State v. Garner

• Decision Date: 13 February 1950
• Docket Number: No. 2,No. 41662,41662,2
• Citation: 226 S.W.2d 604,360 Mo. 50
• Parties: STATE v. GARNER
• Court: Missouri Supreme Court

Page 604

226 S.W.2d 604

360 Mo. 50

STATE v. GARNER.

No. 41662.

Supreme Court of Missouri, Division No. 2.

Feb. 13, 1950.

Silas E. Garner, St. Louis, for appellant.

J. E. Taylor, Attorney General, Lawrence L. Bradley, Assistant Attorney General, for respondent.

ELLISON, Presiding Judge.

The appellant was convicted by a jury's verdict in the St. Louis city circuit court of 'assault to do great bodily harm as charged in the information.' The State says the information was drawn under Sec. 4409, R.S.1939, Mo.R.S.A. The appellant contends the case was 'prosecuted' under Sec. 4408. The jury assessed his punishment at a fine of $100 and imprisonment in the City Jail for three months. But nevertheless the crime was a felony under either Sec. 4409 or 4408, because it was punishable by imprisonment in the penitentiary, Sec. 4864, R.S.1939, Mo.R.S.A., and we therefore have appellate jurisdiction. The alleged assault consisted of attempting to run down a policeman in a public street 'with a certain weapon, to-wit'--a speeding automobile.

Appellant makes nine assignments of error on this appeal, urging all of them as his brief states, but relying chiefly on assignments 1, 4 and 5. The first of these complains of the overruling of his motion for a directed verdict; the second, of the overruling of his 'special instruction'; and the last of the trial court's action in forcing him to trial without giving him time to bring two named witnesses into court. The six other assignments will be mentioned later.

First, a brief review of the evidence. The police officer testified he was standing at the intersection of Compton and Laclede Avenues in St. Louis about 3 a. m. on December 13, 1947. There were street lights on all four corners. He observed a black automobile, with only one headlight lit, approaching eastbound about three blocks away on Laclede at a continuous speed of 50 or 60 miles per hour. When it was about a block away he stepped from the sidewalk into the street and with his flashlight continuously signaled it to stop. But instead, the automobile when about 40 feet away swerved toward him, and he jumped 4 or 5 feet to avoid it. In so doing he landed on his back, knocking the breath out of him, and remained lying on the pavement for 3 to 4 seconds. On cross-examination he said it might have been 4, 5 or 6 seconds, or maybe even 4, 5 or 6 minutes, but his final opinion was that it was 'maybe' 4 or 5 minutes or seconds.

After he had picked up his hat and flashlight but was still out on the pavement, he heard the roar of a motor and saw the same car returning west on Laclede. It was a Cord car with a California license. Later on cross-examination he said it was coming about 35 miles per hour when it approached him, swerving about 25 feet in his direction. He jumped out of the way but the car brushed his coat and he fell to his knees, bruising his leg so as to require hospital treatment. He fired three shots with his revolver, and later found one of them had punctured a back fender of the car. Within about 20 minutes, after a police radio broadcast, the occupants of the car were arrested in a part of the city over a mile away. At the police station the appellant admitted he saw the officer waiving his flashlight, but said he couldn't stop and went on by, intending to throw the gears into reverse, but by mistake went into high forward gear. But he gave no reason for making the westbound trip.

The appellant's version of the occurrence was entirely different. As we understand his testimony he admitted that in the early morning of the date of the occurrence detailed by the police officer he was driving east on Laclede; stopped at the stop sign on Compton, and after he started up heard a whistle which he thought had been given by an officer on that beat whom he knew. He continued on to an eating place where the three occupants of the automobile ate sandwiches, and then drove back on the same street, Laclede. At the point of the prior occurrence they heard a noise like an automobile backfiring. [This apparently referred to the shots fired by the prosecuting officer.] They continued on until they were arrested.

