State v. Wansong

• Decision Date: 29 May 1917
• Docket Number: No. 19997.,19997.
• Parties: STATE v. WANSONG.
• Court: Missouri Supreme Court

195 S.W. 999

271 Mo. 50

STATE v. WANSONG.

No. 19997.

Supreme Court of Missouri, Division No. 2.

May 29, 1917.

Appeal from St. Louis Circuit Court; Rhodes E. Cave, Judge.

Fred Wansong was convicted of an assault with intent to kill, and he appeals. Affirmed.

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 2 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 complementing 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 whisky with Simon and a helper of the latter and joined the men outside in the dark hallway. Later, and only some 15 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 15 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 70 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 their participation in the events above set out as occurring at the bakery, which statements corroborate largely the testimony of the state's witnessess. 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 four-foot 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 4 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 part of the appellant tends to show that he and Hunck went to the bakery merely for the purpose of affording Hunck an opportunity to see Peterson and try to get him off the wagon and to see Simon and endeavor to prevail upon the latter to quit taking milk from the Jersey Farm Dairy Company. He denies in his testimony, in effect, all that he had said in his confession, and swears that neither Hunck nor he had arranged for any assault to be made upon any one, but that Jack and two or three others remained at the Simon bakery after he and Hunck had left. Defendant admits the purchase of the pies from Simon, and in this corroborates Simon upon the question of defendant's identity as one of the persons waiting in the hallway. He reiterates in his sworn testimony the statement of his confession that he left the bakery before the milk wagon arrived, and swears in contradiction of his confession that he left the bakery a long time before the milk wagon came.

Both defendant and Hunck, testifying in the case, say that they were beaten by the police and compelled by physical mistreatment to sign the confessions offered in evidence. Defendant says he was badly beaten and bruised by the police before he signed the confession, and upon this point offers some little corroborating testimony from two or three of his costrikers as to the condition of his face and the marks upon it. Upon this point, both as to the condition of his face and as to the question of physical force being used to compel him to make a confession, he is overwhelmingly contradicted by some five or more police officers.

The points upon which defendant relies for a reversal will be found in our discussion, and such further testimony and statement of facts as shall serve to make these contentions and our discussion clear will be found set forth therein.

Campbell Cummings, of St. Louis, for appellant. Frank W. McAllister, Atty. Gen. (E. N. Connor, of Jefferson City, of counsel), for the State.

FARIS, J. (after stating the facts as above).

Defendant complains that so much of the following instruction, given upon the trial over his objections, as we copy below, is erroneous, to wit:

"You are further instructed if you find from the evidence that the defendants, acting jointly with a common intent or either one acting alone, did assault and wound the said Herman Willy with a deadly weapon, to wit, a weapon which as used was likely to produce death in a vital part of the body of the said Herman Willy, without just cause or provocation, then, unless the facts and circumstances in evidence satisfy you to the contrary, the law will presume and you should so find that the assault was made with malice aforethought and with intent to kill, by the defendants so acting jointly with a common intent, or by either one so acting alone. Whether the piece of wood as used was a deadly weapon, and whether such weapon was used in such a manner and with such intent by the defendants, or either of them, on the occasion under consideration, are matters to be determined by you from all the facts and circumstances in the case."

The burden of defendant's contention and his chief complaint is that no presumption of intent is by law allowable, or is justly to be drawn from the use by defendant of a deadly weapon upon a vital part of the body of him who is assaulted. This court has repeatedly held against this contention of defendant. State v. Schloss, 93 Mo. 361, 6 S. W. 244; State v. Hall, 85 Mo. 669; State v. Davis, 226 Mo. 493, 126 S. W. 470; State v. Silva, 130 Mo. 440, 32 S. W. 1007; State v. Patterson, 116 Mo. 505, 22 S. W. 696; State v. Holme, 54 Mo. 153; State v. Underwood, 57 Mo. 40; State v. Ruck, 194 Mo. 431, 92 S. W. 706, 5 Ann. Cas. 976; State v. Foster, 61 Mo. 549; State v. Alexander, 66 Mo. 148; State v. Walker, 98 Mo. 95, 9 S. W. 646, 11 S. W. 1133; State v. Doyle, 107 Mo. 36, 17 S. W. 751; State v. Fairlamb, 121 Mo. 137, 25 S. W. 895; State v. Grant, 144 Mo. 56, 45 S. W. 1102; State v. John, 172 Mo. 220, 72 S. W. 525, 95 Am. St. Rep. 513; State v....