State v. Wansong
| Decision Date | 29 May 1917 |
| Parties | THE STATE v. FRED WANSONG, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Rhodes E. Cave Judge.
Affirmed.
Campbell Cummings for appellant.
(1) The entire evidence was insufficient to support the verdict of guilty of the felony charged, assault with intent to kill and the judgment should be reversed and appellant ordered discharged. When two or more persons conspire to fight another with their fists and one resorts to the use of a deadly or dangerous weapon without the other's knowledge or consent, the other cannot be held responsible. State v. May, 142 Mo. 153; Kelley's Crim. Law (3 Ed.) sec. 49, p. 49; 8 R. C. L., p. 226, sec. 222. (2) A person is not guilty of an assault by reason of the mere fact that he is even present when it is committed, or that he does not take steps to prevent it, or that he has knowledge of it, or that he approves it; but he must have done some act by way of aid or encouragement. There was no evidence that appellant was present at the time of the felonious assault or that he was ready to aid, if necessary. There was no evidence that appellant was at any time acting in pursuance to a conspiracy to commit the felonious assault, but it could only be claimed as tending to prove an assault and battery. 5 Corpus Juris, p. 758, sec. 260; State v. Melvin, 166 Mo. 573; State v. Valle, 164 Mo. 551; Willi v. Lucas, 110 Mo. 222. (3) There is no question of abandonment of the felony in the case, inasmuch as there is no evidence that appellant ever entered into an agreement or understanding to commit a felonious assault. When he learned there was contemplated a felonious assault, instead of an assault and battery, he went no further; he withdrew before it took place. Authorities supra; Kelley's Crim. Law (3 Ed.), sec. 49, p. 49; 2 R. C. L., p. 533, sec. 9 and p. 545, sec. 25. (4) If there can be claimed to be any evidence that appellant committed the felony or that he advised or aided in its commission, such evidence would be entirely circumstantial, and yet no instruction on circumstantial evidence was given. Such an instruction could not be on a collateral issue and it was error in the trial court not to have given it on its own motion. State v. Conway, 241 Mo. 282; State v. Valle, 164 Mo. 551; State v. Gooch, 105 Mo. 392; Willi v. Lucas, 110 Mo. 222; 2 R. C. L., p. 527, sec. 4; 10 R. C. L., p. 1007, sec. 196. (5) The court erred in giving the instruction on the confession. State v. Shellman, 192 S.W. 435; State v. Finkelstein, 191 S.W. 1002; State v. Creeley, 254 Mo. 382; State v. Barrington, 198 Mo. 125 (l. c.); Stetzler v. St. Ry. Co., 210 Mo. 704; Zander v. Transit Co., 206 Mo. 461; Clay v. State, 15 Wy. 64; Welsh v. State, 96 Ala. 92; McLemore v. State, 164 S.W. 119; 17 Cyc. 806; Worley v. Dryden, 57 Mo. 233. (6) The defendant should have been prosecuted under Sec. 4483, R. S. 1909, and not under Sec. 4481, R. S. 1909, for the evidence discloses that if an assault with intent to kill was intended the assault was contemplated upon one Peterson, and not upon the person charged in the information to have been assaulted. Kelley's Crim. Law & Prac., (3 Ed.), sec. 6; State v. Mulhall, 199 Mo. 202; State v. Williamson, 203 Mo. 591; Lacefield v. State, 34 Ark. 280; Horton v. People, 47 Col. 252; Johnson v. State, 53 Fla. 45.
John T. Barker, Attorney-General, and Lee B. Ewing, Assistant Attorney-General, for the State; James Billings of counsel.
The instruction on involuntary confession and voluntary statements is correct and proper. Conley v. State, 12 Mo. 462; State v. Howell, 117 Mo. 307. The defendant complains in his motion for new trial that the court failed to instruct upon all questions arising in the case. This complaint presents no question for review. The issues under the evidence are properly presented by the instructions. The defendant is obliged to point out in his motion for new trial the facts or theory upon which the court failed to instruct. State v. Laycock, 141 Mo. 274; State v. Paxton, 126 Mo. 500.
Defendant was convicted in the circuit court of the city of St. Louis for assault with intent to kill one Herman Willy. His punishment was fixed by the jury at imprisonment in the penitentiary for a term of two years. From the resulting sentence he has appealed.
