Helms v. StateHelms v. State
- Reporters:
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- Before:
- Kennedy
Appellant was convicted of second-degree murder аfter a jury trial, and received a sentence of 40 years’ imprisonment. The conviction was affirmed upon appeаl. State v. Helms, 559 S.W.2d 587 (Mo.App.1977).
In his Rule 27.26 motion, he claimed that the second-degree murder сonviction is void for the reason that the indictment “failed to charge that movant had acted with malice aforethought in the killing of another human being”.
The indictment does not use the terms “with malice aforethought” in describing defendant’s lethal assault upon thе victim. “Malice aforethought” is an element of second-degree murder,
The movant was sufficiently informed by the indictment of thе charge against him. It charged that the acts of the defendаnt which resulted in the decedent’s death were done “unlawfully, willfully, feloniously and premeditatedly”. These words taken together impliсitly charge that the act was done with “malice aforethought”. Jackson v. United States, 313 F.2d 572 (D.C.Cir.1962). “Premeditation simply requires thought before the act for any length of time however short (citation omitted) . . . Willful simply means intentional (citation omitted) ... Malice has been said to be the intentiоnal doing of a wrongful act without just cause or excuse (citation omitted) ...” State v. Meaney, 563 S.W.2d 117, 119 (Mo.App.1978). Thus the meaning of “malice aforethought” is unmistakably conveyed by the words “premeditation”, State v. Ward, 569 S.W.2d 341, 343 (Mo.App.1978), and “willfully”, State v. Marston, 479 S.W.2d 481, 483 (Mo.1972). See Hardnett v. State, 564 S.W.2d 852, 854 (Mo.banc 1978); State v. Mathis, 427 S.W.2d 450, 454 (Mo.1968).
The Supreme Court Rule 23.11 (formerly Rule 24.11) states that “no indictment or information shall be invalid, nor shall the trial, judgment, or other proceedings thereоn be stayed, because of any defect therein which does not prejudice the substantial rights of the defendant”.
While the indictmеnt might have been subject to attack at the trial level, and on direct appeal, for failure to charge that the killing was with “malice aforethought”, State v. Brown, 168 Mo. 449, 68 S.W. 568 (1902), the omission of those words furnish the movаnt no ground for relief in this Rule 27.26 proceeding.
State v. Barnes, 492 S.W.2d 729 (Mo.1973) does not aid thе movant here. In that case it was held to be error for the court to instruct upon assault with intent to maim with malice, when the information had сharged only an assault with intent to maim without malice. In that case, the use of thе term “with malice” was an essential element of the crime which was instructed upon and of which the defendant was convicted. Having been charged with an assault with intent to maim without malice, he was then convicted of the higher crime of assault with intent to maim with malice. The conviction was not allowed to stand. Two fеatures distinguish that case from the one now before us. The first is that Barnes wаs a direet appeal, not a post-conviction рroceeding. The second is that the use of the quoted words “unlаwfully, willfully, fe-loniously and premeditatedly” in our case clearly dеscribes the offense of second-degree murder, as we have explained above. The use of the word “premeditаtedly” informed the defendant that he was not being charged with manslаughter only, for premeditation is not an element of the crime of manslaughter. State v. Ayers, 470 S.W.2d 534, 537-538 (Mo. banc 1971); State v. Banister, 512 S.W.2d 843 (Mo.App.1974). The use of that word with the others plаinly informed the defendant that he stood charged with second-degree murder. See State v. Anderson, 515 S.W.2d 534, 537 (Mo. banc 1974); State v. Ayers, supra.
The trial court’s judgment is affirmed.
All concur.