State v. Neal, 57861

• Decision Date: 09 September 1974
• Docket Number: No. 57861,57861
• Parties: STATE of Missouri, Respondent, v. David NEAL, Appellant.
• Court: Missouri Supreme Court

Page 544

514 S.W.2d 544

STATE of Missouri, Respondent, v. David NEAL, Appellant.

No. 57861.

Supreme Court of Missouri, En Banc.

Sept. 9, 1974.

Rehearing Denied Oct. 14, 1974.

John C. Danforth, Atty. Gen., G. Michael O'Neal, Dan Summers, Asst. Attys. Gen., Jefferson City, for respondent.

Robert C. Babione, St. Louis, for appellant.

HIGGINS, Commissioner.

David Neal, charged in Count I of an information with robbery, first degree, by means of a dangerous and deadly weapon, and in Counts II and III with assault with intent to kill with malice aforethought, was convicted by a jury which assessed his punishment at imprisonment for ten years on each of Counts I and II, and for five years on Count III. Sentences and judgment were rendered pursuant to the verdicts with the sentences to run consecutively. Rule 24.04, V.A.M.R.: §§ 560.120, 560.135, 559.180, 546.480, RSMo 1969, V.A.M.S. Appellant asserts presence of questions involving construction of the Constitutions of the United States and Missouri.

Count I alleged that Earl Fingers and David Neal 'acting with another,' on October 15, 1971, in the City of St. Louis, feloniously and by means of a pistol, did rob and take $282, the property of William Cordes, d/b/a Cordes Hardware, in the care and custody of Johnnie Walton, by putting Johnnie Walton in fear of immediate injury to his person; Count II alleged that Earl Fingers and David Neal, on October 15, 1971, in the City of St. Louis, feloniously, and of malice aforethought, did make an assault upon William O. Cordes, with a pistol, with intent to kill William O. Cordes; Count III was identical to Count II except that the assault alleged was upon the life of Johnnie Walton.

Appellant does not question the sufficiency of evidence to sustain the convictions, and a statement may be quoted from his brief which demonstrates a submissible case on each count of the information.

'At about 5:45 p.m. on Friday, October 15, 1971, James Walton and William Cordes were working at the Cordes Hardware, * * * 1125 Salisbury in the City of St. Louis.

'Three men came to the store. One of them engaged Cordes in a conversation * * *. Shortly thereafter Cordes was hit over the head from behind by one of the other men. That man had a weapon, a thirty-two or smaller.

'A third man, with a thirty-eight revolver, got behind Walton and told him to get on the floor. Walton threw up his hand, and a shot was fired, which caused the loss of a finger * * *. After the shot Walton fell to the floor next to Cordes. Walton was then ordered to get up and open the register by the man who had shot him. * * * Cordes testified that approximately $284 was taken from his place. After the money was taken, Cordes and Walton were instructed not to move, and the men left without doing anything else.

'Cordes was not able to identify any of the participants in the robbery. Walton identified appellant as the individual who struck Cordes. * * *

'Appellant was arrested on October 22, 1971 and placed in a police lineup. Walton and Cordes were present when the lineup was conducted, and Walton identified appellant, but Cordes did not.

'Appellant testified that on the day of the robbery he was sick with a stomach disorder. * * * he did not leave his house after 1:15 p.m. and * * * his girlfriend was there with him between 4:15 and about 7 or 7:30. He denied knowing Earl Fingers who was charged as a co-defendant, and he denied that he had even been near the Cordes Hardware on the date of the robbery. Michele Burnett testified in corroboration of the testimony offered by appellant.'

Although tacitly conceding the sufficiency of the State's case, appellant contends (III) that the court erred in refusing his tendered instruction A regarding identification testimony: 'You are instructed so far as the identity of the defendant is concerned, that if you believe, from the evidence and the circumstances proved, that there is reasonable doubt whether. James Johnny Walton might not be mistaken as to identity, then you would not be authorized to convict the defendant. The corroborating circumstances tending to establish his identity must be such as, with other testimony, produces a degree of certainty in your minds so great that you can say that you have no reasonable doubt of the identity of the defendant.'

He argues that criminal agency was established solely by witness Walton; that the tendered instruction amounted to 'a converse of the essential element of criminal agency'; that 'the defense * * * rested on the theory that the witness (Walton) was mistaken because appellant was elsewhere,' and that only by Instruction A 'could counsel realistically argue the subject to the jury.'

