State v. Hardy

• Decision Date: 09 January 1950
• Docket Number: No. 2,No. 41478,41478,2
• Parties: STATE v. HARDY
• Court: Missouri Supreme Court

Page 693

225 S.W.2d 693

359 Mo. 1169

STATE v. HARDY.

No. 41478.

Supreme Court of Missouri, Division No. 2.

Jan. 9, 1950.

C. A. Powell, Dexter, for appellant.

J. E. Taylor, Attorney General, David Connelly, Assistant Attorney General, for respondent.

LEEDY, Judge.

This is an appeal from a judgment of the Stoddard Circuit Court convicting appellant Stoddard Circuit Court convicting appellant (hereinafter referred to as defendant) of 'assault with malice aforethought,' and sentencing him to five years' imprisonment in the state penitentiary. Defendant waived a jury, and trial was to the court, as authorized by the new matter appearing as the last clause of Sec. 22, Art. I, Const. of Mo., 1945, Mo.R.S.A. This appears to be the first appeal to reach this court in any criminal case tried under this new, constitutionally sanctioned procedure.

Joe Tucker, the prosecuting witness, operated a cafe about a mile south of Bloomfied, in Stoddard County. The defendant, an unmarried man about 25 years of age, lived with his parents on a farm 3 1/2 miles north of Bloomfield. Some six months prior to the difficulty in question, the prosecuting witness had ejected the defendant from his cafe because of his drunken condition. This is the only time he had seen the defendant. Defendant cursed the prosecuting witness and said, 'I will get you for this.' About 8:15 P.M., on April 24, 1948, the defendant shot the prosecuting witness in the back as the latter was leaning over a bottle cooler in his cafe with his back to the front door. The weapon used was a .22 rifle, which was fired from a position at or near the front door. It appears that Tucker was not even aware of defendant's presence. The bullet, a .22 long, struck Tucker in the upper part of the back just inside the shoulder blade and traveled up through his back and into his neck where it lodged within an inch of the jugular vein. It had not been removed at the time of trial because not deemed medically advisable. Upon the trial he did not deny the assault and his sole defense was that of insanity. He did not take the stand.

Defendant was apprehended the same night the shooting occurred while walking down the county road in the vicinity of his home. He was armed with the rifle with which he shot Tucker, and drew it on one of the arresting officers, a highway patrolman, who, in turn, fired his revolver at the ground and required the defendant to drop the rifle. In his statement to the patrolman and sheriff made following his arrest, he detailed the preparations he had made to shoot Tucker. He stated that he had it in for Joe Tucker for putting him out of his place, and that he had been over to the cafe three or four times to shoot Tucker, but had not done so because things weren't right. He further stated that on the occasion in question he had bought some wine, and went out in field near Tucker's cafe and reconnoitered the premises several times, on one of which trips he saw a woman employee of the cafe (in which he was corroborated by the woman), and he hid the gun from her by holding it behind himself; at another time there was a car parked in front of the cafe; finally, when there was no one in view, he went to the front door, opened the screen and aimed at Joe Tucker, who was standing by the bottle cooler, and just as he started to shoot, Tucker bent over. The officers found the wine bottle at the field mentioned by the defendant. It was developed on cross-examination of the officers that the defendant, in the same conversation, stated that spirits had caused him to do the shooting. The officers were of the opinion that he was not drunk, but they were not asked to express an opinion as to his sanity. It appeared that defendant's father had removed the firing pin from the rifle, and defendant stated to the officers that he had made such a pin on the day of the shooting. Other pertinent facts will be stated in connection with the points to which they relate.

The court made and entered of record the following finding: 'The court finds the defendant, Curtis Hardy, guilty of assault with malice aforethought as charged in the information and assess his punishment at imprisonment in the penitentiary for a period of five (5) years.' 'This verdict necessarily was under Sec. 4408, in view of the finding of malice aforethought.' State v. Henderson, 356 Mo. 1072, 1077, 204 S.W.2d 774, 778.

