State v. Marlin

• Decision Date: 07 February 1944
• Docket Number: No. 38656.,38656.
• Citation: 177 S.W.2d 485
• Parties: STATE v. MARLIN.
• Court: Missouri Supreme Court

177 S.W.2d 485

STATE v. MARLIN.

No. 38656.

Supreme Court of Missouri, Division No. 2.

February 7, 1944.

Appeal from Circuit Court, Polk County; Charles H. Jackson, Judge.

Alfred "Buck" Marlin was convicted of felonious assault with malice, and he appeals.

Affirmed.

Roy McKittrick, Atty. Gen., and Gaylord Wilkins, Asst. Atty. Gen., for respondent.

BARRETT, Commissioner.

In this appeal the jury could reasonably find and believe from the state's evidence that near 5 o'clock in the morning of November 29, 1942, Alfred "Buck" Marlin entered the Street Car Cafe in Seymour staggering drunk; cursing, blaspheming and "blackguarding" and not averse to finding trouble. He was served coffee but the waitress, Majorie Erb, refused to serve him with food unless he could pay for it. He cursed her, called her vulgar names, threatened to cut her head off and to get a gun and clean the place out. When Tom Cantrell, who was sitting in a booth, suggested that he should not use such language in the presence of a lady, Buck turned to him and stated that he would cut his head off and began slashing at him with a pocket knife. He cut Tom's overcoat, sweater, shirt, underwear and trousers and there was a four inch slash on Tom's right leg. But as Buck slashed away with his knife he leaned over into the booth and Tom kicked him under the chin and he fell to the floor. Tom jumped on him with his feet and after "stomping" the knife out of his hand began choking him. Buck's friend and companion, John Alexander, came to his rescue by grabbing Tom's arm and kicking him in the side, fracturing two ribs. Tom got hold of the top of a stool and belaboured Buck over the head with it. As Alexander picked up the knife Tom reached behind the counter and got a (his) 38 Colt's automatic pistol and told Alexander to put the knife down or he would have to shoot him. The knife was dropped and Buck and Alexander left the cafe. A jury found Buck guilty of felonious assault, with malice, in cutting Cantrell and assessed his punishment at twenty years in the penitentiary.

The assignments in his motion for a new trial that the verdict is against the law and the evidence (State v. London, Mo.Sup., 84 S.W.2d 915) and that "the court erred in admitting the testimony of witnesses over the objection of the defendant" do not "set forth in detail and with particularity, * * * the specific grounds or causes therefor", Mo. R.S.A. § 4125, and consequently are insufficient to preserve for review whatever error, if any, the appellant may have had in mind. An examination of the record reveals that there is no basis in fact for certain other assignments of error in the motion for a new trial. We are bound by and accept as the fact the recital of the record rather than the appellant's recital in his motion for a new trial. State v. Short, 337 Mo. 1061, 1067, 87 S.W.2d 1031, 1034. In this respect it is urged in the motion that the court erred in not reprimanding state's counsel, discharging the jury and sustaining an objection when one of the prosecuting attorneys alluded to the defendant's witnesses as "rats" and "disreputable persons." Unquestionably counsel may not ply a defendant or his witnesses with epithets and the trial court should not permit it. But, the record is not as the appellant's motion states it to be. One state's attorney did say, "Now, you saw these crummy looking witnesses they brought up here" but the court, upon objection, immediately instructed the jury to disregard the remark. But no further action was requested of the court by defendant's counsel, such as a reprimand or motion to discharge the jury and therefore we must assume counsel was satisfied at the time when the court did all that was requested by counsel. State v. Hepperman, 349 Mo. 681, 162 S.W.2d 878. State's counsel did not apply other epithets to either the defendant or his witnesses. In his peroration one prosecutor did say "* * * and send this man to the penitentiary for the period of his natural life, just like you would go out and exterminate rats that eat up your valuable grain. I thank you." Whether that statement is an epithet or not, there was not objection to it whatever, according to the record, and the appellant may not complain of it now. State v. McGee, 336 Mo. 1082, 83 S.W.2d 98.

So it is with the assignment that it was error for the state to prove by Cantrell that he had been in the military service and was interested in the war bond and salvage drives. The evidence with reference to the bond and salvage drives was not given by Cantrell but was volunteered by witness Carter on cross-examination and there was not objection or motion with reference to the answer. Cantrell's testimony as to service in the army was first elicited by the defendant in cross-examining him as to where he had been and lived other than near Seymour. After the matter was thus brought out the state and the court showed that his military service had been in World War I and it was then objected to as having nothing to do with the case. The defendant having developed the testimony without protest cannot assign as error evidence subsequently given in explanation of it. State v. Short, supra.

It is charged that the information is defective in that it fails to allege malice or charge the defendant with felonious assault without malice or common assault. As to malice the information says that the defendant "in and upon one Tom Cantrell feloniously on purpose and of his malice aforethought did make an assault, and did then and there on purpose and of his malice aforethought cut at and cut him, the said Tom Cantrell with a certain dangerous and deadly weapon, * * *" a knife, "with intent then and there * * * on purpose and of his malice aforethought to kill and murder." That is the language of the statute and the information approved in State v. Layton, 332 Mo. 216, 220, 58 S.W.2d 454. The crime of felonious assault with malice under Section 4408 includes an assault without malice under Section 4410 and even common assault under Section 4411 as they are lesser crimes of the same nature and if there is evidence of either of such crimes the jury may find the defendant guilty of either of them under an information charging an assault with malice only. State v. Brown, Mo.Sup., 165 S.W.2d 420; State v. Miller, Mo.App., 216 S.W. 571.

In this connection it is urged that the court erred in failing to instruct the jury on assault without malice under Section 4410. The attorney general argues that the appellant's assignment in this respect is insufficient to preserve the question for review but, of course, if there is evidence from which the jury could find an assault without malice that would involve the law of the case and the court would be bound to instruct on it as the court very properly did, under the defendant's version of a battle royal provoked by Cantrell, by instruction number two. State v. Fine, 324 Mo. 194, 23 S.W.2d 7; State v. Bongard, 330 Mo. 805, 51 S.W.2d 84; State v. Hicks, Mo.Sup., 167 S.W.2d 69.

In addition to charging felonious assault with malice, the information also charged that Buck had been twice convicted previously of felonies and was therefore an habitual criminal subject to life imprisonment if the jury found the prior convictions and his guilt on this charge. The state proved the prior convictions by the records of the Circuit Clerk of Webster County and the records of the Missouri State penitentiary as certified by the warden. The defendant now contends that the court was in error in admitting the certified copies of the penitentiary records as they were not...