State v. Bolden, 56303
| Decision Date | 13 December 1971 |
| Docket Number | No. 1,No. 56303,56303,1 |
| Parties | The STATE of Missouri, Respondent, v. Sherman BOLDEN, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Special Asst. Atty. Gen., St. Louis, for respondent.
James C. Jones, III, William R. Barnes, St. Louis, for appellant.
Defendant was convicted by a jury of first degree robbery and sentenced by the court, as the habitual criminal act was charged and found applicable, to sixteen years' imprisonment.
His defense on the facts was that he was present at the scene at 8th and Delmar in St. Louis by happenstance, but was not participating or aiding, when the robbery was committed by another man, Smith, who pleaded guilty and who testified defendant was unknown to him and was not involved at all. However, the state presented evidence that Smith and defendant were together; that they walked directly toward the victim Read, and blocked his passage on the sidewalk; that defendant grabbed the victim, as did Smith, both holding his hands and arms, and that the two of them started going through his pockets; that defendant was trying to remove the wallet from Read's hip pocket, but Smith got it and started to run; that at about this point, a patrolling police cruiser came upon the scene and the officers jumped out and promptly arrested defendant and Smith; that defendant at time of arrest had the wallet. The verdict shows that the jury resolved the factual dispute against defendant.
Defendant's argument on appeal is the state's verdict-directing instruction was erroneous because it says nothing about aiding and abetting Smith, which defendant says was the theory on which the state was prosecuting defendant. Instruction No. 3, in the portions here material, authorized conviction if the jury believed beyond a reasonable doubt, that '. . . defendant, acting alone or jointly with another, did . . . rob . . . Read by . . . putting . . . Read in fear . . . and . . . did rob . . . money . . . of . . . Read from the person . . . with the felonious intent . . .', etc.
The court also gave Instruction No. 2, reading: 'All persons are equally guilty who act together with a common intent in the commission of a crime, and a crime committed by two or more persons acting jointly is the act of all and of each one so acting', and, at defendant's request, Instruction No. 3--A, reading: 'The Court instructs the jury that if you find that defendant did not take any property from Steve Allen Read and that he merely happened to be at the place of a robbery committed by Jerry L. Smith without any intent to perpetrate or participate in any offense, then you will acquit the defendant.'
Defendant contends, further, that since the victim, Read, testified the other man, Smith, was the one who took the billfold out of his hip pocket and since this was also what the prosecutor told the jury in his opening statement, then the robbery was...
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State v. Johnson, 35051
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State v. Johnigan, 57476
...as a principal in the actual commission of the offense. The distinction between the two types of cases is set forth in State v. Bolden, 473 S.W.2d 355 (Mo.1970), and is decisive of the issue here. The point is Defendant's third point is that the court erred in allowing the prosecutor to com......