The State v. Webb
| Decision Date | 09 February 1916 |
| Parties | THE STATE v. MELVIN WEBB, Appellant |
| Court | Missouri Supreme Court |
Appeal from Audrian Circuit Court. -- Hon. James D. Barnett, Judge.
Affirmed.
Fry & Rodgers and Pearson & Pearson for appellant.
(1) The verdict was against the law and the evidence. There was no felony committed. There was no felonious assault made, or proven. (a) As shown by the testimony of the prosecuting witness, Tugel, and the two State witnesses, who saw the assault, Tugel was not struck with anything, except the fist of the defendant; and not in such a manner as to cause any apprehension in their minds, at the time, that Webb had any intention to kill, or do great bodily harm; or, that the natural and probable result of such blows, would likely cause death or great bodily harm. The charge, in the second count of the information, that the defendant made an assault "with a certain large finger ring" was not proven nor attempted to be proven. It is a fact, "known to all persons of ordinary intelligence," that one man cannot make an assault upon another, with his fist, in a manner likely to cause death or great bodily harm -- except perhaps, in very extreme cases. Rogers v. State, 60 Ark. 76, 31 L. R. A. 468. This assault was nothing more than an ordinary assault with the fist. The jury should not have been left to guess, or presume, as they were by instruction seven, that the assault was made in a manner likely to produce death, or cause great bodily harm; and that the defendant was presumed to know, that an ordinary lick, or a number of them, with his fist, on any part of a man's head or body, was likely to cause death, or great bodily harm; and therefore, was guilty of a felony. State v. Harris, 209 Mo. 439; State v. Dunn, 221 Mo. 541. (b) All the text-writers and cases treat an assault with the fist simply as a misdemeanor. Rogers v. State, 60 Ark. 76; State v. Sayman, 103 Mo.App. 142; State v. Shawley, 42 Mo.App. 585. (2) The court erred in giving instruction three on the part of the State. The verdict found "the defendant guilty of felonious assault, as charged in count two, of the information." (a) The instruction is broader than the information. It does not confine the jury to finding an assault made with a certain large finger ring, and with hands and fists; but, is a roving instruction, giving the jury the right, if they saw fit, to find that the assault, if any, was made with a sledge hammer, a hatchet, a large stick of wood, a knife, or any other dangerous, or deadly weapon, or instrument. In a civil action, such a variance between the allegations of the petition, and an instruction, would be reversible error. The principle is just as pertinent in a criminal proceeding. Reading v. Railroad, 165 Mo.App. 130; Davidson v. Transit Co., 211 Mo. 320; Beave v. Transit Co., 212 Mo. 331; Miller v. Railroad Co., 155 Mo.App. 528; State v. Harris, 209 Mo. 438. (b) There is no evidence upon which to base an instruction for a felonious assault in this record. The evidence shows, that the defendant assaulted, or struck prosecuting witness, with his fist, nothing more. The jury had none of the marks, bruises, or cuts, alleged to have been made by the assault, shown to them, which is necessary to be shown, before they can find a felonious assault. State v. Drumm, 156 Mo. 220. And this too, notwithstanding the charge in the information, that defendant did greatly maim, wound and disfigure which is the bodily harm charged to have been inflicted, and necessarily must have proven to have been inflicted, in order to convict of a felony. The evidence showed that there were absolutely no marks, or scars, on the head or body of the prosecuting witness, showing any evidence, or result of the assault. State v. Drumm, 156 Mo. 219; Rogers v. State, 60 Ark. 76, 31 L. R. A. 468. (3) The court erred in giving the seventh instruction on the part of the State. There was no evidence from which the jury could find that the defendant assaulted Mr. Tugel, in a manner likely to cause death or great bodily harm. And, he was not, and there was no proof that he was, greatly maimed, wounded or disfigured. Therefore, there was no evidence upon which to base this instruction. The glaring fact, that the actual assault with the fist, did not cause death, or great bodily harm, refutes the presumption that defendant intended to kill Tugel, or do him great bodily harm. The natural and probable consequences of an actual assault with the fist are the actual consequences thereof; and, it was error for the court to instruct the jury, that the law presumed the defendant intended to kill Tugel, or to do him great bodily harm, when, as a matter of fact, his assault upon him only inflicted some minor bruises and a skin scratch. Rogers v. State, 31 L. R. A. 468. It is only where an assault is made with a deadly weapon, or aimed at a known vital part of the head, or body, of a person, that the court is justified in declaring, that the law presumes that a man intended to kill another, or to do him some great bodily harm. State v. Harris, 209 Mo. 439; State v. Ruck, 194 Mo. 430. Unless the court is justified in declaring, as a matter of law, that the natural and probable consequences of an assault of one man upon another, with his fists, is likely to cause death, or great bodily harm, it is not justified in declaring that, the law presumes that he intended to kill him, or do him great bodily harm, by such assault. Similar instructions to this seventh are found in the law books, but they are only given when the assault is made with a deadly weapon, or aimed directly at some vital part of the head or body. State v. Taber, 95 Mo. 591; State v. Musick, 101 Mo. 270; State v. McKenzie, 102 Mo. 630; State v. Grant, 152 Mo. 64; State v. Harris, 209 Mo. 432, 439; State v. Stubblefield, 239 Mo. 530. This seventh instruction is almost, a peremptory instruction to the jury, that the natural and probable consequences of the acts of a man who assaults another with his fists, is death, or great bodily harm; and, that in so doing, the law presumes that he intended to kill him, or do him great bodily harm.
