State v. Null

• Decision Date: 10 February 1947
• Docket Number: 40073
• Parties: State v. Ralph Null, Appellant
• Court: Missouri Supreme Court

199 S.W.2d 639

355 Mo. 1034

State v. Ralph Null, Appellant

No. 40073

Supreme Court of Missouri

February 10, 1947

Appeal from Circuit Court of St. Louis County; Hon Raymond E LaDriere, Judge.

Affirmed.

Walter Wehrle for appellant.

(1) The information failed to state a cause of action. It failed to charge the defendant with a commission of a crime. Sec. 4408 R.S. 1939; Mo. Const., Art. 2, Sec. 22; State v McFadden, 274 S.W. 354. (2) There was no substantial evidence that the injuries sustained by the prosecuting witness were caused by an act of the defendant. Berry v. Kansas City Public Serv. Co., 341 Mo. 650, 108 S.W.2d 98; Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 96. (3) The information was made upon the oath of the prosecuting attorney. The reading of it to the jury impressed upon the minds of the jury that the prosecuting attorney had sworn to the facts set out therein. Mo. St. Ann., Sec. 3681, p. 3227; State v. Richards, 67 S.W.2d 58, 334 Mo. 485; State v. Gilmore, 81 S.W.2d 431, 336 Mo. 784. (4) The court failed to instruct on all of the law in the case. State v. Crowley, 345 Mo. 1177, 139 S.W.2d 473; State v. Aitkens, 352 Mo. 746, 179 S.W.2d 84; State v. Brinkley, 193 S.W.2d 49; State v. Fine, 23 S.W.2d 7; Sec. 4845, R.S. 1939. (5) Instruction 1 is erroneous for the reason that it fails to set out the means employed by the defendant in the commission of the assault. State v. McFadden, 274 S.W. 354. (6) It was error for the court to permit the prosecuting attorney to state to the jury that "at the request of the defendant, I will read to you the Information filed in this case." Mo. Const., Art. 2, Sec. 23.

J. E. Taylor, Attorney General, and Arvid Owsley, Assistant Attorney General, for respondent.

(1) The information is in proper form and follows the statute, and charges the defendant with assault with intent to do great bodily harm. The information authorizes a conviction for assault with intent to do great bodily harm. Sec. 4409, R.S. 1939; Mo. Constitution, 1945, Art. I, Sec. 18; State v. Stegner, 207 S.W. 826, 276 Mo. 427; Armour Packing Co. v. United States, 153 F. Rep. 1. (2) The verdict is proper as to form, is authorized under the charges set out in the information, and is responsive to the evidence and the law submitted by instructions to the jury. Sec. 4409, R.S. 1939; State v. Robb, 2 S.W. 1, 90 Mo. 30; State v. Harris, 98 S.W. 457, 199 Mo. 716; State v. Meinhardt, 82 S.W.2d 890. (3) The trial court did not err in giving and reading to the jury, over the objection of the defendant, Instruction 1. Secs. 4070, 4409, R.S. 1939; State v. Robb, 2 S.W. 1, 90 Mo. 30; State v. Rongey, 231 S.W. 609; State v. Webb, 182 S.W. 975, 266 Mo. 672. (4) The court did not err in permitting the reading of the information without the affidavit. Sec. 4070, R.S. 1939; State v. Richards, 67 S.W.2d 58, 334 Mo. 485; State v. Gilmore, 81 S.W.2d 431, 336 Mo. 784. (5) The court did not err in permitting the prosecuting attorney to cross-examine the witnesses, Joseph W. Paubel and Lawrence Walka as to whether they had been asked by the defendant to appear at the preliminary hearing. Sec. 1891, R.S. 1939; State v. Keener, 125 S.W. 747, 225 Mo. 488. (6) There was sufficient evidence to support the verdict, felonious assault with intent to do great bodily harm. (7) Assignments of error abandoned in the appellant's brief are treated as waived. State v. Kenyon, 343 Mo. 1168, 126 S.W.2d 245,

OPINION

Ellison, J.

The appellant, a young married man 26 years old, was prosecuted by information and convicted by the jury of the crime of felonious assault with intent to do great bodily harm, in the circuit court of St. Louis county. The punishment assessed was two years imprisonment in the penitentiary, the lowest permissible punishment for a felony under Sec. 4850. There were twenty-one assignments of error in his motion for new trial, but they have been reduced to nine general assignments in his brief on this appeal.

