State v. Watson

• Decision Date: 09 June 1947
• Docket Number: 40190
• Citation: 202 S.W.2d 784,356 Mo. 590
• Parties: State v. Robert Watson, Joseph Watson and Joseph Burroughs, Appellants
• Court: Missouri Supreme Court

202 S.W.2d 784

356 Mo. 590

State v. Robert Watson, Joseph Watson and Joseph Burroughs, Appellants

No. 40190

Supreme Court of Missouri

June 9, 1947

Appeal from Butler Circuit Court; Hon. Randolph H. Weber Judge.

Reversed and remanded.

Byron Kearby for appellants.

(1) Instruction 1 is erroneous for the reason that it assumes that the appellants made an assault upon Leon Collard with intent to do him great bodily harm by striking, beating wounding and stamping him in a manner likely to produce great bodily harm; that they inflicted upon the said Leon Collard great bodily harm; and for the reason that it is broader than the proof and the information. State v. Clancy, 125 S.W. 458, 225 Mo. 654; State v. Rongey, 231 S.W 609; State v. Webb, 266 Mo. 672, 182 S.W. 975; State v. Stubblefield, 144 S.W. 404. (2) The information is wholly defective and does not charge the appellants with felonious assault for the reason that the word "feloniously" used in the information only modifies the statement that the appellants assaulted Leon Collard by striking him with their fists and by stamping him with their feet shod with heavy shoes.

J. E. Taylor, Attorney General, and Frank W. Hayes, Assistant Attorney General, for respondent.

(1) Assignments of error not briefed and argued are abandoned. State v. Davitt, 125 S.W.2d 47; State v. Fitzgerald, 174 S.W.2d 211; State v. McCann, 47 S.W.2d 95; State v. Purl, 183 S.W.2d 903; State v. West, 142 S.W.2d 468. (2) The court did not err in giving Instruction 1. Secs. 4408, 4409, R.S. 1939; State ex rel. Dutton v. Sevier, 83 S.W.2d 581; State v. Baird, 195 S.W. 1010; State v. Brown, 165 S.W.2d 421; State v. Davis, 29 Mo. 391; State v. Ferguson, 162 Mo. 668; State v. Hannebrink, 44 S.W.2d 142; State v. Johnson, 300 S.W. 702; State v. Rice, 149 Mo. 461; State v. Shelton, 267 S.W. 938; State v. Talbert, 189 S.W.2d 555.

Bohling, C. Westhues and Barrett, CC., concur.

OPINION

BOHLING

Robert Watson, Joseph Watson and Joseph Burroughs were convicted of felonious assault with intent to do great bodily harm and prosecute this appeal. Robert Watson received a sentence of three years' imprisonment in the Intermediate Reformatory for Boys at Algoa, Missouri. Joseph Watson and Joseph Burroughs were each sentenced to two years' imprisonment in the penitentiary.

Defendants contend instruction No. 1, submitting felonious assault with intent to do great bodily harm under Sec. 4409, R.S. 1939, ^[*] was erroneous "for the reason that it is broader than the proof and the information."

Several sections of our statutes define the offense of an "assault" in different degrees. So far as essential here, they read:

Section 4408: "Every person who shall, on purpose and of malice aforethought, shoot at . . . or assault or beat another with a deadly weapon, or by any other means or force likely to produce death or great bodily harm, with intent to kill . . ." shall be punished.

Section 4409: "Every persons who shall be convicted of an assault with intent to kill, or do great bodily harm, . . . the punishment for which assault is not hereinbefore prescribed" shall be punished.

Section 4410: "If any person shall be maimed, wounded or disfigured, or receive great bodily harm . . . by the act, procurement or culpable negligence of another, in cases . . . which would constitute murder or manslaughter if death has ensued, the person . . . shall, in cases not otherwise provided for, be punished . . ."

An assault may exist without an actual battery and a battery may occur without malice aforethought and without an intent to kill or harm.

Briefly on the evidence. Bad feeling existed between Robert Watson and Carl Collard, the son of Leon Collard. Defendants were in an automobile and recognized the Collard car. They "flagged" it down six miles east of Poplar Bluff, Missouri, about 8:30 p.m. August 23, 1946. Mr. and Mrs. Leon Collard were the only persons in their car. The State's evidence, if believed, establish the following: Defendants proceeded to the Collard automobile, two of the defendants having knives in their hands. Mr. and Mrs. Collard did not know the defendants at the time. When Collard, in response to an inquiry, answered that he was Carl Collard's father, he was struck twice on the face while at the wheel of the car. He and Mrs. Collard immediatly got out on the other side of their car. The defendants came around the car and attacked Collard; got him down in the roadside ditch, made several threats to kill him, and one or more of the defendants beat him with their fists and stamped him on his shoulder and throat with their shoes; causing him to spit blood for three days and to lose his speech for two weeks. This fighting stopped when Mrs. Collard, after several statements, convinced them they were not fighting Carl but were fighting his father. This was sufficient to submit an issue of felonious assault. Consult State v. Webb, 266 Mo. 672, 680(I), 182 S.W. 975, 976[1, 2]; State v. Janke, 238 Mo. 378, 141 S.W. 1136.

