State v. Brown

• Court: Missouri Supreme Court
• Writing for the Court: TIPTON, Presiding Judge.
• Citation: State v. Brown, 165 S.W.2d 420 (Mo. 1942)
• Decision Date: 12 November 1942
• Docket Number: 38062
• Parties: STATE v. BROWN

165 S.W.2d 420

STATE v. BROWN

No. 38062

Supreme Court of Missouri, Second Division

November 12, 1942

See Words and Phrases, Permanent Edition, for all other definitions of 'Cruel or Unusual Punishment'.

Roy McKittrick, Atty. Gen., and W.J. Burke, Asst. Atty. Gen., for respondent.

OPINION

TIPTON, Presiding Judge.

On October 11, 1941, the appellant was convicted of assault with intent to do great bodily harm, without malice, in the circuit court of Laclede County, Missouri, and his punishment assessed at two years in the state penitentiary.

The appellant has not favored us with a brief, but in his motion for a new trial asserts that there is no substantial evidence to support the verdict.

Briefly the evidence on part of the State is as follows: On March 13 1941, Ray Hammers had driven to his home in an automobile for the purpose of repairing some screens on his house. He testified that he was standing at the rear of his car, bending over under what is known as the 'trunk compartment,' and the appellant struck him with a gun, knocking him to his knees. He then went around and attempted to get in the left front seat of the car, and appellant hit him several times, and jerked him out of the car upon the road, and continued to beat and kick him. Two girls, Faye Lowery and Juanita Ulrich, who lived in part of his house, came out to the car and appellant left. He also testified as to threats that appellant had made about ten days previous to the assault.

Several other witnesses testified that they had heard appellant make threats against Hammers.

Hammers was taken to the hospital where it was ascertained that his nose was broken and his left eye was seriously injured.

We think the evidence is sufficient to sustain the verdict of felonious assault without malice as that crime is defined by Section 4409, R.S.Mo.1939, Mo.R.S.A. § 4409; State v. Davis, 342 Mo. 594, 116 S.W.2d 110.

Appellant next contends that instruction No. 2, given on behalf of the State, is erroneous because this instruction is a variance from the charge in the information. The information was drawn under Section 4408, R.S.Mo.1939, Mo.R.S.A. § 4408, which requires that the assault must be made with a 'deadly weapon' and with 'malice aforethought,' while this instruction is drawn under Section 4409, supra, and does not require the assault to be made with a 'deadly weapon' and with 'malice.' Under an information for assault with intent to kill, founded on Section 4408, supra, a defendant may be convicted of felonious assault, covered by Section 4409, supra, or of common assault, covered by Section 4411, R.S.Mo.1939, Mo.R.S.A. § 4411, as they are lesser crimes of the same nature. 'Under the charge of an assault to kill with malice aforethought, appellant could be properly convicted of an assault with intent to kill or do great bodily harm without malice, which is a lesser crime of the same nature.' State v. Meinhardt, Mo.Sup., 82 S.W.2d 890, 893; State v. Wilson, 126 Mo.App. 302, 103 S.W. 110.

Instruction No. 4 reads as follows: 'The court instructs the jury that language or epithets, however offensive, will not justify or excuse an assault.' This instruction has repeatedly met the approval of this court. See State v. Little, Mo.Sup., 228 S.W. 793, and cases cited therein. This assignment of error by the appellant is overruled.

Next the appellant contends that the court erred in permitting the introduction of records of former convictions after he had taken the witness stand. On cross-examination, the appellant was asked if on certain dates he had been convicted of certain crimes, to which question he would state that he could not remember, or he did not know, and would then answer in the affirmative, and in one instance stated: 'Well, if I have, why I never was stuck, I don't think. I don't think it ever was made to...