State v. Groves, 37876.
| Decision Date | 13 March 1942 |
| Docket Number | No. 37876.,37876. |
| Citation | 159 S.W.2d 773 |
| Parties | STATE v. GROVES. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Phelps County; William Edward Barton, Judge.
Della Groves was convicted of assault with intent to kill without malice, and she appeals.
Affirmed.
J. Ellis Walker, of Rolla, and Ralph V. Wilson, of St. Louis, for appellants.
Roy McKittrick, Atty. Gen., and Ernest Hubbell, Asst. Atty. Gen., for respondent.
The appellant was convicted of assault with intent to kill without malice and her punishment fixed at a fine of $100 in the circuit court of Phelps County, Missouri. The appellant has filed no bill of exceptions, therefore only the record proper is before us for review.
Appellant in her brief first contends that the record fails to show the jury was sworn to try the cause. There is no merit in this contention because the record affirmatively shows that the jury was "duly qualified, impaneled and sworn to try the cause." (Italics ours.)
Appellant next contends that the transcript in this case, as furnished by the circuit clerk of Phelps County, fails to show that she was present at the rendition of the judgment, as required by section 4100, R.S.Mo. 1939. While the case was pending on appeal in this court, the record was amended, on the basis of the judge's minutes, nunc pro tunc to show allocution and sentence, and the record was brought here by certiorari. The amended record affirmatively shows that appellant was personally present when the judgment was rendered. The record states "* * * and comes also the defendant in person and by her attorney, J. Ellis Walker." It then shows she was granted allocution and then duly sentenced.
The information is drawn under section 4408, R.S.Mo. 1939, and charges an assault with a deadly weapon. It follows the language of the statute and is therefore sufficient. State v. Barton, 142 Mo. 450, 44 S.W. 239; State v. Pool, 314 Mo. 673, 285 S.W. 726.
The jury's verdict found the appellant guilty of "assault with intent to kill but without malice." This conviction was under section 4409, R.S.Mo. 1939.
"Under the charge of an assault to kill with malice aforethought, appellant could be properly convicted of an assault with intent to kill or do great bodily harm without malice, which is a lesser crime of the same nature." State v. Meinhardt, Mo. Sup., 82 S.W.2d 890, loc. cit. 893. The punishment is the minimum provided under section 4409, supra.
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State v. Gillespie
...allegations of the information follow the statute, and this is ordinarily sufficient. State v. Brown, Mo.App., 149 S.W.2d 414; State v. Groves, Mo., 159 S.W.2d 773. It alleges an assault on a specified person, the existence of malice, the means used, and the intent. The allegation of time i......
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State v. Finnell
...follows the language of the statute, section 559.180 RSMo 1949, V.A.M.S., and is sufficient in form and substance. State v. Groves, Mo.Sup., 159 S.W.2d 773, 774. The verdict is in proper form, is responsive to the issues, and the punishment therein fixed is within the limits prescribed by l......
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