State v. Webb

• Decision Date: 07 January 1975
• Docket Number: No. 35873,35873
• Citation: 518 S.W.2d 317
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Tommy WEBB, Defendant-Appellant. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 317

518 S.W.2d 317

STATE of Missouri, Plaintiff-Respondent, v. Tommy WEBB, Defendant-Appellant.

No. 35873.

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

Jan. 7, 1975.

John C. Danforth, Atty. Gen., Preston Dean, Paul Robert Otto, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Nels C. Moss, Jr., Asst. Circuit Atty., St. Louis, for plaintiff-respondent.

Charles D. Kitchin, Public Defender, Thomas J. Nold, Asst. Public Defender, St. Louis, for defendant-appellant.

SIMEONE, Presiding Judge.

This is an appeal by defendant-appellant, 'Tommy' Webb from a judgment of conviction whereby he was sentenced to five years in the department of corrections for carrying a concealed weapon and to twenty-five years for assault with intent to kill with malice to run consecutively. Sections 564.610, 559.180, RSMo 1969, V.A.M.S. He appeals the conviction for assault with intent to kill with malice. On this appeal, defendant does not question the sufficiency of the evidence, but claims (1) that the trial court erred in failing to instruct the jury on assault with intent to kill without malice, § 559.190, and on common assault, § 559.220 and (2) that the trial court erred 'in connection with its ruling on the applicability of the Second Offender Act in finding that the defendant was the same person who had a prior conviction for robbery' since the difference in the spelling of the first name 'Tommie' as distinguished from 'Tommy' renders the court's finding 'insufficient.' For reasons hereinafter stated we affirm.

On the afternoon of March 18, 1972, at about 4:00 p.m., Police Officer Edward Delaney stopped at the Anders' Standard service station at 4126 W. Florissant Avenue on his way home from work to see about some tires for his private automobile. Delaney was operating his private vehicle and was still wearing his policeman's uniform. While at the station Officer Delaney saw the defendant, Webb, another man and a woman drive into the station in an auto. Defendant and the woman stepped out of the vehicle, walked across Florissant Avenue toward a Velvet Freeze Ice Cream Store on the corner of Adelaide and West Florissant and entered. The other man drove the auto away, circled the block and passed the service station two or three times. When the defendant and the woman companion came out of the ice cream store, they went over to the automobile which had circled the block and spoke to the driver. The automobile then pulled away, but defendant and the woman went into a nearby small food store. Officer Delaney followed them into the store and took a position near the cash register. Defendant looked in the direction of Delaney, took a bag from a rack containing potato chips, went to the register, asked for some 'Certs', paid the cashier and left the store. But as defendant started to 'grab hold' of the door to exit, Officer Delaney noticed a 'large bulge in his left waistband.' Delaney followed Webb from the store, stopped him, identified himself as a police officer and requested defendant to produce some identification. Delaney said, 'I'd like to know who you are and what you are doing in the area.' Webb first objected to the stopping then began going through his pockets, pulled out a matchbook from his upper shirt pocket and said, 'Well, I'll show you my identification,' at which time he 'hunched over a little bit' and with his right hand 'jerked' a nickel (chrome) plated revolver (.38 caliber Smith and Wesson) from the left side of his waistband, pointed it toward Officer Delaney and fired. Delaney was not hit; he dropped to one knee, threw up his left arm and hit defendant's right arm. Still in a crouching position, he then drew his revolver and fired three times, striking defendant once in the upper thigh and once in the area under the upper abdomen. The bullet from defendant's gun did not injure Delaney, but had he remained standing, the gun would have been pointed at the stomach area. Officer Delaney identified State's exhibit #2 (the gun) as being similar to the gun the defendant used and which was later recovered near the scene of the shooting.

After the shooting, defendant ran down an alley into a lot where trucks were parked. He collapsed 150--200 feet away.

John Anders, the operator of the service station, Jack Findley, an employee therein, and Robert Armer, vice president of the Velvet Freeze Foods, Inc. and who was inside the Velvet Freeze store, all corroborated Officer Delaney's testimony in every essential detail. Mr. Anders testified that the gun was pointed 'towards mid-waist' and the gun held by the defendant 'went off.' All four witnesses identified the defendant as the person who drew the revolver from his waistband and fired it. Patrolman Paul Roy who was called at the time of the incident, placed the defendant under arrest at the scene and conveyed him to a hospital.

