State v. Kanupka

• Decision Date: 19 February 1913
• Parties: STATE v. KANUPKA.
• Court: Missouri Supreme Court

153 S.W. 1056

STATE v. KANUPKA.

Supreme Court of Missouri, Division No. 2.

February 19, 1913.

1. CRIMINAL LAW (§ 974) — MOTION IN ARREST — SUFFICIENCY.

A mere copy of the motion for a new trial was inadequate to constitute a motion in arrest.

2. CRIMINAL LAW (§ 989) — JUDGMENT AND SENTENCE — SUFFICIENCY.

Under the express provisions of Rev. St. 1909, § 5264, failure of the court to ask a defendant whether he had any legal cause to show why judgment should not be rendered against him did not invalidate the judgment and sentence, where he had been heard on a motion for a new trial.

3. CRIMINAL LAW (§ 1159) — APPEAL AND ERROR — CONVICTION — CONFLICTING EVIDENCE.

Where a conviction of assault with a deadly weapon with intent to do great bodily harm was sustained by ample evidence, it could not be disturbed on appeal, though the evidence was conflicting.

4. CRIMINAL LAW (§ 1043) — APPEAL AND ERROR — OBJECTION BELOW — QUESTIONS.

To preserve error in respect to questions asked of witnesses, the specific grounds of objection thereto should be stated.

5. CRIMINAL LAW (§§ 419, 420) — ASSAULT TO DO GREAT BODILY HARM — EVIDENCE — HEARSAY.

Where a witness, in a prosecution for assault with a deadly weapon with intent to do great bodily harm, testified that she took from the pocket of the prosecuting witness a pistol which she afterwards handed to a policeman, the policeman's testimony as to what she said, at the time she handed him the pistol, about where she got it, being hearsay, was properly excluded.

6. CRIMINAL LAW (§ 1119) — APPEAL AND ERROR — RECORD.

Improper remarks of the prosecuting attorney could not be reviewed when not shown by the record.

Appeal from St. Louis Circuit Court; George C. Hitchcock, Judge.

John Kanupka was convicted of an assault with intent to do great bodily harm with a deadly weapon, and he appeals. Affirmed.

Upon an information duly verified and filed by the assistant circuit attorney in and for the city of St. Louis, at the April term, 1911, of said court, charging defendant with assault with intent to do great bodily harm upon one Alfred Gunners, with a deadly weapon, he was, at the same term of said court, convicted of said offense, and his punishment assessed by a jury at three years' imprisonment in the penitentiary. After unsuccessful motions for a new trial and in arrest of judgment, the court, under the provisions of section 5257, R. S. 1909, reduced the punishment, as assessed by the jury, to 2½ years' imprisonment in the penitentiary. Sentence was duly imposed in accordance with the verdict and order of the court. From which judgment and sentence defendant has prosecuted his appeal to this court.

The evidence for the state tended to prove that the prosecuting witness, Alfred Gunners, was a married man, living, on the 13th day of March, 1911 (the day of the alleged assault), at No. 5051 South Thirteenth street in the city of St. Louis. The defendant, John Kanupka, with his family, lived in the next block. About 7 o'clock on the evening of March 13, 1911, the prosecuting witness, Gunners, went to the residence of the defendant to see Sylvester Kanupka, a son of the defendant, to talk with him about some insulting remarks which Gunners stated the boy had made to his (Gunners') wife, and to ask the said Sylvester to refrain from such character of remarks. Gunners testified that, when he knocked at the door of the defendant's home, it was opened by the defendant, and that he (Gunners) asked defendant if his son was at home. Defendant, who was a Polander, and who did not speak English very fluently, replied that he was not, but inquired what Gunners wanted. Gunners told him that he wanted to see the boy, Sylvester Kanupka, but that, if he was not at home, he would come back again and see him. Again inquiring of Gunners what he wanted with the boy, Gunners told him, whereupon defendant began cursing, and Gunners remarked: "Man, what is the matter with you? Can you say one word I ever done to you?" Kanupka then began talking in his native tongue, and slammed the door in Gunners' face as he walked out. As Gunners walked out of the yard and was endeavoring to hook the gate, he testified that Kanupka "sneaked up behind me with one of them machinist's hammers, weighing about a pound and a half, or two pounds, and hit me in the head with it"; that the blood ran down his face, but the lick did not knock him down; and that he and defendant began fighting. While they were fighting, the defendant's wife and three or four of his largest children got on top of the prosecuting witness and held him down. Gunners testified that he grabbed with his left hand defendant's hammer, which he was swinging at him, and, quoting his language, says: "When he got me down he simply beat the life out of me. He cracked my shoulder bone. I told him `my arm was broke; for God's sake, quit, now.' He hit me once here; that knocked me unconscious." Gunners testified that he was bruised about his side, knees, and kidneys; that he was in bed, under the care of a physician, for about two weeks; and that it was four weeks before he could walk without a cane. About the time Gunners regained consciousness, his wife came down, and he was dragged home by her and his brother-in-law. Gunners denied that he made any assault whatever on Kanupka, or that he had a pistol with him at the time he went to Kanupka's home.

Dr. H. E. Livingston corroborated the prosecuting witness as to treating his wounds and as to the extent of them; stated that the character of the wounds received by the prosecuting witness were such as could have been inflicted with some kind of a blunt instrument. The physician further testified that in his opinion the injury to Gunners' shoulder was a permanent one.

The wife of the prosecuting witness testified that, when she heard her husband screaming for help, she went to Kanupka's house; that she saw defendant hit her husband on the hip with a hammer while he was lying with his face on the ground; that she tried to get her husband up, but defendant hit her in the face with his hand; that she ran home, returning with a pistol, and that the defendant's son hit her in the back of the neck, and the defendant hit her in the face; that they took the pistol away from her; that she then went into the street and hollered for help; and that her brother-in-law came and helped her husband up, and the two of them assisted him home.

It also appears from the evidence that, although the families were only slightly acquainted, Kanupka's family were...