State v. Bongard

• Citation: 51 S.W.2d 84
• Decision Date: 10 June 1932
• Docket Number: No. 31083.,31083.
• Parties: THE STATE v. JOHN BONGARD, Appellant.
• Court: United States State Supreme Court of Missouri

51 S.W.2d 84

THE STATE v. JOHN BONGARD, Appellant.

No. 31083.

Supreme Court of Missouri, Division 2.

June 10, 1932.

Appeal from Circuit Court of City of St. Louis. — Hon. Charles W. Rutledge, Judge.

AFFIRMED.

Herbert H. Blair for appellant.

(1) Evidence in criminal causes must be confined to the matters in issue, and irrelevant testimony should be excluded. State v. Huff, 161 Mo. 495; State v. Jackson, 95 Mo. 649. (2) In view of the evidence, it was error to fail to instruct the jury on the offense of assault with intent to kill without malice. (a) The law of the case is involved and the point is properly saved. State v. Fine, 23 S.W. (2d) 9. (b) In a prosecution under Sec. 4014, R.S. 1929, defendant may be convicted of assault without malice under Sec. 4452, R.S. 1929. State v. King, 111 Mo. 576; State v. Cruts, 231 S.W. 604. (c) Evidence discloses sufficient provocation apart from the defense of self-defense to justify the instruction. State v. Harris, 209 Mo. 440; State v. Fine, 23 S.W. (2d) 7; State v. Lamb, 278 S.W. 1009; State v. Grugin, 147 Mo. 57. (d) "Malice aforethought," as applied to assault with intent to kill, in this State, defined. State v. Venable, 177 S.W. 308. (3) Misconduct of counsel for State in arguing to the jury matters not in the record, held reversible error. State v. Webb, 254 Mo. 435. (4) It is the duty of the court to see that a conviction does not stand which is the result of prejudice on the part of the jury. State v. Webb, 254 Mo. 434; State v. Prindible, 165 Mo. 329.

Stratton Shartel, Attorney-General, and Albert Miller, Assistant Attorney-General, for respondent.

(1) The court did not commit error in admitting testimony on the part of the State relating to matters which transpired between the prosecuting witness and the defendant prior to the time of the alleged assault. It was competent to show that appellant had trouble with the prosecuting witness as showing a motive for the crime, intent and wilfulness of the act, and in determining the presence or absence of malice. State v. Neal, 318 Mo. 772; State v. Bailey, 190 Mo. 285; State v. Mounce, 106 Mo. 229; State v. Shoemaker, 183 S.W. 323; State v. Turner, 246 Mo. 617; State v. Rasco, 239 Mo. 564; State v. McNamara, 212 Mo. 164; State v. Page, 212 Mo. 237; State v. Callaway, 154 Mo. 111. (2) The court did not commit error in refusing to strike out of the record all testimony introduced on part of the State in relation to events transpiring between the prosecuting witness and the defendant prior to the alleged assault. (a) A general objection to a question is insufficient to preserve it for review. State v. McKenzy, 228 Mo. 385; State v. Depley, 242 Mo. 461; State v. Shout, 263 Mo. 360; State v. Harris, 199 Mo. 716; State v. Vickers, 209 Mo. 12; State v. Lovitt, 243 Mo. 510. (b) No timely objection was made to the admission of this testimony. Objection to the question or testimony should be made before the questions are answered. State v. Beaucleigh, 92 Mo. 490; State v. Sykes, 191 Mo. 62; State v. Harris, 199 Mo. 716; State v. Townsend, 289 S.W. 570; State v. Norris, 2 S.W. (2d) 755; State v. Ferris, 6 S.W. (2d) 903. (3) The court did not commit error in failing to instruct the jury on the offense of felonious assault without malice. The crime of assault with intent to kill by shooting at a human being is specifically prohibited and punishment therefor prescribed by Sec. 4014, R.S. 1929 (Sec. 3262, R.S. 1919). The court properly refused to instruct the jury that they might find defendant guilty under any other section of the statute or for any other class of assault. Under the evidence he was either guilty as charged under Sec. 3262, R.S. 1919 (Sec. 4014, R.S. 1929), or his act was justified on the ground of self-defense. State v. Curtner, 262 Mo. 218; State v. Cruts, 288 Mo. 115. (4) (a) The remarks of the assistant circuit attorney as preserved in the record are within the range of a legitimate discussion of the evidence, and his conclusions were properly deducted therefrom, and therefore permissible. The remarks must be prejudicial to defendant to warrant a reversal of judgment. State v. Harvey, 214 Mo. 411; State v. Tracy, 294 Mo. 390; State v. Marshall, 297 S.W. 69. (b) This point is not properly preserved for review. The objectionable remarks must be called to the attention of the court and exceptions saved at the time. State v. Pagels, 92 Mo. 311; State v. McDaniel, 94 Mo. 306; State v. Harvey, 214 Mo. 411; State v. Whitsett, 232 Mo. 529; State v. Stegner, 276 Mo. 440; State v. Henson, 290 Mo. 247; State v. Murchie, 225 S.W. 954. Counsel failed to request a rebuke. State v. Kelley, 284 S.W. 803; State v. Wana, 245 Mo. 563; State v. Harvey, 214 Mo. 411; State v. Harrison, 263 Mo. 663; State v. Rasco, 239 Mo. 582; State v. Topalovacki, 213 S.W. 106; State v. Raftery, 252 Mo. 83.

