Ballard v. State
| Decision Date | 30 March 1981 |
| Docket Number | No. WD,WD |
| Citation | 615 S.W.2d 589 |
| Parties | Leo Willard BALLARD, Appellant, v. STATE of Missouri, Respondent. 31616. |
| Court | Missouri Court of Appeals |
Stephen W. Mendell, Asst. Public Defender, St. Joseph, for appellant.
John Ashcroft, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
Before MANFORD, P. J., WASSERSTROM, C. J., and NUGENT, J.
Appellant (hereinafter referred to as "defendant") was convicted of burglary first degree and assault with malice aforethought, the latter being under Section 559.180 RSMo 1969. 1 On direct appeal, this court reversed the burglary conviction but affirmed the conviction for assault. State v. Ballard, 554 S.W.2d 459 (Mo.App.1977). Thereafter, defendant filed a motion to set aside the sentence under Rule 27.26. The trial court denied the motion, and defendant appeals. We affirm.
For his first point on appeal, defendant challenges the sufficiency of the jury verdict to support conviction under Section 559.180, in that the jury did not specifically state in its verdict that it found defendant guilty of malice aforethought. In considering the form of this verdict, attention must be given to the surrounding facts shown of record.
The first such fact is the language of the information which charges under Count II that defendant "did willfully, unlawfully and feloniously with malice aforethought assault one Gary Huffman...." Further to be considered is Instruction 7 which directed the jury to find defendant guilty under Count II if it found that defendant beat Huffman with a club and "that the assault was made with malice aforethought that is, intentionally and without just cause or excuse and after thinking about it beforehand for any length of time ...." Still further to be considered is Instruction No. 8 which directed the jury that if it did not find defendant guilty of assault with malice aforethought as submitted in Instruction No. 7, then under certain lesser findings it might find defendant guilty of assault to do great bodily harm without malice aforethought (under Section 559.190).
The language of the jury verdict in this case on Count II was as follows: "As to count II, we, the jury, find the defendant Leo W. Ballard guilty of Felonious Assault With Malice as submitted in Instruction No. 7." (emphasis added). Under virtually identical facts, similar verdicts have been upheld, and Hardnett v. State, 564 S.W.2d 852 (Mo.banc 1978) upon which defendant heavily relies has been distinguished. Greene v. State, 612 S.W.2d 430 (Mo.App.1981); Duke v. State, 608 S.W.2d 464 (Mo.App.1981); Swinney v. State, 613 S.W.2d 686 (Mo.App.1981); Hudson v. State, 612 S.W.2d 375 (Mo.App.1980). Defendant's first point is overruled pursuant to those decisions.
For his second point on appeal, defendant contends that the trial court lacked jurisdiction to sentence him under the second offender act, Sec. 556.280, because of insufficient evidence to show a prior conviction. The prior conviction upon which the prosecution relies is stated in the information as follows: "(O)n January 18, 1967, Leo W. Ballard plead (sic) guilty to the charges of Burglary 2 and Stealing, felonies, said offenses being punishable by imprisonment in the Department of Corrections, Jefferson City, Missouri, for a period of two years on each count, and the said Leo W. Ballard was subsequently imprisoned therefore." In support of that allegation, the prosecutor introduced two judgment entries of the Buchanan County Circuit Court dated January 1967, which recite that the defendant Leo "Pete" Ballard entered pleas of guilty to burglary second degree and stealing, for which the court assessed punishment at two years for each burglary and two years for each burglarious stealing, the sentences to run concurrently. 2 The first judgment entry, however, goes on as follows:
The second judgment entry reads substantially the same.
Defendant argues that because of the provision just quoted, the judgment entries are deprived of any validity and leave the State with a complete lack of proof that he had been previously convicted in 1967. This contention ignores the fact that the prosecution, in addition to introducing the judgment entries just referred to, also introduced the penitentiary serial record which shows that defendant was sentenced in the Buchanan County Circuit Court to a...
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