State v. Johnson
| Decision Date | 12 December 1927 |
| Docket Number | No. 27904.,27904. |
| Citation | 300 S.W. 702 |
| Parties | STATE v. JOHNSON. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Pemiscot County; E. P. Dorris, Judge.
Tom Johnson was convicted of felonious assault, and he appeals. Reversed, and remanded for retrial.
J. E. Duncan, of Hayti, Mo., for appellant.
North T. Gentry, Atty. Gen., and A. B. Lovan, Asst. Atty. Gen., for the State.
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 Springfield Court of Appeals.
The right of the state to have an appeal in a felony case dismissed, if the appellant fails to perfect his appeal within twelve, months (section 4107, R. S. 1919), is not an absolute right. The appeal shall be dismissed upon motion of the Attorney General "unless the defendant shall show to the satisfaction of the court good cause for not perfecting his appeal." We are mindful of those cases wherein we have held it to be the duty of the appellant to see that the clerk actually files the transcript in felony (other than death) cases. In such cases the appellant was usually guilty of neglecting his own duty and trusted to the clerk to perform his duty for him.
In this case the appellant early evinced an honest intention to perfect his appeal. He paid our docket fee and the costs of the transcript to his attorney, who promised to perfect the appeal. On learning, in October, 1926, of the removal from Caruthersville of the attorney in whom he had thus relied, appellant immediately procured other counsel and (presumably) again paid the docket fee and the cost of the transcript and had the bill of exceptions prepared and presented to the trial judge and actually filed same in the office of the clerk of the circuit court a week before the year for perfecting his appeal had expired.
Even though appellant may technically be regarded as responsible for the failure of the clerk to send the transcript here promptly, we are satisfied from the showing made by appellant as to his own good faith and his bona fide efforts to perfect his appeal, and are also satisfied that such showing constitutes "good cause for not perfecting his appeal" within twelve months. The motion to dismiss the appeal is overruled.
The evidence offered by the state tended to prove the following facts: On the afternoon of January 14, 1925, appellant and his wife, Carrie Johnson, named in the information as the victim of appellant's assault, were in a gasoline motorboat at the bank of the Mississippi river near and above Caruthersville, when appellant was seen by witness Wiseman to assault and beat his wife. She was lying or reclining in greasy, muddy water in the bottom of the boat. Wiseman saw appellant slap his wife several times on the face and head. He also saw him strike her with his fist. She appeared to be "pretty lifeless" at the time. Appellant also "kinda stamped her, something like that (indicating) in the side." She merely grunted. This witness testified that appellant was sitting on the side of the boat at the time.
The city marshal, John Hosler, was called to the scene of the assault. At the trial he testified that he saw appellant strike his wife once with his open hand or fist as he came up. There was evidence tending to show that Mrs. Johnson was bruised and bleeding, and that her eyes were black and swollen. A physician, who attended her and who was called as a witness by the defense, testified that she was suffering from "pleuritis, inflammation of the plural cavity, or acute cold, I have forgotten—don't remember exactly, but I know she was suffering from her side." On cross-examination, the doctor admitted that the condition of Mrs. Johnson might have been caused "by or from a lick or injury to the side."
The state's evidence tended to prove that appellant was drunk at the time. There were three young hogs tied up in the boat. Appellant had a farm on an island in the Mississippi river, and he had brought the shoats to town to sell them. In rebuttal, the state was permitted to show that several jugs containing whisky were taken from the boat by appellant and his nephew and carried to appellant's house, where they were afterwards found upon a search made under the authority of a search warrant.
Appellant took the witness stand and denied striking his wife. She does not appear to have filed any complaint, and testified in behalf of appellant at the trial. She denied that appellant struck her. Both of them accounted for the wet condition of her clothing by saying that it was due to spray from the waves raised by the wind and dashed into the boat. Appellant accounted for the injured condition of his wife by saying that one of the shoats had gotten loose and had run over her when he was trying to catch it to tie it up again. In rebuttal, the state was permitted to show statements made by Mrs. Johnson after she was taken from the boat which tended to contradict her testimony that appellant did not assault her. The state was permitted, without objection, to show that the witness Wiseman bore a good reputation for truth and veracity.
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