State v. Rongey

• Decision Date: 26 May 1921
• Docket Number: No. 22678.,22678.
• Citation: 231 S.W. 609
• Parties: STATE v. RONGEY.
• Court: Missouri Supreme Court

231 S.W. 609

STATE v. RONGEY.

No. 22678.

Supreme Court of Missouri, Division No. 2.

May 26, 1921.

Appeal from Circuit Court, St. Francois County; Peter H. Huck, Judge.

Braz Rongey was convicted of assault with intent to kill. His motion for new trial was overruled, sentence pronounced, and he appeals. Reversed, and remanded for new trial.

On May 1, 1920, the prosecuting attorney of St. Francois county, Mo., filed in the circuit court of said county a verified information, which, without caption and signature, reads as follows:

"Comes now W. E. Coffer, prosecuting attorney within and for the county of St. Francois, and state of Missouri, on behalf of the state of Missouri, upon his oath of office and upon his knowledge, information, and belief, does inform the court and does state and charge that one Bras Rongey, late of the county of St. Francois and state of Missouri, on the 6th day of April, 1920, did, at and in the county of St. Francois and state of Missouri, with force and arms, in and upon the body of C. J. Adami, there being, feloniously, willfully, on purpose, and of his malice aforethought, make an assault; and that the said Braz Rongey, then and there, him, the said C. J. Adami, on purpose and of his malice aforethought, willfully and feloniously and with great force and brute violence with his hands and clenched fists, and with some blunt instrument which he then and there held in his hands, the nature and character and description of which said blunt instrument is to the prosecuting attorney unknown, but which blunt instrument was then and there a dangerous and deadly weapon, did strike, beat, and wound the said C. J. Adami, and with a large and heavy pair of shoes, which said shoes the said Bras Rongey then and there had and wore upon his feet, and which said large and heavy shoes were then and there, as used, dangerous and deadly weapons, did then and there strike, kick, stamp the said C. J. Adami in and upon a vital part of the body, to wit, the mouth, temples, chest, sides, and body of his, the said C. J. Adami, with such brute force and violence, and in such a cruel and unusual manner, as to likely produce death or great bodily harm, with intent then and there him, the said C. J. Adami, on purpose and of his malice aforethought, willfully and feloniously to kill and murder; contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state."

On May 21, 1920, defendant waived arraignment, entered a plea of not guilty, and commenced the trial of his cause before a jury on the same day.

State's Evidence.

The evidence on behalf of the state was, in substance, as follows: On April 6, 1920, at a school election in Bonne Terre, St. Francois county, Mo., at about 5:30 or 6 o'clock in the afternoon, C. J. Adami was returning from the voting place and passed appellant. The latter stepped up behind Adami and, with a sharp blow, struck him behind the car. Adami fell on his face and stomach on the concrete walk, and was unconscious. Appellant followed him down, struck him several licks with his fist, then took him by the shoulder, turned him over, and hit him several licks again on the other side of his face. Adami made no resistance, and appellant told him to get up, that he wanted to knock him down again. While Adami was down on the ground, appellant gave him a short, sharp kick in the side, between the hip and shoulder. Appellant had on boots or shoes when he kicked Adami. The latter's face was badly bruised, his mouth was bloody, and his eyes were black and bloodshot; his face was dark and bruised; his body and head were sore from the effects of the licks; his wrist was swollen and painful. Appellant said he had whipped Adami because the latter fired him, and caused him to lose his job. In the difficulty, Adami's metal pencil and fountain pen were badly bent by the licks of appellant.

Defendant's Evidence.

Appellant produced several witnesses who testified that he hit Adami with his fist, but did not kick him, nor did he hit him with a blunt instrument.

H. B. Rongey (defendant) testified, in substance, that he waited until Adami got far enough from the polling place, walked up to him, and said, "Now, I got you," and when he turned around defendant knocked him down. Some man ran out and started to pick Adami up, but defendant said: "Leave him alone, let him stay there," and he left him there. Adami then got up, staggered around, and fell back over the sidewalk, with his head in the gutter. Two or three men came up, and defendant asked them if he (Adami) had any friends there, and said, "If he has, and they want any, I'll give them some, or take some, makes no difference to me." Defendant then said, "Now take him up, and let Mr. Crane look at him." Defendant claimed that Adami fired him, and would not pay him $52.50 that the company owed him. Defendant testified that—"I never kicked him, and never hit him with nothing but my bare fist; I whipped him with my fists." Appellant said he never aimed to kill him, but just to give him a good whipping.

On cross-examination, appellant admitted he had been arrested once in Missouri and once in Illinois; was fined for fighting in Illinois. He said he would have pleaded guilty to an assault if they had let him, but was not guilty of an assault with intent to kill.

After the giving of instructions, the jury returned into court the following verdict:

"We, the jury, find the defendant, Braz Rongey, guilty of assault with intent to kill, with malice aforethought, as he stands charged in the information, and assess his punishment at imprisonment in the penitentiary for a term of three years.

                              "C. B. McClintock, Foreman."
                

The instructions and rulings of the court will be considered, as far as necessary, In the opinion.

Defendant in due time filed his motion for a new trial, which was overruled. The court sentenced defendant, and entered judgment accordingly. Appellant in due time filed an affidavit for appeal, which was allowed him to this court.

Marsalek & Stahihuth, of St. Louis, for appellant.

Jesse W. Barrett, Atty. Gen., and Robert J. Smith and R. W. Otto, Asst. Attys. Gen., for the State.

BAILEY, C. (after stating the facts as above).

1. Appellant assigns as error the action of the trial court in giving to the jury instruction numbered 1. A portion of said instruction complained of, reads as follows:

"First. If, upon consideration of all the evidence in the case in the light of the court's instructions, you find and believe from the evidence that, at the county of St. Francois and state of Missouri, on the 6th day of April, 1920, the defendant made an assault upon the prosecuting witness, C. J. Adami, with his hands and clenched fists, or with a large and heavy pair of shoes, which said shoes the defendant then and there had and wore upon his feet, and shall find that said large and heavy shoes were deadly weapons, that is to say, weapons likely, as used, to produce death or great bodily harm, did then and there strike, kick, stamp, and wound the prosecuting witness in and upon the head, face, and body of him, the said C. Adami, in such manner and with such force as under the circumstances was likely to produce death or great bodily harm, and that he did so willfully, and on purpose, and with malice aforethought, with the intent to kill the said C. J. Adana, or to do him some great bodily harm, you will find the defendant guilty of an assault with intent to kill with malice aforethought, as charged in the information, and assess his punishment at imprisonment in the penitentiary for a term of not less than two years, unless you shall find that the defendant acted in self-defense, as set forth in other instructions." (Italics ours.)

2. There was no evidence adduced at the trial which tended to show that defendant was wearing large and heavy shoes when the assault was made, nor is there any evidence in the record tending to show that appellant stamped and kicked Adami upon the head and face at all, much less with the alleged large and heavy shoes. The instruction is clearly erroneous, because it submitted issues to the jury without any evidence in the case upon which to base the same. State v. Bailey, 57 Mo. 131; State v. Chambers, 87 Mo. 406; State v. Herren, 97 Mo. 105, 10 S. W. 387, 10 Am. St. Rep. 289; State v. Allen, 116 Mo. loc. cit. 555, 22 S. W. 792; State v. Edwards, 203 Mo. loc. cit. 539...