The basis of appellant's first assignment--that the trial court erred in overruling his motion for a directed verdict--is two-fold. First, he argues an automobile is not a 'deadly weapon' within the meaning of Sec. 4423, R.S.1939, Mo.R.S.A., and therefore the State failed to make a case 'of intentional assault to do great bodily harm.' His second contention is that the rate of speed at which the automobile was traveling when it approached the officer the second time and struck him--35 miles per hour according to the officer's own testimony--was so inconsiderable as to repel any idea of an intent on his part to do great bodily harm.

On the first point, Sec. 4423 referred to by appellant is the concealed weapon statute. The opening provision thereof makes it a felony for any person to 'carry concealed upon or about his person a dangerous or deadly weapon of any kind or description.' The next provision similarly declares if any person shall go into any place of public assemblage (speaking generally), having upon or about his person, concealed or exposed--then the statute enumerates a great number of comparatively small weapons that could be so concealed or exposed, such as firearms, knives, knucks, etc. Appellant contends an automoibile knucks, etc. Appellant contends an automobile of course it is not. But it does not follow that an automobile cannot be used as a weapon, or even a dangerous or deadly weapon, in an assault. The contrary has several times been declared of a moving automobile. 11 Words and Phrases, Perm. Ed., Dangerous Weapon, page 81; Deadly Weapon, page 131; Vol. 44, ibid., Weapon, page 778; State v. Brinkley, 354 Mo. 1051, 1066(1), 193 S.W.2d 49, 53(1).

Appellant's second point under this first assignment is that the prosecuting officer's testimony was self-destructive. This is asserted on the theory that the automobile could not have passed him going east at the speed of 50 or 60 miles per hour, at which time he fell on the pavement; and then have returned west, brushed his coat and knocked him down again--all within the 4 to 6 seconds during which the officer testified he lay on the pavement and then got up as the automobile swerved and approached him at a speed of 35 miles per hour. But the jury were not bound to believe the appellant's testimony that in the meantime he and his associates had stopped at a distant place to eat lunch. So far as the State's evidence was concerned there was no evidence as to how far east the automobile went, or when it reduced its speed to 35 miles per hour. In the officer's distressed condition he may have been, and apparently was, in no condition to give an accurate estimate of the time elapsed, but he did state as a fact that the automobile going east and the one which struck him returning west were the same vehicle, and that appellant then was driving it. We think this evidence made a case for the jury.

Appellant's next stressed assignment, No. 4, complains of the court's refusal of his 'special instruction,' lettered 'A' in the record. The tendered instruction would have required the jury to find the appellant ran the policeman down with malice aforethought. That is a necessary element of the felony under Sec. 4408, but not under Sec. 4409. Likewise, Sec. 4408 requires the assault to be committed with a deadly weapon or by any other means or force likely to produce death or great bodily harm, whereas Sec. 4409 does not. The maximum punishment under Sec. 4408 is life imprisonment in the penitentiary, and the minimum two years, whereas the maximum punishment under Sec. 4409 is five years imprisonment in the penitentiary and the minimum a jail sentence for three months and a $100 fine. The information in this case did not charge malice aforethought, or use of a deadly weapon, but only of 'a certain weapon'; and the punishments authorized by the court's instructions were only those under Sec. 4409, and the jury imposed the minimun. Clearly the prosecution was under the latter section and appellant's tendered instruction A was properly refused.

Appellant's stressed assignment No. 5 is that the trial court erred in forcing appellant to trial without giving him time to get his witnesses Jones and Wilson residing at specified addresses in St. Louis. These two men were in the automobile with the appellant at the time of the commission of the alleged crime, and it was averred in his application for a continuance that either or both would testify the prosecuting police officer did not 'step in front of' the automobile; nor did appellant direct it toward him; but the officer without demanding that it halt, shot at the car as it passed him.

At the hearing on appellant's verified application for a continuance, on November 15, 1948, it was shown by the State that the case was first called for trial on May 24, 1948, and was set over at appellant's request to June 14. Appellant then asked a further continuance to the next setting, and it was peremptorily set for October 18. At that time appellant's counsel asked additional delay for personal reasons, and promised to be ready on November 15. On that date the application here under discussion was filed and heard. Appellant's counsel stated the two witnesses...