State v. Hacker, No. 40971.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtBohling
Citation214 S.W.2d 413
PartiesSTATE v. HACKER.
Docket NumberNo. 40971.
Decision Date08 November 1948
214 S.W.2d 413
STATE
v.
HACKER.
No. 40971.
Supreme Court of Missouri Division No. 2.
November 8, 1948.

[214 S.W.2d 414]

Appeal from Circuit Court, Harrison County; V. G. Rose, Judge.

Earl Eugene Hacker was convicted of assault with intent to kill, but without malice, and he appeals.

Affirmed.

C. C. Ross, of Bethany, for appellant.

J. E. Taylor, Atty. Gen., and C. B. Burns, Jr., Asst. Atty. Gen., for respondent.

BOHLING, Commissioner.


Earl E. Hacker appeals from a judgment imposing a five year sentence for felonious assault upon Wayne W. Wilson. The information was under the habitual criminal act and charged an assault with intent to kill "on purpose and of malice aforethought" (§ 4408). (Statutory references are to Mo.R.S.1939 and identical section numbers in Mo.R.S.A., unless otherwise indicated.) The jury returned a verdict of assault with intent to kill, but without malice (§ 4409). Appellant's brief presents fourteen points, some of which overlap. They embrace whether a case was made, whether the habitual criminal act was applicable, and the propriety of certain testimony and given instructions.

The State's evidence: Wayne W. Wilson operated a cafe at Bethany, Harrison county, Mo., the bus station being therein. He had no license to sell or permit the drinking of intoxicating liquor on the premises. A week or two prior to the occurrence involved, appellant was in the cafe drinking, using obscene language, causing a disturbance, and, when Wilson had the officers remove him, he threatened to come back and get Wilson. About 11 p. m., January 30, 1947, appellant entered the cafe and had some coffee at the counter. Wilson saw a whiskey bottle in his hip pocket. Appellant went to the rest room at the rear. Wilson followed and when he entered appellant was in the act of taking a drink from the pint bottle, half full of liquor. Wilson asked appellant to leave, stating they had had trouble. Appellant told Wilson to throw him out if he were man enough. When Wilson started to take hold of appellant's arm, appellant said: "You lay a hand on me and I will kill you." Wilson took appellant by the arm and led him to the rear door, a large door, with a night lock. Appellant pulled away when Wilson started to unlock the door. Wilson put his wrist watch and fountain pen on a box near the door. Appellant stepped outside. There was a platform or porch, approximately 6 by 3 feet, outside the rear door, with 8 to 10 or more steps to the ground. Appellant stepped outside. Just as Wilson was stepping through the screen door, appellant hit Wilson on the left side of his head with the whiskey bottle, bursting it and saying: "I will kill you, you s____ o____ b____." There was no fight. Appellant ran down the steps, Wilson "chased" appellant, could not catch him and, becoming weak from the loss of blood, returned to the cafe and then went to the hospital. The blow caused cuts on Wilson's forehead, in the temple, on the ear, below the eye, a bruised eye, and much loss of blood. He was unable to return to work for four weeks, receiving medical treatment during that time.

Appellant testified that when he stepped out on the platform Wilson hit him in the eye, knocking him down the stairs. The whiskey bottle fell out of his pocket. Wilson picked it up. When Wilson started to hit him with the whiskey bottle, appellant hit the bottle with his fist, causing it to break. There was testimony by third parties

214 S.W.2d 415

that appellant suffered a black eye and from others that he showed no injuries from the occurrence. Other facts will be developed in the course of the opinion.

Appellant claims the State failed to make a case because it was not shown that he used a "deadly weapon." Section 4408 provides a punishment for "every person who shall, on purpose and of malice aforethought, * * * assault or beat another with a deadly weapon, * * * with intent to kill" et cetera. Section 4409, on the other hand, contains no provision that the assault or beating be with a deadly weapon. Appellant's conviction was under § 4409 and he is not in a position to urge the asserted error, the charge, proof and finding respecting a "deadly weapon" being surplusage under said § 4409. State v. Spaugh, 199 Mo. 147, 149, 97 S.W. 901[1] citing authorities; State v. Drumm, 156 Mo. 216, 220, 56 S.W. 1086; State v. Null, 355 Mo. 1034, 1038, 199 S.W.2d 639, 641 [4, 5]; State v. Harris, 209 Mo. 423, 434(I), 108 S.W. 28, 31(1). Furthermore, Dr. Marian Gearhart testified that, among other injuries, the anterior branch of Wilson's temporal artery had been severed, causing him to bleed profusely, and if allowed to go uncontrolled could have caused his death. A finding was warranted that the whiskey bottle constituted a deadly weapon when used in the manner established by the State's evidence. State v. Bowles, 146 Mo. 6, 13, 47 S.W. 892, 893, 69 Am.St.Rep. 598; State v. Rizor, 353 Mo. 368, 374[4], 182 S.W.2d 525, 529 [7, 8]; State v. Brinkley, 354 Mo. 1051, 1066[1], 193 S.W.2d 49, 53[2].

