State v. Hughes

• Decision Date: 10 January 1978
• Docket Number: No. 38454,38454
• Citation: State v. Hughes, 562 S.W.2d 140 (Mo. App. 1978)
• Parties: STATE of Missouri, Respondent, v. Oscar Lee HUGHES, Appellant. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 140

562 S.W.2d 140

STATE of Missouri, Respondent, v.Oscar Lee HUGHES, Appellant.

No. 38454.

Missouri Court of Appeals, St. Louis District, Division One.

Jan. 10, 1978.

Motion for Rehearing and/or Transfer Denied Feb. 14, 1978.

John D. Ashcroft, Atty. Gen., Paul Robert Otto, John Morris, Asst. Attys.Gen., Jefferson City, George A. Peach, Circuit Atty., James F. Booth, Asst. Circuit Atty., St. Louis, for respondent.

John J. Allan, St. Louis, for appellant.

CLEMENS, Presiding Judge.

By indictment the state charged defendantOscar Hughes with felonious assault.The victim was Rodney Crenshaw, the two-year-old son of defendant's paramour, Rose Crenshaw.After verdict the trial court sentenced defendant to seven years' imprisonment and he has appealed, raising two issues.

Defendant first contends he was improperly tried for felonious assault instead of child mistreatment, a graded felony.Further defendant contends the trial court erroneously refused to admit the grand jury testimony of an unavailable medical witness.These in turn after summarizing the evidence.

Defendant was home alone with Rodney in their second-floor apartment.He said he heard a bumping noise and found Rodney lying unconscious at the foot of the stairway.At Children's Hospital medical examination showed Rodney was in shock and suffering from recent thermal burns on his face, ears and abdomen, puncture wounds on his back and multiple bruises.Prompt abdominal surgery revealed internal hemorrhaging and a lacerated pancreas, part of which was removed.Dr. Jessie Ternberg, Rodney's pediatric surgeon, testified his injuries could not have been sustained by falling down steps, as contended by defendant.

Defendant does not challenge the sufficiency of the evidence, but contends it only supported conviction under the child-mistreatment statute, § 559.340, VAMS, and that statute was exclusive of the felonious assault statute, § 559.180, VAMS.We disagree.

In State v. Koen, 468 S.W.2d 625(Mo.1971), defendants were charged with felonious assault.The victim was a police officer and defendants contended it was error to convict them of felonious assault instead of the statutory offense of striking a police officer.The supreme court held: "It is often true that a single act will constitute an offense under two different statutes.In that situation it is generally held that the State may elect to prosecute for either offense.(Citations omitted.)We rule that the facts shown in this case would have supported a conviction for either assault or striking a police officer, and that the State could elect to...