State v. Frazier, 34751.

Decision Date17 November 1936
Docket NumberNo. 34751.,34751.
PartiesTHE STATE v. C.O. FRAZIER, Appellant.
CourtMissouri Supreme Court

Appeal from St. Francois Circuit Court. Hon. Taylor Smith, Judge.

AFFIRMED.

Lawrence E. Tedrick for appellant.

(1) Because said information purports to be based upon the affidavit of one W.W. Kemp, whom the record shows had no actual knowledge of the commission of the alleged crime. 16 C.J. 292, sec. 504. (a) Because said information wholly fails to state facts sufficient to constitute the offense of second degree murder which the caption designates, and with which defendant was sought to be charged. (b) Defendant is not informed of the nature and cause of the accusation, as entitled under the Constitution, if information does not plead essential elements of offense. State v. Schultz, 295 S.W. 535. (c) The omission of the words "did kill and murder" from an information seeking to charge defendant with the crime of second degree murder, renders information fatally defective, and cannot be amended where defendant is prejudiced by the amendment. Kelley's Criminal Law & Procedure, p. 454; Sec. 3508, R.S. 1929. (2) The court erred in permitting counsel for the State to cross-examine the defendant concerning matters not brought out on direct examination, and in compelling defendant to testify as to such matters. State v. Pfeifer, 183 S.W. 337; State v. Swearengin, 190 S.W. 268; State v. Goodwin, 195 S.W. 725; State v. Jones, 197 S.W. 156; State v. Pierson, 56 S.W. (2d) 120; State v. Nicholson, 87 S.W. (2d) 425. (3) An instruction which follows the language of a defective information and predicates a verdict thereon is erroneous, and the appellate courts will so hold, even though appellant's motion for new trial does not specifically point out wherein the instruction is erroneous, as required by Section 4079, Laws 1925, page 198, now Section 3735, Revised Statutes 1929. State v. Schultz, 295 S.W. 535. An instruction which assumes a controverted fact is erroneous, and since Instruction 1 assumes that defendant mortally wounded deceased, it was error for the court to give said instruction to the jury. State v. Adams, 274 S.W. 21; State v. Duncan, 80 S.W. (2d) 147; State v. Byrd, 213 S.W. 35.

Roy McKittrick, Attorney General, William W. Barnes and Wm. Orr Sawyers, Assistant Attorneys General, for respondent.

(1) The record shows a sufficient formal arraignment and a sufficient impaneling and swearing of the jury. Secs. 3515, 3681, R.S. 1929; State v. Steenbergen, 68 S.W. (2d) 684, 334 Mo. 882; State v. Dunnegan, 167 S.W. 497, 258 Mo. 377; State v. Hart, 56 S.W. (2d) 592, 331 Mo. 656; Art. II, Sec. 28, Mo. Const.; State ex rel. v. Slover, 36 S.W. 50, 134 Mo. 614. (2) The record contains substantial evidence to support the verdict. The demurrer was properly overruled. State v. Henke, 285 S.W. 392, 313 Mo. 627; State v. Simmons, 58 S.W. (2d) 303, 332 Mo. 247; State v. Martin, 56 S.W. (2d) 138; State v. Berkowitz, 325 Mo. 526, 29 S.W. (2d) 150; State v. Baker, 324 Mo. 851, 24 S.W. (2d) 1039; State v. Dodson, 29 S.W. (2d) 62; State v. Miller, 318 Mo. 583, 300 S.W. 765; State v. Caviness, 326 Mo. 998, 33 S.W. (2d) 940; State v. Schaeffer, 273 S.W. 249, 221 Mo. App. 358; State v. Harris, 324 Mo. 232, 22 S.W. (2d) 802. (3) Appellant being convicted of manslaughter, as error, if any, in giving instruction on murder in second degree, was harmless. State v. Clinton, 278 Mo. 347, 213 S.W. 841; State v. Morehead, 271 Mo. 88, 195 S.W. 1043; State v. Wilson, 250 Mo. 329, 157 S.W. 313.

ELLISON, J.

The appellant was convicted of manslaughter and his punishment assessed at a fine of $400 and six months in the county jail, for the killing of Daniel I. Gross in Fredericktown in August, 1934. The cause was tried in St. Francois County on change of venue from Madison County. The deceased was a hemophiliac, or "bleeder." The appellant struck him on the jaw once with his fist. A slight laceration on the inside of the mouth resulted which produced a hemorrhage lasting ten days and ending in death. The State's evidence showed the appellant's assault upon the deceased was unprovoked. The evidence for the appellant was that he acted in self-defense; and his theory further was that Gross's death was not caused by the blow struck but by his disease, aforesaid, and the failure to treat it properly. Other assignments in appellant's motion for new trial and brief in this court challenge the information and the overruling of his plea in abatement thereto, the sufficiency of the evidence and the overruling of his demurrers thereto; and complain of the admission of evidence, the giving of instructions, and the failure to instruct the jury properly.

