State v. Schmittzehe

• Decision Date: 18 February 1928
• Docket Number: 28374
• Citation: 3 S.W.2d 235
• Parties: STATE v. SCHMITTZEHE
• Court: Missouri Supreme Court

3 S.W.2d 235

STATE v. SCHMITTZEHE

No. 28374

Supreme Court of Missouri, Second Division

February 18, 1928

Alexander & Coffer, of Cape Girardeau, for appellant.

North T. Gentry, Atty. Gen., and L. Cunningham, Asst. Atty. Gen for the State.

OPINION

HIGBEE, C.

An information was filed in the circuit court of Cape Girardeau county on March 5, 1927, charging that the defendant and Leo Fowler, on October 6, 1926, feloniously assaulted Joe Weimer with a heavy clublike instrument and with a loaded pistol, which the defendant, Schmittzehe held in his hand at and against the said Joe Weimer, and did shoot, wound, and injure the said Joe Weimer in and upon his body and arm, and did feloniously beat, wound, and injure the said Joe Weimer with said clublike instrument, whereby the life of said Joe Weimer was endangered; that the said Leo Fowler and one Alvis Neal were then and there feloniously present, aiding and abetting the said Ed Schmittzehe in the commission of said felony. A nolle was entered as to the second count, and it need not be noticed.

A severance was granted, the state elected to try the defendant, Schmittzehe, and upon a trial to a jury on May 3, 1927, a verdict was returned as follows:

'We, the jury, find the defendant guilty as he is charged, but we cannot agree as to the punishment.'

A motion for new trial was overruled, the court assessed the punishment at imprisonment in the penitentiary for a term of two years, sentenced the defendant accordingly, and defendant appealed.

Joe Weimer testified:

'I lived with my parents about three miles north of Cape Girardeau. I left home between 7 and 8 p. m. on October 6, 1926, in a Ford roadster to go to a party. I drove north on the Bend road and, seeing a car at one side of the road with one bright and one dim light, stopped, thinking it was my brother's car, and I called my brother Roy. Leo Fowler, Ed Schmittzehe, and Alvis Neal came over to my car. Fowler asked if I had anything to drink and said I called him a name. I don't remember the name. I told him I hadn't. He said: 'You are a damn liar. Get out of there; I am going to give you a beating.' Schmittzehe stepped on the running board of my car and tried to hit me. I got on the other side of the car and he got down, then Fowler came around the front of the car, and Neal and Schmittzehe came around the back of the car. As near as I could tell, Neal had a gun in his hand and Schmittzehe said to Neal, 'If you haven't got nerve enough to use that gun, hand it to me, I have.' And I looked back at Fowler, and they made a run at me, and it seemed like I went blind for a minute. I don't know how long it was. The next thing I remember I was getting in the car. When I started off, Schmittzehe had a club or something striking me and he hit the body of the car. It bent the body, tore the curtain out, and broke the glass. I went up the road a little piece, turned around and came back; had a headache. I started on to the party and had an awful headache and went home. When they examined me, my shirt was all bloody, and across here it was powder burned, and my shirt was torn. The blood was on my arm. There was a hole in my arm. My brother Roy and Ben Music went with me to Dr. Hope. He got the bullet out of my arm. I had no trouble with Schmittzehe before.'

Cross-examination:

'I got home about 8 o'clock. The place where the car was was about a half a mile from where I live. I went to the doctor's about 10 o'clock to have my arm treated. I didn't hear any pistol fire nor see the flash of a pistol. They fired twice before they came to me; after they left their car they shot twice. I can't say who shot; it was one of the three men; they were right there. It was dark, but the car was there with lights on it. Neal had a pistol in his hand. I didn't see or hear him shoot; I don't know which one it was; it was between those two, Alvis Neal or Schmittzehe. I never saw Schmittzehe with a pistol, but he asked for it. When he asked for it, I looked at Fowler. I don't know whether he gave it to him or not. I can't say whether the pistol was fired or not. I had an awful headache; I know it was something. I know I was wounded when I got home. I told the fathers of Ed Schmittzehe and Leo Fowler I didn't know which one of the two shot me; it was one of the two.'

