State v. Hagerman, No. 42599

CourtUnited States State Supreme Court of Missouri
Writing for the CourtPER CURIAM
Citation244 S.W.2d 49
PartiesSTATE v. HAGERMAN
Docket NumberNo. 2,No. 42599
Decision Date12 November 1951

Page 49

244 S.W.2d 49
STATE

v.
HAGERMAN.
No. 42599.
Supreme Court of Missouri, Division No. 2.
Nov. 12, 1951.
Motion for Rehearing or to Transfer to Court en Banc Denied
Dec. 10, 1951.

Page 51

Harold L. Hagerman, Pro se.

J. E. Taylor, Atty. Gen., R. Wilson Barrow, Asst. Atty. Gen., for respondent.

BARRETT, Commissioner.

Harold Lee Hagerman has been found guilty of felonious assault (under the malice section of the statutes, 559.180) with intent to rob with a pistol, and of having served two prior felony convictions in other jurisdictions. He was sentenced to life imprisonment and upon this appeal urges that there was no evidence of his guilt of an assault with intent to rob with malice or of his intent to rob without malice under Section 559.190, and that the court erred in submitting his guilt under these two sections to the jury, and in refusing to instruct the jury upon the subject of common assault. It is urged that the malice section was intended to cover assaults of an aggravated or vicious nature and that there was no proof of malice because there was no threat or gesture from which it was a fair inference that the gun was to be used as a bludgeon and no evidence that the gun was a deadly weapon because there was no proof that is was loaded. As to both sections it is urged that there was no proof of an intent to kill or to do great bodily harm or of the victim's fear of death or great bodily harm. As to the merits of the conviction it is also urged that the court erred in admitting in evidence the records of the Arkansas State Penitentiary and that the evidence of his prior convictions was insufficient to establish his guilt under the Habitual Criminal Act, Mo.R.S.1949, Secs. 556.280, 556.290.

The appellant in support of his position that an intent to kill or do great bodily harm is an essential element of the offense under Section 559.180 cites the instances of shootings, stabbings or beatings with 'knucks' or clubs. State v. Henderson, 356 Mo. 1072, 204 S.W.2d 774; State v. Johnson, 318 Mo. 596, 300 S.W. 702. These cases are in point under the charge under consideration only in so far as they deal with the essential elements of the offense under either statute and particularly with the element of malice under Section 559.180. State v. Cooper, 358 Mo. 269, 214 S.W.2d 19; State v. Watson, 356 Mo. 590, 202 S.W.2d 784. Section 559.190 was intended to cover a less aggravated assault than Section 559.180 relating to an assault with a deadly weapon with malice or by other means likely to produce death or great bodily harm. State v. Null, 355 Mo. 1034,

Page 52

199 S.W.2d 639. As a general rule these statutes are employed in the instances of actual shootings, or of stabbings or of beatings, but in addition to these instances these statutes also cover other offenses in which there is an intentional assault or an assault with malice with a deadly weapon. It is not the common practice to employ these statutes in the instances of robberies or of attempted robberies but they may be so employed if all the essential elements of the offense are present. State v. Bateman, 196 Mo. 35, 95 S.W. 413. Under these statutes the actual shooting at or stabbing another is one offense while an assault with a deadly weapon may constitute another offense. State v. Harris, 209 Mo. 423, 108 S.W. 28. The malice required as to all offenses under the statute is not necessarily malice in fact in the sense of actual spite or ill will against the person assaulted as often typified in the shooting or stabbing cases, but rather as the statute says, 'malice aforethought,' which means malice with premeditation and design, that is an unlawful act intentionally done and determined upon before it was executed. State v. Venable, Mo.Sup., 177 S.W. 308; State v. Martin, 342 Mo. 1089, 119 S.W.2d 298, 301. Excising from the statute the language peculiarly applicable to shootings, stabbings and beatings, that part of the statute specifically applicable to the offense with which this appellant is charged would read: 'Every person who shall, on purpose and of malice aforethought * * * assault * * * another with a deadly weapon * * * with intent to * * * rob such person, or in the attempt to commit any burglary or other felony * * * shall be punished by imprisonment in the penitentiary not less than two years.'

