State v. Henderson

• Decision Date: 13 October 1947
• Docket Number: 40341
• Parties: State v. Forrest Henderson, Appellant
• Court: Missouri Supreme Court

204 S.W.2d 774

356 Mo. 1072

State v. Forrest Henderson, Appellant

No. 40341

Supreme Court of Missouri

October 13, 1947

Appeal from Wright Circuit Court; Hon. C. H. Jackson Judge.

Affirmed.

John C. Pope for appellant.

J E. Taylor, Attorney General, and David Donnelly, Assistant Attorney General, for respondent.

(1) Assignment of Error No. 1 is too general to preserve anything for review. Sec. 4125, R.S. 1939; State v. Shepard, 334 Mo. 423, 67 S.W.2d 91; State v. Francis, 330 Mo 1205, 52 S.W.2d 552; State v. Robinson, 106 S.W.2d 425. (2) There is substantial evidence to support the verdict, felonious assault with malice aforethought. Sec. 4408, R.S. Mo. 1939. (3) The state was not required to prove the weapon used was a deadly weapon. Instruction 2 did not charge weapons used were deadly per se. State v. Murray, 316 Mo. 31, 292 S.W. 434; State v. Falco, 330 Mo. 982, 51 S.W.2d 1030; State v. Dunn, 221 Mo. 530, 120 S.W. 1179; State v. Bennett, 87 S.W.2d 159; State v. Fletcher, 190 S.W. 317; State v. Grayor, 89 Mo. 600, 606, 1 S.W. 365; State v. Welch, 311 Mo. 476, 278 S.W. 755; State v. Stewart, 278 Mo. 177, 212 S.W. 853; 6 C.J.S., sec. 128a, p. 1001. (4) Assignment of Error No. 4 is too general to preserve anything for review. Sec. 4125, R.S. 1939; State v. Austin, 29 S.W.2d 686; State v. Bowers, 29 S.W.2d 58; State v. Peters, 123 S.W.2d 34. (5) The court did not err by not notifying defendant of the forfeiture of his recognizance. State v. Gross, 306 Mo. 1, 275 S.W. 769; State v. Wilson, 265 Mo. 1, 175 S.W. 603; Sec. 3973, R.S. 1939. (6) Appellant was not denied a fair and impartial trial because Juror remained silent when asked if she knew appellant and his wife. State v. Jacobson, 348 Mo. 258, 152 S.W.2d 1061; State v. McKeever, 339 Mo. 1066, 101 S.W.2d 22; State v. Williams, 335 Mo. 234, 71 S.W.2d 732; State v. Shoemaker, 183 S.W. 322; State v. Nocton, 121 Mo. 537, 26 S.W. 551; State v. Burns, 85 Mo. 47. (7) Appellant was not denied a fair and impartial trial because of the action of a juror during recess of the court. State v. Nenninger, 188 S.W.2d 56; Sec. 4071, R.S. 1939; State v. McGee, 336 Mo. 1082, 83 S.W.2d 98.

OPINION

Ellison, J.

The appellant was convicted in the circuit court of Wright county of felonious assault with a deadly weapon, malice aforethought and an intent to kill, upon Clyde Melvin in violation of Sec. 4408, R.S. 1930-Mo. R.S.A. The appellant and his wife were jointly charged, but at the close of all the evidence the trial court directed a verdict for the appellant's wife on the legal presumption that she acted under the influence and coercion of her husband; and submitted the case against the appellant husband alone. The jury found him guilty and assessed his punishment at imprisonment in the penitentiary for three years and one day.

Appellant has filed a transcript of the whole record, including a bill of exceptions containing all the evidence, but has not filed a brief. However his counsel has addressed a letter to our clerk calling attention to four decisions of this court, which he says support his contention that the State's main instruction was erroneous. We shall return to that point later. Other than that our review will be limited to the record proper and the assignments of error in appellant's motion for new trial, State v. Weston, 202 S.W.2d 50, 51(1). Before we deal with these the facts should be stated briefly.

The prosecuting witness, Clyde Melvin was a farmer probably past middle age (a veteran of World War 1). For the preceding year and a half he had been suffering from an arthritic and nervous condition which affected his ability to walk. During that time he had been under treatment at the hospital of Drs. Schlicht in Niangua, and had returned to his farm only a month before the assault.