Omitting formal averments (and with challenged phraseology italicized by us for more ready reference), the information reads as follows: 'That on the 24th day of April, 1948, at and in the County of Stoddard, and State of Missouri, the defendant Curtis Hardy, then and there being, did then and there willfully, unlawfully, feloniously, on purpose and of his malice aforethought, in and upon one Joe D. Tucker, then and there being, with a certain dangerous and deadly weapon, to-wit, a rifle loaded with gunpowder and leaden ball, which he, the said Curtis Hardy, in his hands then and there had and held, did make an assault, with the felonious intent then and there, him, the said Joe D. Tucker, on purpose, and of his malice aforethought, feloniously to kill or to do him, the said Joe D. Tucker, some great personal injury or bodily harm against the peace and dignity of the State.'

The information was based on Sec. 4408, R.S. '39 and Mo.R.S.A., ¹ reading 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, ravish or rob such person, or in the attempt to commit any burglary or other felony, or in resisting the execution of legal process, shall be punished by imprisonment in the penitentiary not less than two years.'

Defendant in this court, and for the first time, attacks the information as 'defective' under Sec. 4408. At the outset it may be said that the use of the form of information here employed is not to be commended. The only information using the challenged phraseology we have been able to discover is that in State v. Dildine, 330 Mo. 756, 51 S.W.2d 1, 2, where the assault as charged to have been committed with the intent 'to kill or to do him the said * * * some great personal injury or bodily harm,' just as in the case at bar. The information was approved. It was held to charge an offense under what is now Sec. 4408, although the conviction was for an included lesser offense under what is now Sec. 4409. It is true that the attack there considered was not upon the ground here urged. However, it should be noted that that information failed to allege that the assault was committed with malice aforethought. On account of such failure, the information did not charge an offense under what is now Sec. 4408. State ex rel. Dutton v. Sevier, 336 Mo. 1236, 83 S.W.2d 581. To avoid possible confusion, it should be pointed out that the Dildine case has been overruled in this one particular, and, to that extent, is not to be any longer followed.

Defendant's first complaint is that the information charges, disjunctively, that the intent was 'to kill or to do some great personal injury or bodily harm.' He invokes the rule that where a statute on which an information is founded enumerates the offenses, or the intent necessary to constitute such offenses, disjunctively, the information must charge such acts and intent conjunctively, where the acts are not repugnant, citing State v. Currier and Moore, 225 Mo. 642, 125 S.W. 461. This complaint comes too late under the rule that infirmities of form in an information are generally cured by verdict, and the express pronouncement of this court that 'A pleading in the alternative is a mere defect of form, and there is no reason why it should not be held good after verdict.' State v. Bostic, Mo.Sup., 285 S.W. 432, 433. The second ground of attack is that it 'is not a violation of Sec. 4408 to make an assault with intent 'to do some great personal injury or bodily harm.'' These same objections are urged against a given declaration of law, No. 5, which authorized a conviction of felonious assault with malice aforethought under Sec. 4408 if the court found and believed from the evidence (among other things) that defendant's intent in making the assault hypothesized was 'to kill or to do him, the said Joe D. Tucker, some great bodily harm.'

It is true that Sec. 4408, in specifying the intent, does not use the words we have italicized, but it does employ the word 'maim,' among others. Where intent is an element of the offense, it should be alleged substantially in the words of the statute. 6 C.J.S., Assault and Battery, Sec. 106. This court, in sustaining the validity of an information under Sec. 4408 which charged the intent of the accused in committing the assault to be 'to maim and commit great bodily harm,' said this: 'The addition of the words 'and commit great bodily harm,' following the word 'maim' in the information, is also a subject of complaint. In what respect the appellant is injured by this addition we are not told. The added words are the equivalents of an averment of an intent on the part of the appellant to inflict an injury permanent in its nature or more serious than an ordinary battery. * * * In short, they mean nothing more than is expressed by the word 'maim,' * * *.' State v. Foster, 281 Mo. 618, 624, 220 S.W. 958, 959. (Italics the present writer's.) It follows, therefore, that the allegation of an intent 'to do great personal injury or bodily harm' is the equivalent of an allegation of an intent to maim, and so within the terms of the statute.

In State v. Meinhardt, Mo.Sup., 82 S.W.2d 890, 893, this court construed the intent provisions of a cognate section (Sec. 4409, felonious assault without malice aforethought)....