ELLISON, J.

The appellant was convicted by a jury in the St. Louis City Circuit Court of assault with intent to kill with malice aforethought, under Section 4014, Revised Statutes 1929, and his punishment assessed at imprisonment in the State penitentiary for twenty-five years. He shot the prosecuting witness, James Squires, in the jaw and neck with a .45 caliber revolver, the wound not proving fatal. His defense was self-defense. The assignments raised in the motion for new trial and on this appeal complain of the admission of certain testimony on behalf of the State, and the refusal of the trial court to withdraw it from the consideration of the jury; of the failure to give instruction on all the law of the case, particularly felonious assault without malice; of certain remarks made by the assistant circuit attorney during his closing argument; and that the heavy punishment assessed by the jury conclusively indicates passion and prejudice.

The appellant, age thirty, was a plasterer laborer, and the prosecuting witness, thirty-nine years old, was a plasterer and had also engaged in business intermittently for some time as a plasterer contractor. They had been acquainted about a year and a half, and after November, 1929, this acquaintance ripened into a friendly intimacy. In the latter part of January, 1930, the prosecuting witness, Squires, resided at 4361 Loughboro Avenue, St. Louis, in a residence which had two sleeping rooms on the second floor, living quarters on the first floor, and a basement. Squires had purchased the property in July 1928, and taken title in the name of himself and his wife. The purchase price was $4,900 and they owed thereon about $3,200 secured by a deed of trust.

After Squires had testified to the foregoing facts without objection in answer to numerous questions, the (then) counsel for appellant interposed: "At this time I want to introduce an objection on the theory that up until this time all the questions and answers be stricken from the record as wholly and solely immaterial and irrelevant." Counsel went on to elaborate that the information specifically charged a felonious assault on February 27, 1930, and anything occurring before that had nothing to do with the case. The court overruled the objection for the time being, awaiting to see whether the evidence would be connected with the crime charged.

The complaining witness Squires proceeded to state that about January 30, 1930, the appellant came to him with a proposition to go into business together and, by the use of capital which the appellant said he could obtain, to buy material in carload lots and handle bigger jobs. They entered into a verbal agreement and about February 4 or 5 the appellant moved into Squire's home with him. At that time Squires was living alone, a divorce suit between him and his wife being then pending. Shortly thereafter the appellant put up $500 which was turned over to one of the attorneys in the divorce case. Appellant's counsel made strenuous objection to this testimony, and renewed his motion to strike out all evidence concerning matters occurring before the date of the alleged assault, especially the divorce case. The objection and motion were overruled.

Squires, testifying, went on to say that about 6:30 in the morning of February 27 while sleeping in one of the bedrooms on the second floor, he was awakened by the appellant and told to put on his jeans and slippers and go downstairs to the front door; that someone wanted to see him. He did so but found no one there. As he faced about to ask where the caller was the appellant confronted him with a .45 caliber automatic pistol and compelled him to go into the dining room, sit down at a table, and write a paper which the appellant dictated assigning to the latter all his business property and equipment, valued at about $1225, which was itemized in the instrument. The writing paper was obtained from a desk in the corner of the room and the appellant produced an indelible pencil from his pocket. The paper was not introduced in evidence.

Following that, the appellant directed him to go down to the basement and threatened to shoot him if he refused. Squires obeyed and the appellant compelled him to sit in a chair and put his hands behind his back. The appellant then said "now you ____ ____ I am going to kill you." Squires protested but the appellant nevertheless fired one shot from a distance of six to nine feet, the bullet striking him in the jaw and coming out the back of his neck.

Squires says he threw himself on the floor as if dead, whereupon the appellant went back upstairs to the kitchen, leaving him lying on the basement floor. He got up, fled out a side door and along a driveway to the street, and across the street to the home of officer Oesterreicher of the St. Louis police force. There he hammered on the door but no one responded. Presently, however, another officer, named Wynn, came down the street in an automobile and Squires went out to him. He was taken to the City Hospital.

On cross-examination of Squires the fact was elicited that at the time...