In 1942 appellant pleaded guilty to a charge of burglary and larceny. The court, exercising the discretion vested by § 9117 when an accused is "convicted of a felony for the first time," sentenced him to the "Intermediate Reformatory for Young Men" for two years, he being between 17 and 25 years of age. He was discharged from that sentence in 1944. Appellant contends the habitual criminal act (§ 4854) is not applicable to one sentenced to the Intermediate Reformatory for Young Men. Section 4854, so far as involved in the points raised,...

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8 practice notes
  • State v. Swisher, No. 43257
    • United States
    • United States State Supreme Court of Missouri
    • July 13, 1953
    ...S.W.2d 294, 297; State v. Gentry, Mo.Sup., 212 S.W.2d 63, 64; State v. Parrish, Mo.Sup., 214 S.W.2d 558, 560; State v. Hacker, Mo.Sup., 214 S.W.2d 413, 416(7). And see Annotations, 6 A.L.R. 1608; 103 A.L.R. 350, 357; 161 A.L.R. 233, It was of course necessary for the state to allege and pro......
  • State v. Cerny, No. 42442
    • United States
    • United States State Supreme Court of Missouri
    • May 12, 1952
    ...convicted of a felony and imprisoned in the Intermediate Reformatory at Algoa, Missouri, as was defendant. State v. Hacker, Mo.Sup., 214 S.W.2d 413, 415; State v. Breeden, Mo.Sup., 180 S.W.2d 684, 686. See State v. Marshall, 326 Mo. 1141, 34 S.W.2d 29, 31. Defendant's case of Anthony v. Kai......
  • State v. Bridges, No. 48323
    • United States
    • United States State Supreme Court of Missouri
    • September 11, 1961
    ...criminal record for the purpose of affecting his credibility as a witness. Section 491.050, RSMo 1949, V.A.M.S.; State v. Hacker, Mo., 214 S.W.2d 413, 416; State v. McBride, Mo., 231 S.W. 592, The defendant also contends that the records or convictions were not proper rebuttal because testi......
  • State v. Mathis, No. 53074
    • United States
    • United States State Supreme Court of Missouri
    • May 13, 1968
    ...of a felonious assault with malice aforethought before it considered whether he was guilty of a lesser offense. State v. Hacker, Mo., 214 S.W.2d 413. Separately numbered instructions are all parts of a single charge and must be considered as a whole. State v. Lee, Mo., 404 S.W.2d 740, 749. ......
  • Request a trial to view additional results
19 cases
  • State v. Owen, No. 7853
    • United States
    • United States State Supreme Court of Idaho
    • January 27, 1953
    ...the prior offenses are not admissible. * * *' People v. David, 12 Cal.2d 639, 86 P.2d 811, at page 814. State v. Hacker, Mo.Sup., 214 S.W.2d 413. Page In our search of the authorities, Montana is the only jurisdiction in which we find direct support for appellants' position on the specific ......
  • State v. Swisher, No. 43257
    • United States
    • United States State Supreme Court of Missouri
    • July 13, 1953
    ...S.W.2d 294, 297; State v. Gentry, Mo.Sup., 212 S.W.2d 63, 64; State v. Parrish, Mo.Sup., 214 S.W.2d 558, 560; State v. Hacker, Mo.Sup., 214 S.W.2d 413, 416(7). And see Annotations, 6 A.L.R. 1608; 103 A.L.R. 350, 357; 161 A.L.R. 233, It was of course necessary for the state to allege and pro......
  • Bush v. State, No. 45570
    • United States
    • United States State Supreme Court of Kansas
    • May 17, 1969
    ...dealt with in a different manner. The punishment prescribed refers to the offense and not the sentence. (State v. Hacker (Mo.1948), 214 S.W.2d 413; State v. Nolan (Mo.1958), 316 S.W.2d 630; Fry v. Hudspeth, 165 Kan. 674, 197 P.2d 945.) See, also, Martin v. Amrine, 156 Kan. 384, 133 P.2d In ......
  • State v. Cerny, No. 42442
    • United States
    • United States State Supreme Court of Missouri
    • May 12, 1952
    ...convicted of a felony and imprisoned in the Intermediate Reformatory at Algoa, Missouri, as was defendant. State v. Hacker, Mo.Sup., 214 S.W.2d 413, 415; State v. Breeden, Mo.Sup., 180 S.W.2d 684, 686. See State v. Marshall, 326 Mo. 1141, 34 S.W.2d 29, 31. Defendant's case of Anthony v. Kai......
  • Request a trial to view additional results

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