State v. Hale

• Citation: 472 S.W.2d 365
• Decision Date: 08 November 1971
• Docket Number: No. 2,No. 56323,56323,2
• Parties: STATE of Missouri, Respondent, v. James HALE, Appellant
• Court: United States State Supreme Court of Missouri

Page 365

472 S.W.2d 365

STATE of Missouri, Respondent, v. James HALE, Appellant.

No. 56323.

Supreme Court of Missouri, Division No. 2.

Nov. 8, 1971.

John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Special Asst. Atty. Gen., St. Louis, for respondent.

Jackson L. Smith, Louisiana, for appellant.

STOCKARD, Commissioner.

After waiving trial by jury, appellant was tried before the court and found guilty of an assault with intent to do great bodily harm in violation of § 559.180, RSMo 1969, V.A.M.S. We affirm.

Appellant contends that the information was insufficient because it alleged that 'the assault was made with the intent to do great bodily harm,' which is not included within the wording of § 559.180.

That portion of § 559.180 material to the issue here is as follows: 'Every person who shall, on purpose and of malice aforethought, * * * assault or beat another with a deadly weapon, or by other means or force likely to produce death or great bodily harm, with intent to * * * maim, * * * shall be punished by imprisonment in the penitentiary not less than two years.' While the phrase, 'great bodily harm,' appears in the statute, it is not included in the described intents, and the information did charge such an intent. This variance was discussed in State v. Gillespie, Mo., 336 S.W.2d 677, and it was there held that the allegation of an intent 'to do great bodily harm' was the equivalent of an intent to maim and was sufficient. See also State v. Mathis, Mo., 427 S.W.2d 450. We adhere to these rulings.

Appellant also contends that the evidence was insufficient to authorize a finding that (1) an assault with fists constituted a violation of § 559.180, and (2) that the assault was with malice aforethought.

From the evidence the trier of fact could find that on July 12, 1970, appellant repeatedly struck his wife, Clothilde Hale, with his fists inflicting various injuries which included breaking her dentures, and that he then forced her into the trunk of his automobile and later beat her about the face and body with a tire tool. That part of § 559.180 which states, 'or by any other means or force likely to produce death or great bodily harm,' includes severe beatings administered exclusively with the fists. State v. Gillespie, supra. See also State v. Mathis, supra; State v. Selle, Mo., 367 S.W.2d 522; State v. Spradlin, 363 Mo. 940, 254 S.W.2d 660; State v. Cox, Mo., 333 S.W.2d 46. Disregarding the evidence of the assault with the tire tool, the evidence clearly authorizes a finding that the beating administered by appellant with his fists was of the nature likely to produce great bodily harm.

Appellant did not present in his motion for new trial the contention that the evidence did not support a finding of malice aforethought, and the issue is therefore not before us for review. However, we mention, ex gratia, that the evidence clearly supports such a finding. Appellant and his wife had been engaged in a marital quarrel prior to the beating by appellant with his fists. He had forced her into the trunk of his automobile and had driven some distance before he beat her with the tire tool. This evidence clearly authorized the finding of malice aforethought.

Appellant next contends that he was denied the right to be represented by counsel 'because of the failure of the court to allow his counsel to make final argument on his behalf.'

As previously noted, this was a nonjury case. The record shows that at the close of all the evidence a 'short recess' was declared. When court was reconvened, the court announced that it had 'again reviewed the evidence, and a colloquy then occurred between the court and counsel off the record. Although the record does not affirmatively show a finding of guilt by the court, it announced that the punishment would be imprisonment for a term of five years which clearly implied such a finding. At no time was there a request on behalf of appellant to make oral argument. We particularly note the when counsel became aware that the court had found appellant guilty, either during the off-record colloquy or when the punishment was announced, there was no request that the finding of guilt be set aside or withdrawn to permit oral argument.

There is authority that an accused in a criminal trial has the constitutional right to be represented by and to be heard through counsel in the argument of his...