Cook v. State, 35333

• Decision Date: 02 July 1974
• Docket Number: No. 35333,35333
• Citation: 511 S.W.2d 877
• Parties: Samuel COOK, Movant-Appellant, v. STATE of Missouri, Defendant-Respondent. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 877

511 S.W.2d 877

Samuel COOK, Movant-Appellant, v. STATE of Missouri, Defendant-Respondent.

No. 35333.

Missouri Court of Appeals, St. Louis District, Division One.

July 2, 1974.

Motion for Rehearing or Transfer Denied July 15, 1974.

Charles Kitchin, Public Defender, James C. Jones, David Uthoff, Asst. Public Defenders, St. Louis, for movant-appellant.

John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, Daniel J. Murphy, Asst. Circuit Atty., St. Louis, for defendant-respondent.

WEIER, Judge.

Movant, Samuel Cook, appeals from an order of the circuit court of St. Louis overruling his motion to vacate a fifteen year sentence filed pursuant to Rule 27.26, V.A.M.R. Movant presented two grounds for relief: 1) his sentence was in excess of the statutory maximum, and 2) he was denied effective assistance of counsel. Appellant was convicted of assault with intent to do great bodily harm with malice aforethought on December 8, 1969, and under the Second Offender Act was sentenced by the court. The opinion affirming this judgment and sentence on appeal was reported in State v. Cook, 463 S.W.2d 863 (Mo.1971). On July 27, 1971 appellant filed his motion to vacate and thereafter an evidentiary hearing was held. The trial court entered findings of fact and conclusions of law and denied appellant's motion. That portion of the trial court's treatment of the first contention of error so clearly sets out the issue, analyzes the applicable law, and so thoroughly and incisively disposes thereof that we adopt it as a part of this opinion.

'Movant contends that the maximum punishment permissible in Cause 1586--R ¹ was 5 years, the maximum sentence permitted under Section 559.190. ²

'The touchstone of movant's contention is his conclusion that the jury in Cause 1586--R found him guilty of assault with intent to do great bodily harm with malice and did not find him guilty of such an assault with malice aforethought. Having reached this conclusion, movant then correctly cites Sections 559.180 and 559.190, defining assaults, as the controlling statutes at his trial and points out that Section 559.180 provides for an unlimited range of punishment, but Section 559.190 provides for a maximum punishment of 5 years imprisonment.

'Movant also correctly states that in several cases, in particular State v. Johnson, 461 S.W.2d 724, 726(4) (Mo.1971) and State v. Mathis, 427 S.W.2d 450, 453(5) (Mo.1968) our Supreme Court has interpreted these statutes as theoretically defining four possible types of assaults with intent to do great bodily harm: 'an assault (1) with malice aforethought; (2) without malice aforethought; (3) with malice but not aforethought; and (4) without malice of any kind.'; and movant notes that that Court has placed the latter 3 types of assault within the purview of Section 559.190, with its limited maximum punishment of 5 years and has placed only an assault with intent to do great bodily harm with malice aforethought within the purview of Section 559.180, with its unlimited range of punishment.

'Since he was found guilty of an assault with malice and not malice aforethought, movant argues, he could be sentenced properly only within the range of punishment permitted by Section 559.190, two to five years, and, therefore, he contends, the Court lacked jurisdiction to impose a 15 year sentence against him.

'This Court disagrees with Movant's basic premise: his conclusion that he was found guilty of an assault 'with malice' and not 'with malice aforethought.' Movant's conclusion rests upon the signed verdict form returned by the jury in Cause 1586--R which reads: 'We, the jury in the above entitled cause, find the defendant guilty of Assault with Intent to do Great Bodily Harm with Malice, as charged', and which movant interprets as a finding of guilty of an assault with malice and not malice aforethought.

'Movant's interpretation of the quoted language used in the verdict form, his basic premise, questions the definiteness and certainty of the verdict and, in effect, places in issue the sufficiency of the verdict as a verdict. The principles to be used to determine the sufficiency of a verdict have been developed by our Supreme Court in a long series of cases, and these often repeated principles have been collected and restated in a relatively succinct manner, with supporting citations, in State v. Leimer, 382 S.W.2d 718, 721 (Mo.App.1964), where the Court stated:

"(I)n determining the sufficiency of a verdict, the controlling object is to learn the intent of the jury; and, if such intent may be ascertained and the verdict made definite and certain by reference to the pleadings and instructions, it will be sustained * * *."