For the State two eyewitnesses testified. One of these was Mr. E.D. Anthony, city attorney of Fredericktown, a man seventy-eight years old. By him it was shown that the deceased was standing at the outer edge of the recessed entrance to his book and magazine shop in Fredericktown a little before noon on August 31, 1934, when the appellant from a point further west rapidly crossed the street diagonally to the other side and thence, after a very short interval, returned at a brisk pace walking straight up to where the deceased was standing and with his right hand hit him on the left side of the jaw. At that time the witness was about twenty feet away on the adjacent sidewalk. The deceased retreated into his store, the appellant following and striking at him. The deceased said, "don't hit my face, you hurt me." By that time the witness was passing in front of the door within six or eight feet of the two men. The deceased grabbed a book from the table and said, "Get out of here — get out." The appellant turned around and went out. During the whole time the appellant did not say a word so far as the witness heard.

The other eyewitness was Mr. E.H. Bess, hardware and furniture merchant for thirty years in Fredericktown. He was walking on the other side of the street, which was fifty feet wide, about opposite the deceased's store. Glancing up he saw the appellant walk real fast toward the deceased, who was standing at the edge of the entrance to his shop, and hit him with his fist on the left side of the jaw, and then turn away and walk down the street. The deceased staggered back into the building and did not hit the appellant. The witness did not hear either of them say a word, and only one blow was struck.

For the defense two young women who were eyewitnesses referred to the occurrence as a "fight." They testified the appellant and the deceased were scuffling on the sidewalk in front of the shop; that the appellant started to leave and the deceased followed him four or five steps and hit him on the head with a book whereupon the appellant struck the deceased and walked away. The two girls were on the same sidewalk about 100 feet west of the shop when they first observed the difficulty. They did not see Mr. Anthony, the State's witness, who would have been between them and the struggle if all were positioned as they testified. Mr. Anthony on rebuttal declared the two girls were not anywhere in sight on that side of the street at the time.

The appellant swore he did cross the street diagonally as Mr. Anthony testified, and that the deceased, who was standing in the doorway of his shop, called out and cursed him. Appellant thereupon came back and walked up to the deceased, asking what was the matter. The deceased assaulted him. Appellant warded off the blows and pushed the deceased back. The deceased took off his glasses, renewed the attack, and then, uttering foul epithets, retreated into the store and got a book. Appellant started away, the deceased followed and hit him with the book, and appellant hit the deceased an ordinary blow in self-defense. He swore he did not know the deceased was a hemophiliac.

Regarding the evidence showing the physical condition of the deceased and the effect upon him of the blow struck by the appellant. He was thirty-six years old and had been afflicted with hemophilia since birth. He had been under treatment for that disease about two years before when he bumped his knee on a table, and was in the Veterans' Hospital in St. Louis for a short time. He was below the average in height and overweight, or fat, as some of the witnesses said, and rather pale or anemic. He walked with a slow draggy or hobbling gait.

The two young women aforesaid who were called as witnesses by the appellant testified that after the difficulty had ended they walked on by the shop and saw the deceased standing in the doorway spitting out a little blood. R.O. Buzbee, deputy sheriff, said he had occasion about noon that day to go to the deceased's shop, and found him standing inside the door. He was bleeding from the mouth and his jaw was puffed up and discolored. Mrs. F.T. Gross, mother of the deceased, said she saw him that night about six o'clock. His face, jaw and lips were swollen. His lip was in very bad condition. He went to bed about eight-thirty or nine o'clock that night, but remained in bed only over night, taking care of himself. He was confined to his bed in his last sickness from September 5, five days later, and died on September 10. One of the defendant's witnesses testified to seeing him at a picnic in Fredericktown on Labor Day, which was September 3. He was standing by one of the booths.

Dr. W.H. Barron, a physician at Fredericktown of thirty years' practice, treated him in his last illness. He had known him for fifteen years and intimately for six or eight years, having been his physician on the occasion of his illness two years before. The deceased came to his office in the morning of September 1. His left jaw was badly swollen. An examination disclosed that he had an abrasion or laceration on the inside of his lip. It was an opening in the mucous membrane about one-eighth inch deep, but did not cut into the muscular tissue. The wound was bleeding...

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