State v. Smith

• Decision Date: 13 April 1964
• Docket Number: No. 1,No. 50131,50131,1
• Citation: 377 S.W.2d 241
• Parties: STATE of Missouri, Respondent, v. Russell SMITH, Appellant
• Court: Missouri Supreme Court

Page 241

377 S.W.2d 241

STATE of Missouri, Respondent, v. Russell SMITH, Appellant.

No. 50131.

Supreme Court of Missouri, Division No. 1.

April 13, 1964.

Rendlen & Rendlen, Hannibal, Charles S. Scott, Scott, Scott, Scott & Jackson, Topeka, Kan., for appellant.

Thomas F. Eagleton, Atty. Gen., Clyde Burch, Asst. Atty. Gen., Jefferson City, for respondent.

WELBORN, Commissioner.

The appellant, Russell Smith, was charged by information in the Monroe County Circuit Court with felonious assault in violation of Section 599.180, RSMo 1959, V.A.M.S., by throwing acid on Ted Donovan on October 6, 1960. A jury found the appellant guilty and fixed his punishment at two years' imprisonment. After his motion for new trial was overruled, appellant took this appeal from the judgment and sentence entered on the verdict.

The state's evidence showed that the appellant and Donovan, both residents of Monroe City, had known each other for twenty years and, prior to the events in question, had apparently been on friendly terms. Donovan had lived in Macon in 1958 and 1959, but, on returning to Monroe City, he had visited in the Smith home three or four times a week and frequently took meals with the Smith family. Donovan was a carpenter and from time to time employed two of Smith's sons.

On October 6, 1960, Donovan went to the Smith house around noon to find out whether the boys would be available to work the next day on a barn. The appellant and his sons were cleaning turtles at the time. Smith told Donovan to come back that evening, when they would know how they got along with the turtles and whether the boys could work for Donovan the next day.

According to Donovan, he returned to his work at a job at Clark's Motor Company in the afternoon. At about 6:00 P.M., he drove to the Smith house and parked beside Smith's panel truck in front of the house. He walked to the front door and knocked twice. In Donovan's words: 'I knocked on the door the second time and just as I knocked I seen his wife shoot out the kitchen. She had the light going back in the kitchen there. * * * No lights in the other three rooms whatsoever * * * Well, just about the time she slammed the door he hollered 'Come on in Ted, I want to show you something,' or 'I got something to show you,' and I just opened the door and stepped in and had my left hand on the door knob, on the front door knob, and I said 'Where you at Russ?' and he said, 'Right here,' and I turned to the left and, boy, that is when I got it. * * * Well, he threw something in my face and then he tried to grab me and I pushed him back and got out the door and got in my car and got to the cemetery, and I was just burning, my eyes were as black as they could be and swelling, and I throwed a sweat shirt over my face and laid down underneath the hydrant. * * * I asked him, I said 'What is this all about?' and he said 'You know, you know, you know', and that is all that was ever said.'

Donovan stated that he did not see the appellant at the time of the incident, but he identified the voice which he heard as that of Smith.

The next day Donovan went to a hospital in Hannibal where he remained for seven or eight days. Dr. W. J. Smith, M.D., examined Donovan at the hospital and found acid burns about his face and eyes.

Billy Hunter testified that Donovan came to where he was working in the cemetery at about 8:00 o'clock on October 6, and that his face was red. On cross-examination, Hunter stated that Donovan first said that he got something in his face while painting at the Ford garage. He said nothing about anything happening at Smith's. According to Hunter, he went to the Smith house at around 9:30 P.M., and Smith asked whether or not he had seen Donovan and told Hunter that he had thrown muriatic acid in Donovan's face.

Hunter's wife testified that Smith came by her house on the evening in question and asked her whether or not she had seen Donovan. According to Mrs. Hunter, Smith said: 'Well, I done him the way I done the other one.'

Henry and Eula Medford, husband and wife, testified that one night, the date of which they could not fix, Smith came by their house and said: 'I put another man in the hospital * * * Ted Donovan. I throwed acid in his face.'

Sheriff Mark Bodine of Monroe County placed Smith under arrest in his home on October 7. According to the sheriff, Smith at that time said that he had put Donovan in the hospital. According to Bodine, Smith said: 'Well, he came up to my house here last night and I saw him coming and I got over here behind the door and he knocked at the door. * * * I saw who it was and I told him to come in and he opened the door and he stepped around the door and I was behind and I throwed this acid in his face.' On rebuttal, Bodine stated that Smith told him that Donovan 'was running his wife.'

