Hardnett v. State
| Decision Date | 10 April 1978 |
| Docket Number | No. 60004,60004 |
| Citation | 564 S.W.2d 852 |
| Parties | John Paul HARDNETT, Movant-Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Supreme Court |
Christelle Adleman-Adler, Asst. Public Defender, St. Louis, for appellant.
John D. Ashcroft, Atty. Gen., Jefferson City, Charles B. Blackmar, Special Asst. Atty. Gen., St. Louis, for respondent.
Appellant John Paul Hardnett appealed to the Missouri Court of Appeals, St. Louis district, from the judgment of the circuit court of February 13, 1976, which summary denied, without a hearing, his Rule 27.26 motion filed December 19, 1975. The relief appellant seeks is a correction or modification of his sentence so as to conform to the statutory provision of sec. 559.190, RSMo 1969. The court of appeals affirmed and denied appellant's motion for rehearing or transfer. Thereafter, this court sustained appellant's motion for transfer.
Appellant was sentenced to six years' imprisonment on January 24, 1975, pursuant to his plea of guilty entered December 11, 1974. According to the briefs of both parties and the transcript of the plea proceedings, appellant had been charged with "Assault with Intent to Maim with Malice". The record on appeal does not contain copies of the indictment or the judgment. The court requested that they be supplied and they are now here. The first page (cover sheet) of the indictment states: "Charge: ASSAULT WITH INTENT TO MAIM WITH MALICE ", and then lists the witnesses. The reverse side which contains the body of the indictment reads, eliminating certain formal phrases, that Hardnett ". . . feloniously, willfully, on purpose, and of his malice aforethought did make an assault upon MILDRED ANDERSON with a certain weapon, to-wit: a knife, a means likely to produce death or great bodily harm, and did then and there cut, stab and wound the said MILDRED ANDERSON with the intent then and there to maim the said MILDRED ANDERSON: . . . ."
The copy of the judgment shows on the cover sheet side the following, "Pleaded Guilty To: ASSAULT WITH INTENT TO MAIM WITH MALICE". The reverse side containing the sentence and judgment, in pertinent part, reads as follows, "Now, at this day comes the Assistant Circuit Attorney for the State, and also comes the defendant herein, in person in the custody of the Sheriff of this City, and in the presence of Karl Lang, Attorney and Counsel in open Court, whereupon said defendant is informed by the Court that he has heretofore entered plea of guilty of the crime of ASSAULT WITH INTENT TO MAIM WITH MALICE, said plea being accepted by the Court and being now asked by the Court if he had any legal cause to show why judgment should not be pronounced against him according to law, and still failing to show such cause, it is therefore sentenced, ordered and adjudged by the Court, that the said defendant: JOHN PAUL HARDNETT . . . ."
The sole contention made by appellant in this 27.26 motion was that his sentence was in excess of the maximum prescribed by law for the offense for which he was convicted.
Section 559.180, RSMo 1969, prescribes a punishment of not less than two years and, therefore, the maximum could be life imprisonment for the offense of assault with intent to maim, etc., with malice aforethought.
Section 559.190, RSMo 1969, provides that an assault with intent to maim, the punishment for which is not hereinbefore prescribed, shall be punished by imprisonment in the penitentiary not exceeding five years, or in the county jail not less than six months, etc.
The difference between sections 559.180 and 559.190 is the element of "malice aforethought". Appellant contends he was neither charged with nor did he plead guilty to an assault with "malice aforethought" but that he did plead guilty to what was described by the trial court in the guilty plea proceedings and by the state in its brief as "assault with intent to maim with malice " but not malice aforethought. 1 Nowhere in the plea proceedings is the offense charged or to which appellant pled guilty identified as an assault "with malice aforethought". Even in responding to the appellant's point, the state makes no assertion that appellant was charged with a crime which, by the words of the information or indictment, described the mental element peculiar to sec. 559.180 as "malice aforethought", although as noted supra, the words do appear in the body of the indictment but are not on the cover sheet side where the offense charged is identified. As stated, there is no reference to malice aforethought anywhere in the plea-of-guilty proceedings, nor is the concept or element of malice aforethought referred to by definitional terms or alluded to in any respect.
The state argues that "malice" and "malice aforethought" mean the same thing; that malice aforethought is just a redundant way of saying malice and that the terms are fully interchangeable, citing Cook v. State, 511 S.W.2d 877 (Mo.App.1974), where at 881 the court, quoting with approval from a trial court's memorandum opinion, stated:
Cook had been tried and convicted by a jury which conviction was affirmed in State v. Cook, 463 S.W.2d 863 (Mo.1971). There were a number of instructions given to the jury by the court and among those instructions were definitions of malice aforethought. There was also submitted a lesser included offense of assault with intent to do great bodily harm under sec. 559.190, usually referred to by lawyers and judges as assault, etc., "without malice". When all of the instructions were considered together, it becomes very clear that the jury had presented to it instructions covering both types of assault and it indicated by its verdict a finding of guilty of the one involving malice which, in context, obviously meant the crime of assault with malice aforethought.
The quotation set forth supra from Cook is entirely too broad to be at all acceptable and, in its broad sense, was not necessary to the decision reached there. The two terms "malice" and "malice aforethought" are not the same and are not interchangeable. The only difference between an assault offense under sec. 559.180 and sec. 559.190 is that malice aforethought is a necessary element under 559.180 but not under 559.190. The definition of malice aforethought is to do an act "intentionally and without just cause or excuse and after thinking about it beforehand for any length of time." See MAI-CR 6.22. In State v. Mathis, 427 S.W.2d 450 (Mo.1968), the court said at 453-454:
The memorandum opinion and decision of the trial court in the instant case is as follows:
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Benson v. State
...entered by the trial court must, of course, be based on the jury verdict. The movant places principal reliance upon the case of Hardnett v. State, 564 S.W.2d 852 (Mo. banc 1978). It held that the incomplete references to the crime charged affected the knowing and voluntary character of the ......
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State v. Lee, 63296
...13, 20 (1877), and "malice aforethought" means "with malice and premeditation," State v. Curtis, 70 Mo. 594, 598 (1879); see Hardnett v. State, 564 S.W.2d 852, 854 (Mo. banc 1978); State v. Mathis, 427 S.W.2d 450, 454 The principal opinion argues that an instruction on second degree murder ......
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State v. Powell, WD
...of an act " 'intentionally and without just cause or excuse and after thinking about it beforehand for any length of time.' " Hardnett v. State, 564 S.W.2d 852, 854 (Mo.banc 1978). Specific intent is a requisite element of an offense charged under Section 559.180, RSMo 1969 (formerly Sectio......
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Young v. State, WD
...plea was being entered was movant expected a stiff penalty if the cause was tried. Movant urges this case is within the rule in State v. Hardnett, 564 S.W.2d 852 (Mo. banc 1978) which prohibits the interchanging use of the terms malice and malice In Hardnett, our state Supreme Court noted t......