State v. Chevlin

• Decision Date: 12 December 1955
• Docket Number: No. 44686,No. 2,44686,2
• Citation: 284 S.W.2d 563
• Parties: STATE of Missouri, Respondent, v. Edward CHEVLIN, Appellant
• Court: Missouri Supreme Court

Page 563

284 S.W.2d 563

STATE of Missouri, Respondent, v. Edward CHEVLIN, Appellant.

No. 44686.

Supreme Court of Missouri, Division No. 2.

Dec. 12, 1955.

Thomas M. Howell, Galen Knowlton, Donald E. Raymond, Kansas City, for appellant, Howell, Knowlton & Ellis, and Pew, Taylor, Welch & Sheridan, Kansas City, of counsel.

John M. Dalton, Atty. Gen., David Donnelly, Sp. Asst. Atty. Gen., for respondent.

STOCKARD, Commissioner.

Appellant was convicted in the circuit court of Jackson County of the crime of assault with intent to kill or do great bodily harm pursuant to Section 559.190, RSMo1949, V.A.M.S. The jury assessed his punishment at a fine of $300 and confinement in the county jail for six months, and he appeals.

Appellant first contends that the verdict is not supported by the evidence. It is not the province of this court to pass upon the weight of conflicting evidence, but only to determine whether there was substantial evidence, if believed by the jury, to sustain a verdict of guilty. In determining its sufficiency, we take as true all the substantial evidence offered by the State together with every legitimate inference which may reasonably be drawn therefrom. State v. Whitaker, Mo.Sup., 275 S.W.2d 316; State v. Allen, 342 Mo. 1043, 119 S.W.2d 304.

The evidence is voluminous and conflicting, but the jury could have found the following facts. Local 838 of the teamsters union had been placed in 'trusteeship' by the international union. Appellant was vice president and business agent of Local 838 and was dissatisfied with the management of the union. On the evening of January 9, 1952, he presided at a meeting of the union membership and made a speech in which he denounced in strong language certain officials of the union. Asa McMullin, Ruby Stufflebeam and Mrs. Lorine Shoemaker were members of the 'board of trustees' and Ann Rock was secretary of the union. After the meeting they went to the office of the local on the third floor of the building and a few minutes later appellant arrived and engaged in an argument with Ann Rock and Mrs. Lorine Shoemaker. Mr. Ernest Shoemaker was not a member of the union but was present in the office waiting to take his wife home.

Appellant left the office but returned a few minutes later with ten or twelve men, and apparently with reference to these men, he announced to all of those present: 'They are the real members of Local 838, and we came up here to throw you all out.' Mr. and Mrs. Shoemaker, Miss Stufflebeam and Mr. McMullin went into the hall. Appellant was 'hollering and cussing' at Ann Rock, and when Mrs. Shoemaker saw that Ann Rock had not followed, she stepped back into the office and said, 'Ann, get your coat. Let's get out of here.' One of the men with appellant then asked who Mrs. Shoemaker was, and appellant answered with a remark so insulting and provocative that no purpose would be served in setting forth here even the substance of it. Mr. Shoemaker was then in the hall and he started to go in the office, according to him to get his wife, but there was evidence that indicated he may have had the intention of 'getting' appellant instead. However, 'before he could hardly move' appellant stepped from the office with a loaded revolver in his hand, pointed it at Shoemaker, and according to two witnesses said: 'Start something and I will blow your _____ guts all over the wall.' Two other witnesses gave different versions of his remark, the principal difference being that they testified that he did not preface his threat with the condition that Shoemaker had to 'start something.' Appellant then looked over his shoulder, apparently to one of the men standing behind him and said, 'Come on, Swede, let's take this guy.' Ernest Shoemaker and his wife, Asa McMullin, Ruby Stufflebeam and Ann Rock, were then 'literally pushed' and backed down the hall to the stairway by appellant who followed closely with his ten or twelve men immediately behind him. Appellant kept the loaded revolver pointed at Shoemaker and at the others and continued his abusive language. He urged those in front of him to start something, and repeated his threat as to what would happen to any one who did start something. As Shoemaker and those with him went down the stairs, appellant rested his gun on the stair railing over their heads and continued to call them 'dirty names,' and at this time or a few minutes later said, 'I am going to get every one of you if I have to kill you one at a time.' Shoemaker and those with him went to the first floor and left the building. Appellant, with his ten or twelve men, followed them to the street door.

The offense here charged and of which appellant was found guilty is an assault with the intent to kill or to do great bodily harm. The intent, by express words, is made an essential element of the offense and must be proved. Section 559.190, RSMo1949, V.A.M.S.; State v. Cooper, 358 Mo. 269, 214 S.W.2d 19; State v. Fair, Mo.Sup., 177 S.W. 355; State v. Stubblefield, 239 Mo. 526, 144 S.W. 404; State v. Watson, 356 Mo. 590, 202 S.W.2d 784. It is the unusual situation when there is direct evidence of the intent of a person charged with a crime such as here. Intent may and generally must be established by circumstantial evidence, for as a rule it is not susceptible of direct proof. State v. Whitaker, supra ; 23 C.J.S. Criminal Law, Sec. 919. In determining whether or not the assault was committed with the intent charged it is clearly within the province of the jury to consider the statements of the appellant, the nature of the weapon used, the manner of using it, and all of the related circumstances giving rise to the incident out of which the charge arose. State v. Hoffman, 78 Mo. 256; State v. Musick, 101 Mo. 260, 14 S.W. 212; 40 C.J.S., Homicide, Sec. 79b(1); 6 C.J.S., Assault and Battery, Sec. 79b(2); 4 Am.Jur. Assault and Battery Sec. 102.

Appellant contends that the evidence establishes that his threat to shoot was conditional and therefore did not evidence a present intention to kill or to do bodily harm. However, all the circumstances should be taken into consideration and not just those occurring simultaneously with the assault. Appellant was strongly opposed to those who were managing the union. He belonged to one faction and Asa McMullin, Ruby Stufflebeam, Ann Rock and Mrs. Lorine Shoemaker belonged to another faction. After an argument with these people appellant obtained ten or twelve men and announced that he was going to 'throw out' all of those present, which included Mr. Shoemaker. Either because of this threat or because they wished to avoid further unpleasantries, several of those in the office stepped into the hall. At least one person remained in the office and Mrs. Shoemaker returned. Until the insulting remark was made, the 'throwing out' had occurred without incident other than verbal argument. However, when the insulting remark was made appellant apparently thought he had reason to believe that at least one of those present was not leaving without protest, and he then leveled a loaded revolver at Shoemaker and told him that if he started something he would shoot. The threat to shoot was made to accomplish that which appellant had no right to do, namely, to 'throw' those who were in the office out of the building, and the...