State v. Thomas

Decision Date06 November 1943
Docket Number35924.
PartiesSTATE v. THOMAS.
CourtKansas Supreme Court

Rehearing Denied Dec. 21, 1943.

Syllabus by the Court.

Ordinarily malice aforethought can be proved as a material element of crime only by invoking the presumption that a sane person intends to do that which in fact he does do or that he intends the reasonable consequences of his own voluntary act.

The malice aforethought essential to commission of offense of assault with intent to maim may be shown from the conduct of the accused or the circumstances attending commission of offense, such as use of profane language in addressing victim and drawing of a knife with which to intimidate or attack him. Gen.St.1935, 21-431.

"Malice aforethought" is nothing more than an unlawful or wicked intention; "malice" signifying ill will, hatred, or revenge toward a particular individual as denoting that condition of one's mind which is manifested by intentional doing of a wrongful act without just cause or excuse.

"Maim" is the modern equivalent of "mayhem" and is usually defined as the infliction of some serious bodily injury.

"Malice aforethought", as used in a statute relating to mayhem means a malicious design to injure and it is immaterial at what period of time the malicious design is formed. Gen.St.1935, 21-431.

In prosecution for assault with intent to maim, evidence that accused used profane language in addressing victim, came toward him with a knife in his hand, and when victim fled pursued him and cut his legs severely justified submission of case to jury on question of whether evidence showed essential element of malice aforethought. Gen.St.1935, 21-431.

In prosecution for assault with intent to maim, instruction on the law of self-defense as applied to cases of homicide though academic, was not objectionable for failure to incorporate therein the substance of another instruction correctly stating the law of self-defense as applied to the evidence for accused. Gen.St.1935, 21-431.

Error could not be predicated on alleged improper restriction of cross-examination of prosecuting witness, where it did not appear what the answers to proposed questions, had they been asked, might have been and proffered evidence was not brought into the record on motion for a new trial as required by statute. Gen.St. 1935, 60-3001 to 60-3004, 62-1414.

Error predicated on admission of hearsay testimony as to where assault with intent to maim took place was not sustained where accused did not object to the testimony and the locus in quo was not in dispute. Gen.St.1935, 21-431.

In an appeal from a judgment of conviction on a charge of felonious assault with intent to maim, as defined in G.S.1935, 21-431 it is held: (1) The evidence was sufficient to require submission of the cause to the jury; (2) the court's instruction on self defense was accurate and proper; (3) error assigned on restriction of examination of the prosecuting witness, not brought into the record in compliance with the provisions of the criminal and civil codes, G.S.1935, 62-1414, and 60-3001 to 60-3004, held not open to review; and (4) error based on admission of hearsay testimony not sustained.

Appeal from District Court, Shawnee County, Division No. 3; Dean McElhenny, Judge.

Maceo Thomas was convicted of assault with intent to maim, and he appeals.

Judgment affirmed.

Elisha Scott and Lester M. Goodell, both of Topeka, for appellant.

A. B. Mitchell, Atty. Gen., and Ward Martin, Co. Atty., of Topeka, for appellee.

DAWSON Chief Justice.

Appellant was convicted on a charge of assault with intent to maim, as defined in G.S.1935, § 21-431.

He appeals, contending first that the evidence did not justify submission of the cause to the jury under the cited section of the crimes act. The state's evidence tended to show that on election day, November 3, 1942, one Patterson, the prosecuting witness, and another person were loading wood into a truck at the rear of a building in Topeka. The defendant drove up in an automobile and addressed Patterson thus: "Nigger, when you goin' to pay me my god-damn money?" Patterson answered that he didn't have any money. Defendant came towards Patterson with a knife in his hand. Patterson picked up a stone and hit defendant on the head and then fled. Defendant pursued him. Patterson tripped and fell among some weeds, rolled over on his back, and tried to defend himself by kicking. Defendant slashed Patterson's legs with his knife, so that it required 38 stitches to close the wounds.

Such in brief was the state's evidence to support the charge, as defined in the statute, which reads: "Every person who shall, on purpose and of malice aforethought, shoot at or stab another, or assault or beat another, or assault or beat another with a deadly weapon, or by any other means or force likely to produce death or great bodily harm, with intent to kill, maim, ravish or rob such person, or in the attempt to commit any burglary or other felony, or in resisting the execution of legal process, shall be punished by confinement and hard labor for a term not exceeding ten years." G.S.1935, 21-431.

Appellant contends that this evidence fails to show "malice aforethought" which is an essential element of the offense. Ordinarily the only way that malice aforethought can be proved as a material element of a crime is by invoking the familiar presumption that a sane person intends to do that which in fact he does do--that he intends the reasonable consequences of his own voluntary acts. State v Linville, 150 Kan. 617, 619, 620, 95 P.2d 332; State v. Myers, 154 Kan. 648, 651, 121 P.2d 286; 22 C.J.S, Criminal Law, § 35, p. 93. It was a fair inference for the jury to draw from the circumstances that defendant was maliciously predisposed towards Patterson by the language he used and by his coming towards Patterson with a knife in his hand. The statutory requisite of "malice aforethought" in the section of the crimes act under present consideration does not fix any given length of time for engendering such malice before the violent act is committed. It can sufficiently be shown from the conduct of the accused, or the circumstances attending its commission, such as the use of profane language in addressing his victim and the drawing of...

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11 cases
  • State v. Gillespie
    • United States
    • United States State Supreme Court of Missouri
    • June 13, 1960
    ...of the word 'main': Black's Law Dictionary, 4th Ed., p. 1104; Webster's New International Dictionary, 2nd Ed., p. 1483; State v. Thomas, 157 Kan. 526, 142 P.2d 692; 322 U.S. 739, 64 S.Ct. 1055, 88 L.Ed. 1573; 57 C.J.S. Mayhem Sec. 1, p. 461; Shackelford v. Commonwealth of Virginia, 183 Va. ......
  • State v. Jensen
    • United States
    • United States State Supreme Court of Kansas
    • July 27, 1966
    ...cause or excuse; any wicked or mischievous intention of the mind * * *' (State v. Wimer, 97 Kan. 353, 356, 155 P. 7, 8; State v. Thomas, 157 Kan. 526, 528, 142 P.2d 692); 'the conduct exhibited was the dictate of a wicked, depraved, or malignant heart' (State v. Murray, supra, 83 Kan. p. 16......
  • State v. Acheson
    • United States
    • Court of Appeals of Kansas
    • October 15, 1979
    ...by the courts of this state. (State v. Donahue, 197 Kan. 317, 416 P.2d 287; State v. Eye, 161 Kan. 69, 166 P.2d 572; State v. Thomas, 157 Kan. 526, 142 P.2d 692.) He contends, however, that the instruction creating a presumption of intent is in conflict with the mandate of K.S.A. 21-3201, w......
  • State v. Beam
    • United States
    • United States State Supreme Court of Kansas
    • March 6, 1954
    ...451. The rule, it may be added, is the same where the evidence in question has been excluded on cross-examination. See State v. Thomas, 157 Kan. 526, 142 P.2d 692; State v. Thomas, 173 Kan. 460, 462, 249 P.2d In reaching the conclusion just announced we have not overlooked the defendant's c......
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