Two members of the Missouri State Highway Patrol testified that they heard Smith, on October 7, state that he had thrown muriatic acid into the face of Donovan. One of the patrolmen testified that, at the Smith house, he asked for the container from which the acid had been thrown. One of the daughters of Smith went into the bedroom adjoining the living room into which the front door opened and picked up a jar off the floor behind the bedroom door and gave it to the patrolman.

According to Doctor Smith, muriatic acid is a strong acid, having capacity to destroy flesh. It is used in soldering.

The testimony of the defense endeavored to show that the appellant was not home at the time of the alleged offense and further that the acid was thrown by one of appellant's daughters in order to ward off Donovan's improper advances. Appellant and his son, Jack, testified that the two of them drove together to Quincy, Illinois, 38 miles from Monroe City, on the afternoon of October 6. They arrived in Quincy at about 3:00 or 3:30. After attending to some matters, including the sale of turtles to, and purchase of bait from, Yancey's Fish Market, they left Quincy at around 6:00 P.M. According to them, the driving time from Quincy to Monroe City was about an hour. Jack testified that it was at least 7:00 P.M. by the time they got back to Monroe City.

Orval Yancey, the operator of the fish market, testified that he purchased turtles from appellant on the afternoon of October 6 and saw him then at his place of business in Quincy. He stated that Smith left there at about 5:30.

The appellant's daughter, Carolyn Marie Smith, who was 15 years old at the time of the incident involved, testified that, on the date in question, she and an older sister, Shirley Mae, returned home after grocery shopping at about 5:00 or 5:30. Their mother, their sister, Nancy, aged three, and Donovan were in the house when they returned. Donovan was in the living room, watching television and holding Nancy. According to Carolyn, she, her mother and Shirley went to the clothes line in the back yard to take some dry clothes off the line and hang out others. Carolyn got an arm load of dry clothes and took them to the house, entering the house at the rear and going through the living room where Donovan was and into the adjoining bedroom where she laid the clothes on the bed. According to Carolyn, 'I heard some commotion behind me like someone was behind me and I turned around and it was Ted Donovan, and he grabbed my arm and he said, 'Come on, it won't take long. I am not going to hurt you,' and he said something bad that I don't want to repeat if I don't have to, and he grabbed my arm and I swung around and I grabbed the acid and threw it in his face.' She testified that the acid was in an open jar which had been placed in a 'cubby hole' in a dresser where a door had come off. On cross-examination, Carolyn said that her father had put the acid there three to five days previously for protection 'because that wasn't the only time he has tried to bother me.'

Shirley Mae testified that Donovan was in the house when she and her mother and Carolyn went to the clothes line and that, after Carolyn took in some dry clothes, she heard someone screaming and she and her mother ran into the house and found Carolyn 'emotionally upset' and saw Donovan driving off in his car.

Both Carolyn and Shirley testified that the appellant was not present at the time of this incident and that he returned home at 6:30 or 7:00 P.M. According to the girls, at around 9 o'clock, Billy Hunter came by the house and told the appellant that Donovan had got some paint thinner in his eyes. According to them, Smith told Hunter that it wasn't paint thinner, that it was acid and he got it at Smith's. Another son, Freddie, also testified that he was pressent and heard such conversation between his father and Hunter.

The daughters, as well as Samuel Gillespie who later purchased the house from Smith, testified that there were marks from the acid on the floor of the bedroom, but that there were none in the living room.

The appellant, when asked why he had told the sheriff that he had thrown the acid, stated: 'My daughters were all upset, and my whole family was upset, and they had to go to school, and there had been an incident happened ahead of this that put their name in the paper, and I didn't want their name back in and I told them I would just say I did it.'

In rebuttal, Donovan Denied that Carolyn threw acid on him.

On this appeal, the appellant contends the state's evidence failed to establish, beyond a reasonable doubt, the appellant's guilt. The appellant reaches this conclusion by arguing that the state's case was based 'upon a circumstance that placed Russell Smith in his home on the night of October 6, 1960, at 6:00 P.M.' The appellant dismisses the state's testimony regarding appellant's admissions as 'vague' and 'probably not probative of the facts.' He then compares the state's case with the evidence produced by appellant and concludes that the state failed to show guilt beyond a reasonable doubt and to a moral certainty.

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