State v. Himmelmann, 51277

• Decision Date: 14 February 1966
• Docket Number: No. 1,No. 51277,51277,1
• Citation: 399 S.W.2d 58
• Parties: STATE of Missouri, Respondent, v. Robert HIMMELMANN, Appellant
• Court: Missouri Supreme Court

Page 58

399 S.W.2d 58

STATE of Missouri, Respondent, v. Robert HIMMELMANN, Appellant.

No. 51277.

Supreme Court of Missouri, Division No. 1.

Feb. 14, 1966.

Norman H. Anderson, Atty. Gen., Jefferson City, Ben J. Martin, Sp. Asst. Atty. Gen., Springfield, for respondent.

Stewart & Bruntrager, Raymond A. Bruntrager, St. Louis, for appellant.

HIGGINS, Commissioner.

Robert Himmelmann was convicted of assault with intent to do great bodily harm, a felony, and the jury assessed his punishment at 2-years' imprisonment. Sections 559.190 and 556.020, V.A.M.S. Sentence and judgment followed and he has appealed.

On February 5, 1964, at about 11 P.M., Probationary Patrolman R. J. Hollowell, Jr., was on duty with the St. Louis Metropolitan Police Department. He was in uniform and operating a police scout car in which he gave chase to a Volkswagen automobile driven by defendant. Defendant stopped his automobile on St. Louis Avenue and Patrolman Hollowell stopped his scout car ten to twelve feet to the rear of defendant. Patrolman Hollowell went forward to defendant's car and informed defendant that he was going to issue a summons to him for speeding. He obtained defendant's operator's license and returned to the scout car. Defendant got out and walked back to the scout car and asked that he not be given a ticket. During the course of the discussion, defendant 'swung through the open window' and struck Patrolman Hollowell on the left temple with his fist. Patrolman Hollowell was then seated under the wheel in the front seat of the scout car writing the summons and defendant was standing at the door of the car. Further struggle followed during which additional blows were struck by defendant and both men went across the front seat of the scout car and out the door on the passenger's side to the ground where the assault continued. Hollowell stated that he tried to free his handcuffs and upon hearing a snap sound, saw that defendant was trying to pull the officer's revolver from its holster. Patrolman Hollowell tried to get his gun from the defendant and, while defendant's hand was on the revolver, pulled the trigger. Upon the discharge defendant released the revolver and Patrolman Hollowell shot three more times. These shots struck defendant causing him to be hospitalized. The blows struck by defendant caused Patrolman Hollowell to suffer bruises and lacerations of his head and face, undisplaced fractures of his nose, and impairment of consciousness as indicative of cerebral concussion. His left eye was blackened and swollen one tooth was chipped and the filling dislodged in another, and the lip lacerations required repair with silk sutures. These injuries required 15-days' hospitalization. Defendant was 39 years old, 5 feet 6 inches in height, and weighed 150 pounds; patrolman Hollowell was 26, five feet ten and on-half inches, 150 pounds.

Appellant contends that the circumstances of this case do not support a case of felonious assault as submitted by Instruction 2; that a court-martial conviction for murder is not a criminal offense for purposes of an attack on defendant's credibility, and that the admission into evidence of Exhibit 4, a photograph which shows a bottle of liquor in defendant's car, was prejudicial error.

We have determined that the conviction must be reversed and the cause remanded because of the admission into evidence of Exhibit 4; however, since the other questions will probably recur in the event of retrial, we discuss them here.

In support of his first contention, appellant argues that the court erred in submitting an issue of felonious assault because the evidence shows him to be guilty of no more than a common assault. He also argues that there was no 'ferocious brutality' indicated. In support of his arguments appellant points to the absence of a weapon and the lack of disparity in the size of assailant and victim.

In State v. Rose, Mo., 346 S.W.2d 54, 56[2, 4], we held that in a prosecution for felonious assault with intent to do great bodily harm under Section 559.190, supra, 'The State was merely required to show an unlawful assault, with intent * * * to do great bodily harm,' and that such a charge was properly submitted to the jury by an instruction which hypothesized an assault with fists as did Instruction 2 here. (The jury was also instructed on common assault.) The circumstances of that case were similar in that the defendant failed in an attempted knife slash after which he shoved his victim against a car and struck him repeatedly with his fists, causing the victim to suffer a broken jawbone, bleeding at the mouth and nose, swollen face, and rib injury. See also State v. Gillespie, Mo., 366 S.W.2d 677, and State v. Spradlin, 363 Mo. 940, 254 S.W.2d 660, in which aggravated assaults with fists were held to constitute felonious assaults even under Section 559.180, V.A.M.S. (felonious assaults with malice aforethought). The evidence here is undisputed that defendant intended the assault by striking the first blow; he struck it when he had the advantage of standing above his seated victim who was unaware that he was going to be beaten, and he pursued his advantage into, across, and outside the opposite side of the car. There is no evidence of provocation or justification which might render this assault lawful. The evidence shows that the victim received serious bodily injuries requiring hospitalization. Where such matters exist, a jury may properly find an assault with intent to do great bodily harm.

Appellant cites State v. Rongey, Mo., 231 S.W. 609, which is not in point because it holds only that where the information charges an assault with a dangerous and dealy weapon it is error to authorize the jury to convict where the injuries were shown to have been inflicted solely with fists and without any instrument.

Appellant's second contention arises from testimony elicited over objection from defendant upon his cross-examination:

'Q (Mr. Fredericks) Mr. Himmelmann, on May 18, 1945, were you convicted of the offense of murder and sentenced to serve life imprisonment at the United States Penitentiary at Lewisburg, Pennsylvania?

'MR. BRUNTRAGER: I object to the form of the question, Your Honor, and of course the substance, for grounds previously stated.

'THE COURT: Be overruled. 'Q (Mr. Fredericks) Were you, sir? A No, sir, not in '45.

'Q What year was that? A '44.

'Q 1944? A Yes, sir.'

This testimony followed a lengthy discussion between the court and counsel in which the conviction and sentence were identified as having occurred in a military court-martrial, and appellant contends that it was error to permit this attack on his credibility 'because a conviction by court martial is not a criminal offense in contemplation of V.A.M.S. 491.050.' This point has not been ruled before in Missouri.

Section 491.050 supra provides: 'Any person who has been convicted of a criminal offense is, notwithstanding, a competent witness; but the conviction may be proved to affect his credibility, either by the record or by his own cross-examination, upon which he must answer any question relevant to that inquiry, and the party cross-examining shall not be concluded by his answer.' The statute is to be strictly construed in determining whether a defendant has committed a criminal offense within the meaning of the statute, State v. Rumfelt, Mo., 258 S.W.2d 619, 620, and must be construed with Section 556.010, V.A.M.S., Myles v. St. Louis Public Service Co., Mo.App., 52 S.W.2d 595, 597[1, 2]. Section 556.010 supra provides: 'The...