State v. Davis

• Decision Date: 17 July 1972
• Docket Number: No. 56633,No. 1,56633,1
• Citation: 482 S.W.2d 486
• Parties: STATE of Missouri, Respondent, v. Ezra Owen DAVIS, Appellant
• Court: Missouri Supreme Court

Page 486

482 S.W.2d 486

STATE of Missouri, Respondent, v. Ezra Owen DAVIS, Appellant.

No. 56633.

Supreme Court of Missouri, Division No. 1.

July 17, 1972.

John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.

John L. Sullivan, St. Louis, appointed counsel for defendant.

WELBORN, Commissioner.

Appeal from 15-year sentence on jury verdict finding Ezra Owen Davis guilty of robbery in the first degree by means of a deadly weapon. The punishment was fixed by the court when the jury could not agree on the punishment.

At around 2:00 P.M. on July 14, 1970, Debra Love and her sister, Jessie, were among the passengers on a Lee Avenue bus, operated by the Bi-State Transit Authority, traveling on 20th Street in the City of St. Louis. The bus stopped at a bus stop in the vicinity of the Pruitt-Igoe housing project and three boys carrying handguns boarded the bus. One of them pointed his weapon at the driver and announced a holdup and told the passengers to place their purses in the aisle. Debra and Jessie were on a seat immediately behind the driver. Jessie who was carrying Debra's purse placed it on the floor of the bus at Debra's feet. One of the robbers picked it up. The robbers fled taking Debra's purse and the purses of other passengers.

Ezra Owen Davis was arrested by police on suspicion that he was involved. He was released when evidence to support charges against him was insufficient. He told the police that he perhaps could assist them and went to the juvenile detention center to view a lineup of suspects. Debra and the bus driver saw Davis at the detention center and both recognized him as the person who held the gun on the driver. Both identified Davis at his trial on the charge.

Appellant's first two points on this appeal are interrelated. He argues that there was a fatal variance between the information which charged that the purse was taken from the person of Debra and the proof which showed that Jessie was in possession of the purse when the holdup was announced and that Jessie was the person who surrendered its possession at the direction of the robbers. He also contends that when the trial court attempted to remedy the situation by requiring the jury to find that the purse was taken from the person of the sister it submitted an instruction not based upon the information which charged that the purse was taken from the person of Debra.

Section 560.120, RSMo 1969, V.A.M.S., requires as elements of the offense of robbery in the first degree the felonious 'taking the property of another from his person, or in his presence, and against his will, by violence to his person, or by putting him in fear of some immediate injury to his person; * * *.' The information in this case charged the taking of the purse of Debra Love 'from the person and in the presence of, and against the will of, the said Debra Love * * *.'

Under the statute, the offense of robbery may be committed in two separate ways, by taking from the person or in his presence the property of another. State v. Flynn, 258 Mo. 211, 167 S.W. 516, 518(3). The two methods are not repugnant and are therefore properly chargeable in a single count of an information which uses the conjunction 'and' rather than the disjunctive 'or' of the statute. Under such a charge proof of the commission of the offense by either of the methods will sustain the charge. State v. Johnstone, Mo.Sup., 335 S.W.2d 199, 203(1, 2); State v. Johnson, Mo.Sup., 457 S.W.2d 795, 799(7); State v. Craft, 299 Mo. 332, 253 S.W. 224, 277(5).

The evidence here showed a taking of Debra's purse in her presence and against her will. Jessie placed the purse on the floor of the bus at Debra's fee. She was crying, scared, trembling. One of the robbers picked up the purse and it was taken from the bus. The purse was within Debra's reach and she could have exercised her right to dominion over it but for the fear caused by the robbers. See 77 C.J.S. Robbery § 9, p. 455.

Therefore, accepting appellant's position that the evidence showed a taking from the person of Jessie, such variance from the charge could not have been prejudicial to the appellant inasmuch as the state's evidence, in any event, had adequately supported the charge, proof of taking from Debra's person not being essential. Appellant has not demonstrated that such variance was 'material to the merits of the case and prejudicial to the defense of the defendant.' Supreme Court Rule 26.04, V.A.M.R., § 546.080, RSMo 1969, V.A.M.S.

The principal instruction did call for a finding of taking from the person of Jessie, rather than Debra, as charged in the information. However, inasmuch as the instruction also conjunctively called for a finding of a taking in the presence of Debra, no prejudice could have resulted. The jury was required to find the essential taking from the presence of Debra, along with the other elements of violence and putting in fear. The required additional finding of taking from the person of Jessie was surplusage, having no bearing on the proof of the offense charged and in no manner burdening the defense of the cause. See State v. Hawkins, Mo.Sup., 418 S.W.2d 921, 925(7, 8).

Two police officers testified that they conducted an investigation into the holdup which resulted in appellant's being taken into custody, interrogated and released. At the close of each of the officer's testimony, defense counsel moved that the entire testimony be stricken 'as it is in no way relative to the issues raised in this proceeding' and the testimony did not connect the defendant with the case. The motion was overruled in each instance. By his motion for new trial, appellant attacked the unfavorable ruling on the grounds that it 'was introduced merely...