Opinion
No. 42489.
September 10, 1951.
APPEAL FROM THE CIRCUIT COURT OF IRON COUNTY, EDWARD T. EVERSOLE, J.
J. Arthur Francis, Ironton, for appellant.
J. E. Taylor, Atty. Gen., William A. Wear, Asst. Atty. Gen., for respondent.
To review her conviction upon a trial held in the Circuit Court of Iron County, Sylvia Keith applied for and was granted an appeal to the Springfield Court of Appeals. That court, in an opinion reported in 235 S.W.2d 1023, found the case to be one of felony, and hence not within its jurisdiction, art. V, § 2, Constitution of Mo. 1945, and so transferred the appeal to this court in conformity with art. V, § 11 of the Constitution. The case was submitted (as here) upon the record proper, no bill of exceptions having been filed. The opinion sets out the charging portion of the information and the verdict, to which reference is made in lieu of repeating the matter here.
The Court of Appeals determined the jurisdictional question by examining into, and passing upon the sufficiency of the information to charge an offense under § 4408, R.S. '39 and Mo.R.S.A., R.S.Mo. 1949, § 559.180, and upon a construction of the verdict; held, that the information contained "every necessary element required under Section 4408, supra, to support the charge of assault with intent to kill", and that the verdict was good as a general verdict finding defendant "guilty as charged." (All statutory references are to R.S. '39, and corresponding section numbers of Mo.R.S.A., unless otherwise noted.) The ultimate conclusion that the conviction was for a felony was well founded and correct, but we disapprove and overrule the holding that the information was sufficient to charge the felony defined by § 4408. Under that section "malice aforethought" is an essential element. State v. Meinhardt, Mo.Sup., 82 S.W.2d 890, 892. The information under scrutiny does not charge the assault to have been so committed, and for that reason does not charge an offense under that section. State ex rel. Dutton v. Sevier, 336 Mo. 1236, 1239, 83 S.W.2d 581, 582. The similarity between this section and the next succeeding one, § 4409, R.S.Mo. 1949, § 559.190, which also defines a felony, but permits the infliction of less severe punishment, is pointed out in the cases just cited. As there noted, the gist of the crimes thus defined is assault: the one with malice aforethought, and the other without such malice. We hold the information alleges all of the necessary elements of felonious assault without malice, as specified in § 4409, and is good under that section.
The jury found the defendant "guilty as charged in the information" and assessed her punishment at a fine of $50. Under § 4409, under which we have just held the defendant was charged, the minimum punishment is "a fine of not less than one hundred dollars." This precise situation was considered in State v. Ridge, Mo. Sup., 204 S.W.2d 747. There, as here, the jury returned a verdict finding the defendant "guilty as charged" and assessed punishment at less than that prescribed by statute. It was there held that the error, if any, in the trial court's failure to impose proper sentence was in favor of the defendant, of which he could not complain on appeal.
The record in the case at bar fails to show that defendant was accorded allocution under § 4102, R.S.Mo. 1949, § 546.570, but it does affirmatively appear that she was heard on motion for new trial before sentence was pronounced and judgment entered, so, under the express provisions of § 4103, R.S.Mo. 1949, § 546.580, the latter are not invalidated by the omission. The judgment has been examined, and apart from the matter of allocution, it appears to be sufficient in adjudging that the State of Missouri recover of and from the defendant the sum of $50, so assessed by the jury, and ordering that execution issue.
No reversible error appearing, the judgment is affirmed.
All concur.