A fire-arms examiner testified that the gun recovered was a double-action revolver ¹ which requires about ten pounds pressure to pull the trigger. The revolver will not fire except by (1) pulling the trigger all the way back or (2) having the trigger pulled back and then releasing the hammer. It will not fire if the hammer is merely pulled back and released. The examiner test-fired the gun.

During the trial and out of the hearing of the jury, the State was permitted to present court records through a deputy clerk in the office of the circuit clerk for criminal causes showing that 'Tommie' Webb had pleaded guilty to first degree robbery by means of a deadly and dangerous weapon on December 6, 1967, and had been sentenced to seven years' imprisonment on January 30, 1968. The court found that the defendant 'Tommy' Webb had previously entered a plea of guilty for the offense, was sentenced and discharged on July 1, 1971, and in effect held that defendant 'Tommy' Webb was the same person as 'Tommie' Webb who had been sentenced previously. The State offered to produce a fingerprint expert to testify that the individuals were one and the same, but the court did not see 'the necessity of it.'

Defendant presented no evidence. The trial court instructed the jury on assault with intent to kill with malice and also that the burden was on the State to prove that the shooting was not an accident. The court inquired if defense counsel would request an instruction on assault with malice and one without malice. Defense counsel replied, 'That is correct.' But the trial court stated that an instruction on assault without malice would be refused because of the lack of evidence to warrant such an instruction.

Defendant's motions for acquittal in the name of 'Tommie' Webb were denied.

The jury returned a verdict of guilty on both counts--carrying a concealed weapon and assault with intent to kill with malice. The motion for new trial was overruled, and on November 21, 1973, after granting allocution, the trial court sentenced defendant to five years for carrying a concealed weapon and to twenty-five years for assault with malice. Defendant made timely appeal to this court by giving notice that 'Tommie' Webb appeals the judgment entered on November 21, 1973.

On this appeal defendant makes two points: (1) 'the trial court erred in failing to instruct the jury on assault with intent to kill without malice and on common assault, inasmuch as the evidence supported such instructions' ² and (2) the trial court erred, in connection with its ruling on the applicability of the Second Offender Act, in finding that the defendant was the same person who had a prior conviction for robbery. The evidence of the difference in the spelling of the first name ('Tommie' as distinguished from 'Tommy') 'renders the court's finding insufficient.' The State, of course, disagrees.

We believe that the defendant preserved the issue of the court's failure to instruct on assault with intent to kill without malice. Defendant included this claim of error in his motion for new trial. State v. Gale, 322 S.W.2d 852, 856 (Mo.1959).

There are many Missouri statutes proscribing assault under a wide variety of circumstances and labels with punishments ranging as low as a $100.00 fine to imprisonment for life. See, Richardson, Assault, Committee Comments on Missouri Approved Criminal Instructions (The Missouri Bar, 1974). Sections 559.180, ³ 559.190, ⁴ 559.200, 559.210, 559.220, 557.215, 216.460, RSMo 1969, V.A.M.S. The ones involved here are assault with malice aforethought, often referred to as 'aggravated assault', § 559.180, and assault without malice, or as it is designated in the statute's title, felonious assault, § 559.190, and common assault, § 559.220.

The General Assembly in its wisdom has classified these assaults and has determined that the more serious or aggravated the assault the more severe the punishment. Assault without malice under § 559.190 may be regarded as assault with intent to kill or do great bodily harm, or to commit a felony, while assault with malice aforethought under § 559.180 may be viewed as an assault with intent to kill by shooting, stabbing or by means of a deadly weapon or force likely to produce death or great bodily harm. Richardson, supra, at 6.

Many decisions of our courts have stated that the essential ingredient of § 559.180 is 'malice aforethought', and that the existence of malice aforethought is the basic distinction between §§ 559.180 and 559.190. State v. Gillespie, 336 S.W.2d 677, 680 (Mo.1960); State v. Watson, 356 Mo. 590, 202 S.W.2d 784, 786 (1947). But upon closer examination, the true distinction 'lies in a general weighing together of all the facts and circumstances including the comparative strength and positions of the parties, the presence or absence of 'provocation' or justifying, mitigating, excusing or aggravating circumstances, the weapon or means or force employed, the manner in which the weapon or force was employed, the injury sustained, etc.' Richardson, supra, at 22--23.

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