State v. Ellis

KENNEDY, Presiding Judge.

Defendant Robert Ellis, upon a jury trial in which he and his co-defendant Tunstall were jointly tried, was convicted of first-degree assauit, § 565.050, RSMo 1978. In accordance with the verdict of the jury he was sentenced to 12 years’ imprisonment.

He appeals to this court, alleging that the trial court erred in failing to instruct upon second-degree assault, § 565.060, RSMo 1978. We agree with the appellant in this contention and reverse the judgment. He raises a second point which we deny, but which we rule upon for the guidance of court and counsel upon retrial.

In…