State v. Johnson

• Decision Date: 12 December 1927
• Docket Number: 27904
• Citation: 300 S.W. 702,318 Mo. 596
• Parties: The State v. Tom Johnson, Appellant
• Court: Missouri Supreme Court

300 S.W. 702

318 Mo. 596

The State v. Tom Johnson, Appellant

No. 27904

Supreme Court of Missouri

December 12, 1927

Appeal from Pemiscot Circuit Court; Hon. E. P. Dorris Judge.

Reversed and remanded.

J E. Duncan for appellant.

(1) There is no evidence in this case to support a verdict under Sec. 3262, R. S. 1919. According to the State's testimony, all that the defendant did was slap or hit and kick his wife, with his hands and feet, and at all times was seated, not at any time rising to his feet or placing himself in a position that he might put force behind the licks. Under these facts the defendant could only be guilty of a common assault, and it was error to submit the question of felonious assault to the jury. There is no evidence, by acts or otherwise, that the defendant did his wife any bodily harm or intended to do so. The uncontradicted testimony of the defendant and his wife is that the defendant did not cause the injuries to her face, and that is what the State relies upon for conviction. However guilty a defendant may be, and however appalling the extent of the venality revealed by the record, he shall be punished only after having been accorded every right and guaranty which the organic and statutory law secures to him. State v. Faulkner, 175 Mo. 546; State v. Dines, 206 Mo. 649; State v. Barton, 142 Mo. 450 (2) Instruction 1 is erroneous because there is no evidence upon which to base said instruction: there being no evidence that the defendant wounded or intentionally caused the said Carrie Johnson to receive great bodily harm. State v. Edwards, 203 Mo. 528; State v. Sublett, 191 Mo. 163. It is further erroneous because it assumes that the defendant's hands and feet are weapons that are likely to produce death or great bodily harm. State v. Ruck, 194 Mo. 416; State v. Myers, 174 Mo. 352; State v. Drumm, 156 Mo. 216. (3) It was error to permit the prosecuting attorney to prove the presence of intoxicating liquor in defendant's boat when it does not go to the contradiction of any witness who had testified, and was only offered for the purpose of prejudicing the jury against the defendant. State v. Klahn, 97 Mo. 679; State v. Cook, 58 Mo. 548. And it is proving two offenses against defendant under one charge. State v. Hale, 156 Mo. 102; State v. Young, 119 Mo. 495; State v. Reed, 85 Mo. 194; State v. Musick, 71 Mo. 401; State v. Zorn, 71 Mo. 415; State v. Thomas, 78 Mo. 342. (4) An information charging an assault with a man's hands and feet, is not a felonious assault, but a common assault. Sec. 3264, R. S. 1919. (5) An instruction which assumes that the defendant's hands and feet are deadly weapons is erroneous. State v. Harris, 209 Mo. 423. (6) Criminal procedure does not permit a man to be charged with one offense, and the court instruct the jury and the jury find him guilty of another and different offense. Defendant was charged under Sec. 3262, R. S. 1919, and the court instructed the jury and the jury found defendant guilty of violation of Sec. 3263, R. S. 1919.

North T. Gentry , Attorney-General, and A. B. Lovan, Assistant Attorney-General, for respondent.

