State v. Holmes, 49445
| Decision Date | 11 February 1963 |
| Docket Number | No. 49445,No. 1,49445,1 |
| Parties | STATE of Missouri, Respondent, v. Edward Roy HOLMES, Appellant |
| Court | Missouri Supreme Court |
Charles M. Shaw, Clayton, for appellant.
Thomas F. Eagleton, Atty. Gen., James P. Jouras, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
On January 5, 1962, there was filed in the Circuit Court of St. Charles County, Missouri, an information charging defendant, Edward Roy Holmes, with the crime of felonious assault. Thereafter, the cause was tried, and the jury returned a verdict finding defendant guilty as charged and assessed his punishment at three months in the county jail together with a fine of $500.00. After an unsuccessful motion for new trial and allocution, defendant has appealed from the resultant judgment.
Although the defendant was represented by counsel at every stage of the proceedings in the circuit court, he has not favored this court witn a brief. The case is before us on the transcript of the record on appeal and a brief filed by the State. Our duty is to review the valid assignments of error set forth in the motion for new trial (S.Ct. Rule 27.20), and the portions of the record required by S.Ct. Rules 28.02 and 28.08, V.A.M.R.
A brief statement of the evidence is essential to an understanding of certain assignments of error contained in the motion for new trial, two of which being that the state did not present evidence sufficient to sustain the charge of felonious assault, and that at best the evidence tended only to support a charge of common assault.
William A. Solomon, the complaining witness, left his place of employment at McDonnell Aircraft Company in St. Louis about midnight on May 11, 1961, and drove toward his home near Harvester, Missouri. He stopped for a sandwich and a beer at a supper club in St. Charles, and then continued toward his home. When he was about four miles from Harvester, his automobile was passed by a Cadillac, driven by defendant, which then continued on down the highway. Solomon continued along behind the Cadillac until he reached Caulks Hill Road, where he turned left onto that road. An IGA supermarket is located at the intersection.
Mr. Solomon testified that as he drove past the store, the Cadillac, which had turned around and was following him, came alongside the left side of his car, turned into and struck it, and forced it into a ditch along the right side of the road. Solomon got his automobile back on the road in a diagonal position and the left side of his automobile was then struck broadside by the Cadillac, damaging both left side doors so as to render them inoperable, and resulting in other substantial damage to the car.
Mr. Solomon got out of his car from the right front door and walked over to defendant's car to speak to him. The defendant with his first struck Solomon in the mouth knocking him down into a wet ditch on the left side of the road. The defendant then proceeded to kick and stomp the head, arms and body of Solomon, causing injury to his lip and mouth especially. The defendant wore cowboy boots, and boot heel marks and bruises were made on Solomon's arms, chest and back. Solomon, who offered no resistance other than trying to protect his face with his arms, screamed for help. The defendant stopped his beating when other persons arrived on the scene.
The above summary of the occurrence is taken principally from the testimony of the prosecuting witness. In the main it is corroborated by the testimony of other witnesses, and to a limited extent by defendant himself who admitted he had struck and kicked Mr. Solomon at the scene of the impact of the two cars.
The well-established rule is that the court will look to and accept as true the evidence most favorable to the State, including the reasonable inferences to be drawn therefrom, in determining the question of the sufficiency of the evidence to support the jury verdict of guilt and the judgment.
To support a conviction for the crime charged, the evidence including permissible inferences therefrom must show an unlawful assault on a particular person with intent to do great bodily harm. Section 559.190 RSMo 1959, V.A.M.S.; State v. Rose, Mo.Sup., 346 S.W.2d 54, 56. Since the crime charged is assault 'with intent to do great bodily harm,' the intent to do great bodily harm must be present at the time of the act of assault.
Here, the evidence most favorable to the State clearly shows that defendant intentionally ran his automobile into the side of the automobile being driven by Solomon forcing it into the nearby ditch; that when Solomon drove his automobile out from the ditch the defendant again and with considerable force deliberately drove his car into the driver's side of Solomon's car, extensively damaging it and causing it to skid and be pushed sideways for a considerable distance.
An automobile is an instrumentality capable of doing great bodily harm when improperly employed. State v. Garner, 360 Mo. 50, 226 S.W.2d 604, 607. The evidence is such as to permit the jury to find that in the heat of anger the defendant in twice causing his automobile to strike that occupied by Solomon did so intending to inflict great bodily harm to Solomon. The fact that such was defendant's intention in doing what he did is further supported by the evidence that he continued his assault upon Solomon by brutally beating and kicking him. We find no merit in defendant's contentions concerning the insufficiency of the evidence to support the conviction.
Section 559.220, RSMo 1959, V.A.M.S., in setting forth the elements of the crime of common assault provides it occurs when a person assaults, beats or wounds another 'under...
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State v. Tull, 50036
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