State v. Donahue

Missouri Court of Appeals

State v. Donahue

599 S.W.2d 236, 1980 Mo. App. LEXIS 3157

CourtMissouri Court of Appeals

DecidedMay 5, 1980

DocketNo. KCD 30540

StatusPublished

This text of 599 S.W.2d 236 (State v. Donahue) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Donahue, 599 S.W.2d 236, 1980 Mo. App. LEXIS 3157 (Mo. Ct. App. 1980).

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Opinion

WASSERSTROM, Chief Judge.

Defendant was convicted following jury trial of robbery first degree, armed criminal action and assault with intent to kill without malice aforethought. Punishment was assessed by the court pursuant to the second offender act of 25 years on the robbery count and five years on each of the other two counts, sentences to run concurrently. Defendant appeals, alleging two errors as follows: (1) the judgment imposed sentence on Count III for assault with intent to kill “with malice,” although the jury verdict found defendant guilty under Count III for assault to kill “without malice;” and (2) the trial court erred in not quashing the jury panel for the reason that women had been allowed an automatic exemption from jury service.

Reversal and remand of this case is required because of the second point just [237]*237mentioned. Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). Even if the state be correct in its contention that defendant did not offer at this trial competent or relevant evidence as to systematic exclusion of women from the 1978 jury wheel, such lack of independent evidence would not stand in the way of reversal. State v. Beavers, 591 S.W.2d 215 (Mo.App.1979).

In view of this ruling, no discussion is required of defendant’s Point I inasmuch as the variance between the judgment and the jury verdict is unlikely to recur on retrial. On retrial, the court and counsel undoubtedly will consider also the implications of Sours v. State, 593 S.W.2d 208 (Mo. banc 1980) and State v. Williams, 595 S.W.2d 378 (Mo.App.1980), with respect to the charge in Count II relating to armed criminal action.

All concur.

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WASSERSTROM, Chief Judge.

Defendant was convicted following jury trial of robbery first degree, armed criminal action and assault with intent to kill without malice aforethought. Punishment was assessed by the court pursuant to the second offender act of 25 years on the robbery count and five years on each of the other two counts, sentences to run concurrently. Defendant appeals, alleging two errors as follows: (1) the judgment imposed sentence on Count III for assault with intent to kill “with malice,” although the jury verdict found defendant guilty under Count III for assault to kill “without malice;” and (2) the trial court erred in not quashing the jury panel for the reason that women had been allowed an automatic exemption from jury service.

Reversal and remand of this case is required because of the second point just [237]*237mentioned. Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). Even if the state be correct in its contention that defendant did not offer at this trial competent or relevant evidence as to systematic exclusion of women from the 1978 jury wheel, such lack of independent evidence would not stand in the way of reversal. State v. Beavers, 591 S.W.2d 215 (Mo.App.1979).

In view of this ruling, no discussion is required of defendant’s Point I inasmuch as the variance between the judgment and the jury verdict is unlikely to recur on retrial. On retrial, the court and counsel undoubtedly will consider also the implications of Sours v. State, 593 S.W.2d 208 (Mo. banc 1980) and State v. Williams, 595 S.W.2d 378 (Mo.App.1980), with respect to the charge in Count II relating to armed criminal action.

All concur.

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Bluebook (online)

599 S.W.2d 236, 1980 Mo. App. LEXIS 3157, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-donahue-moctapp-1980.

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