He testified that on the date of the assault he had gone from his home to a pond on his farm to shoot frogs with a pistol which he openly carried stuck in his belt. Thereafter he proceeded to his rural mail box on the public road, his course being parallel to and inside of the highway fence. When he had got opposite the home of a neighbor, Barker, on the other side of the road, he saw the appellant Henderson and wife hurrying toward him through the woods. Appellant told Mrs Barker to "Get in the house;" that, "Me and Clyde (the prosecuting witness) is going to have it out." Then appellant and his wife got over or through the fence, and the former upbraided him for taking the rope and bucket from a school house well near by, where appellant had been getting water. Melvin admitted it and said both belonged to him.

Thereupon appellant hit Melvin with his fist and knocked him to the ground, and while he was prostrate beat him in the face, head and neck with iron knucks. At that time appellant discovered the pistol, which he declared Melvin carried concealed under his shirt, and said to his wife, "God Damn, Anne, here is a gun." She answered, "Get it," and appellant seized it and said, "We will just kill the God Damn'd s-o-b." Thereupon appellant began stomping Melvin.

Continuing, Melvin testified the appellant's wife beat him with "a broom stick cut off just like a billy club, about the same length, I guess, about two feet." Just after the assault another witness, Wilson Shaddy, saw appellant's wife at the scene of the assault with a stick in her hand about two or three feet long and approximately an inch in diameter. Melvin testified the appellant's wife, using the stick -- "was beating me up and down, through the ribs, as he (appellant) was working on my face, and holding my hands down." The witness' shirt was torn up and buttons were later found at the scene of the assault.

The injuries inflicted on Melvin were: a gash, about two inches long over his left eye; considerable swelling over the left side of the head and left eye, closing the latter; some swelling over the right eye; some bruised areas on the side of the neck; a large bruised area above the left hip; some scratches or stripes across the chest; abraded or scuffed areas over the abdomen; fractures of the third and fourth ribs on the right side; and an incomplete fracture of the right side of the lower jaw.

The appellant's defense was self-defense. He and his wife both testified that during the dispute about the well bucket and rope, Melvin said he was from Kentucky, called appellant "a yellow s-o-b" and reached for his pistol, whereupon appellant knocked Melvin down and scuffled with him until his (appellant's) wife had got possession of the pistol. Both denied appellant used any means of defense except his fists. The wife admitted picking up a stick in self-defense, after the fight was over, when Mrs. Melvin came up, but said she never used it. The three doctors who had examined Melvin after the assault (using X-Rays) would not say the injuries described must have been made by some other instrument than a human fist. So much for the facts.

Notwithstanding the repeated holdings of this court under Sec. 4125, R.S. 1939-Mo. R.S.A., several of the assignments of error in appellant's motion for new trial are so lacking in detail and particularity that they fail to preserve anything for review. They are: Assignment 1 -- that "the verdict is against the law, as declared by the instructions given by the court"; Assignment 2 -- that "the verdict is against the evidence . . ."; Assignment 4 -- that "the court erred in giving instructions numbered 1, 2, 3, 4." None of these assignments specify the error complained of: they merely state conclusions.

Out of order, we revert here to the aforementioned letter from appellant's counsel to our clerk, citing four decisions which he says support his contention that the State's "main" instruction was erroneous. This letter was written on March 17, 1947, almost four months after the verdict was returned on November 22, 1946. Sec. 4125 provides that motions for new trial in criminal cases must be filed within four days after the return of the verdict; and that the trial court may extend the time for 30 days, but no further. So it is clear that counsel's belated letter cannot be treated as an amendment or addition to his original motion for new trial. At most it can only be regarded as in the nature of a brief or suggestion on the motion for new trial already filed. And since Assignment 4 in the motion complaining of the instructions itself was insufficient, it necessarily follows that the letter cannot be considered in passing on that assignment. Obviously, the appellant's brief in a criminal case cannot supply deficiencies in his motion for new trial. However the decisions cited in the letter will be noticed later in another connection.

We have just ruled in the second preceding paragraph that the part of Assignment 2 there quoted from appellant's motion for new trial, was insufficient. But there was another clause in that assignment which read: "and there is no substantial evidence to support the verdict." We have always treated such assignments as valid. So we proceed to consider it on its merits.

Specifically, the information charged a felonious assault with malice aforethought and an intent to kill, "with a deadly weapon, to wit, a large club, or stick of wood, and that (his) hands and feet." This charge obviously was brought under Sec. 4408, R.S. 1939-Mo. R.S.A., and not under Sec. 4409: because the former requires the use of a "deadly weapon or any other means or force likely to produce death or great bodily harm," and also requires "malice aforethought"; whereas Sec. 4409 does not. These sections have been recently discussed in State v. Watson, 356 Mo. 590, 202 S.W.2d 784, and State v. Null, 355 Mo. 1034, 199 S.W.2d 639.

The trial court submitted the case under both se...