State v. Mixen, 51977
| Decision Date | 08 April 1968 |
| Docket Number | No. 51977,No. 1,51977,1 |
| Citation | 426 S.W.2d 92 |
| Parties | STATE of Missouri, Respondent, v. Gale MIXEN, Carroll Lloyd, and Harold Hanger, Appellants |
| Court | Missouri Supreme Court |
Norman H. Anderson, Atty. Gen., L. Michael Lorch, Asst. Atty. Gen., Jefferson City, for respondent.
Lester Watson, Richmond Heights, for appellants.
HOUSER, Commissioner.
Gale Mixen, Carroll Lloyd and Harold Hanger were jointly charged, each under the Habitual Criminal Act, § 556.280, RSMo 1959, V.A.M.S., with assault with intent to do great bodily harm, with malice. They waived a jury, were tried by the court and found guilty. Punishment of each defendant was assessed at seven years in the custody of the department of corrections. All three appealed.
The alleged victim of the assault, Glen Lodl, a St. Louis police officer, testified that at 1:30 a.m. while he and officer Hackmann were arresting the trio for a traffic violation Mixen cursed the officers and said, 'There is three of us and only two of them, I am tired of them (blanking) with us,' whereupon he struck Hackmann in the chest with his fist, knocking him backwards, and kicked him in the groin as he went down to the ground. Lodl then struck Mixen in the head with his nightstick. Mixen backed up a bit, then came at Lodl, kicked him, and knocked him down. Lodl got up and struck Mixen again. Then Lloyd and Hanger jumped on Lodl, and then all three were fighting Lodl. At that point two other officers arrived and finally the three men were subdued, handcuffed and taken directly to a hospital. Mixen, seriously hurt, was confined in the hospital for sixteen days. The other two defendants were discharged after a short stay at the hospital, and were then taken to the police station, booked and incarcerated. Lodl, Hackmann and the other two officers were treated at the hospital for injuries. Lodl's stomach and left hand were injured. Hackmann's left leg was bandaged for traumatic injuries. A third had a chest contusion. Various aspects of Lodl's testimony were corroborated by the other three police officers.
Defendants' version of what happened was entirely different. According to them they were arrested without cause; the truck in which they had been riding was searched without a warrant; they were arrested and handcuffed and thereafter at the scene were physically abused by the officers, who were the aggressors; they were taken directly to the police station (not directly to the hospital), where they were placed in cells, and after sleeping for a while were awakened and again beaten by the officers. An hour after the second beatings they were finally taken to the hospital, according to defendants.
Appellants' first point is that the court erred by 'failing to require the production of hospital records subpoenaed by Defendants.' In their brief appellants state that they caused a subpoena duces tecum to issue for certain hospital records in order to show the exact time of their admission to the hospital, as bearing on the disputed issue whether the police first took defendants to the hospital or first to the police station. They further state that the subpoena was served and a proper return was made to the court but that the records called for in the subpoena were not produced and that the court 'failed to grant Defendants sufficient time to obtain said records.' They claim a right as of course to the production of such documents as in their judgment were required to meet the issues and that they were deprived of their statutory right to have the hospital records produced and brought into court.
There is nothing in the transcript to show that appellants caused a subpoena duces tecum to issue or that one was served and a proper return made. We have only appellants' statement in the brief for this. That does not establish the fact. If it be conceded that it happened there is nothing in the transcript or brief to substantiate appellants' theory that the hospital records would show an hour of admission late enough to account for the happenings which appellants claim occurred at the police station before they were taken to the hospital. The only indication in the transcript as to the time of admission to the hospital refutes appellants' contentions in this respect. The entire record on this, made at the very end of the trial, follows:
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State v. Closterman
...would have the trial judge personally intervene. However, the court has no duty to enforce its process sua sponte. State v. Mixen, 426 S.W.2d 92, 94 (Mo.1968). The trial judge relied upon the Arizona decision as a matter of comity. The fact that defendant was aggrieved by the Arizona decisi......
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State v. Johnson, s. 54742
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