Johnson v. State, 57487
| Decision Date | 09 October 1972 |
| Docket Number | No. 1,No. 57487,57487,1 |
| Citation | 485 S.W.2d 73 |
| Parties | Earsel Larry JOHNSON, Movant-Appellant, v. STATE of Missouri, Respondent |
| Court | Missouri Supreme Court |
Thomas J. Downey, Jefferson City, for appellant.
John C. Danforth, Atty. Gen., G. Michael O'Neal Asst. Atty. Gen., Jefferson City, for respondent.
This is an appeal from the order and judgment overruling movant's motion filed under S.Ct. Rule 27.26, V.A.M.R., to set aside his conviction for felonious assault, with malice aforethought, under § 559.180. 1 (Movant is hereinafter referred to as defendant.) The appeal having been taken to this court prior to January 1, 1972, the effective date of new Article V of the Constitution, we have jurisdiction pursuant to then Art. V, § 3 of the Missouri Constitution, V.A.M.S.
There was evidence in the original trial indicating that defendant, without provocation, inflicted upon one Nickell two knife wounds in the chest, one on his head, and that he also stabbed him in the back. Upon trial the jury assessed defendant's punishment at five years' imprisonment. Upon appeal this court affirmed. State v. Johnson, Mo.Sup., 461 S.W.2d 724.
The principal contention on this appeal is that the court erred in overruling the motion to vacate because the State filed an amended information which charged a different offense than that alleged in the original information.
The statute in question, § 559.180, provides, in part, as follows:
'Every person who shall, on purpose and of malice aforethought, shoot at or stab another, or assault or beat another with a deadly weapon, or by any other means or force likely to produce death or great bodily harm, with intent to kill, maim * * * shall be punished by imprisonment in the penitentiary not less than two years.'
The original information charged that defendant 'did then and there wilfully, intentionally, premeditatedly, feloniously and with malice aforethought commit an assault on the body and person of one Clifford Nickell by then and there striking and stabbing him with a knife and in such manner as to do great bodily harm * * *.' Thereafter, an amended information was filed which alleged that defendant, 'on purpose and of his malice aforethought, did make an assault upon Clifford Nickell with a certain weapon, to wit: a knife, a means likely to produce great bodily harm, and did then and there strike, stab and wound the said Clifford Nickell with the intent then and there to do great bodily harm to Clifford Nickell * * *.' We note that no objection was made to the filing of the amended information, and that it was not attacked in any way in the trial court or on appeal.
At the conclusion of the hearing in the trial court the court made the following findings:
Defendant here concedes that the amended information sufficiently charged the offense of assault with malice under § 559.180 of which he was convicted. He states, however, that his conviction should be set aside because the original information failed to charge an offense under that section and hence the amended information charged a different offense in violation of S.Ct. Rule 24.02. His reason for contending that the original information failed to charge the offense in question was that it did not include the words 'with intent' immediately preceding the words 'to do great bodily harm.' Because of that omission he says the offense charged was common assault, or some other crime of assault below that proscribed in § 559.180.
We have concluded that defendant's contention is without merit. While we think the words 'wilfully' and 'intentionally' in the original information might well be considered as applying to the entire allegation heretofore quoted, we do not base our decision on that ground. It is our view that since the...
To continue reading
Request your trial
-
State v. Wilkerson
...to be charged in the original information and did not operate to prejudice the substantial rights of the defendant. See Johnson v. State, 485 S.W.2d 73, 75 (Mo.1972); State v. Gardner, 522 S.W.2d 323, 324 (Mo.App.1975). Further, the precedents make it reasonably clear that, under the law in......
-
City of Kansas City v. Harbin, KCD
...Kansas City attempts to argue that defendant has not shown that he was prejudiced by the amendment. However, Johnson v. State, 485 S.W.2d 73, 75 (Mo.1972), and other cases make it clear that where an amendment charges a new offense, the defendant is prejudiced. The information was fatally d......
-
State ex rel. Lodwick v. Cottey
...effective at least for the purpose of tolling limitations. See also State v. Morris, 470 S.W.2d 467 (Mo.1971) and Johnson v. State, 485 S.W.2d 73 (Mo.1972), more fully discussed under section V of this The second contention made by Lodwick on this branch of the case is that Judge Romjue's o......
-
State v. Jackson
...if no additional or different offense is charged and if the substantial rights of the defendant are not prejudiced. Johnson v. State, 485 S.W.2d 73, 75 (Mo. 1972); State v. Jarrett, 481 S.W.2d 504, 507 (Mo.1972); State v. Morris, 470 S.W.2d 467, 469 (Mo.1971); State v. Lafferty, 416 S.W.2d ......