State v. Hodges

• Citation: 295 S.W. 786
• Decision Date: 03 June 1927
• Docket Number: No. 27842.,27842.
• Parties: STATE v. HODGES.
• Court: United States State Supreme Court of Missouri

295 S.W. 786

STATE v. HODGES.

No. 27842.

Supreme Court of Missouri, Division No. 2.

June 3, 1927.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

A. C. Hodges was convicted of felonious assault with a deadly weapon, and he appeals. Affirmed.

North T. Gentry, Atty. Gen., and J. D. Purteet, Sp. Asst. Atty. Gen., for the State.

DAVIS, C.

The prosecuting attorney of Pemiscot county, on November 3, 1925, filed a verified information in the circuit court charging defendant with feloniously assaulting, on August 2, 1925, Floyd Kinley with a knife, averred a deadly weapon. The jury found defendant guilty, assessing his punishment at a fine of $100 and imprisonment in jail for three months. From the sentence and judgment entered on the verdict defendant appeals.

Having read the evidence, we adopt the facts epitomized by the state in its brief as the fair and substantive relation of the evidence developed by the record. It is as follows:

"The prosecuting witness and defendant resided near the town of Denton in Pemiscot county. Each knew the other. On the 2d day of August, 1925, Kinley saw defendant at a ball game, which was played some little distance from Denton. During the early part of the night Kinley again saw him near John Stallen's store in Denton. Kinley was on his way to church, and, in passing, defendant spoke to him. He stopped momentarily at the store, and observed defendant coming towards him from the road. Defendant, upon coming up to Kinley, said: `Come here, and let me see you a minute.' They walked ten or fifteen paces away from the store. Defendant desired to know why Kinley had treated him the way he had earlier in the day. Kinley replied that he did not consider that he had done him a wrong, but had merely kept defendant out of trouble. Defendant declared that which Kinley had done to him to be a dirty trick. While they were talking, defendant appeared to be getting closer to Kinley by advancing gradually towards him. Kinley did not advance towards defendant. Defendant was holding his hand in such manner as to indicate that it contained some instrument with which he was going to strike Kinley. When defendant came within striking distance, Kinley struck him in the face with his fist. Defendant immediately stabbed Kinley with a knife—once in the breast, and once in the arm. Kinley got loose from defendant, and ran to the church house to call a doctor. The prosecuting witness had neither done nor said anything to appellant to provoke the difficulty. Kinley became 21 years of age in July before the day of trial. Two people were passing the store at or near the time of the alleged assault. The prosecuting witness testified that he struck appellant because he thought that he was going to strike him with something which he held in his hand.

"Two people, Walter and Mary Ash, testified that they were passing the store near the time of the alleged assault and heard defendant call Kinley away from the store. Neither witness saw the combatants in actual conflict.

"There was some testimony which tended to show that there had been an altercation at the ball game earlier in the day, in which defendant, the prosecuting witness, and his brother participated, and that after it was over defendant said he was going to get Kinley. "Defendant, testifying in his own behalf, admitted that he had cut and stabbed the prosecuting witness, but had done so in defense of his person.

"The state introduced two witnesses in rebuttal who testified that defendant's general reputation for morality was bad.

"Defendant introduced four witnesses in rebuttal who testified that his general reputation for truth and veracity, peace, quiet, and as a law-abiding citizen was good."

I. We find the case briefed by the state only. In addition to errors in the record proper, which we must always notice, the matters of exception are found in the motion for a new trial, which necessarily constitutes the assignment of errors. Deleting the question of the sufficiency of the information, of which more later, we find no error in the record proper. While the motion for a new trial presents nine assignments of error, four matters only therein, under the ruling in State v. Standifer (Mo. Sup.) 289 S. W. 856; State v. Murrell (Mo. Sup.) 289 S. W. 859, and State v. Vesper (Mo. Sup.) 289 S. W. 862, interpreting section 4079, Laws 1925, p. 198, may be considered. They are the sufficiency of the information, the sufficiency of the evidence to sustain the conviction, the failure of the court to instruct the jury on common assault, and the admission of testimony as to the general reputation of defendant for morality. We will consider the above assignments in order.

II. We have examined the information relative to its sufficiency, but fail to discover error. It substantially follows State v. Baird, 271 Mo. 9, 195 S. W. 1010, to which the curious may go for a precedent. The question argued and denied in the above case, that of the juxtaposition of an allegation of intent to the word "felonious," does not here appear. We have no hesitancy in approving the information both as to substance and form.

III. The averment that the evidence is insufficient to support the conviction is general. This assumes the want of any substantive evidence. We infer that defendant's specific contention is based on the state's evidence that the prosecuting witness struck defendant without hostile action on defendant's part before the blow was struck. We think, however, that the calling of the prosecuting witness aside, the charging of the...