State v. Cabell, 36962

• Decision Date: 01 June 1976
• Docket Number: No. 36962,36962
• Citation: 539 S.W.2d 584
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Robin Geray CABELL, Defendant-Appellant. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 584

539 S.W.2d 584

STATE of Missouri, Plaintiff-Respondent, v. Robin Geray CABELL, Defendant-Appellant.

No. 36962.

Missouri Court of Appeals, St. Louis District, Division One.

June 1, 1976.

Motion for Rehearing or Transfer to Supreme Court Denied

July 9, 1976.

Application to Transfer Denied Sept. 13, 1976.

Robert A. Ciuffa, St. Louis, for defendant-appellant.

Preston Dean, Douglas Mooney, Asst. Attys. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., George R. Westfall, Asst. Pros. Atty., Clayton, for plaintiff-respondent.

WEIER, Presiding Judge.

Defendant was convicted of two counts of robbery by means of a dangerous and deadly weapon, § 560.120, RSMo. 1969, and sentenced to ten years in the custody of the Department of Corrections on each count. The sentences are to run concurrently. Defendant's appeal is based upon contentions that only one count of robbery should have been submitted to the jury since no two separable robberies occurred, and that his right to a fair and unbiased trial was prejudiced by remarks in the closing argument of the prosecutor. We affirm the conviction.

At approximately 10:00 o'clock on the evening of April 10, 1974, defendant and a female companion knocked on the door of the residence of Mr. & Mrs. Wild in St. Louis County. Mrs. Wild answered the door. Defendant inquired about an auto in her driveway and she recognized him as having been to the house inquiring about purchasing the auto three times during the preceding month. Mrs. Wild summoned her husband who came to the door. Two additional men joined the first couple and a heated discussion developed over the lateness of the hour and the purchase of the car. Mr. Wild recognized defendant and another of the men as ones who had been to his house asking about the auto previously. One male pulled a gun and ordered Mr. Wild into the house. Defendant directed a second gun at the Wilds as they were ordered to lie face-down on the floor of their livingroom. Several items were taken during the robbery including two television sets, a radio, Mr. Wild's wristwatch and wallet, and Mrs. Wild's engagement ring, purse, and necklace. The Wilds were left on their livingroom floor tied with a telephone cord and electric blanket wire.

The police lineup and in-court identification of defendant and testimony of Mr. & Mrs. Wild was corroborated by Adrianne Franklin, the female participant in the robbery. She was apprehended in connection with the attempted fraudulent use of Mrs. Wild's credit card and offered immunity from prosecution in exchange for her testimony.

Defendant took the witness stand, and he and one of his friends testified that they were in Illinois at the house of relatives the entire night of the robbery. They also stated that Adrianne Franklin was a troublemaker, that she had reason to dislike defendant, and that she was a person who might lie to harm someone she disliked.

Defendant contends that only one count of robbery occurred since this case involves one act, the forceable taking of the property of a married couple. Missouri Supreme Court Rule 24.04 allows joinder of counts in a criminal case when there are 'two or more acts which are part of the same transaction or * * * two or more acts or transactions which constitute parts of a common scheme or plan * * *.' Separate counts may not be joined where the facts necessary to prove both crimes are identical or where the incidents of one crime are entirely contained in the other. State v. Parsons, 513 S.W.2d 430, 437--438(5--9) (Mo.1974). The fact that two crimes occurred at substantially the same time or that substantially the same evidence is presented to prove both does not, however, require there by only one charge. State v. Neal, 514 S.W.2d 544, 548(6, 7) (Mo.1974). The important question is whether two separate robberies occurred.

The essential elements of robbery by means of a dangerous and deadly weapon are a person who is put in fear of immediate injury to himself, and some property not owned by defendant and at least in custody of the victim taken from the custody of the victim at that time. State v. Moton, 476 S.W.2d 785, 788(3) (Mo.1972). Here, two persons, Mr. & Mrs. Wild, were threatened. Property belonging to each separately and to the couple jointly was taken. Since two distinct persons were frightened and relieved of their individual separate property, a separable robbery of each did occur.

Defendant contends § 560.120, supra, makes the robbery of a wife the same act as the robbery of a husband. This interpretation of the statute is unwarranted. Section 560.120 provides:

'Every person who shall be convicted of feloniously taking the property of another from his person, * * * or from the person of his wife, servant, clerk or agent, in charge thereof, * * * by violence * * * or by putting him or her in fear of some immediate injury to his or her person, shall be adjudged guilty of robbery in the first degree.'

Clearly the reference to a 'wife' is to establish custody of the property, as in the instance of an agent, servant, or clerk. These are words of description properly listing several relationships for which proper custody will be assumed. State v. Pughe, 403 S.W.2d 635, 637(1, 2) (Mo.1966). Two separate counts of robbery have repeatedly been properly submitted where property was taken from the custody of two individual agents or clerks of one employer at substantially the same time. State v. Neal, supra; State v. Johnson, 499 S.W.2d 371, 375(7--9) (Mo.1973). Since the engagement ring was removed from the finger of Mrs. Wild and the wristwatch was stolen from the person of Mr. Wild, the evidence of separate custody and control of the property is clear. This case was properly submitted to the jury on two counts, one of the robbery of Mrs. Wild and one of the robbery of Mr. Wild.

Defendant's remaining three contentions refer to the closing argument of the prosecution. As a general rule, the trial court has discretion in judging the propriety of closing arguments and reversal will occur only in clear cases of abuse of this discretion. State v. Jewell, 473 S.W.2d 734, 741(8) (Mo.1971). We cannot say that the trial court abused its discretion in this case.

Defendant's first objection is that matters outside the record were presented in which the prosecutor improperly personalized his statements. The remark referred to was:

'All I can say is if you believe I would allow her to testify...