State v. Sevier

• Decision Date: 12 June 1935
• Docket Number: No. 34061.,34061.
• Citation: 83 S.W.2d 581
• Parties: STATE ex rel. DUTTON, Sheriff, v. SEVIER, Judge, et al.
• Court: Missouri Supreme Court

83 S.W.2d 581

STATE ex rel. DUTTON, Sheriff, v. SEVIER, Judge, et al.

No. 34061.

Supreme Court of Missouri, in Banc.

June 12, 1935.

Certiorari proceeding by the State of Missouri, on the relation of C. N. Dutton, Sheriff of Vernon County, in the matter of habeas corpus of Lee Swick, against the Honorable Nike Sevier, Judge of the Circuit Court of Cole County, and another.

Writ of certiorari quashed.

Roy McKittrick, Atty. Gen., and W. O. Sawyers, Asst. Atty. Gen., for relator.

Irwin & Bushman, of Jefferson City, for respondents.

FRANK, Chief Justice.

Certiorari to bring up the record of a habeas corpus proceeding from the circuit court of Cole county. One Lee Swick was charged by information in the circuit court of Vernon county with the crime of assault with intent to kill. On March 19, 1934, he entered a plea of guilty to said charge, and was sentenced to serve a term of twelve years in the penitentiary. After his confinement in the penitentiary under said sentence, he brought habeas corpus in the circuit court of Cole county. After hearing the evidence in the habeas corpus proceeding, the circuit court rendered judgment therein, which, omitting formal parts, reads as follows: "* * * the court having seen and heard the proofs adduced, doth find that the petitioner is unlawfully restrained by the respondents; the court doth further find that petitioner stands charged with a crime and on that account cannot be discharged but is remanded to the sheriff of Vernon County, Missouri, to be dealt with according to law."

The charge to which petitioner entered a plea of guilty is contained in the following information: "Dewey Routh, Prosecuting Attorney within and for Vernon County, and State of Missouri, upon his oath of office informs the Court that on or about the 11th day of March, 1934, in the said County of Vernon and State of Missouri, the Defendants, Lee Swick and Roy Fagor, did then and there wilfully and feloniously, and upon the bodies of one Woody Stonum and one C. N. Dutton, then and there being feloniously, on purpose and wilfully, and with a deadly weapon, to wit, an automatic pistol, loaded with gun powder and leaden balls, which they, the said Lee Swick and Roy Fagor, then and there had and held, did then and there make an assault with the intent they, the said Woody Stonum and C. N. Dutton, then and there to kill, contrary to the form of the Statutes in such cases made and provided, and against the peace and dignity of the State of Missouri."

The crime of assault with intent to kill may be charged to have been committed either with or without malice aforethought. If malice aforethought is charged, then upon conviction or a plea of guilty to the charge, section 4014, R. S. 1929 (Mo. St. Ann. § 4014, p. 2817), fixes the punishment at imprisonment in the penitentiary not less than two years. That section of the statute reads 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. (R. S. 1919, § 3262.)"

On the other hand, if malice aforethought is not charged, then upon conviction or a plea of guilty to the charge, section 4015, R. S. 1929 (Mo. St. Ann. § 4015, p. 2821), fixes the punishment at imprisonment in the penitentiary not exceeding five years. That section of the statute reads as follows: "Every person who shall be convicted of an assault with intent to kill, or to do great bodily harm, or to commit any robbery, rape, burglary, manslaughter or other felony, the punishment for which assault is not hereinbefore prescribed, shall be punished by imprisonment in the penitentiary not exceeding five years, or in the county jail not less than six months, or by a fine not less than one hundred dollars and imprisonment in the county jail not less than three months, or by a fine of not less than one hundred dollars. (R. S. 1919, § 3263.)"

We have...