of appellant that on the night of the difficulty Underwood grinned at the appellant, bringing to mind, and having the intent and purpose of bringing to mind, Underwood's improper relations with Mrs. Welch, and further that Mrs. Welch had completed her story to her husband only a few days before the assault, and that Underwood on several occasions between the second of November and the time of the assault had sought her society and had stopped her on the street. The offer, upon objection by the State, was rejected. Similar offers were made in connection with other witnesses.

"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 went all over him' and he followed Underwood, caught his right arm and turned him about. Underwood then struck at him, and he returned the blow and hit in all only three times. He did not have any club of any kind, but did have a salt sack with a silver dollar and some small change in it. He did not know how he held this sack during the assault. As he turned away and passed Mrs. Underwood she said, ``He didn't do it.' On cross-examination he stated that Underwood was partially facing him and struck at him with the left hand as he whirled. He pursued Underwood about ten feet, and admitted that Underwood could not have known who he was before turning around, and that nothing was said by either of them. The day following the assault he told the prosecutor that he had hit Underwood with a sack containing some money and had thrown a silver dollar at him. On being recalled, the appellant denied that he intended to kill Underwood.

"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 theIndorsement information on the second day of the trial, and nearof Witness. its completion.

Here is what occurred at the trial in respect to this matter: The prosecuting attorney asked leave to indorse on the information the name of Dr. J.F. Jolley, "for the reason that two physicians testified for the defendant that in their opinion there was no fracture of the prosecuting witness's skull." He said to the court, "Now, in rebuttal we offer to show by this physician, Dr. J.F. Jolley, that there is a fracture of the defendant's skull, both by his opinion and by an X-ray photograph." Counsel for appellant, in open court, orally objected to the indorsement of Dr. Jolley's name on the information, because his testimony would not be in rebuttal, etc. The prosecuting attorney, when asked by the court, when he first learned that he wanted Dr. Jolley as a witness, said: "I learned it this morning and after the trial had proceeded all day yesterday. I could not anticipate what these witnesses would testify to, and it is a proper matter of rebuttal, especially as it refers to expert testimony." The court overruled appellant's objection, and permitted the name of said witness to be indorsed on the information.

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:Intent. 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 the Banks case, the court held that defendant in a criminal case has the right to testify as to his intent "where the intent which prompts an act is always vitally important."

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 some former occasion, had had sexual intercourse with his (defendant's) wife, and that he was justified in punishing him therefor. We are of the opinion, that the proffered testimony, supra, on the facts in evidence, was properly excluded by the court. [State v. Stewart, 212 S.W. l.c. 857 and cases cited; State v. Privitt, 175 Mo. l.c. 231; State v. France, 76 Mo. 685.]

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 theJustification: country and had sexual intercourse with her atIntercourse that time, while she was under sixteen years ofwith Wife. 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 theCross-Examination office of said attorney, and about which heof Defendant. 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.]

V. It is insisted by appellant that his demurrer to the evidence should have been sustained on the ground that it did not show that Underwood was assaulted with a deadly weapon.Deadly The evidence on the part of the State tends to show thatWeapon. the assault was made with a club. The evidence heretofore set out discloses that there was a three-inch gash on the head of Underwood, made by defendant, and that injuries were inflicted of a dangerous character. It may be inferred from the evidence that a weapon is deadly by the result it produces. [State v. Stewart, 278 Mo. l.c. 188; State v. Bowles, 146 Mo. 6.] The demurrer to the evidence was properly overruled.

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 orAssault provocation and in the defense of his person, as setin Defense forth in instructions numbered one and two herein,of Person. 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 find the defendant guilty of assault, with intent to kill with malice aforethought and assess his punishment at imprisonment in the penitentiary for a term of not less than two years.

"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 bodilySelf-Defense. 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 harm, you will find the defendant guilty of assault with intent to kill without malice and assess his punishment at imprisonment in the penitentiary for a term of not less than two years and not exceeding five years, or in the county jail not less than six months, or by a fine not less than $100 and imprisonment in the county jail not less than three months, or by a fine not less than $100."

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 theBad prosecuting witness, Carl Underwood, was a person ofMan. 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 case and, hence, we have not considered the same. On account of the errors heretofore pointed out, the cause is reversed and remanded for a new trial. Higbee, C., concurs.