State v. Gannaway, 46574

• Decision Date: 09 June 1958
• Docket Number: No. 2,No. 46574,46574,2
• Citation: 313 S.W.2d 653
• Parties: STATE of Missouri, Respondent, v. Clifford GANNAWAY, Jr., Appellant
• Court: Missouri Supreme Court

Page 653

313 S.W.2d 653

STATE of Missouri, Respondent, v. Clifford GANNAWAY, Jr., Appellant.

No. 46574.

Supreme Court of Missouri, Division No. 2.

June 9, 1958.

No appearance for appellant.

John M. Dalton, Atty. Gen., Hugh P. Williamson, Asst. Atty. Gen., for respondent.

EAGER, Judge.

The defendant was convicted of assault with intent to kill or do great bodily harm and sentenced to two years in the penitentiary. After unsuccessfully moving for a new trial he has appealed. There being no brief for appellant, whom we shall designate as the defendant, we consider such points of the motion for new trial as are sufficiently raised under 42 V.A.M.S. Rule 27.20 Supreme Court Rules. State v. Thomas, Mo., 309 S.W.2d 607.

The state adduced testimony from which the jury might fairly have found to be true the facts which we now set out. One Richard Morton (described in the information as 'Motens,' but no point being made thereon) and the defendant bought a fifth of wine in Montgomery City on the evening of May 29, 1957, and drank part or all of it; they then proceeded to the home of one Warren Harris to 'look at TV' and have some more wine. They were both in the habit of visiting at Harris'; when they arrived Harris was asleep but this was apparently no impediment to the progress of the proceedings. Defendant and Morton there got into an argument about the wine and defendant struck Morton who struck him back; Harris succeeded in getting between the combatants, but defendant picked up a double-barrelled shotgun which was standing 'behind the door' near him and raised it, wholly or partially; Harris 'knocked the gun down' just as it was fired. The net result was that the charge shot the leg off of a piano stool nearby. Morton testified, referring to defendant and the gun,--'He fired it.' Morton also stated that he got a powder burn on his pants; he denied drawing a knife at any time during the controversy. Harris then put each of the combatants out of his house, and by separate doors. He also testified that he saw nothing in Morton's hand, and that the shotgun was loaded but not cocked as it stood in the room prior to the controversy.

The defendant's version of the affair was that he went to Harris' alone, the Morton came in later, and that Morton and Harris drank wine, but he did not. Further, that Morton left, he and Harris turned off the TV, and both laid down to rest or sleep; that Morton returned, in perhaps 15 minutes, somewhat intoxicated, said 'he didn't like my looks,' and proceeded to slap him; that as defendant was still trying to rise, Morton hit him under the chin and he struck Morton back a couple of times but was driven into a corner; at that time Morton had a knife in his hand and he, defendant, grabbed an old gun standing there and raised it, intending to fend Morton off with it, but not intending to shoot him; that as he brought the gun up it discharged; that at the time Harris was still lying on the bed, and the shot missed Morton by 3 or 4 feet; also, that he did not cock the gun. The jury very clearly found against the defendant's version of the affair. He admitted two previous convictions for felonious assault, and one for second degree forgery; he did not 'remember' concerning a conviction for common assault or one for disturbing the peace, both of which were otherwise proven.

In the motion for new trial there are assignments of alleged error 'in giving State's Instruction No. 2,' and in refusing 'Defendant's Instruction No. 7, 8, 9 and 10.' These assignments, stating no reasons or grounds, are wholly insufficient. State v. Mayberry, Mo., 272 S.W.2d 236; State v. McLachlan, Mo., 283 S.W.2d 487; State v. Murray, Mo., 280 S.W.2d 809; State v. Stehlin, Mo., 312 S.W.2d 838.

We shall consider the assignment that the court erred in refusing to direct a verdict of acquittal at the close of all the evidence. Counsel presented a motion asserting, in substance, that no crime had been proven, and that no intent to commit an assault had been shown. The circumstances of this case were not conducive to a highly enlightening brand of testimony. However, there was evidence, which the jury was entitled to believe, that defendant struck Morton, thus bringing on a fist-fight, and that in the course of the fight, he picked up the shotgun and fired it in Morton's direction, the charge being diverted by Harris' action in pushing the gun away. There can be no doubt that this constituted submissible evidence of an assault. Upon such an assignment we consider as true the evidence favorable to the state and the favorable inferences reasonably to be drawn therefrom. State v. Whitaker, Mo., 275 S.W.2d 316. From this evidence the jury might reasonably infer an intent to discharge the gun, and an intentional firing of it at Morton, notwithstanding defendant's denial. Intent is, of course, an element of the offense, but as this court said in State v. Chevlin, Mo., 284 S.W.2d 563, loc. cit. 566: '* * * 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 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....