State v. White
| Citation | 313 S.W.2d 47 |
| Decision Date | 18 April 1958 |
| Docket Number | No. 7681,7681 |
| Parties | STATE of Missouri, Respondent, v. Elmer WHITE, Appellant. |
| Court | Court of Appeal of Missouri (US) |
Llyn Bradford, Rolla, for appellant.
Jay White, Rolla, for respondent.
In this criminal case written on reassignment, defendant was charged by information under Section 559.190 with an assault upon one Robert Duckworth with intent to do great bodily harm, a mixed felony for which the maximum punishment is imprisonment in the penitentiary for five years. (All statutory references herein are to RSMo 1949, V.A.M.S.) Upon trial, the jury found defendant guilty of common assault (on which the court also instructed) and assessed his punishment at imprisonment in the county jail for six months and a fine of $100. Section 559.220. We have appellate jurisdiction. State v. White, 109 Mo. 223, 19 S.W. 65; State v. Saye, 109 Mo. 224, 19 S.W. 65. See, also, State v. Woodson, 248 Mo. 705, 154 S.W. 705; State v. Murphy, Mo., 256 S.W. 743.
The alleged assault occurred about midnight on Saturday, September 8, 1956, at Glenn's Tavern south of St. James. Among the divertisements offered at this palace of pleasure were beer drinking at the bar, square dancing on the floor, and fighting on the grounds. Robert's version of his difficulty was that, as he (Robert) was returning to the tavern from an outside toilet, defendant 'started cussin' me and called me everything he could think of, and he said, 'I told you I was gonna get you,' he said, 'I'm still gonna get you,' and he started beatin' on me, and he grabbed me around the neck and bit part of my ear off, kicked me in the groin, and then he wanted to know where my other brother was so he could get him.' Defendant's version was that, while he was arguing with one Parsons 'in reference to another fight* earlier in the evening,' Robert 'run up and started cussin' and started to hit me,' whereupon 'me and Parsons just dropped ours' and defendant turned his attention to Robert.
This nocturnal altercation seems to have been motivated by what had occurred during the forenoon of the same Saturday at the farm home where Robert (then twenty years of age) resided with his parents, the Harlan Duckworths, and their other children. Although not married to Phyllis (Robert's sister then twenty-four years of age), defendant admittedly was the father of two children borne by her. On that Saturday morning, defendant went to the Duckworth home and, accompanied by some disturbance, carried away his three-year old daughter. The state's evidence was that defendant then threatened the Duckworths with 'I'll get you all at one time; I'll have the difference if I need it.' According to defendant, the Duckworths 'blocked the yard gate' and, when he went 'over the top of the high fence with the little girl in my arms because I wouldn't let her stay down there where there's a bunch of them drunk,' Robert 'called me (defendant) a s___ of a b_____ and he said, 'I'll get you yet."
In view of some of the points to be ruled on this appeal, we think it appropriate to sample the curious, checkered, conglomerate, cacophonic collection of 'defenses' tendered to the jury, to-wit:
(a) That the midnight fight at Glenn's Tavern 'didn't amount to nothing * * * he (Robert) struck at me one lick and missed me, and hit me one lick, and I hit him two licks'--'hit him twicet'--'that was all the fight there was to the whole thing.' Defendant's witness Bell, a 'distant relation,' who had been imbibing his 'favorite drink, beer and tomato juice mixed,' regarded the fight as 'a rather minor affair,' so much so that he 'wasn't much interested to look,' although Bell 'was close by at the time and they were both swinging like a couple of windmills.' Another defense witness, apparently not so blase and sophisticated and obviously more modest in stating his qualifications as an expert on such matters, 'wouldn't say whether it was real serious or not because I never seen a big fight in my life, just kid stuff,' but nevertheless doubted whether 'they was fightin' real bad because never anyone was knocked down.' But, however defendant and his witnesses may have appraised the midnight fight, a physician found, upon examination the next day, that Robert had a swollen mouth, two lower incisor teeth missing, one upper tooth loosened, a swollen left ear full of blood, a piece bitten out of the top of the right ear, an injury to the right temple and mandibular joint 'to the extent he (Robert) wasn't able to open his mouth,' a swelling in the left groin 'about half the size of a lemon,' and 'dribbling urine' with blood cells in it.
