The State v. Koonse
| Decision Date | 04 March 1907 |
| Citation | 101 S.W. 139,123 Mo.App. 655 |
| Parties | THE STATE OF MISSOURI, Respondent, v. THEODORE KOONSE, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Cooper Circuit Court.--Hon. William H. Martin, Judge.
AFFIRMED.
Judgment affirmed.
C. D Corum for appellant.
(1) The defendant had the legal care and control of the infant William Brown. R. S. 1899, sec. 1857. This enactment repealed the common law on this subject and rendered it inoperative. It abrogated and annulled it. State v. Slaughter, 77 Mo. 487; State v. Boogher, 71 Mo. 632; Hughes' Criminal Law, sec. 4544; 26 Encyc. Law, p. 665. (2) Even if the provisions of the common law applicable to the defendant in the case at bar had been in force in this State, still under the evidence the information would have been insufficient. The fact that the defendant had adopted the child was sufficient to relieve the defendant from the provisions of the general rule. And that fact being shown, it obviously follows that an indictment which might be good in a conceivable case, is deficient in the case at bar. State v Sears, 86 Mo. 170; State v. Williams, 66 Mo.App. 148. (3) Instruction numbered 3 on the second count of the information is a replication of instruction numbered 2, supra. Both are erroneous. The charge against the defendant was assault and battery, but under these instructions, if one of the jury believed that the defendant compelled the prosecuting witness to go barefoot and that such an act was unreasonable, cruel and excessive punishment, then he was warranted in finding the defendant guilty. (4) Instructions numbered 2, 3, 4 and 5, are further erroneous in this: The assault must have been inflicted with criminal malice or there must have been some permanent personal injury. 1 Bishop's New Criminal Law sec. 882; State v. Jones, 95 N.C. 588, 59 Am. Rep. 282; State v. Alrod, 68 N.C. 322; State v. Pendergrass, 2 D. & B. 365, 31 Am. Dec. 416; Schouler, Dom. Relations (4 Ed.), sec. 244; 1 Blackstone's Commentaries, 556; 2 Greenleaf, sec. 97; Taennehoffer v. State, 69 Ind. 295; Commonwealth v. Randall, 4 Gray. 36; State v. Burton, 45 Wis. 150. (5) Under this instruction, if the jury believed from the evidence beyond reasonable doubt that the defendant chastised the prosecuting witness and in doing so used an improper instrument, then they must find him guilty. Certainly this is not the law, and that it is reversible error is held in Stanfield v. State, 43 Tex. 167. (6) The defendant was charged by information in two counts with having made two assaults on the prosecuting witness. He could be expected to be prepared to meet the charge of having made two assaults and two assaults only. But the court permitted the State to prove that the defendant whipped the prosecuting witness on six occasions. In other words, the theory of the State is that the defendant was guilty of six assaults. The admission of the testimony in reference to all of these alleged assaults was error. It confused and mystified the defendant in his defense and served to arouse the passions of the jury against him. Upon what theory could this testimony be admissible? These separate assaults had no tendency to prove the charge laid in the information. They threw no light upon them and had no logical connection therewith. State v. Spray, 174 Mo. 585; State v. Goetz, 34 Mo. 85; State v. Daubert, 42 Mo. 242; State v. Parker, 96 Mo. 389; State v. Jackson, 95 Mo. 649; 1 Bishop's New Crim. Procedure secs. 1120, 1124; Hughes' Criminal Law and Procedure, sec. 3139.
Charles W. Journey for respondent.