(1) The statute requires that an appeal be perfected within twelve months from the time the appeal is granted. Sec. 4107, R. S. 1919; State v. Fleetwood, 280 S.W. 703; State v. Short, 250 Mo. 334. The duty rests upon the appellant to see to it that the clerk of the circuit court files the transcript within the time required by the statute. State v. Cantrell, 279 Mo. 572. While it is true that there may be facts and circumstances which would furnish grounds for overruling a motion to dismiss an appeal when the record shows such appeal was not perfected within twelve months, the burden is on appellant to show such facts and circumstances. State v. Short, 250 Mo. 331; State v. Cantrell, 279 Mo. 569; State v. Fleetwood, 280 S.W. 703; State v. Halliday, 311 Mo. 473. (2) The respondent concedes that the testimony admitted over the objection of appellant, showing that the boat on which the alleged crime was committed contained jugs of whiskey, was clearly incompetent for any purpose. But the respondent contends that the case ought not to be reversed on account of this error, for the reason, the State was permitted to show, without objection on the part of the defendant, that the defendant was drunk at the time of the alleged assault. This testimony having been put before the jury, the further fact that he had whiskey in the boat was not prejudicial to the defendant. State v. Mulconry, 270 S.W. 377. (3) Notwithstanding the fact that the injured person testified on behalf of the defendant, it is solely the province of the jury to determine the truth in the face of the conflict in the testimony. State v. Barton, 142 Mo. 454. (4) It is the province of the jury to decide, from all the facts and circumstances in evidence, whether the defendant assaulted his wife with the intention to do her great bodily harm, and to take into consideration that, at the time of the assault, the woman was prostrate in the boat and weak in body. State v. Ruck, 194 Mo. 429. (5) An information may be drawn under Section 3262 and a verdict rendered under proper instructions for a violation of Sections 3263 or 3264 or 3265. These sections authorize the conviction of a lesser degree of crime. State v. Jones, 273 S.W. 733; State v. McGehee, 274 S.W. 70; Secs. 3692-3, R. S. 1919. (6) There is no merit in the point that the information assumes that the hands, fists and feet are deadly weapons. It is not necessary, under any of the sections of the statute set out, to charge that the defendant used a deadly weapon. It may be charged that she defendant "did assault another by any means likely to produce great bodily harm," of course, setting out the means used. This information charges that the means used were "hands, fists and feet." This cause was submitted and the verdict based on Section 3264. Under this section, it is neither necessary to charge, or prove, malice, nor that the assault was made and that the wounds were inflicted with a dangerous weapon. State v. Webb, 182 S.W. 976. The respondent contends that this information does charge a felony, and that the evidence in this case warrants a conviction for felonious assault. It was proven that at the time of the assault, the woman's face was bloody and bruised; that on the following day she was in bed under the care of a doctor; that her face and eyes were so swollen that she could not see. It was further shown that she, on the following day, said to a witness, "Tom just pretty near killed me yesterday. He beat me with his fists until he got tired and then stamped me and then threw me out in the river." It might be urged that this statement of the wife of the defendant was not admissible because no foundation was laid for such impeaching testimony. But the appellant did not save the point in his motion for new trial. This statement is, therefore, evidence in the case. There have been cases in this State in which the defendant was convicted of murder or manslaughter under an information charging that the assault was made with the bare fists. State v. Hyland, 144 Mo. 302; State v. John, 172 Mo. 220; State v. Hargraves, 188 Mo. 337. Even when death does not result from an assault with the fists, the circumstances may warrant the conclusion that the assault was made with the intent to kill or do great bodily harm. 15 A. L. R. 976.

OPINION

Blair, J.

Appellant was convicted of felonious assault in Pemiscot County. The jury assessed his punishment at imprisonment in the State Penitentiary for a term of two years. An appeal was granted to this court from the judgment entered on the verdict. Through mistake of the clerk of the trial court, the transcript, including the bill of exceptions, was sent to the Springfield Court of Appeals. Upon discovering the error, that court ordered the case transferred to this court.

Respondent has filed a motion to dismiss the appeal and the disposition of this motion is the first matter for consideration. The ground of the motion is that the appellant did not perfect his appeal within twelve months. An examination of the record discloses that the order granting the appeal was made November 20, 1925. The transcript was lodged in the Poplar Bluff office of the Springfield Court of Appeals on November 22, 1926. Hence, it appears that even if the clerk of the trial court had not sent the transcript to the Springfield Court of Appeals by mistake, it probably could not have reached this court earlier than November 22, 1926. The transcript finally reached this court in February, 1927.

In opposition to the motion to dismiss his appeal, appellant has filed his affidavit. From this it appears that, on January 13, 1926, or less than two months after the appeal was granted, appellant paid to his trial attorney the sum of $ 14.50 to cover the cost of the transcript and the $ 10 Supreme Court docket fee. The receipt of his attorney covering such items is attached to the affidavit. It further appears that appellant was advised by his attorney that he would take care of the case and would inform appellant when the case was docketed for hearing in the Supreme Court.

In October, 1926, appellant learned that his attorney had removed from Caruthersville and upon investigation found that said attorney had not perfected his appeal. He at once employed other counsel and the transcript was prepared as speedily as possible thereafter and sent to the trial judge for approval and signature. The same was approved and signed and was thereafter filed in the office of the clerk of the circuit court on November 13, 1926. There is no showing as to the date when the clerk of the circuit court erroneously sent the transcript to the...