(b) That Robert had been involved in 'another argument or fight or something on the way home' from Glenn's Tavern and was 'going to try to frame' defendant by charging him with responsibility for injuries actually received by Robert in a subsequent altercation. The only testimony on this defense was given by Robert's errant sister, Phyllis, who, in response to a recital by defendant's counsel, willingly agreed 'that's pretty well the way of it.' When asked on cross-examination whether she had been 'just about as strong' against defendant at the time of the midnight fight as she was for him at the time of trial, Phyllis sagely opined 'oh, well, I guess whenever you get mad you're liable to say anything or do anything without thinking about it--I'm always in the ability of doing that'--an ability matched in this case only by defendant in his presentation of novel and ingenius defenses.
(c) That, 'if I (defendant) knocked any (of Robert's teeth) out, I sure didn't know anything about it,' but they were no good anyway. Defendant's counsel interrogated no less than four other witnesses about the allegedly poor condition of Robert's teeth. But, defendant readily conceded on cross-examination that he 'had no title' to Robert's teeth, and one of his witnesses likewise agreed that defendant had no 'license' to knock out Robert's teeth, good or bad.
(d) That 'the whole (Duckworth) family' was just a bunch of drunks. In support of this 'defense,' defendant asserted that, when he went to the Duckworth home during the morning before the midnight fight, he found 'they was drinking'; and, the sum total of defendant's surrebuttal was that there was beer in the Duckworth refrigerator that Saturday morning.
(e) That others had fought at Glenn's Tavern on the night of the midnight fight, but that none of them had been arrested. As defendant plaintively put it, 'they was a lot more fights that had been knocked down, but there's something funny--there wasn't none of them arrested, I was the only one arrested.'
(f) 'That wasn't the first time he (Robert had trouble out there' at Glenn's Tavern.
(g) That Robert, twenty years of age, had 'a chauffeur's license' although, as defendant's counsel said, 'he has to be twenty-one to get' such a license.
Adverting to the issues on appeal, defendant's first complaint is that his application for continuance was overruled. This application, filed when the case was called for trial, was predicated on the absence of three witnesses who, as it was alleged, would have testified in support of defendant's version of the midnight fight. After indicating his belief that diligence had not been shown, the court suggested that perhaps the prosecuting attorney would admit that the missing witnesses would, if present, testify to the facts stated in the application for continuance. Following a brief colloquy, defendant's counsel said that, if 'you will admit they will testify to it, we'll go ahead,' and the prosecuting attorney immediately so admitted. Thereafter, defendant's attorney read into evidence what the missing witnesses would have testified, if present. Although merely permitting defendant's counsel to read what an absent witness would say in a criminal case is not always a valid and acceptable substitute for personal appearance of the witness, we note that, in the instant case, the application for continuance was not overruled until defendant had agreed to proceed to trial on the admission of the prosecuting attorney. See State v. Garner, 360 Mo. 50, 226 S.W.2d 604, 608; State v. O'Connor, 65 Mo. 374.
In any event, the application for continuance was insufficient. For one thing, there was no substantial compliance with the statutory requirement that such application contain a verified statement to the effect 'that the application is not made for vexation or delay merely, but to obtain substantial justice on the trial of the cause.' Section 545.720; State v. Bond, 191 Mo. 555, 90 S.W. 830, 833(9); State v. Clark, 147 Mo. 20, 47 S.W. 886, 888(5); State v. Heinze, 45 Mo.App. 403, 407-408(1). More importantly, the application did not show diligence. It recited only that defendant had ordered a subpoena for the missing witnesses 'in ample time for said witnesses to be served'; but, it did not state the date on which the subpoena had been ordered or issued, whether or when the subpoena had been served, the place of residence of any of the witnesses, or whether (if the witnesses were not found) and information concerning their whereabouts was sought or obtained. An unsworn statement that one of the three absent witnesses had been sent to 'the Veterans Hospital' was attached to the application, but neither that statement nor the application stated the location of the hospital, why...
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