"The verdict of a jury, even in a criminal case, is not to be tested by technical rules of construction.' '(V)erdicts should be liberally construed in view of the intention of the jury and of the issues presented and all reasonable presumptions are indulged to sustain a verdict.' 'It is a wholesome precept that verdicts should be given a reasonable intendment and a like construction, and are not to be avoided unless it is evident they will work manifest injustice."

"Finally, but certainly not least importantly, a standard frequently employed in determining the legal sufficiency of the verdict in a criminal case is that the verdict must be sufficiently definite and certain 'that upon the entry of a judgment thereon it would have constituted a bar to a further prosecution * * * for the same offense."'

'Applying these principles to the present case and considering first the indictment and the subsequent substitute information in Cause 1586--R, it is apparent but (not) unusual that these pleadings are drafted in archaic jargon, and with redundant verbiage and execrable syntax. Nonetheless, the repeated use of the term malice aforethought in both of these pleadings makes it clear that movant was charged with assault with intent to do great bodily harm with malice aforethought.

'Furthermore, the instructions bear this out. The 'verdict directing' instructions are Instructions 2 and 3. In Instruction 2, the Court specifically defines the term malice aforethought in a paragraph set apart from the rest of the instruction. In addition, the Court posits a finding of 'malice aforethought' as a necessary prerequisite to a finding of guilty of the crime defined in this instruction. Perhaps the definition of the crime, the actual word description, is not artfully stated in this instruction, for the crime is described as 'assault with intent to do great bodily harm with malice, as charged in the substitute information in lieu of indictment.' However, the crime charged is made clear by the converse language used in this instruction that 'unless you so find the facts to be, you will acquit the defendant of the charge of assault with intent to do great bodily harm with malice aforethought.' (emphasis added)

'This analysis shows that by Instruction 2 the Court was submitting the issue of guilt or innocence of the charge of assault with intent to do great bodily harm with malice aforethought.

'Without a detailed dissection and analysis of Instruction 3, it is equally clear from either a cursory reading or studied consideration of this Instruction that the Court was submitting the question of guilt or innocence of the lesser offense of an assault with intent to do great bodily harm without malice aforethought. Thus, when Instructions 2 and 3 are read together, as they should be read, it becomes clearer still--crystal clear--that what the Court was submitting to the jury in the instructions for its consideration were the charges of assault with intent to do great bodily harm with malice aforethought and without malice aforethought.

'Moreover, along with the instructions, the jury received three verdict forms. Each form was styled: 'On substitute Information in Lieu of an Indictment for Assault with Intent to Do Great Bodily Harm with Malice.' One was a 'Not Guilty' form; another stated, 'We, the jury in the above entitled cause, find the defendant guilty of Assault with Intent to Do Great Bodily Harm Without Malice Aforethought'; and the third is the verdict form in issue here. When the verdict forms are considered together and, especially, when the verdict form referring to an assault 'without malice aforethought' is read with the verdict form referring to an assault 'as charged', it is apparent, at least to this Court, from these verdict forms alone, that the jury returned a verdict of guilty upon an assault to do great bodily harm with malice aforethought.

'More important, these verdict forms do not stand alone and certainly the verdict form isolated by movant and put in question here does not stand alone. When this verdict form is considered with the other verdict forms, considered with the instructions and considered with the pleadings, in accord with the often repeated principles of our Supreme Court, it becomes perfectly apparent and quite clear that movant was convicted of assault with intent to do great bodily harm with malice aforethought.

'By answering movant's argument with the foregoing analysis, the Court, perhaps, seems to give the argument a credibility it does not deserve. Any credence so derived should be laid to rest by our Supreme Court's rather summary dismissal of an almost identical issue and argument in State v. Thomas, 82 S.W.2d 885, 889(10, 11) (Mo.1935).

Movant admits that the facts of each case cited by him are readily distinguishable from the present fact situation, but, as noted, he does argue that the rationale of those cases is applicable here. Having concluded, contrary to movant, that he was found guilty of an assault to do great bodily harm with malice aforethought, the Court sees no useful purpose in a detailed refutation of the rationale of those cases. As a matter of fact, and as also previously noted here, movant does correctly point...