Williams v. State, 37849
| Decision Date | 15 March 1977 |
| Docket Number | No. 37849,37849 |
| Citation | 550 S.W.2d 821 |
| Parties | Jimmie Lee WILLIAMS, Defendant-Appellant, v. STATE of Missouri, Plaintiff-Respondent. . Louis District, Division Three |
| Court | Missouri Court of Appeals |
Preston Dean, Asst. Atty. Gen., John D. Ashcroft, Atty. Gen., David L. Baylard, Jefferson
City, George A. Peach, Terrence J. O'Toole, St. Louis, for defendant-appellant.
Robert C. Babione, Public Defender, Mary Louise Moran, Jeffrey J. Shank, Asst. Public Defender, Sarah T. Harmon, St. Louis, for plaintiff-respondent.
Movant appeals from a denial of his Rule 27.26 motion to vacate the 25 year sentence imposed upon him after conviction for assault with intent to kill. Movant's appeal raises four points of alleged error, none of which is meritorious.
Movant first argues that the conviction and sentencing under the charge of assault with intent to kill with malice aforethought, a felony under § 559.180 RSMo. 1969, 1 instead of attempted murder, deprives him of equal protection of the laws. Movant reasons that the charge of assault with intent to kill with malice aforethought carries a range of punishment from two years to life imprisonment; that under § 556.150(2) attempted murder carries a maximum penalty of 10 years imprisonment. According to movant, the elements of the two crimes are the same; hence, the movant argues, the two crimes must bear the same penalty in this case a maximum of 10 years imprisonment. In rejecting this point, we note that the two offenses are not the same. Assault with intent to kill with malice aforethought requires proof of an assault. See State v. Buckhanan, 416 S.W.2d 166 (Mo.1967). Actual assault is not necessarily essential to prove attempted murder. The two offenses are separate and distinct crimes. In any event, the identical contention raised here by movant was ruled on in Turnbough v. State, 533 S.W.2d 609 (Mo.App.1975), where it was specifically held that the § 559.180 crime of assault with intent to kill with malice did not fall within the purview of the § 556.150 attempt statute; that no error occurred in prosecuting under the assault statute rather than the attempt statute which carried a lesser penalty. Such is the case here.
Movant's second and third points charge that he was prevented from presenting the testimony of Walter O'Neal, an eyewitness to the assault resulting in movant's conviction. Movant contends that the prosecutor threatened to cross-examine O'Neal on an unrelated arson charge and prosecute O'Neal on such charge if he testified. O'Neal asserted his Fifth Amendment rights and did not testify. Movant argues that the threat of improper cross-examination on the arson charge effectively removed O'Neal as a witness. The matter of the cross-examination of O'Neal was specifically dealt with and disposed of in movant's direct appeal of his conviction. In State v. Williams, 525 S.W.2d 395 (Mo.App.1975), it was held that ...
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