State v. Kinard

• Citation: 245 S.W.2d 890
• Decision Date: 11 February 1952
• Docket Number: No. 1,No. 42900,42900,1
• Parties: STATE v. KINARD
• Court: United States State Supreme Court of Missouri

Page 890

245 S.W.2d 890

STATE v. KINARD.

No. 42900.

Supreme Court of Missouri, Division No. 1.

Feb. 11, 1952.

J.E. Taylor, Atty. Gen., Julian L. O'Malley, Asst. Atty. Gen., for respondent.

COIL, Commissioner.

An information filed in the Circuit Court of Jackson County charged appellant with manslaughter. Trial resulted in a verdict and judgment thereon sentencing appellant to five years in the Intermediate Reformatory.

Appellant has filed no brief on this appeal. We therefore consider the assignments of error properly preserved in the motion for new trial. Among such are the contentions that the court should have directed a verdict of acquittal, and that instruction 3 given on the court's own motion was erroneous in that it advised the jury that the only defense in the case was that of accident. We shall refer to appellant as defendant.

There was evidence adduced on the part of the state from which the jury could reasonably find that on March 10, 1950, defendant, 17 years of age, was a student at Manual High and Vocational School in Kansas City, Missouri; that on that date defendant and two other boys had obtained permission to leave school early to attend a police circus. It appears that the two boys other than defendant had by prearrangement planned to attend the circus together and met in the second floor corridor at about 1:20 p. m. Defendant joined them there, apparently by happenstance. The three boys proceeded westwardly in the east-west second floor corridor to stairs at the extreme west end which led to the first floor by two tiers of steps, one leading from the second floor corridor westwardly to a landing, and the other from such landing eastwardly to the first floor. The three boys reached the landing together. Defendant and one of the boys remained there talking with a girl who happened to be present.

For some reason not precisely clear from the record but, by inference, because he knew that deceased, a professor in the school, was looking for him, one of the boys descended the steps to the first floor and walked eastwardly in the first floor corridor for some distance where he met deceased, Ernest B. Hyde, approximately 60 years of age. Deceased accused this boy of an infraction of the rules of proper demeanor during a prior class. The boy denied the infraction and a discussion concerning the matter ensued. The boy, apparently before the professor had completed his conversation, turned and walked westwardly with deceased following him. When the boy had reached the bottom of the steps which he had theretofore descended, the deceased overtook him and resumed the conversation. Deceased placed his hand on the arm of the boy or in some manner took hold of his shirt. Deceased was then standing either on the first or second step from the bottom or on the floor immediately adjacent to the first step, facing southwardly toward the boy who was standing between deceased and the south wall of the corridor and, it may be, slightly to the left of deceased.

While deceased was thus engaged in conversation, the second boy (other than defendant) started down the flight of steps leading from the landing to the first floor and when he had descended about halfway, defendant ran down the steps and with his closed fist struck deceased on the right side of the face or head. As a result of this blow deceased fell to the floor of the corridor landing on his left side, resulting in fractures at the mid-auxiliary line just below the armpit of the third, fourth, fifth, and sixth ribs, and a basilar fracture of the skull on the left side 'starting in at about the level of the car and running inward and toward the midline and toward the front so that it involved the bone just above the left eye and involved the bone just back of that over to an area just about at the left ear.' Deceased died on March 14 as a result of these injuries and their complications.

It is apparent from the foregoing evidence that the jury could reasonably find defendant guilty of manslaughter. Where death results from unlawful assault and battery and the assault is without malice, the assailant is guilty of manslaughter, even though death was not intended and the assault itself was not such as to be likely to result in the death of the person assaulted. State v. Black, 360 Mo. 261, 269, 227 S.W.2d 1006, 1010. Here, the jury could reasonably find from evidence that defendant made an unprovoked, unlawful assault and battery upon deceased which resulted in the death of deceased. There is no merit in the assignment that the court erred in failing to direct a verdict of acquittal.

As noted, appellant contends instruction 3 is erroneous. Defendant offered no instructions. The court on its own motion gave, among others, instruction 3, the first paragraph of which is: 'The Court instructs the jury that the defense in this case is that Ernest B. Hyde came to his death by accident, and the Court further instructs the jury that it is their duty to properly weigh and consider this defense, and, if there is a reasonable doubt as to whether or not Ernest B. Hyde came to his death by accident, it is the duty of the jury to give the defendant the benefit of such doubt and find him not guilty.'

Defendant testified in his own behalf that a statement made to a detective of the Kansas City Police Department on March 12, 1950 was correct and true in every respect except one to be hereafter noted. Defendant's testimony was thus to the effect that he and two other boys went from the second floor to the landing between the first and second floors where defendant and one of the boys remained looking out a window while the third boy went to the first floor and talked with deceased; that this boy and deceased started to argue and the boy walked away; that deceased ran and grabbed the boy but the boy turned and walked away again. 'He (referring to the boy) was coming up the steps to meet us. Mr. Hyde grabbed Salvatore again, right at the beginning of the steps.' Defendant said that he and the other boy who had remained on the landing with him started down the steps with the defendant in the lead; the he (defendant) hit Mr. Hyde in the face with the back of his hand and that defendant went out the west entrance of the school. This entrance from other testimony and photographic evidence is shown to be at the bottom of a short flight of stairs leading westwardly from the first floor and adjacent to the flight of steps which lead from the landing to the first floor. Defendant further testified that he knew deceased but had never had him as a teacher and did not intend to hurt deceased but struck him merely to get the other boy loose from him.

In the statement referred to, defendant said: 'A. I hit Mr. Hyde with the back of my hand, in the face. Q. What did Mr. Hyde do? A. He fell, to the floor.' At the trial defendant said that the statement was correct and true except that part: 'He fell, to the floor.' Defendant then testified that he did not see or hear deceased fall to the floor and did not and does not know whether he fell to the floor. Defendant further testified that he was walking fast at the time he passed deceased and struck him with the back of his hand; that he did not know whether deceased was standing on the floor of the corridor or on the steps at the time, and that the blow was on the right side of deceased's face.

A pathologist, on behalf of the state, testified that he found no bruises or marks on the right side of deceased's head other than a surgical incision; that it would be possible but not probable that a man falling on his shoulder with enough force to break his ribs would, at the same time, hit his head; that a boy who was going down a stairway and hit 'a man standing there' with the back of his hand...