State v. Carter, KCD
| Decision Date | 05 December 1977 |
| Docket Number | No. KCD,KCD |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Thurman Lee CARTER, Defendant-Appellant. 28611. |
| Court | Missouri Court of Appeals |
Clifford A. Cohen, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for defendant-appellant.
John D. Ashcroft, Atty. Gen., Frank J. Murphy, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Before PRITCHARD, P. J., SWOFFORD, C. J., and DIXON, J.
Defendant appeals his conviction as a second offender of the crime of robbery first degree.
Defendant raises as a single point of error that the evidence was insufficient to support the charge.
The single issue raised by the defendant, that of sufficiency, requires that the evidence be reviewed for that evidence favorable to the verdict.
In the context of the instant case, the measurement of the evidence must be against the information filed and the instruction given, as the thrust of the defendant's contention on the issue of sufficiency is not that the elements of a criminal act were not shown, but that the evidence does not support the charge made and the verdict found.
The information in relevant part reads as follows:
". . . did feloniously rob, steal, take and carry away certain property, to-wit: Twenty-Nine Dollars ($29.00) . . . the money and personal property of the said Church's Chicken, a corporation, in the care and custody of Donald Williams, from the person and against the will of the said Donald Williams, . . . by putting the said Donald Williams in fear of an immediate injury to his person; . . ."
The State's principal instruction, in relevant part:
The verdict found is as follows:
"We, the jury, find the defendant, THURMAN LEE CARTER, guilty of robbery in the first degree, as submitted in Instruction No. 6."
The evidence and favorable inferences would establish the following. Defendant was on the premises of the restaurant at about 10 p. m. The defendant requested free food and told the manager he would rob him if he did not receive the food. At about 11:45 p. m., the defendant and another approached the restaurant. The purported victim, Williams, testified that as he saw the defendant approaching he told a female worker to wait on them and retreated to the back room and told the manager who was using the telephone that they were about to be robbed. Williams then stationed himself at what he described as a peephole from the back room to the serving area and observed the defendant approach the female employee, demand money, and take money from the female employee. The female employee had removed the money from the cash register. The defendant had his hand concealed in his shirt front when he demanded the money. Two police officers who had been parked nearby for the surveillance of the restaurant because of recent robberies apprehended the defendant in the parking lot and recovered the money. Williams was adamant in his testimony that nothing was taken from him or his person. No gun was found. The police officers made a report that indicated that Williams had taken the money from the register and handed it to the defendant. The officer at trial said the female employee handled the money and that the report was erroneous. Vigorous cross examination failed to change the testimony of either of the officers, each insisting that the female employee handled the money and that the report was in error. The only variance in the testimony of the officers and Williams is that the officers indicate that they saw the defendant have a conversation with Williams. The officers were 50-60 yards away in their car and, of course, could not relate any conversations. Williams' testimony is that he did not talk to the defendant.
The evidence shows a robbery; the problem is that it does not show the robbery that is charged, submitted to the jury and found in their verdict.
It is elementary that the proof in the case must be of the charge laid in the information, and a variance between the proof and the charge is error. State v. Scott, 230 S.W.2d 764 (Mo.1950).
So also, the instructions must be supported by the evidence. Scott, supra ; State v. Dayton, 535 S.W.2d 469 (Mo.App.1976); State v. Dayton, 535 S.W.2d 479 (Mo.App.1976). The two Dayton cases cited are analogous to the instant case, for in those cases as here, the information properly charged an offense, and the instruction submitted the essential findings required by the information, but the proof was lacking on the essential allegation and finding that it was the procreative organ of the named defendant which accomplished the sodomy. In the instant case, there is no evidence that this defendant took the money from the witness Williams, as the information...
To continue reading
Request your trial
-
State v. Williams, 42521
...However, the departure or variance between proof and instruction must be prejudicial to defendant to warrant reversal. State v. Carter, 559 S.W.2d 572 (Mo.App.1977) (3, 4). A series of cases have held submissions such as this not to be prejudicial. State v. Anglin, 222 S.W. 776 (1920) (1-4)......
-
State v. Chowning, s. 17392
...be proof of the charge set out in the information, and a variance between the proof and the charge is error, citing State v. Carter, 559 S.W.2d 572, 573 (Mo.App.1977). That case also holds, however, that the variance must be prejudicial to the defendant. Id. at 574. Therefore, a variance be......
-
State v. Gray
...required to prove that defendant committed said offense on that date. Defendant cites two cases in support of his thesis, State v. Carter, 559 S.W.2d 572 (Mo.App.1977), and State v. Achter, 514 S.W.2d 825 (Mo.App.1974). Neither is apposite, as neither involved a variance between the date an......
-
State v. Feast, 40169
...Gorris with a .38 caliber revolver in his hand. It is axiomatic that an instruction must be supported by the evidence. State v. Carter, 559 S.W.2d 572, 574 (Mo.App.1977). However, we believe the foregoing evidence sufficiently proves defendant shot in the direction of Major Gorris and suppo......