John T. Barker, Attorney-General, and Thomas J. Higgs, Assistant Attorney-General, for the State.
(1) The second count of the information charges felonious assault under Sec. 4483, R. S. 1909, and is in a form approved by this court. State v. Bailey, 21 Mo. 484; State v. Moore, 65 Mo. 606; State v. Nieuhaus, 217 Mo. 332; State v. Janke, 238 Mo. 378. (2) It has been held that Sec. 4483, R. S. 1909, does not require that the wounding should have been done with a deadly weapon. State v. Janke, 258 Mo. 382; State v. Nieuhaus, 217 Mo. 548; State v. Bailey, 21 Mo. 484; State v. Munson, 76 Mo. 109. The evidence does disclose that the appellant wore, at the time of the assault a large ring with three sets in it, and after the assault, the appellant remarked in the presence of Miss Tully that his hands and finger were sore and he would have to get the ring off. The evidence for the State further showed that Tugel's face had been cut and bruised in about twenty places and that at the time of the trial, the hearing of Tugel was still defective on account of the bruises he had received on his ear. This is called to the court's attention for the reason that in appellant's brief, it is stated that the charge that the defendant made an assault with a certain large ring was not proven nor attempted to be proven. The evidence clearly shows that this appellant gave Tugel about as severe a beating as could be given with the fists and a ring as described in the evidence in the length of time that the assault was continued. The cases cited by the appellant are not in point. (3) The State's instruction number three properly states the law under Sec. 4483, R. S. 1909. There is no requirement under the statute that the instruction should state that the assault was committed by a deadly weapon or any particular weapon. It is only required that the party be wounded and receive great bodily harm and under circumstances which would constitute murder or manslaughter if death had ensued. State v. Janke, 238 Mo. 382; State v. Nieuhaus, 217 Mo. 348; State v. Ruck, 194 Mo. 430; State v. Munsey, 76 Mo. 109; State v. Bailey, 21 Mo. 484; Kelly's Crim. Law & Proc. (3 Ed.) 581. A reading of the evidence will show that the facts were sufficient to warrant an instruction on felonious assault. Kelly's Crim. Law & Proc. (3 Ed.), sec. 296; 8 Am. & Eng. Ency. Law, 286; 12 Cyc. 152. (4) The giving of State's instruction number seven on presumption of the intent was proper. A criminal intent is generally inferred from the commission of the unlawful act. State v. Schloss, 93 Mo. 361; State v. Hall, 85 Mo. 66; State v. Davis, 226 Mo. 493; State v. Sylvia, 130 Mo. 440; State v. Ruck, 194 Mo. 431; State v. Kempf, 26 Mo. 430.
OPINION
In Banc.
-- Prosecution by information filed in the circuit court of Audrain County, charging felonious assault upon D. E. Tugel. Trial, verdict of guilty, assessment of punishment at fine of $ 200; appeal in regular form.
Evidence on the part of the State: The assaulted was at the time of the difficulty superintendent of public schools at Vandalia in Audrain County, Missouri, and defendant was an inhabitant of that town, having a son who attended the school over which prosecuting witness exercised superintendence. From record indicia it seems that the prosecuting witness had, in the morning prior to this assault, administered some punishment to the son of defendant, and that, after the noon...
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