State v. Mathis, No. 53074

CourtUnited States State Supreme Court of Missouri
Writing for the CourtPER CURIAM
Citation427 S.W.2d 450
PartiesSTATE of Missouri, Respondent, v. Robert MATHIS, Appellant
Docket NumberNo. 2,No. 53074
Decision Date13 May 1968

Page 450

427 S.W.2d 450
STATE of Missouri, Respondent,
v.
Robert MATHIS, Appellant.
No. 53074.
Supreme Court of Missouri, Division No. 2.
May 13, 1968.

Page 451

Norman H. Anderson, Atty. Gen., Jefferson City, Timothy G. Noble, St. Louis, for respondent.

Dempster, Edwards & Robison, by James R. Robison, Sikeston, for appellant.

STOCKARD, Commissioner.

Defendant was found guilty by a jury of a felonious assault with malice aforethought upon his wife with intent to do great bodily harm, and was sentenced to imprisonment for a term of two years. He has appealed from the ensuing judgment.

Defendant first contends that the trial court erred in denying his motion for judgment for acquittal because 'there was no evidence that a dangerous weapon was used or that any great bodily harm was either intended or resulted.'

Carolyn Sue Mathis, the victim of the assault did not testify. At the time of trial she was in the State of Indiana. From the evidence a jury reasonably could find the following facts.

On March 8, 1966, about eight o'clock in the morning Mrs. Clara Wright brought Carolyn Sue and her baby to her home in Sikeston, Missouri. Later that morning Mrs. Wright called Mrs. Bessie Mathis, defendant's mother, and told her that she wanted to get some money from defendant to obtain some milk for the baby. Shortly before noon defendant went to Mrs. Wright's home and told Carolyn Sue that he had come to get their baby, but Carolyn Sue said he could not take him away. At the time defendant was 'staggering' and was 'drunk.' Mrs. Wright told him to leave the baby alone. Defendant said, 'Well, all right.' He then started cursing and 'blackguarding' Carolyn Sue, and Mrs. Wright asked him to leave the house, but he paid no attention to her.

At the time of the assault Carolyn Sue had a broken foot and could not stand on it. Also, her left hand had been amputated. She was sitting on a couch, and defendant walked over to her, still 'cussing,' and hit her knocking her down on the couch. He then knocked her off the couch onto the floor and 'stomped' her twice with his foot 'right across her face and neck.' He started to stomp Carolyn Sue 'a second time,' but Mrs. Wright 'pushed him off of her,' and 'got him back away from her.' Carolyn Sue screamed to call the police, and Mrs. Wright's daughter went to do so. Defendant grabbed the telephone from her hand and placed it back on the receiver. He then returned to where Carolyn Sue was and started cursing her again. Mrs. Wright asked him to leave, and he hit her in the mouth knocking loose two of her teeth. Mrs. Wright's husband then entered the house and took defendant to the porch. When defendant threatened to hit Mr. Wright he knocked defendant out into the yard and told him not to come back. Defendant left after making a threat to 'take care' of Mr. Wright later.

After the assault Carolyn Sue was 'bruised all over the side of her face' and 'her neck and her glands in her neck' were swollen. 'The side of face was practically black where he had scraped her with his foot when he stomped her.' Later that day Carolyn Sue was taken to a doctor and then to the home of Mrs. Wright's daughter.

Section 559.180 (all statutory references are to RSMo 1959, V.A.M.S., unless otherwise stated) provides that 'Every person who shall, on purpose and of malice aforethought, * * * assault or beat another

Page 452

with a deadly weapon, or by any other means or force likely to produce death or great bodily harm, with intent to * * * maim, * * * shall be punished by imprisonment in the penitentiary not less than two years.' We note that while defendant was charged under Section 559.180, the intent alleged in the information and submitted by instruction to the jury was to do great bodily harm, an intent not expressed in that terminology in the statute. This variance was discussed in State v. Gillespie, Mo., 336 S.W.2d 677, and it was held that the allegation of an intent 'to do great bodily harm' was the equivalent of an intent to maim and was sufficient. However, we repeat the comment made in State v. Gillespie that 'We do not * * * approve the practice of departing from statutory wording and entering experimental fields.'