Instructions 3, 4, and 5 submitted Counts I, II, and III to the jury. Each required the jury to find beyond a reasonable doubt that the defendant committed the acts necessary to conviction of the offenses thus submitted. Instruction 7 submitted defendant's alibi, instructing the jury that if it had a reasonable doubt regarding defendant's presence at the time and place of each offense, it should find defendant not guilty.

In the circumstances of this case the subject matter of requested Instruction A was argumentative and was adequately covered by Instructions 3, 4, 5, and 7, and the court was thus justified in refusing the requested instruction. State v. McGowan, 432 S.W.2d 262 (Mo.1968). See also State v. Taylor, 472 S.W.2d 395 (Mo.1971); State v. Smith, 358 Mo. 1, 212 S.W.2d 787 (1948); State v. Tomlin, 467 S.W.2d 918 (Mo.1971); and compare State v. Murphy, 415 S.W.2d 758 (Mo. banc 1967), where it was error to refuse an instruction on identification only because the defense theory was that even though the evidence may have shown defendant in the store at the time of the alleged check cashing offense, she was misidentified as the person who wrote and presented the check. By way of contrast, appellant denies his presence in Cordes Hardware and presents affirmative evidence that he was elsewhere. Uncertainty, if any, with respect to witness Walton's identification in this case was properly for the jury to resolve under the given instructions.

Appellant contends (I) that submission of Counts II and III subjected him to multiple conviction and punishment for a single offense without any statutory authority and contrary to his constitutional rights 'because the facts relied upon for the assaults alleged in those counts were exactly the same facts which were required to establish the personal violence or fear of immediate injury which were necessary elements of the robbery submitted in Count I.'

He contends (II) that the court 'improperly combined' Rule 24.04 and Section 546.480, supra, 'to punish Appellant for exercising his Constitutional rights to (jury) trial.'

These contentions present no claim of error with respect to Count I, robbery, first degree, by means of a dangerous and deadly weapon; and the judgment, insofar as it convicts defendant and sentences him to ten years' imprisonment for that offense, must, therefore, be affirmed. State v. Smith, 491 S.W.2d 257, 258 (Mo.1973).

With respect to Point I, the 3-count information in this case was authorized by Rule 24.04, which provides in part that all offenses which are based upon the same act or upon two or more acts which are part of the same transaction or upon two or more acts or transactions which constitute parts of a common scheme or plan may be charged in the same information in separate counts, or in the same count when authorized by statute. See State v. Walker, 484 S.W.2d 284 (Mo.1972), approving a single information charging defendant with one count of rape and two separate and different counts of sodomy, all in the same 'transaction' against one prosecuting witness.

Appellant's claim that the the procedure authorized by Rule 24.04 subjected him to multiple punishments has been the subject of recent cases, and they require that it be denied in part and sustained in part.

First, the robbery in this case of Cordes Hardware by taking money from the custody of Johnnie Walton, Count I, was the result of the assault committed upon Johnnie Walton and it was the identical assault also charged in Count III. To thus split the single crime of robbery and prosecute it in Count I and a second time in Count III as an assault violated the rule against double jeopardy. State v. Richardson, 460 S.W.2d 537 (Mo. banc 1970). Accordingly, Count III was improperly submitted; and the judgment, insofar as it convicts defendant and sentences him to five years' imprisonment for the offense there charged, must, therefore, be reversed.

Second, since the robbery of Cordes Hardware was the result of the assault against Johnnie Walton, the assault upon William O. Cordes, charged in Count II, was, by the same reasoning, a separate crime; and trial of such assault with the separate crime of robbery accomplished by the assault upon Johnnie Walton in Count I, did not place defendant in double jeopardy. See State v. Moton, 476 S.W.2d 785 (Mo.1972), where defendant's conviction of robbery of one gas station attendant from whom he obtained money did not bar subsequent prosecution for robbery of a second gas station attendant from whom defendant also obtained money, on a theory of double jeopardy, where property was taken from both attendants, even though both robberies occurred almost simultaneously. See also State v. Smith, 491 S.W.2d 257, supra, certiorari denied Smith v. State, 414 U.S. 1031, 94 S.Ct. 460, 38 L.Ed.2d 322 (1973), where defendant was charged separately with the murder of two persons in a single transaction, and trial on one charge did not preclude trial on the second charge, even though substantially the same evidence was presented in both trials. Cf. United States v. Canty, 152 U.S.App.D.C. 103, 469 F.2d 114 (1972). In short, it may be said that this case involves two assaults: one upon Johnnie Walton in which he was shot and...