The evidence shows that when Joe Weimer got home he appeared to be fainting, his shirt was powder burned and bloody and was torn across the right breast, blood was running from a hole in his arm, and he complained his head 'hurt him so bad.' His pantaloons were dirty, and there was dirt on the back of his head. Dr. Hope, who took the bullet out of Weimer's right arm, testified to the condition of the wound, and that it was very near a vital artery and endangered his life. The bullet had lodged in the back of the arm.

A warrant was issued for the arrest of the appellant on October 7, 1926. The sheriff was unable to find him. The defendant admitted on the witness stand that he left home on October 7, went to Chicago and Indiana, and returned on February 12, 1927, when his father took him to the sheriff and he was arrested. He testified that he knew nothing about Weimer's injury and went away to get work.

John Weimer, father of the prosecuting witness, after telling of his son's condition when he arrived home, that he appeared to be fainting, his shirt powder burned, bloody, and torn, over the defendant's objection and exception, testified:

'Joe told me the location of the affair, the place down the road. I went there the next morning early with Joe, and he showed me the exact spot; looked like where somebody had been down; seen foot tracks all around there; the ground was disturbed, and it looked like some person had been down. The marks were fresh; they extended practically clear across the road.'

Cross-examination:

'This place where I saw the marks on the ground was between a quarter and a half a mile from where I live.

'Q. Did you hear the shot? A. Yes, sir.

'Q. Where? A. I heard two shots after this happened, where he came from, and told my son-in-law, 'Let's go down,' and we grabbed a Winchester shotgun apiece and went down there and seen some fellows leaving in a car.

'Q. That is after this happened? A. After this happened; yes, sir.

'Q. You didn't hear a shot before it happened? A. Yes; I heard a shot, but I was in the house and didn't know the direction. I did not go out at that time; about 5 minutes after that the boy came in. I didn't know where the shot was from. I was in the house. I know where the two shots was directly after that; they was down in that direction. I was standing out in the yard then. I didn't see any shots or flare of a gun. That was a few minutes after the boy came home.'

The shirt worn by the prosecuting witness at the time he was shot and the bullet taken from his arm by Dr. Hope were identified and offered in evidence over the objection and exception of defendant.

Mr. Shade, the sheriff, testified that he received the warrant for the arrest of the defendant, Schmittzehe, directly after it was issued in October, 1926, and was unable to locate the defendant until he arrested him on February 12, 1927.

Leo Fowler testified for the defendant that he saw Joe Weimer in October, 1926, out on the road.

'We was parked over in the woods; Weimer came by and hallooed, and we went over on the road. I asked him why he had been talking about me. He said he hadn't. We argued for a while, and he jumped out and grabbed an automobile pump and hit Schmittzehe over the head with the pump and got in his car and drove off. There was no pistol in the crowd. I heard no shots. Schmittzehe didn't say, 'If you haven't got nerve enough to use the gun, give it to me.' I was close to them all the time. I left for Chicago the next day and stayed until some time in February.'

Ed Schmittzehe, the defendant, testified:

'I am 24 years old. We was out there parked in the wood. Joe Weimer drove by and hallooed, and we went out. Leo asked him about calling him names, and we got into an argument, and I stepped on the running board and made a swing at him and missed him; he got out, walked around, and hit me with a pump, and the scar is there yet. I didn't hit him nor shoot at him. No one had a pistol that I know of. When I got home, my father told me the sheriff had a warrant for me. I didn't know what it was for. I gave myself up. I saw Weimer the next day after this happened, in town; he said nothing about getting a warrant for me. I didn't tell Neal, 'If you haven't got nerve enough to use that gun, give it to me.' '

Joe Weimer testified in rebuttal that he did not hit the defendant with a pump.

1.Before the trial the defendant filed a motion to quash the information because each count is duplicitous, vague, indefinite, and uncertain. Appellant's counsel, in their argument, say that the information is duplicitous in that it charges an assault with a club and also with a pistol; that Weimer's evidence is so indefinite that he makes out no case of assault by either method; that when the state seeks to have its case bottomed on the theory that defendant was an aider and abetter, participating in a joint and common assault, the defendant is left in the dark until the evidence is in, and there is no evidence warranting a conviction. These contentions are somewhat disconnected, but will be considered, as they have been presented, in one paragraph.

Schmittzehe is expressly charged as a principal, and the others, being present, aiding abetting, and participating in the commission of the offense, were also principals. Section 3687, R. S 1919; Kelley's Crim. Law, §§ 46, 48, 49. Under our Criminal Code, all distinction between principals and accessories...