State v. Madison

SMITH, Judge.

Defendant appeals from his conviction by a jury of assault with intent to kill with malice and the resulting two year sentence.

No contention is made that the evidence was insufficient to support the verdict. Defendant had an altercation at school with another student. He left school and went to his cousin’s home. He prevailed upon his cousin to drive him back to school and to furnish him with a gun so he could “get” the other student. Upon arriving in the vicinity of the school, defendant observed the other student walking on a sidewalk, directed his cousin to pull the car into the curb, leaned out the window and fired one shot at the other student. The other student was struck by a .22 caliber bullet in the arm. Defendant and his cousin immediately fled the scene. Both were arrested shortly thereafter. Defendant presented no evidence.

Defendant’s sole contention on appeal is that the court erred in giving an instruction on the lesser included offense of assault with intent to kill without malice. This point is based upon defendant’s conclusion that the evidence supports the higher degree crime or nothing. We need not reach that argument. If there was any error in giving the instruction on the lesser included offense, it was cured by the verdict finding the defendant guilty of the higher degree assault. State v. Tettamble, 394 S.W.2d 375 (Mo.1965) [17,18] vacated and remanded on other grounds Tettamble v. Missouri, 386 U.S. 265 , 87 S.Ct. 1034 , 18 L.Ed.2d 42 readopted, 431 S.W.2d 441 (Mo.1968); State *9 v. Cook, 428 S.W.2d 728 (Mo.1968) [3], Defendant has suffered no prejudice by the complained of action.

Judgment affirmed.

CLEMENS, P. J., and DOWD, J., concur.