State v. Hubbs

• Decision Date: 08 June 1922
• Docket Number: No. 22365.,22365.
• Citation: 294 Mo. 224,242 S.W. 675
• Parties: STATE v. HUBBS.
• Court: Missouri Supreme Court

242 S.W. 675

294 Mo. 224

STATE v. HUBBS.

No. 22365.

Supreme Court of Missouri, Division No. 2.

June 8, 1922.

James Hubbs was convicted of assault with intent to kill without malice aforethought, and he appeals. Affirmed.

Jesse W. Barrett, Atty. Gen., and Henry Davis, Asst. Atty. Gen., for the State.

DAVID E. BLAIR, J.

Appellant was convicted of the crime of assault with intent to kill without malice aforethought, was sentenced to imprisonment in the penitentiary for two years, and has appealed.

He has not favored us with a statement and brief, but has filed a complete transcript. The evidence on the part of the state tended to show that the defendant assaulted one Arthur Warden, near Dora, in the northeast corner of Ozark county. Warden and the defendant had attended church services on the evening of September 22, 1920, and after the dismissal of the services defendant approached Warden in a threatening manner and with a knife in his hand, and some of the witnesses stated that he asked him if he wanted or intended to kill another horse, while others testified that he asked him if he wanted to steal another horse. Warden was peaceably standing by at the time. Warden said that he had not stolen a horse, and asked defendant to stay away from him. Defendant advanced toward Warden with a knife in his hand, and struck at him therewith, and Warden backed away. Defendant then stooped to pick up a rock and threw it at Warden, and Warden seized a stick of wood and struck the defendant over the body with it three or four times, until the stick broke in two. Warden then started to run, and defendant followed him. Warden stumbled over a log, and the defendant fell on top of him, and they there grappled, and defendant cut Warden with the knife on the arm, leg, and body, seriously wounding him.

The evidence on behalf of defendant tended to show that all he did was to approach Warden and say, "You are going to shoot my horse, are you?" that defendant had no knife at that time; that Warden immediately struck defendant with a knife in the vicinity of the heart; that Warden then got behind a tree, and that appellant pursued him, and Warden struck him with a club; that thereupon appellant cut him with a knife. Defendant claimed that he did not have a knife in his hand when the difficulty began, and several of his witnesses testified that they saw no knife at any time. Defendant was also seriously injured.

The trial court gave instructions fully covering the issues before the jury, including assault with intent to kill with malice afore-thought, as well as assault with intent to kill without malice, of which latter crime defendant was convicted. The jury returned the following verdict:

"We, the jury, find the defendant, Jas. Hubbs, guilty of felonious assault without malice, and cannot agree as to punishment."

The court thereupon sentenced the defendant upon said verdict to imprisonment in the state penitentiary for a term of two years. Defendant unsuccessfully moved for a new trial and in arrest of judgment.

The grounds relied upon in the motion for a new trial are, that the verdict is against the weight of the evidence and against the law and the evidence; that the court erred in respect to all the instructions given; that the court admitted incompetent, irrelevant, and immaterial testimony on the part of the state, and excluded relevant and competent testimony on the part of the defendant; "(4) because the court erred in orally informing the jury, after they retired for deliberation and after the issues joined had been to them submitted, that they could return a verdict of guilty and not agree on the punishment;'" that it was conclusively shown upon polling the jury that the verdict returned was not the verdict of the 12 men who composed the jury, and because the court under all the circumstances surrounding the trial should have rejected the verdict and sent the jury back into the jury room for further deliberation; and, lastly, because the evidence is insufficient to sustain the verdict.

I. Considering the last ground first, we are of the opinion that there was ample evidence to take the case to the jury and to sustain its verdict. It was the exclusive province of the jury to weigh the testimony, and to determine what credit should be given to the testimony of the various witnesses. If the jury believe the testimony of the witnesses on behalf of the state, the substance of which we have above detailed, there was abundant evidence to support the verdict. The question of the weight of the evidence was for the trial court, and is not one for consideration by this court.

II. The motion for new trial attacked the sufficiency of all the instructions given by the court. Since we are favored with no brief pointing out the alleged defects in the instructions, we have examined them all very carefully. We find no error therein. They all appear to be in usual and often approved form. The record fails to disclose any objection on the part of the defendant to the propriety or sufficiency of said instructions.

III. We have carefully read the record to determine whether the court admitted incompetent, irrelevant, or immaterial testimony on the part of the state, or excluded competent, relevant, or material testimony offered by the defendant, as it is our duty to do under this sort of an assignment. State v. Noland, 111 Mo. 473, loc. cit. 492, 19 S. W. 715; State v. Barrington, 198 Mo. 23, loc. cit. 76, 95 S. W. 235; State v. Smith (Mo. Sup.) 237 S. W. 483. We have only found seven or eight instances in the entire record where rulings adverse to the defendant were made by the court, and, in each and every instance where testimony was admitted over the objection of the defendant, we are persuaded that such testimony was properly admitted. In all instances where testimony offered by the defendant was excluded, either the defendant made no offer of proof, or was subsequently permitted to show the very matter previously excluded. We cannot see where any good purpose can be served by reciting the testimony covering more fully the above instances. We are fully satisfied that there is no merit in the contention of the defendant on this point.

IV. The transcript shows the following:

"After the jury returned into open court their verdict, and the verdict was read, the court inquired of them if that was their verdict, to which they all assented. Mr. Tom R. Moore was then asked by the court if he desired to have the jury polled, to which he replied in the negative. The jury was then discharged, and the court assessed the punishment at imprisonment in the state penitentiary for a term of two years. After the sentence was assessed by the court the following examination of the jurors took place.

"By Mr. Moore: Comes now the defendant, by his counsel, and moves the court to reject the verdict, for the reason that under the charge it is the duty of the jury to assess the penalty.

"By the Court: The motion will be refused.

"By Mr. Moore: The defendant, by his counsel, duly excepts to the ruling of the court."

The contention that the court should have rejected the verdict, because the jury failed to assess the punishment, is without merit. The action of the court in receiving the verdict in such form is fully authorized by section 4048, R. S. 1919, which provides that, where the jury returns a verdict of guilty, but fails to agree as to the punishment, the punishment shall be fixed by the trial court.

The record shows that defendant's counsel was present when the jury returned its verdict, waived polling the Jury, and at that time made no objection to the court receiving the verdict and discharging the jury. It was only after he found that the trial judge had imposed a term in the penitentiary upon his client that he raised his voice in protest against the regularity of the verdict. We will not permit a defendant to raise in this court a question he did not raise in due time in the court below, or to sit by apparently acquiescing and expecting a light sentence, and then complain when he finds himself disappointed in the action of the trial court.

V. After having waived polling the jury before its discharge by the court, and after the court had assessed the punishment, counsel for defendant proceeded to poll the discharged jurors, to show that some of the jurors had agreed to the verdict with the understanding that a fine was to be imposed upon the defendant. Some of them so stated. It does not appear how such polling came to take place. Quite likely the individuals who had composed the discharged jury had not yet left the courtroom. We know of no practice which will permit a litigant to poll the members of a jury after its...