423 S.W.2d 738 | Mo. | 1968
Defendant was convicted by a jury of assault with intent to kill, with a deadly weapon, and with malice aforethought. Upon allegations and findings of a previous conviction, sentence and imprisonment for a felony he was sentenced to a term of seven years. Defendant was represented at the trial by employed counsel who filed a motion for new trial; this appeal was taken promptly when that motion was overruled. He is represented upon this appeal by the Public Defender of Jackson County, by appointment.
Since only one question is raised in defendant’s brief, we need not relate all factual details; however, the jury could have believed all of the following facts from the evidence produced. One William Broussard and his friend Leon Wyatt, both regularly employed, stopped . in a tavern
Wyatt had followed defendant and his companions from the tavern and saw these occurrences. Both Broussard and Wyatt positively identified defendant at the trial as the man who stabbed Broussard, and the testimony further showed: that Broussard had first identified defendant from a police picture (there being no objection to this evidence) and later in a lineup; that Wyatt had identified him in a police lineup. Broussard first learned defendant’s name after these things had occurred. Wyatt confirmed all the substance of Broussard’s testimony. All of the persons directly concerned were colored. Broussard and Wyatt were most extensively cross-examined concerning the identity and appearance of the aggressor, perhaps to the point of tediousness. At one point, when Wyatt was asked why this affair made such an “imprint,” he said: “Because the man had a knife and was trying to kill another man.”
On behalf of defendant, three witnesses (two male, one female) testified. Two of these were in the “Barclay Cafe” outside of which the stabbing occurred; while “goofing around,” as one of these witnesses said, they heard and saw a commotion outside so they went out. The woman testified that she saw the man stabbed, but that the person who did it was not this defendant. The other, her male associate, testified that he saw the man with the knife, fighting, and that it was not this defendant. Both of these had known the defendant previously. The third witness, who had just been standing on the sidewalk in front of the cafe, ran closer to see the fight. He testified: that he had seen the aggressor around the neighborhood previously; that he knew the defendant, having spent some “time” with him at the Municipal Farm. He inferred that the man who stabbed Broussard was not this defendant. The defendant did not testify.
“And, unless you find the facts to be as above stated, you are instructed to acquit the defendant of Assault with Intent to Kill with a knife with Malice Aforethought.”
The arguments made in support of this appeal, insofar as we understand them, are: that the supposed facts supporting guilt were affirmatively stated in the instruction, whereas the theory of defendant’s innocence was stated negatively in the “unless” clause; that this tended to assume, or to give the jury the idea, that the affirmative recitals were “actual occurrences,” particularly since they were referred to as “facts”; and that the jury should have been instructed that there was a difference between “fact and evidence.” Counsel thus conclude that the “unless” clause here was a “positive misdirection,” and that the words therein implied a “lesser obligation” than did the hypothesis of the first paragraph. It is a little difficult for us to follow this argument.
Three cases are cited, namely: Rosebraugh v. State Social Security Commission, Mo.App., 196 S.W.2d 27; Krisman v. Unemployment Compensation Commission, 351 Mo. 18, 171 S.W.2d 575; McCrabb v. Moulton, 8 Cir., 124 F.2d 689. The first two concern the use of the word “unless” in statutes regulating appeals, as there applied to Social Security and Unemployment Compensation cases. These would be more confusing than enlightening if we attempted to apply the discussions to our facts. In McCrabb, the Court was considering a contract for the purchase of oil leases; this contained a provision that the buyer would reassign the leases “unless” on or before a stated date he began the actual drilling of a well, with certain further conditions. The Court held: that the contract merely gave the buyer an option to drill or reassign, and that it created no affirmative obligation to drill; that the suit was one for the breach of a contract to drill, and not for a breach of the agreement to reassign ; that, moreover, the contract contained a further provision rendering it void for failure to drill by a certain date, that this provision was self-executing, and hence, there could be no damages. That decision in nowise conflicts with the ordinary meaning of the word “unless,” as we see it, and there is no occasion here to get into an exercise in semantics. The case is apparently cited as holding that the word “unless” imposes no obligation, but merely an option; but even on the facts of that case the conclusion does not follow generally, for the buyer would have been obligated to reassign the leases, had it not been for the nullifying provision.
We shall proceed to consider the use of similar provisions in Missouri in criminal instructions, which is more to the point. It is, of course, customary and
No converse instruction whatever was offered by defendant in this case. We hold: that Instruction No. 3 did not assume any facts to be true; that the clause reading “unless you find the facts to be as above stated you are instructed to acquit * * * ” not only did not subordinate defendant’s theory of innocence, but gave to defendant a gratuitous converse, when he had not even requested one. The very wording of the instruction does distinguish between “evidence” and “facts”; it refers to a finding “from the evidence”; it tells the jury that “unless you find the facts to be as above stated,” you will acquit; and in the first paragraph there is the added caution, “if such be your finding.” In the absence of the offer of an express converse (which it was not the court’s duty to prepare and give, — Engberg, supra) there was no other way in which the issues could be submitted properly.
This is not a case where defendant advanced a specific theory of defense and asked an instruction “in keeping with it.” Engberg, supra. The defense here was an attack upon the “credibility of the state’s case.” id. Defendant was given the full benefit of the presumption of innocence and of reasonable doubt, as noted in Nie-hoff and Engberg, supra. Under these circumstances, there was no error whatever in Instruction No. 3, as given. We appreciate the diligence of appointed counsel in pursuing the point, but, finding it of no substance, it is denied.
The amended information and the verdict are sufficient; we find, however, that the allocution, judgment and sentence do not conform to the actual charge upon which the defendant was convicted. The entry of record recites: “Now said defendant being informed by the court of the verdict of the jury, heretofore returned herein, finding him guilty of Assault with Intent to Kill with a Deadly Weápon, under the Habitual Criminal Act, and the court fixing the punishment at seven (7) years, to be confined at the direction of
It is so ordered.