State v. Wraggs
| Decision Date | 08 May 1973 |
| Docket Number | No. 34891,34891 |
| Citation | 496 S.W.2d 38 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Robert Charles WRAGGS, Defendant-Appellant. . Louis District, Division Two |
| Court | Missouri Court of Appeals |
Robert C. Babione, Dept. of Welfare, St. Louis, for defendant-appellant.
John C. Danforth, Atty. Gen., Jefferson City, J. Brendan Ryan, Circuit Atty., St. Louis, for plaintiff-respondent.
Defendant appeals from his conviction by a jury for assault with intent to maim with malice (Sec. 559.180 RSMo 1969, V.A.M.S.) tried under the second offender act (Sec. 556.280 RSMo 1969, V.A.M.S.). He makes six attacks on the conviction including a claim that the was insufficient evidence to establish the crime for which he was found guilty.
We review the evidence in the light most favorable to the jury verdict. Defendant and another man were present in Wilkerson's Market at approximately 5:30 p.m. on February 26, 1971, apparently together. They had been seen together in the store earlier in the day. The other man pointed a sawed-off shotgun at Mrs. Wilkerson and said, '(t)his is it.' The victim, Allen Grinston, 63 years old, and an employee of the market, pulled a gun and advanced toward the man with the shotgun. He was struck from behind and fell to the floor. Defendant and the other man began kicking and stomping Grinston and succeeded in wringing his gun from him. The kicking and stomping continued for several minutes and after Grinston had been disarmed. The attack contered on Grinston's head, face, neck, and chest. Wraggs was wearing shoes although no description of them is contained in the record. The attack on Grinston was terminated when Mr. Wilkerson shot Wraggs in the back with his shotgun and Wraggs and the other man fled the store. Defendant subsequently sought police help for his wound and was identified at the hospital by the Wilkersons and Grinston who fortuitously saw him there while Grinston was being treated for his injuries. There was evidence that Grinston had had a prior run-in (undescribed) with defendant's wife and that defendant had said to Grinston several days before the attack, '(n)ot to come out of the store.'
Defendant contends this evidence fails to establish (1) malice aforethought, (2) a means likely to produce death or great bodily harm and (3) an intent to maim.
' Malice' is the intentional doing of a wrongful act without just cause or excuse. 'Aforethought' means thought of beforehand, for any length of time, however short. State v. Ayers, 305 S.W.2d 484 (Mo.1957). It is clear that Wraggs performed an intentional act in kicking and stomping Grinston with no just cause or excuse. There was no evidence of any legal justification for the attack. There was evidence that Wraggs and the other man were acting together to commit a robbery and that Grinston was an obstacle to the completion of that robbery and it was reasonable to infer the assault was to remove that obstacle, and that Wraggs intended it for that purpose. State v. Jackson, 446 S.W.id 627 (Mo.1969) holds that evidence of the commission of another crime is relevant to show motive in an assault. Wraggs had previously made a statement which could be considered threatening to Grinston and this supports a conclusion that he had an ill-will toward Grinston. The severity of the attack, the length of its duration, the fact it continued after Grinston was disarmed, and that it ceased only because Wraggs was shot also furnish evidence of defendant's malice. Considering all these matters there was sufficient evidence to find that Wraggs made and continued the attack with the requisite malice aforethought.
Defendant contends there was no evidence of intent to maim. 'Intent to maim' is equated with 'intent to commit great bodily harm.' State v. Gillespie, 336 S.W.2d 677 (Mo.1960). The victim was kicked and stomped about the head, face, neck and chest for up to five minutes by two men. He was an elderly man in a prone position on the floor. He suffered bruises and lacerations and testified he still has trouble with his throat as a result of the beating. The beating continued after the victim was disarmed. These matters may be considered in determining the intent to maim. State v. Gillespie, supra; State v. Mathis, 427 S.W.2d 450 (Mo.1968). There was sufficient evidence for the jury to find intent to maim.
Defendant contends that an attack with shoed feet is not a means likely to produce death or great bodily harm. It is if the attack is 'violent and aggravated,' and a sufficient degree of force is used. State v. Gillespie, supra. The attack here was violent and aggravated and the amount of force that can be generated by a kick or stomp is sufficient to find the requisite means to convict. The evidence was sufficient to establish the offense of which defendant was convicted.
Defendant premises error on the failure of the court to instruct on common assault. The court did instruct on the lesser included offense of assault with intent to maim without malice. It is at least arguable that no prejudice can exist to defendant because the jury having an opportunity to convict of the lesser offense declined to do so. It would therefore be unwarranted to conclude that they would have convicted of yet a lesser included offense. See State v. Robinson, 182 Kan. 505, 322 P.2d 767 (1958)....
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