Defendant's contention that the proof is insufficient because 'there was no evidence that a dangerous weapon was used' is without merit. In State v. Gillespie, supra, this court stated that while ordinarily an assault under Section 559.180 involves the use of a weapon, 'the words 'or by any other means or force likely to produce death or great bodily harm' have been used with a definite purpose and meaning,' and it then was held that 'a violent and aggravated assault with the first may constitute a crime under this section.' Defendant relies primarily on State v. Johnson, 318 Mo. 596, 300 S.W. 702, where it was held that the evidence in that case was insufficient to establish an aggravated assault under what was then Section 3262, Rev.St.1919, and is now Section 559.180. The evidence in that case was that the accused was seated in a boat and 'kinda stamped' his wife who was lying...

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9 practice notes
  • State v. Sterling, No. KCD
    • United States
    • Court of Appeal of Missouri (US)
    • March 29, 1976
    ...559.190, supra, and the sentence imposed exceeded the permissible maximum range of punishment. Defendant relies on State v. Mathis, 427 S.W.2d 450 (Mo.1968), and correctly points out that the court therein distinguished 'malice' and 'malice aforethought' and held that 'malice aforethought',......
  • State v. Cook, No. 52924
    • United States
    • United States State Supreme Court of Missouri
    • June 10, 1968
    ...opinion holding that defendant may not complain for this reason seems to me to conflict with our recent decision in State v. Mathis, 427 S.W.2d 450, decided May 13, 1968. In Mathis, defendant was charged, as here, under § 559.180, RSMo 1959, V.A.M.S. The court submitted, under Instruction N......
  • State v. Jackson, No. 56574
    • United States
    • United States State Supreme Court of Missouri
    • June 11, 1973
    ...State v. Thomas, 78 Mo. 327, loc. cit. 339.' 177 S.W. at 309. State v. Venable, supra, was cited with approval in State v. Mathis, 427 S.W.2d 450 (Mo.1968) where the court, in reversing a conviction of felonious assault with malice aforethought, said: 'An essential element is malice aforeth......
  • Helms v. State, No. WD
    • United States
    • Court of Appeal of Missouri (US)
    • October 13, 1981
    ...State v. Marston, 479 S.W.2d 481, 483 (Mo.1972). See Hardnett v. State, 564 S.W.2d 852, 854 (Mo. banc 1978); State v. Mathis, 427 S.W.2d 450, 454 (Mo.1968). The Supreme Court Rule 23.11 (formerly Rule 24.11) states that "no indictment or information shall be invalid, nor shall the tria......
  • Request a trial to view additional results
16 cases
  • State v. Healey, No. 38154
    • United States
    • Missouri Court of Appeals
    • January 3, 1978
    ...to do great bodily harm with malice aforethought. We disagree. The requisite intent may be shown by the circumstances. State v. Mathis, 427 S.W.2d 450, 453(1) (Mo.1968). Severe lacerations can be considered as evidence of intent to do great bodily harm. State v. Patterson, 443 S.W.2d 104, 1......
  • State v. Sterling, No. KCD
    • United States
    • Court of Appeal of Missouri (US)
    • March 29, 1976
    ...559.190, supra, and the sentence imposed exceeded the permissible maximum range of punishment. Defendant relies on State v. Mathis, 427 S.W.2d 450 (Mo.1968), and correctly points out that the court therein distinguished 'malice' and 'malice aforethought' and held that 'malice aforethought',......
  • State v. Cook, No. 52924
    • United States
    • United States State Supreme Court of Missouri
    • June 10, 1968
    ...opinion holding that defendant may not complain for this reason seems to me to conflict with our recent decision in State v. Mathis, 427 S.W.2d 450, decided May 13, 1968. In Mathis, defendant was charged, as here, under § 559.180, RSMo 1959, V.A.M.S. The court submitted, under Instruction N......
  • Williams v. State, No. 47541
    • United States
    • United States Court of Appeals (Georgia)
    • October 23, 1972
    ...Commonealth (1953, Ky.) 256 S.W.2d 520; State v. Born (1968) 280 Minn. 306, 159 N.W.2d 283, 33 A.L.R.3d 919; State v. Mathis (1968, Mo.) 427 S.W.2d 450; Smith v. State (1944) 79 Okl.Cr. 151, 152 P.2d 279; Pettigrew v. State (1967, Okl.Cr.) 430 P.2d 808; and Hay v. State (1968, Okl.Cr.) 447 ......
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