State v. Bryant
| Citation | 375 S.W.2d 122 |
| Decision Date | 10 February 1964 |
| Docket Number | No. 49868,No. 2,49868,2 |
| Parties | STATE of Missouri, Respondent, v. Robert BRYANT, Appellant |
| Court | United States State Supreme Court of Missouri |
Don L. Schlapprizzi, St. Louis, for appelant.
Thomas F. Eagleton, Atty. Gen., Paul N. Chitwood, Asst. Atty. Gen., Jefferson City, for respondent.
BARRETT, Commissioner.
Robert Bryant has been found guilty of an assault with malice, in so far as material here an offense defined in this language '(e)very person who shall, on purpose of malice aforethought, shoot at * * * another with a deadly weapon * * * with intent to kill * * * shall be punished by imprisonment in the penitentiary not less than two years.' V.A.M.S. Sec. 559.180.
These were the facts and circumstances as the jury could and did find them from the state's evidence. Robert and Ruby Bell lived in concubinage in a basement apartment at 3625 Cozzens Street. On May 20, 1961, after spending the morning at her mother's and next door with neighbors, Ruby returned to the apartment in the evening 'Not drunk, I'd just say high.' Robert came in some time later but Ruby does not remember what happened until after she regained consciousness in the hospital. She was admitted to the hospital however with a wound in the back of her head and after surgery has a metal plate in her head. At 11:25 patrolman Hill was The gun was loaded and there was one discharged shell still in the chamber. On the way to the police station, and after he was under arrest, Robert said to Hill 'she was nagging him and he shot her, that he just got tired of the nagging so he shot her.' Hill testified that at the station Robert said 'that he had been drinking a small amount, about a third of a pint of wine, I believe he said it was, and that when he was trying to go to bed that Ruby Bell was nagging him and he got tired of the nagging and he went and got the pistol out of the dresser drawer and walked up about three feet away from her and shot her.' Another policeman testified that Robert Still another police officer testified that
In these circumstances it was appropriate to charge the appellant, adapting the language of the statute, with an assault with malice (V.A.M.S. Sec. 559.180) which also by specific statute (V.A.M.S. Secs. 556.220, 556.230) includes the lesser offense of an assault without malice, V.A.M.S. Sec. 559.190. State v. Finnell (Mo.), 280 S.W.2d 110; State v. Dildine, 330 Mo. 756, 51 S.W.2d 1. And the court hypothesized and submitted to the jury in separate instructions the appellant's guilt under both statutes, thus giving the jury the opportunity if it found the lesser included offense to affix a lesser punishment. The jury however found him guilty of the greater offense of an assault with malice and the evidence supports that finding. State v. Finnell, supra; State v. Bongard, 330 Mo. 805, 51 S.W.2d 84.
Robert denied the statements attributed to him by the officers, instead, 'I says she got shot.' He said that he had 'No intention or reason to use it (the gun) on her.' His version of the shooting was that Ruby came in 'all full of that drink,' talking about killing her mother. He said that he was going to remove his gun from a dresser drawer and put it in a foot locker and this is what he said happened: 'Well, I reached and grabbed and grabbed the gun she started and ran into it or something, all I know the gun went off, I was so nervous, and she fell down and I called to her and when I put her on the bed I saw she was shot, and I tried to call the police but I was just too nervous and I went to that corner for the officer.' Upon this testimony, presumably, the court gave this instruction:
It is now argued on his behalf that because of the phrase 'intent of shooting' rather than the more appropriate 'intent to kill' the instruction is prejudicially erroneous. It is said that the instruction has the effect of charging the jury that the state's only burden was to prove that the 'shooting was done 'with intent to shoot" when the essential element of the greater offense is 'intent to kill.' Upon oral argument appellant's counsel pressed the argument that this particular phraseology made the instruction conflict with instruction one which placed upon the state the burden of proving that he 'made such assault with the intent then and there, on purpose, and of his malice aforethought, feloniously to kill Ruby Bell.' Instruction one, incidentally, concluded by defining the words 'wilfully,' 'on purpose,' 'malice aforethought' and 'feloniously.'
It is not necessary here to define 'm...
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