State v. Gaddy

• Decision Date: 12 October 1953
• Docket Number: No. 1,No. 43576,43576,1
• Citation: 261 S.W.2d 65
• Parties: STATE v. GADDY
• Court: Missouri Supreme Court

Page 65

261 S.W.2d 65

STATE v. GADDY.

No. 43576.

Supreme Court of Missouri, Division No. 1.

Oct. 12, 1953.

Tom A. Shockley, Waynesville, for appellant.

John M. Dalton, Atty. Gen., Grover C. Huston, Asst. Atty. Gen., for respondent.

VAN OSDOL, Commissioner.

Defendant was charged with the crime of assault with intent to kill with malice aforethought, Section 559.180 RSMo 1949, V.A.M.S., and convicted of assault with intent to kill without malice aforethought, Section 559.190 RSMo 1949, V.A.M.S. State v. Parrish, Mo.Sup., 214 S.W.2d 558. Punishment was assessed by the jury at two years in the State penitentiary, and defendant has appealed from the ensuing judgment.

Defendant-appellant has filed no brief in this court, and we shall examine the fourteen assignments of error set forth in the motion for a new trial in order to determine disposition of the case upon this review.

We first treat with the assignment that 'the State's evidence is insufficient to sustain the conviction herein.'

There was substantial evidence introduced tending to show that on April 5, 1952 one Ben Blair, the prosecuting witness, seventy-three years of age, went to the home of John and Florence Tyler just without the corporate limits of the City of Rolla and was admitted to the Tyler home. There were present in the Tyler house John Tyler and Florence, his wife; one Boyd Stewart; and defendant Vernon Gaddy, his wife Margaret Loretta, and their three small children. Mrs. Tyler was the mother of defendant. Previously, the evening of April 3d, the Tylers and defendant were visiting in the Blair home. Defendant became very angry at Blair during a conversation in which defendant's mother expressed anxiety as to the safety of defendant's children who had been exposing themselves to the danger of automobiles passing in the street. Blair testified that, having entered the Tyler house, April 5th, 'I was standing there. Vernon (defendant) got up. He had a bottle in his hand. I didn't think he * * * really meant anything by it until I seen what he meant to do * * * he just got up and he says, 'I am going--when he hit me--I am going to get you,' something that way.' Blair fell to the floor unconscious. He suffered a wound with profuse hemorrhage on the left side of his face and neck requiring extensive suture. The wound extended from the corner of the mouth parallel with the ramus of the lower jaw. The ear was lacerated, and the lower part of it was so torn that it could be lifted away from the side of the neck. Having regained consciousness, Blair left the Tyler house. He was pursued by defendant who again attacked him and got him 'down on the road.' Defendant, upon arrest, admitted he had struck Blair with a beer bottle; and again defendant, testifying as a witness, admitted striking Blair with the bottle but said he did so to protect his wife from criminal assault. We are of the opinion that these facts are sufficient evidence of the crime of which defendant was convicted. State v. Hacker, Mo.Sup., 214 S.W.2d 413.

Defendant assigned error 'in giving to the jury instructions numbered 3 and 4.' This assignment is insufficient to preserve any contention of error with respect to the numbered instructions. State v. January, 353 Mo. 324, 182 S.W.2d 323; State v. Goodwin, 333 Mo. 168, 61 S.W.2d 960. Likewise, the assignment that the 'verdict of the jury is against the evidence and the law in this case' is insufficient because too general. It has been the mandatory requirement of statute, Section 547.030 RSMo 1949, V.A.M.S., and now of Court rule (Supreme Court Rule 27.20), that the motion for a new trial 'must set forth in detail and with particularity' the specific grounds or causes therefor. State v. Burks, Mo.Sup., 257 S.W.2d 919; State v. Boyd, Mo.Sup., 256 S.W.2d 765; State v. O'Brien, Mo.Sup., 252 S.W.2d 357.

Defendant-appellant's assignment of error that the trial court erred in refusing to grant defendant a continuance is overruled. We believe the trial court did not abuse its discretion in refusing the continuance. The application was not verified and contained no allegation that defendant believed the facts which were stated could be proved by the absent witness were true. The application was insufficient under the statute, Section 545.720 RSMo 1949, V.A.M.S., and Supreme Court Rule 25.08. State v. Kimbrough, 350 Mo. 609, 166 S.W.2d 1077; State v. Dalton, Mo.Sup., 23 S.W.2d 1.

In four of defendant-appellant's assignments of error it is asserted that, prior to trial, a 'protective association' had been organized in Phelps County, which organization had taken the enforcement of the law into its own hands and had so intimidated jurors, including those selected in this cause, that the defendant did not have a fair and impartial trial. These statements of fact in the motion for a new trial did not prove themselves--the motion for a new trial was not verified, and there was no...