In substance the charge was that Hagerman 'unlawfully, feloniously, wilfully, on purpose and of his malice aforethought in and upon one Owen Fox, an employee of the Ace Cab Company * * * did make an assault' with a loaded pistol which he then and there wilfully and of his malice aforethought pointed 'at, against and upon' Fox with the felonious intent to rob. Briefly the state's evidence was that about nine o'clock on the evening of October 21, 1948 Fox's cab was parked near the Grand Central Bar at Sixth and Market Streets. Another cab driver informed Fox that he had some passengers in his cab. Fox went to the cab and there was a man and a woman in the back seat. Fox identified the man as the appellant, Hagerman. Hagerman said that he wanted to go to Grand and Olive. Fox stopped at Seventh and Market for a traffic light and before the light changed 'he told me to go on, and I don't remember just exactly what I said to him, the exact wording that is, and he said, 'Get going, Bud.' And at that time I didn't know what he meant, and then he said, 'Give me your money;' and I said, 'I have to wait for this light.' And he said, 'I said get going." Fox says that the light then changed and as he started forward he glanced back and Hagerman was pointing a pistol at his neck. But instead of going forward Fox 'blinked the lights' in signal to another cab driver and began stopping at the curb...

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13 practice notes
  • State v. Murray, No. 44258
    • United States
    • United States State Supreme Court of Missouri
    • 11 Julio 1955
    ...324 Mo. 205, 22 S.W.2d 809; State v. London, Mo., 84 S.W.2d 915; State v. Tyler, 349 Mo. 167, 159 S.W.2d 777; State v. Hagerman, Mo., 244 S.W.2d 49. Even if the evidence be considered as prejudicial in fact to defendant on the robbery charge, it is nevertheless admissible, and it cannot be ......
  • State v. Gilliam, No. 48437
    • United States
    • United States State Supreme Court of Missouri
    • 13 Noviembre 1961
    ...490.220, and an objection to their competency that they were not the best evidence but copies is without merit. State v. Hagerman, Mo., 244 S.W.2d 49, 53[10-12]; State v. Ash, Mo., 296 S.W.2d 41, It also follows that the assessment of defendant's punishment under Laws 1959, S.B. 117 (now Se......
  • State v. Gerberding, No. 43766
    • United States
    • United States State Supreme Court of Missouri
    • 8 Noviembre 1954
    ...for the jury and their finding is supported by substantial evidence. State v. Foster, Mo., 249 S.W.2d 371; State v. Hagerman, Mo., 244 S.W.2d 49; State v. Eaves, 362 Mo. 670, 243 S.W.2d Upon this appeal twelve of the appellant's thirty assignments in his motion for a new trial relate to the......
  • State v. Crocker, No. 44631
    • United States
    • United States State Supreme Court of Missouri
    • 14 Febrero 1955
    ...not state what letters or what issues and testimony were meant. State v. Tillet, Mo.Sup., 233 S.W.2d 690; State v. Hagerman, Mo.Sup., 244 S.W.2d 49; State v. Johnson, 362 Mo. 833, 215 S.W.2d 43; State v. Rose, Mo.Sup., 249 S.W.2d 324; State v. McCormack, Mo.Sup., 263 S.W.2d 344. The record ......
  • Request a trial to view additional results
13 cases
  • State v. Murray, No. 44258
    • United States
    • United States State Supreme Court of Missouri
    • 11 Julio 1955
    ...324 Mo. 205, 22 S.W.2d 809; State v. London, Mo., 84 S.W.2d 915; State v. Tyler, 349 Mo. 167, 159 S.W.2d 777; State v. Hagerman, Mo., 244 S.W.2d 49. Even if the evidence be considered as prejudicial in fact to defendant on the robbery charge, it is nevertheless admissible, and it cannot be ......
  • State v. Gilliam, No. 48437
    • United States
    • United States State Supreme Court of Missouri
    • 13 Noviembre 1961
    ...490.220, and an objection to their competency that they were not the best evidence but copies is without merit. State v. Hagerman, Mo., 244 S.W.2d 49, 53[10-12]; State v. Ash, Mo., 296 S.W.2d 41, It also follows that the assessment of defendant's punishment under Laws 1959, S.B. 117 (now Se......
  • State v. Gerberding, No. 43766
    • United States
    • United States State Supreme Court of Missouri
    • 8 Noviembre 1954
    ...for the jury and their finding is supported by substantial evidence. State v. Foster, Mo., 249 S.W.2d 371; State v. Hagerman, Mo., 244 S.W.2d 49; State v. Eaves, 362 Mo. 670, 243 S.W.2d Upon this appeal twelve of the appellant's thirty assignments in his motion for a new trial relate to the......
  • State v. Crocker, No. 44631
    • United States
    • United States State Supreme Court of Missouri
    • 14 Febrero 1955
    ...not state what letters or what issues and testimony were meant. State v. Tillet, Mo.Sup., 233 S.W.2d 690; State v. Hagerman, Mo.Sup., 244 S.W.2d 49; State v. Johnson, 362 Mo. 833, 215 S.W.2d 43; State v. Rose, Mo.Sup., 249 S.W.2d 324; State v. McCormack, Mo.Sup., 263 S.W.2d 344. The record ......
  • Request a trial to view additional results

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