State v. Watson
| Decision Date | 11 February 1963 |
| Docket Number | No. 49402,No. 1,49402,1 |
| Citation | 364 S.W.2d 519 |
| Parties | STATE of Missouri, Respondent, v. Roy WATSON and Don Eggar, Appellants |
| Court | Missouri Supreme Court |
Clyde Rogers, Gainesville, for appellants.
Thomas F. Eagleton, Atty. Gen., Robert D. Kingsland, Asst. Atty. Gen., Jefferson City, for respondent.
HOUSER, Commissioner
Under Sec. 559.210 1 defendants Roy Watson and Don Eggar were chargef with and and Don Eggar were charged with and assault upon one Eldon Welch by striking him with their fists, whereby he received great bodily harm. The jury assessed the punishment of Watson at three years in the penitentiary, and that of Eggar at imprisonment in the county jail for three months and a fine of $100. Both defendants have appealed from the judgment and sentence.
Six or eight moths prior to the incident in question Watson and Welch had trouble over Welch's claim that Watson's houndog had eaten chicken pellets and eggs belonging to Welch. Watson had 'made [Welch] out a liar about the dog.' Welch had told Watson to keep his dog at hime, and threatened to kill Watson's beagles for chasing rabbits in Welch's alfalfa. One witness said Welch included the Watson house dog in his threats.
On August 2, 1961 a small white house dog, which belonged to Watson's daughter, was shot, came home wounded, and died. The next day Watson and his stepson Eggar were at a place on the public road, looking at some cattle belonging to one Nance, which were pastured in a field leased to Nance by Welch. Welch came out of his nearby house and joined Watson and Eggar.
According to the state's witnesses, Watson asked Welch why Welch killed his dog. Welch had not killed the dog, and denied the killing. Watson swore and said he did. When Welch turned around, Eggar grabbed Welch's arm, jerked him down in a ditch, pinned his arm behind him and Watson twice struck Welch on the left jawbone with his right first, while Eggar was holding Welch's arm behind him. Welch was standing up (in the ditch) when Watson struck him. Welch had not struck Watson up to this time. Then 'they' pushed and shoved Welch into 'the car' and took him to see one Alvis Thomas to confirm in Welch's presence the fact that Welch had threatened to shoot the little white dog. In the car Welch tried to strike Watson with a pop bottle, which Eggar took away from him and threw away. En route Watson told Welch 'they' were going to run him out of the country. According to Welch, Thomas did not confirm the threat as to the little white dog but did say that Welch had told Thomas he was going to shoot Watson's big dogs for running rabbits in Welch's alfalfa and knocking it down. On the way home in the car Eggar pulled Welch and Watson shoved him, 'just the same manner as they put [him] in the car.' One White testified that six weeks before the trouble with Welch, Watson told him Welch would be run out of the country. Watson, prior to the occasion in question, told one Morehouse that when he got through with Welch 'he wouldn't be abotherin' around Romance there for awhile.' Watson's blows fractured Welch's jawbone. Welch was in the hospital three days. For six weeks he wore a brace which was screwed into his lower jaw to hold it in place while it healed.
Defendant's evidence showed that Watson asked Welch why he killed his little white dog; that Welch denied killing the dog but said he knew who did. Watson asked 'who' and Welch said it was none of his business; that he (Welch) did not kill the dog. Watson said he knew Welch did because he heard the shot. Welch called him a liar, and drew back his right arm as though he was going to strike at Watson, and Watson threw up his left hand and Welch struck Watson on the arm. Watson then 'punched' Welch with his right hand. Watson had no weapon 'or anything' in his hand. After more words Welch grabbed Watson by the left arm and started kicking him on the shins, hard enough to cause bleeding and leave scars. Watson then struck Welch a second time, with his fist, on the left jaw. He struck both blows trying to defend himself, believing from the threatening gestures that it was Welch's intention to do him harm. After Watson struck Welch the second time Welch 'kinda squatted down' and said 'Don't hit me no more.' Watson replied, 'O.K.' and desisted. The parties then agreed voluntarily to go see Alvis Thomas. Welch was not forced or shoved into the car. Thomas told Watson in the presence of Welch that Welch had threatened to kill his beagles and white dog. Watson testified that he had no prior intention to do any bodily harm to Welch. Eggar did not touch Welch at any time during the fracas. There were no cuts, scratches, abrasions or anything to indicate that Watson had used anything other than his bare fist in striking Welch.
On this appeal appellants have made three points which are supported by citation of authorities and carried forward in their argument.
Appellants' first point is that the court erred in overruling their motion for judgment of acquittal at the close of all the evidence, for failure to prove that appellants' acts would have constituted murder or manslaughter if death had ensued. Appellants argue that in a prosecution under Sec. 559.210 1 all of the defenses applicable to murder and manslaughter prosecutions are available to a defendant; that under Sec. 559.050 a homicide is deemed excusable if it occurs in the doing of any lawful act by lawful means, with usual and ordinary caution, and without unlawful intent, or if it occurs upon sudden combat, without any undue advantage being taken, and without any dangerous weapon being used, and not done in a cruel or unusual manner. Conceding that great bodily harm was done, appellants contend that the evidence, viewed in the light most favorable to the state, does not show that appellants' acts would have constituted murder or manslaughter if Welch had died; that Watson's acts were excusable or justifiable under the circumstances (sudden combat, no dangerous weapon but only naked fists used; no undue advantage taken; no cruel and unusual assault).
Appellants' first point is without merit. The state's case, if believed, disclosed no such lawful action on appellants' part as that portrayed by appellants in their testimony. While there is no contention that appellants' acts would have constituted murder if death had ensued, their acts, considered from the viewpoint most favorable to the state, would have supported a conviction of manslaughter, which is defined by Sec. 559.070 as the killing of a human being by the act of another not declared by law to be murder or excusable himicide. And this is true notwithstanding the great bodily harm was done only with the fists. State v. Webb, 266 Mo. 672, 182 S.W. 975, 976. From the evidence the jury could have found, death ensuing, that defendant Watson provoked an argument in the course of which defendants committed an inexcusable and unjustifiable assault and battery upon Welch which resulted in his death. 'Where death results from unlawful assault and battery and the assault is without malice, the assailant is guilty of manslaughter, even though death was not intended and the assault itself was not such as to be likely to result in the death of the person assaulted.' See State v. Kinard, Mo.Sup., 245 S.W.2d 890, 891, in which defendant struck deceased on the right side of the face with his fist, knocking him down and fracturing his skull, and this Court held the jury reasonably could find defendant guilty of manslaughter. And see State v. Black, 360 Mo. 261, 227 S.W.2d 1006, 1010, and State v. Frazier, 339 Mo. 966, 98 S.W.2d 707, 713.
Appellants' second point is that the court erred in failing to give an instruction on common assault. Section 556.230 authorizes the jury or court trying a prosecution for felonious assault to acquit the defendant of the more serious charge and find him guilty of any offense, the commission of which is necessarily included in that charged against him. Common assault is included within a...
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