State v. Keith
| Decision Date | 10 September 1951 |
| Docket Number | No. 42489,No. 2,42489,2 |
| Parties | STATE v. KEITH |
| Court | Missouri Supreme Court |
J. Arthur Francis, Ironton, for appellant.
J. E. Taylor, Atty. Gen., William A. Wear, Asst. Atty. Gen., for respondent.
To review her conviction upon a trial held in the Circuit Court of Iron County, Sylvia Keith applied for and was granted an appeal to the Springfield Court of Appeals. That court, in an opinion reported in 235 S.W.2d 1023, found the case to be one of felony, and hence not within its jurisdiction, art. V, Sec. 2, Constitution of Mo.1945, and so transferred the appeal to this court in conformity with art. V, Sec. 11 of the Constitution. The case was submitted (as here) upon the record proper, no bill of exceptions having been filed. The opinion sets out the charging portion of the information and the verdict, to which reference is made in lieu of repeating the matter here.
The Court of Appeals determined the jurisdictional question by examining into, and passing upon the sufficiency of the information to charge an offense under Sec. 4408, R.S. '39 and Mo.R.S.A., R.S.Mo.1949, Sec. 559.180, and upon a construction of the verdict; held, that the information contained 'every necessary element required under Section 4408, supra, to support the charge of assault with intent to kill', and that the verdict was good as a general verdict finding defendant 'guilty as charged.' (All statutory references are to R.S. '39, and corresponding section numbers of Mo.R.S.A., unless otherwise noted.) The ultimate conclusion that the conviction was for a felony was well founded and correct, but we disapprove and overrule the holding that the information was sufficient to charge the felony defined by Sec. 4408. Under that section 'malice aforethought' is an essential element. State v. Meinhardt, Mo.Sup., 82 S.W.2d 890, 892. The information under scrutiny does not charge the assault to have been so committed, and for that reason does not charge an offense under that section. State ex rel. Dutton v. Sevier, 336 Mo. 1236, 1239, 83 S.W.2d 581, 582. The similarity between this section and the next succeeding one, Sec. 4409, R.S.Mo.1949, Sec. 559.190, which also defines a felony, but permits the infliction of less severe punishment, is pointed out in the cases just cited. As there noted, the gist of the crimes thus defined is assault: the one with malice aforethought, and the other without such malice. We hold the...
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