Defendant and one George Hunck (tried jointly with defendant and convicted, and likewise given two years in the penitentiary, but who died, as the brief herein avers, pending this appeal), were employed as drivers for the Jersey Farm Dairy Company until a milk-drivers' strike was called, whereupon they quit and joined the strikers. Herman Willy, the prosecuting witness, is a baker by trade, but at the time of the assault he was employed as helper by the above named company and temporarily engaged in delivering milk. While making a delivery of milk at the bakery of one Simon on Sidney Street in the city of St. Louis, about 3:30 or 4 o'clock on the morning of the 16th of February, 1915, he was struck with a heavy stick of oak cordwood on both the front and back of his head and most dangerously and seriously hurt and wounded.
The evidence produced on the part of the State tends to show that defendant, in company with said Hunck and an unknown man (likewise a striker, and who is referred to in the record simply by the name of "Jack"), went to the bakery of said Simon about two o'clock on the morning of the assault. Hunck went inside and engaged Simon in conversation; defendant and Jack remained outside of the shop in a dark hallway or alley. Hunck, who was well known to Simon, endeavored to persuade the latter to quit buying milk from the Jersey Farm Dairy Company. Simon refused, and he was then told by Hunck that they had come there for the purpose of lying in wait for the driver of the milk wagon, whom they believed to be one Peterson, and "beat him up." Simon protested that he did not want the "job pulled off" in his place, but Hunck assured Simon that the latter would see nothing and hear nothing -- thus by inference complimenting the artistical touch with which the purposed assault would be performed. After talking with Simon for some time, one of the two men who were waiting outside (and who Simon first says was defendant, but is afterward doubtful on this point) came to the door and called to Hunck to hurry up, that they were freezing to death outside. Hunck then took a drink of whiskey with Simon and a helper of the latter, and joined the men outside in the dark hallway. Later, and only some fifteen minutes before the assault took place, defendant again came to the door and asked Simon if he had any pies; upon receiving an affirmative reply, defendant bought and paid for two pies; one of which he ate and the other he gave to Jack.
Defendant is positively identified by Simon as the man who purchased the pies. Moreover, defendant admits this in a confession which some four or five police officers say he made. Shortly after this, and as stated only some fifteen minutes thereafter, Simon heard the milk wagon coming and heard it stop. Immediately thereafter he heard the cries of the prosecuting witness Willy out in the hallway. He hurried out to him and found him leaning against the wall in a dazed condition and bleeding about the head, and observed a large stick of oak cordwood, about four feet long, lying in the hallway near him. None of his assailants was visible at this time. Willy was taken to the hospital, where he lay unconscious for some seventy hours, suffering from a very serious fracture of the skull, from which he was weeks in recovering sufficiently to permit his leaving the hospital. In fact, at the time of the trial he had not then fully recovered, and the record makes it a serious question whether he is not horribly and permanently injured.
Defendant and said Hunck (the latter having in the meantime gotten into some fresh trouble) were arrested in the afternoon. Each made a statement as to his participation in the events above set out as occurring at the bakery, which statements corroborate largely the testimony of the State's witnesses. Defendant confessed that it was agreed that said Hunck, Jack and himself should go to the bakery and lie in wait for the driver of the milk wagon, whom they believed to be one Peterson, and "get him;" that Hunck had told him that he knew of a quiet place about Sidney Street where they could get Peterson. Upon arriving at the rendezvous Hunck went inside and had the conversation, which we have referred to, with the baker Simon, while defendant and Jack remained outside in the dark hallway. Defendant says in his confession, in describing the preparation for the assault on Willy, that "Jack first went and got a rock," but later discarded that as not being sufficiently lethal for his needs, and went and got a fourfoot stick of oak cordwood and asked defendant to "lift that." Whereupon defendant lifted it and asked Jack what he was going to do with that and if he intended to kill the fellow; that Jack replied that he "didn't care whether he did or not." Defendant further says in his confession that he then bought the pies which he and Jack ate, and that after waiting with the latter until nearly four o'clock, he heard the milk wagon coming and ran away before the driver was assaulted. Defendant, it will be noted, does not admit that he was present at the time of the assault, or that he knew anything about what took place after he ran, just as the wagon was driving up. He says, however, that he left Jack behind. He admits that Hunck, Jack and he went to the bakery for the purpose of lying in wait for and getting" the driver and "beating him up."
The evidence upon the...
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