These, still further condensed, assert: that the information was fatally defective and failed to charge him with the commission of any crime; that the court committed prejudicial error in reading the information to the jury; that the court failed to instruct on all the law of the case in violation of Sec. 4070(4); that the assistant prosecuting attorney's cross-examination of witnesses Paubel and Walka was improper; and that the State's evidence was either wholly insufficient, or so greatly against the weight of the evidence that the verdict should have been rejected.

The facts, in outline, were that on the night of February 6, 1943, the appellant and his wife and brother Charles Null had been drinking 3.2 beer and dancing at a tavern operated by the prosecuting witness William Tharp, 51 years old, between about 9:30 and the closing hour, 1 A.M. Appellant testified his wife left a few minutes before he did, and his brother had preceded both, or at least had left their table. Appellant said he went out to his automobile but his brother was not there so he started back toward the door to find him. The prosecuting witness testified that while he was standing in the doorway telling the people good night appellant's brother ["a sailor boy"] grabbed him around the waist and they fell outside and rolled over and over and scuffled on the ground. At a time when he was on the upper side appellant jumped on his back and stomped and kicked him with the heels of his shoes. A Mr. Twitchell and his wife intervened. He and his wife generally corroborated Tharp as to the affray, and identified appellant as the man who was doing the kicking. The appellant denied having any part in any fight his brother was in. In fact he said he didn't see it. He was returning from his automobile and some distance from the door "someone" (he didn't know who) struck him and they fell to the ground and scuffled.

As to the extent of Tharp's injuries, Dr. Frank Huck, a physician of the county, testified he was called to treat him the next morning and found him in bed suffering great pain. A hypodermic was administered, and the following day an X-ray examination at a St. Louis hospital, to which he was transported by ambulance, disclosed that he had suffered a fracture of the right transverse process of the second and third lumbar vertebrae. The region was swollen but the doctor could not recall whether there were any bruises. The patient was taped and remained under treatment for two months at least. The injury was permanent.

Turning to appellant's first assignment of error, that the information was fatally defective. Stripped of the introductory part, it charged as follows: that on February 7, 1943, in St. Louis County, Missouri, the appellant Ralph Null "with force and arms, in and upon one William Tharp feloniously, willfully, on purpose and of his malice aforethought, did make an assault; and the said Ralph Null then and there feloniously, willfully, on purpose and of his malice aforethought, did strike, beat, kick, stomp and wound the said William Tharp in and upon the head and body of him the said William Tharp by the means aforesaid divers wounds, with the intent then and there him the said William Tharp feloniously, willfully, on purpose and of his malice aforethought to do great bodily harm, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State."

Appellant maintains the information was drawn under Sec. 4408, ^[1] and was wholly insufficient because it failed to charge that in the assault he used a deadly weapon or some other means or force likely to produce death or great bodily harm. On this point he cites State v. McFadden, 309 Mo. 112, 274 S.W. 354, 355 (1); and that decision does sustain him -- if it be conceded that the information was based on that statute. For it expressly provides that: "Every person who shall, on purpose and of malice aforethought, shoot at or stab another, or assault or beat another with a deadly weapon, or by any other means or force likely to produce death or great bodily harm, with intent to kill, maim, ravish or rob such person, or in the attempt to commit any burglary or other felony, . . . shall be punished by imprisonment in the penitentiary not less than two years."

On the other hand, the brief of the learned Assistant Attorney General contends the information was drawn under Sec. 4409, which does not contain the foregoing italicized words, but provides that: "Every person who shall be convicted of an assault with intent to kill, or to do great bodily harm, or to commit any robbery, rape, burglary, manslaughter or other felony, the punishment for which assault is not hereinbefore prescribed, shall be punished by imprisonment in the penitentiary not exceeding five years, or in the county jail not less than six months . . ." or by imprisonment therein and a fine, or fine alone.

The McFadden case, supra, also sustains this latter contention in a general way because it holds that an information which falls short of stating a case under Sec. 4408 -- for lack of the necessary allegation as to the use of a deadly weapon or lethal agency -- may still be sufficient to support a prosecution under Sec. 4409, as was ruled of the information in that case. And this is obviously true. The very fact that the latter section excludes assaults the punishment for which is not "hereinbefore prescribed," and then authorizes a punishment as low as a jail sentence or fine, shows that it is intended to cover assaults of the same general character as Sec. 4408, but less aggravated.

Furthermore Sec. 4845 permits an accused under indictment for an assault with intent to commit a felony, or for felonious assault, to be convicted of a lesser offense --...