Opinion
No. 37369.
December 7, 1976.
APPEAL FROM THE CIRCUIT COURT, CITY OF ST. LOUIS, MURRY L. RANDALL, J.
Raymond Howard, Jr., St. Louis, for defendant-appellant.
Brendan Ryan, Circuit Atty., Thomas W. Shannon, Pros. Atty., Dennis F. Kay, Asst. Pros. Atty., St. Louis, for plaintiff-respondent.
The defendant was indicted for common assault. § 559.220 RSMo 1969. The defendant waived a trial by jury. Defendant was tried by a judge of the St. Louis Court of Criminal Correction, found guilty, and was sentenced to six months in the City Workhouse.
The assault took place in a schoolyard on May 24, 1974. Defendant struck the victim, Mr. Willie Cole, with his fist and threw bricks at him. One school child also hit the victim with a brick.
The victim was knocked unconscious and sustained injuries to the back of his head and his ear. His lip required several stitches, and he suffered a broken leg. Eighteen months after the assault the victim was still on crutches.
Defendant did not deny the assault at trial but claimed it was in self defense. His sole point on appeal is that the verdict was "against the weight of evidence as a matter of law."
In a jury waived criminal case the findings of the court have the force and effect of the verdict of a jury. State v. Odzark, 532 S.W.2d 45, 49[6] (Mo.App. 1976). Therefore, the appellate court does not weigh the evidence. State v. Simmons, 494 S.W.2d 302, 303[2] (Mo. 1973); State v. Graham, 527 S.W.2d 936, 947[16] (Mo.App. 1975). The weighing of the evidence is a matter for the trial judge who hears the witnesses and is in a position to judge their credibility. State v. Minor, 531 S.W.2d 101, 102[1] (Mo.App. 1975). The point is without merit.
The judgment is affirmed.
WEIER, P.J., and CLEMENS, J., concur.