(1) The information in this case is in the usual form and was drawn in conformity with approved precedents. State v. Boyer, 70 Mo.App. 156; Kelley's Crim. Law and Prac., sec. 377. (2) It was unnecessary to charge that the assault was made willfully, maliciously or intentionally. State v. Boyer, 70 Mo.App. 156; State v. Cox, 43 Mo.App. 328; 2 Bishop on Criminal Procedure, sec. 58. (3) The information was properly verified. R. S. 1899, sec. 2447; State v. Jacobs, 100 Mo.App. 52; State v. Hicks, 178 Mo. 433; State v. Hunt, 106 Mo.App. 326. (4) It is not error for the trial court to permit witnesses to testify to other assaults than the ones charged in the information. In fact it is the practice in this State to permit such testimony, especially in misdemeanors. State v. Heinze, 45 Mo.App. 403; State v. Pigg, 85 Mo.App. 399; State v. Hopper, 21 Mo.App. 510; State v. Hughes, 82 Mo. 86; State v. Boyer, 80 Mo.App. 156. Where the specific intent present in making an assault is in question, as in this case, as to whether the defendant acted honestly in correcting the child, or, whether or not, under the pretext of duty, he was gratifying his malice, evidence of other assaults are admissible. Underhill on Criminal Evidence, sec. 355; Elliott on Evidence, sec. 3105; State v. Patrick, 107 Mo. 147; Woodruf v. State, 101 N.W. 1117; Hughes' Crim. Law and Procedure, sec. 3138 and the many cases there cited. (5) No error was committed in permitting testimony that defendant compelled Willie Brown to run ahead of him over rough and rocky roads, in his bare feet. This act upon the part of the defendant formed a part of the transaction--the assault. It was wrongful, physical violence, therefore assault. 1 Bishop on Criminal Law, sec. 548, 556; 2 Bishop on Criminal Law, sec. 28.
The prosecuting attorney of Cooper county filed an information against defendant before a justice of the peace, which in separate counts charged him with the offense of assault and battery inflicted on the person of Willie Brown. The assault alleged in the first count occurred on August 26, 1905, and that in the second on March 1st of the same year. The information is founded on section 1850, Revised Statutes 1899, which provides: "Any person who shall assault or beat or wound another, under such circumstances as not to constitute any other offense herein defined, shall, upon conviction, be punished by a fine not exceeding one hundred dollars, or imprisonment in the county jail not exceeding six months, or by both such fine and imprisonment." The trial in the circuit court, where the cause was taken on appeal, resulted in the conviction of defendant and his punishment was fixed at the maximum penalty provided in the statute.
Willie Brown is an orphan, who was twelve years old at the time of the commission of the first offense charged. About two years before that event, defendant, a farmer living in Cooper county, procured the boy from a charitable institution in St. Louis under a deed of adoption and from that time stood in the relation of a parent to him. On August 25, 1905, the boy ran away from the home of defendant where he was domiciled and went to the home of another farmer named Martin. He was recaptured by defendant, but late in the evening ran away again and stopped at the same place, where he stayed during the night. Defendant immediately started in pursuit and during his quest called at the Martin place that night and was told that the boy was not there. After further search he returned next day, August 26th, and found the boy. Defendant rode horseback and carried, so plaintiff and his witnesses say, an ordinary buggy whip. The boy mounted the horse behind defendant at the command of the latter and they started towards home which was about five miles distant. They had traveled but a short distance when defendant ordered his companion to alight. From thereon, the child was compelled to travel the remaining distance on foot ahead of the horse and was forced to run at the limit of his speed and endurance by occasional lashings from the whip. He was barefooted and part of the way lay on stony ground. When he reached home one of his feet was severely bruised and his back carried many marks and cuts produced by the lash. Photographs of his naked body taken several days after the injury disclosed the fact that the punishment was of the most severe nature. The wounds had not entirely disappeared at the time of the trial in the circuit court which occurred in the middle of the following October and were exhibited to the jury. Defendant's testimony tends to show that the conduct of the boy called for parental correction and that this punishment was not so severe as that depicted in the evidence adduced by the State. He admits he forced the boy to travel on foot ahead of the horse, but denied he goaded him forward. Admits whipping the child, but says he used a riding whip made from the small end of a cheap buggy whip and that the punishment, which he describes as moderate, was provoked by the stubborn refusal of the boy to answer some questions asked him.
Relative to the assault charged in the second count of the information, the evidence adduced by the State discloses that it consisted of a severe whipping administered by means of a heavy whip called a blacksnake. It is unnecessary to detail the facts of this chastisement pro and con. Suffice it to say, that the State produced evidence which, if believed, established the fact beyond a reasonable doubt that defendant on each occasion gave full rein to violent temper and instead of employing a reasonable method and degree of corporal punishment to be expected of a parent actuated by solicitude for the welfare of his child wreaked his fury on the person of this helpless boy in a manner shocking and repulsive to all sense of humanity and decency. On the other hand, the evidence of defendant is to the effect that in neither instance did he punish with a torturous instrument, nor with undue severity. The jury found against defendant on the issues of fact thus raised, and, as the evidence as a whole affords no justification for interfering with this finding, we will adopt as proven...
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