State v. Watson, No. 40190.

CourtMissouri Supreme Court
Writing for the CourtBohling
Citation202 S.W.2d 784
PartiesSTATE v. ROBERT WATSON, JOSEPH WATSON and JOSEPH BURROUGHS, Appellants.
Decision Date09 June 1947
Docket NumberNo. 40190.
202 S.W.2d 784
STATE
v.
ROBERT WATSON, JOSEPH WATSON and JOSEPH BURROUGHS, Appellants.
No. 40190.
Supreme Court of Missouri.
Division Two, June 9, 1947.

[202 S.W.2d 785]

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.


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.

[1] 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

202 S.W.2d 786

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 immediately got out on the other side of their car. The defendants came around the car and attacked Collard; got him down in the road-side 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....

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11 practice notes
  • State v. Strubberg, No. 62104
    • United States
    • United States State Supreme Court of Missouri
    • May 11, 1981
    ...motion for new trial. Mayhem in certain circumstances can be committed with culpable negligence. State v. Watson, 356 Mo. 590, 592-93, 202 S.W.2d 784, 786 (1947). All of the relevant assault crimes require intentional conduct. See State v. Hammond, 571 S.W.2d 114, 115-16 (Mo. banc 1978). Th......
  • Putnam v. State, No. 212
    • United States
    • Court of Appeals of Maryland
    • May 5, 1964
    ...and Informations § 319, pp. 1348-51; People v. Green, 368 Ill. 242, 13 N.E.2d 278, 115 A.L.R. 348; State v. Watson, 356 Mo. 590, 202 S.W.2d 784; State v. Zaras, 81 Ohio App. 152, 78 N.E.2d 74 (where the defendant had pleaded guilty); State v. Ryea, 97 Vt. 219, 122 A. 422; State v. Gosselin,......
  • State v. Bridges, No. 51890
    • United States
    • United States State Supreme Court of Missouri
    • February 13, 1967
    ...is essential. A verdict is ineffective to supply the omitted essential elements of a statutory offense. State v. Watson, 356 Mo. 590, 202 S.W.2d 784, The indictment being fatally defective the judgment must be reversed and we need not consider the other assignments of error. Since the offen......
  • State v. Cooper, No. 40954.
    • United States
    • Missouri Supreme Court
    • October 11, 1948
    ...v. Sevier, 336 Mo. 1236, 1238, 83 S.W. 2d 581, 582[1]; State v. Seward, 42 Mo. 206, 208. Consult State v. Watson, 356 Mo. 590, 592[2], 202 S.W. 2d 784, 786[2-4]; instructions Nos. 1, 2, 3 in State v. Tetrick. 199 Mo. 100, 103, 97 S.W. 564, 565. By express words "an assault with intent to ki......
  • Request a trial to view additional results
11 cases
  • State v. Strubberg, No. 62104
    • United States
    • United States State Supreme Court of Missouri
    • May 11, 1981
    ...motion for new trial. Mayhem in certain circumstances can be committed with culpable negligence. State v. Watson, 356 Mo. 590, 592-93, 202 S.W.2d 784, 786 (1947). All of the relevant assault crimes require intentional conduct. See State v. Hammond, 571 S.W.2d 114, 115-16 (Mo. banc 1978). Th......
  • Putnam v. State, No. 212
    • United States
    • Court of Appeals of Maryland
    • May 5, 1964
    ...and Informations § 319, pp. 1348-51; People v. Green, 368 Ill. 242, 13 N.E.2d 278, 115 A.L.R. 348; State v. Watson, 356 Mo. 590, 202 S.W.2d 784; State v. Zaras, 81 Ohio App. 152, 78 N.E.2d 74 (where the defendant had pleaded guilty); State v. Ryea, 97 Vt. 219, 122 A. 422; State v. Gosselin,......
  • State v. Bridges, No. 51890
    • United States
    • United States State Supreme Court of Missouri
    • February 13, 1967
    ...is essential. A verdict is ineffective to supply the omitted essential elements of a statutory offense. State v. Watson, 356 Mo. 590, 202 S.W.2d 784, The indictment being fatally defective the judgment must be reversed and we need not consider the other assignments of error. Since the offen......
  • State v. Cooper, No. 40954.
    • United States
    • Missouri Supreme Court
    • October 11, 1948
    ...v. Sevier, 336 Mo. 1236, 1238, 83 S.W. 2d 581, 582[1]; State v. Seward, 42 Mo. 206, 208. Consult State v. Watson, 356 Mo. 590, 592[2], 202 S.W. 2d 784, 786[2-4]; instructions Nos. 1, 2, 3 in State v. Tetrick. 199 Mo. 100, 103, 97 S.W. 564, 565. By express words "an assault with intent to ki......
  • Request a trial to view additional results

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