State v. Wadlow, 54403

• Decision Date: 09 February 1970
• Docket Number: No. 54403,No. 1,54403,1
• Citation: 450 S.W.2d 200
• Parties: STATE of Missouri, Respondent, v. Dovle Cecil WADLOW, Appellant
• Court: Missouri Supreme Court

Page 200

450 S.W.2d 200

STATE of Missouri, Respondent, v. Dovle Cecil WADLOW, Appellant.

No. 54403.

Supreme Court of Missouri, Division No. 1.

Feb. 9, 1970.

John C. Danforth, Atty. Gen., Thomas L. Patten, Asst. Atty. Gen., Jefferson City, for respondent.

Ellsworth Cundiff, Jr., St. Charles, for appellant.

HOLMAN, Judge.

Defendant was charged with the offense of assault with intent to kill with malice aforethought under the provisions of § 559.180. ¹ He was convicted of the lesser offense of felonious assault, without malice, and his punishment fixed by the jury at two years' imprisonment. See § 559.190. Defendant has duly appealed. We reverse and remand.

The point we consider dispositive of this appeal relates to the argument of counsel and therefore a brief statement of facts will suffice.

Defendant and his former wife were divorced. A daughter, Mary, 16 years old, lived with her mother. Defendant, who had remarried, had the custody of a son, Kenny, age 14. At the time of the events in question Mary was planning to marry Albert Aarons, a son of the prosecuting witness, Millie Missey. They were married on December 31, 1967.

On the night of November 23, 1967, defendant and his wife drove to various places looking for Kenny. Kenny was in a car with Mary and Albert. The cars met on the highway about three miles north of St. Charles. Both cars were stopped and defendant and Mary had a conversation concerning whether Mary had invited her father to her wedding. There was evidence to the effect that defendant, who had been drinking, became quite angry when Mary said that his mother (her grandmother) was a liar; that she got back into Albert's car and defendant tried to get to her. Millie came by in her car, saw that there was trouble, and stopped. She got between defendant and Albert. There was testimony that defendant took out his knife and stabbed Millie in the side. Defendant and his witnesses stated that he never had a knife in his hand but that Millie had one in her hand.

The prosecuting attorney, in his opening argument, did not make any reference to the subject of punishment. The defendant's attorney in his argument did not refer to that subject. Just prior to the beginning of the closing argument of the prosecution defendant's counsel made the following request out of the hearing of the jury: 'Mr. Gundiff: Your Honor, in the prosecution's opening statement (argument) they made no reference to the amount of time that they were going to ask the jury or the severity of punishment. Consequently I had no opportunity to rebut this argument. I feel it is unfair, and I am asking the Court to now instruct the prosecutor to make no reference to the length of time or the sentence which he expects the jury to impose in the final ten minutes of his closing argument. The Court: Request denied. You may proceed.' In his closing argument the prosecuting attorney discussed the matter of punishment and specifically suggested that the jury find defendant guilty of assault with malice and fix his punishment at ten years' imprisonment in the penitentiary. Defendant contends that the court committed reversible error in permitting that argument under the circumstances outlined.

It was settled in Shaw v. Terminal R.R. Ass'n of St. Louis, Mo.Sup., 344 S.W.2d 32, 37, 93 A.L.R.2d 265, a civil case, that '(c)ounsel having the affirmative will be held to the requirement of fairly stating his essential points in the opening argument, at least to the extent that the defendant may fairly answer them; and a failure to require this will ordinarily constitute error, if the point has been properly raised at the time and preserved.' And, in the case of State v. Peterson, Mo.Sup., 423 S.W.2d 825, it was held...