With respect to facts in the instant record: An essential element of an offense under Sec. 4408 is a charge that the assault was committed "on purpose and of malice aforethought." State v. Harris, 209 Mo. 423, 440(III), 108 S.W. 28, 33(3); State ex rel. v. Sevier, 336 Mo. 1236, 1238[1, 2], 83 S.W. 2d 581[1, 2]. An essential element of an offense under Sec. 4409 is a charge that the assault was "with intent to kill" or "with intent to do great bodily harm." State v. Johnson, 318 Mo. 596, 603, 300 S.W. 702, 704[6]; State v. Baird, 271 Mo. 9, 13(I), 195 S.W. 1010, 1012[1]; State v. Gabriel, 301 Mo. 365, 371(I), 256 S.W. 765, 766[2, 3]; State ex rel. v. Sevier, supra. A distinguishing feature here involved is that under Sec. 4408 malice aforethought must exist while under Sec. 4409 it is sufficient if an intent to kill or to do great bodily harm exists. A charge under Sec. 4410, the maiming, wounding and disfiguring section, need not allege "that the act was done willfully, intentionally, with malice, or with a deadly weapon." State v. Gabriel, supra, citing cases. The allegation that the assault was "with intent to kill, or to do great bodily harm" distinguishes a charge under Sec. 4409 from one under Sec. 4410. State v. Brown (Mo.), 267 S.W. 871, 872[3]. Note instructions in State v. Tetrick, 199 Mo. 100, 97 S.W. 564.

The charging part of the information under review read: ". . . defendants . . . did . . . feloniously assault one Leon Collard, by striking, beating and wounding him with their fists and by kicking and stamping him with their feet shod with heavy shoes, with great force and violence which would likely produce great bodily harm and death . . ." The charge contained no allegation of malice or of an "intent" to kill or to do great bodily harm. It was sufficient under Sec. 4410. State v. Porter (Mo.), 81 S.W. 2d 316, 318[4]. See State v. Brown, supra.

Instruction No. 1 told the jury if they found, beyond a reasonable doubt, "that . . . defendants . . . [naming them], acting together . . ., did . . . feloniously . . . make an assault upon one Leon Collard, with intent to do him some great bodily harm, and did then and there strike . . . [et cetera] the said Leon Collard . . . and did then and there inflict on said Leon Collard great bodily harm, then you will find" defendants "guilty of assault as charged in the information" and assess the punishment at not exceeding five years' imprisonment. Instruction No. 2 told the jury that "the intent with which an act is done" may be established by direct evidence or may be inferred from the facts and circumstances in evidence. Instruction No. 3 submitted whether defendants were guilty of the misdemeanor of common assault, the offense defined by Sec. 4411.

The phrase "with intent to do him some great bodily harm" brought instruction No. 1 under Sec. 4409 and caused it to be broader than the information and improper. Instruction No. 2 emphasized the error. State v. Bunyard, 253 Mo. 347, 355(III), 161 S.W. 756, 758[2]. Consult also cases infra.

Under the Missouri constitution an accused may not be prosecuted "otherwise than by indictment or information" (Art. I, Sec. 17), and is entitled to know "the nature and cause of the accusation" (Art. I, Sec. 18a). Consult Art. I, Sec. 10.

Section 4845 provides: "Upon an indictment for an assault with intent to commit a felony, or for a felonious assault, the defendant may be convicted of a less offense; and in all other cases . . . the jury or court trying the case may find the defendant not guilty of the offense as charged, and find him guilty of any offense, the commission of which is necessarily included in that charged against him." However, prior to the enactment of now Sec. 4845 (Sec. 1655, R.S. 1879), a charge of a felonious assault "on purpose and of malice aforethought" (Sec. 4408) would not sustain a conviction of the lesser offense of a felonious assault with intent to kill (Sec. 4409). State v. Webster, 77 Mo. 566, 567[2]. Consult State v. Davidson, 73 Mo. 428.

The court in State v. Bunyard, supra,...