State v. Hacker
| Decision Date | 08 November 1948 |
| Docket Number | No. 40971.,40971. |
| Parties | STATE v. HACKER. |
| Court | Missouri Supreme Court |
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 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, reads: "If any person convicted of any offense punishable by imprisonment in the penitentiary * * * shall be discharged, either upon pardon or upon compliance with the sentence, and shall subsequently be convicted of any offense committed after such pardon or discharge, he shall be punished as follows: * * * second, if such subsequent offense be such that, upon a first conviction, the offender would be punished by imprisonment for a limited term of years, then such person shall be punished by imprisonment in the penitentiary for the longest term prescribed upon a conviction for such first offense * * *."
The offense of burglary and larceny is "punished by imprisonment in the penitentiary". §§ 4448 and 4445. We have applied § 4854 to offenses punishable by imprisonment in the penitentiary where the punishment graded down and the actual punishment assessed for the prior offense was a jail sentence (State v. Marshall, 326 Mo. 1141, 1144, 34 S.W.2d 29, 30[1, 2]; State v. Brinkley, 354 Mo. 337, 374[27], 189 S.W.2d 314, 334[49, 50]), or a sentence in the Intermediate Reformatory for Young Men (State v. Breeden, Mo.Sup., 180 S.W. 2d 684, 686[4]), or under § 4855, extending the act to embrace convictions in other jurisdictions, to prisoners at the Medical Center for Federal Prisoners at Springfield, Missouri (State v. Brinkley, 354 Mo. 337, 371[20], 189 S.W.2d 314, 332[40]). The facts bring appellant within the words making the act applicable to "any person convicted of any offense punishable by imprisonment in the penitentiary".
Next, appellant argues that since he stands convicted under § 4409, the punishment for which grades down to a jail sentence or fine, his "subsequent offense" is not one for which a first offender "would be punished by imprisonment for a limited term of years" (§ 4854) in the penitentiary. The argument is built around the word "punished." Originally the word was "punishable" (R.S.1835, p. 213, § 7, 2d; R.S.1889, § 3959) and "punished" first appeared in the amended act of 1895 (Laws 1895, p. 153). The substitution of "punished" for "punishable" has been held an inadvertence and the issue determined adversely to appellant. State v. Brinkley, 354 Mo. 337, 374[27], 189 S.W.2d 314, 335[49]; State v. Updegraff Mo.Sup., 214 S.W.2d 22, reviewing the authorities and reasons. The statute pivots the issue on the punishment the offender may be subjected to for the subsequent offense. Clerical errors should not effect unauthorized changes in statutory law.
The foregoing disposes of the points attacking the information, the admissibility of evidence or the instructions on the ground appellant was not subject to the habitual criminal act.
With the charge against appellant invoking the habitual criminal act, it stands adjudged that permitting the State to show appellant's prior conviction before he took the stand was not error. State v. Jones, 339 Mo. 893, 895(II), 98 S.W.2d 586, 587 [3,4]. Consult State v. Murphy, 345 Mo. 358, 361[3], 133 S.W.2d 398, 400[5].
Error was not committed in permitting the State, upon appellant's cross-examination, to establish that he had been previously convicted, not having been inquired into in chief. Section 4081 restricts the examination of an accused but authorizes his impeachment after taking the stand "as any other witness in the case"; and § 1916, making a person convicted of crime a competent witness, authorizes proof of his conviction by the record or cross-examination to affect his credibility. The sole objection interposed was to giving the details of the prior offense and in this respect the court restricted appellant's answer to the charge against him on the former occasion. State v. Bagby, 338 Mo. 951, 962, 93 S.W. 2d 241, 247[5, 6]; State v. Jackson, 336 Mo. 1069, 1077[4], 83 S.W.2d 87, 92[6], 103 A.L.R. 339; State v. McBride, Mo.Sup., 231 S.W. 592, 593[3]; State v. Ransom, 340 Mo. 165, 174[7], 100 S.W.2d 294, 297 [8]; State v. Shipman, 354 Mo. 265, 269 [4], 189 S.W.2d 273, 275[7].
Complaint is made of instructions Nos. 1, 2 and 6. While we find the points presented without merit,...
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