"About 9 p. m., on Saturday, December 22, 1922, Carl Underwood and his wife were walking west on Monroe street in Mexico, Audrain county, Mo. They had been shopping, and were preparing to return to their home. As they passed in front of the display window of the Lewis Moore store and a millinery store they met Walter E. Welch, the appellant, and his wife, who were coming from the opposite direction. Mrs. Underwood was walking slightly in advance of her husband. They spoke to her, and she returned their greeting, but her husband did not speak. She and her husband continued to walk west, and had gone only a short distance when she heard the sound of a blow, and turned around to see the appellant beating her husband in the back and over the head with what appeared to be a club about a foot and one-half long. She did not see the first blow struck. Underwood attempted to get away, but was followed to a lamp post in the middle of the street by appellant, who continued to strike at him until he missed a blow. The appellant then turned away and rejoined his wife. Underwood staggered on a short distance, and fell on his face in front of what is known as the Ford Garage, about 30 feet away. During the beating Underwood did not raise his hand or try to strike the appellant. He received a 3-inch wound in his forehead and three black bruises across his neck. He was conscious until they got him to bed, where he remained for about 2 weeks, being later confined to his room for 5 or 6 weeks. About 12 blows in all were struck, and the appellant appeared to have the club in both hands, drawing it over the shoulder as if he were swinging an axe. Underwood was carrying two bundles when assaulted. None of the blows knocked him down. The assault was seen from a distance of about 40 feet by one Ernest Garrett, who saw the appellant turn, run west toward Underwood, and strike him. Underwood staggered, fell, got up, and was hit again. This witness did not see anything in appellant's hand, and testified that the first blow was from the side. The assault was also seen by three other witnesses who were within 4 or 5 feet of the men at the time. They saw appellant run past them from the east and going %vest, and saw him start hitting Underwood, who was then facing west. They testified that, after the assault, and before he fell on his face in front of the Ford Garage, Underwood did not collide with anything. One of them testified that after the beating appellant came back and said something to Mrs. Underwood, and another stated that Mrs. Underwood said to him at that time, `Oh, he never done it.'
"Dr. G. J. Toalson stated that he examined Underwood on the 29th of December, and that Jib was then nervous and restless, and had a depression fracture 3 inches long on the top of his head. Underwood was then dazed, and only momentarily conscious, and grew worse for five days. His trouble appeared to be from a fractured blood vessel caused by the fracturing of his skull, and he was in a very dangerous condition. The breaking of an abscess caused by the rupture later gave him relief, and saved his life. No operation was performed.
"Carl Underwood, the injured party, testified that he saw the appellant and his wife as ha passed, but that nothing was said, and that he did not look up at appellant. They spoke to Mrs. Underwood, and went on. He did not know how far he had gone when he was struck on the head. His next recollection was of the time when they put him in a car at the Ford Garage. The appellant did not say anything to him before striking the blow. Underwood was carrying a bundle under each arm when struck, and did not put his hand to his overcoat pocket with the intention to convey to the appellant the idea that he had a gun in that pocket.
"The evidence on behalf of the appellant is, briefly, as follows:
"Three witnesses testified that the general reputation of Carl Underwood for truth, veracity, and morals was had. Appellant's wife, Mrs. Bessie Welch, stated that she was 16 years of age on the 19th of December, 1223, and that she first met Underwood in Warren county in May, 1923. She later moved to Mexico in June of the same year. An offer was made on the part of appellant to show by her testimony that on the 2d day of November, 1923, Carl Underwood took her in his car to the country and there had intercourse with her; that thereafter he approached her on two or three occasions, inquiring if she had told her husband, and, upon being informed that she had, he stated that he would take care of her husband; that following the occurrence she told her husband from time to time portions of her experience; and that it would be shown by the testimony of appellant that on the night of the difficulty Underwood grinned at the appellant, bringing to mind, and having the intent and purpose of bringing to mind, Underwood's improper relations with Mrs. Welch; and, further, that Mrs. Welch had completed her story to her husband only a few days before the assault; and that Underwood on several occasions between the 2d of November and the time of the assault had sought her society and had stopped her on the street. The offer, upon objection by the state, was rejected. Similar offers were made in connection with other witnesses.
"Dr. N. R. Rodes testified that he treated Underwood on the evening of December 22d, and on the following morning, and that Underwood was not at that time delirious. He did not find any fracture, and should have been able to find one from his examination had it existed. He could not tell that there had been any injury, but an X-ray photograph might show the injury. There might have been an injury of the inner skull without a fracture to the outer, and that an inner fracture often causes a blood clot on the brain, which produces death, unless the clot is absorbed.
"The appellant, testifying in his own behalf, stated that he had seen Underwood several times during the day of December 22d, having seen him in business houses, around the square, and at the home of one Jim Polsten. Mrs. Polsten is a sister of Underwood's wife and the mother-in-law of the appellant. He had also seen Underwood the day before the assault, when Underwood parked his car and
whistled and jumped up and down in front of appellant's building. When they met just before the assault Underwood stepped a little ahead of his wife, smiled and sneered at the appellant, and put his hand in his right-hand overcoat pocket. `The smile went all over him,' and he followed Underwood, caught his right arm, and turned him about. Underwood then struck at him, and he returned the blow, and hit in all only 3 times. He did not have any club of any kind, but did have a salt sack with a silver dollar and some small change in it. He did not know how he held this sack during the assault. As he turned away and passed Mrs. Underwood she said, `He didn't do it.' On cross-examination he stated that Underwood was partially facing him and struck at him with the left hand as he whirled. He pursued Underwood about 10 feet, and admitted that Underwood could not have known whom he was before turning around, and that nothing was said by either of them. The day following the assault he told the prosecutor that he had hit Underwood with a sack containing some money, and had thrown a silver dollar at him. On being recalled, the appellant denied that he intended to kill Underwood.
"In rebuttal for the state, Dr. V. J. Jolley identified an X-ray picture of Underwood's skull taken by him the day of the trial. Objection was made to the indorsement of Dr. Jolley as a witness on account of surprise, and to his testimony generally as being offered in rebuttal, but being in reality evidence in chief. Dr. Jolley testified that the X-ray photograph showed a fracture made within 6 months; the fracture being of both tables of the skull and showing starlike in the photograph.
"No rebuttal was offered by the appellant, but an offer was made to show by his testimony that his intention in striking Underwood was to punish him for attentions to appellant's wife."
