Hudson v. State, 42151
| Decision Date | 23 December 1980 |
| Docket Number | No. 42151,42151 |
| Citation | 612 S.W.2d 375 |
| Parties | Rudolph HUDSON, Movant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Kenneth R. Singer, St. Louis, for movant.
John Ashcroft, Atty. Gen., Paul Robert Otto, Lew A. Kollias, Asst. Attys. Gen., Jefferson City, George Peach, Circuit Atty., St. Louis, for respondent.
Movant Rudolph Hudson appeals from a denial of his motion for post-conviction relief under Rule 27.26. In this motion he sought to vacate the judgment of conviction entered against him for attempted robbery with a dangerous and deadly weapon under which he received a sentence of fifteen years and a conviction of assault with intent to kill with malice aforethought under which he received a sentence of forty years. A direct appeal in that case was considered in State v. Hudson, 508 S.W.2d 707 (Mo.App.1974).
On this appeal movant charges the trial court with error in denying the motion for post-conviction relief because it imposed a penalty in excess of that authorized by law on the conviction of assault with intent to kill. Appellant contends that he was found guilty of assault with intent to kill with malice, a violation of § 559.190, RSMo 1969, and not assault with intent to kill with malice aforethought, a violation of § 559.180, RSMo 1969. 1 Hence he argues he should have been sentenced to not more than five years which was the maximum punishment for assault under § 559.190 and the judgment and sentence should be set aside because it is clearly excessive and erroneous.
Movant was tried under an indictment that alleges he "on the 5th day of November 1971, feloniously, willfully, on purpose, and of his malice aforethought did make an assault upon PERCY WATERS, with a certain weapon, to-wit: a pistol, a means likely to produce death or great bodily harm, and did then and there shoot at, against and upon the said PERCY WATERS, with the intent then and there to kill the said PERCY WATERS: contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the State." To this charge defendant pleaded not guilty. The trial was then held to a jury and at the conclusion of the evidence, the following instruction was given by the court with reference to this charge "WITH REFERENCE TO COUNT II: The Court instructs the jury that if you find and believe from the evidence, beyond a reasonable doubt, that on the 5th day of November 1971, at the City of St. Louis, State of Missouri, the defendant Rudolph Hudson, feloniously and willfully, on purpose and of his malice aforethought, did make an assault upon one Percy Waters, with a certain weapon, to-wit: a pistol, a means likely to produce death or great bodily harm, and did then and there shoot at, against and upon the said Percy Waters, with the intent then and there to kill the said Percy Waters, then you will find the defendant guilty of Assault With Intent to Kill With Malice; and if you do not find, beyond a reasonable doubt, each and all of the facts submitted to you for your finding as set forth in this instruction, then you will find the defendant not guilty and acquit him.
After deliberation, the jury returned this verdict: "We, the jury in the above entitled cause, find the defendant guilty of Assault With Intent To Kill With Malice as charged."
Movant maintains the instruction and the verdict of the jury were so worded that defendant's conviction could only stand as to the crime of assault with intent to kill with malice rather than with malice aforethought. An examination of the indictment, heretofore set out, discloses that he was charged with assault with intent to kill with malice aforethought. The instruction requires that the jury find that movant on November 5, 1971, "of his malice aforethought" did make an assault. It is true that the instruction hereinabove set out refers to the crime as assault with intent to kill with malice. But the instruction hypothesizes and requires a finding of assault with intent to kill with malice aforethought. The term "aforethought" is defined in the instruction and there was no instruction with regard to the crime of assault with intent to kill with malice that could cause the jury any confusion. The verdict furthermore finds movant guilty of assault with intent to kill with malice "as charged." He was charged with assault with intent to kill with malice aforethought.
Movant relies on the opinion in Hardnett v. Stone, 564 S.W.2d 852 (Mo. banc 1978). There a guilty plea to an indictment charged assault with intent to maim with malice. The judgment stated that movant pleaded guilty to assault with intent to maim with malice. Here, however, as in Williams v. State, 608 S.W.2d 469 (Mo.App.1980), movant was...
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