State v. Dulaney
| Decision Date | 10 June 1968 |
| Docket Number | No. 2,No. 52893,52893,2 |
| Citation | 428 S.W.2d 593 |
| Parties | STATE of Missouri, Respondent, v. Fred Lee DULANEY, Appellant |
| Court | Missouri Supreme Court |
Norman H. Anderson, Atty. Gen., L. Michael Lorch, Asst. Atty. Gen., Jefferson City, for respondent.
James A. Bell, St. Louis, for appellant.
BARRETT, Commissioner.
Fred Lee Dulaney, with a prior felony conviction of murder, has been found guilty of robbery by means of a dangerous and deadly weapon (RSMo 1959, §§ 560.120, 560.135, V.A.M.S.) and his punishment fixed at ten years' imprisonment.
In the trial of the cause his employed counsel stipulated the fact of the prior conviction and no point was made in the trial of the cause to his prosecution as a second offender (RSMo 1959 Supp. § 556.280, V.A.M.S.) until his motion for a new trial. In that motion his assignment is that 'the prior conviction act that defendant was sentenced under is so written that it denies the defendant the equal protection of the law and due process of the law.' In his brief here, unsupported by the citation of authority, it is asserted that 'the prior conviction under which the defendant was tried denies to the defendant the equal protection of the law as guaranteed by the Fourteenth Amendment to the Constitution of the United States in that it is a special class legislation that applies to him in one manner and to others charged with similar crimes in another manner, wherein, the Jury assesses punishment without prior convictions and does not where there is a conviction.' Needless to say, the claim of unconstitutionality was not timely and properly raised in the trial of the cause and the assignment in the motion for a new trial is wholly lacking in meaningful specificity. Criminal Rule 27.20, V.A.M.R. Nevertheless, the constitutionality of the second offered law has been challenged heretofore and determined adversely to all of the appellant's present claims. State v. Morton, Mo., 338 S.W.2d 858; Annotations 132 A.L.R. 91, 139 A.L.R. 673.
These were the circumstances of the charge and conviction: On August 12, 1966, at 1:20 a.m., as a rookie off-duty policeman approached Cora and Easton Avenues in his automobile he saw several people 'standing around' and he could see one man down on the sidewalk and another man kicking him. He parked his automobile, identified himself to the group and was about to interfere in the affray when he saw that the man doing the kicking 'had a revolver on his right side.' As the policeman 'reached back in my pocket for my revolver,' he looked back and saw the defendant The defendant took the policeman's gun from its holster and 'began to back away with the revolver pointed toward me.' The defendant backed to the corner of the filling station wall and disappeared. The defendant was arrested August 18, 1966, and the patrolman's gun of the value of 'around $48.00 or $50.00' was found, inexplicably, in a brown paper sack in 'the garage area of the 9th Police District.'
In connection with these facts and circumstances the appellant makes three points: First, he says that the evidence did not establish all the elements of robbery in that 'the state did not show that (the) victim * * * was placed in any apprehension of fear before the gun was taken.' Second, he says that there was no definite proof that the value of the gun was $50.00 or more and so the court did not 'instruct on all the law applicable to the cause.' And third, since it was charged in the information that the pistol was the property of the Metropolitan Police Department and was taken 'from the person' of the officer that it was manifest error not to give an instruction on 'stealing from the person.'
As to the second claim, if the record supports the charge of robbery by means of a dangerous and deadly weapon the value of the property taken, if it has any value, is immaterial--it certainly does not require an instruction on larceny or stealing less than $50.00. State v. Churchill, Mo., 299 S.W.2d 475, 478; State v. Gabriel, 342 Mo. 519, 116 S.W.2d 75. The appellant's first point as to fear ignores these questions and answers: The defendant here employed a deadly weapon, a gun, and by reason of the plain implication of its use there was proof of force, violence and fear as well as all the essentials of robbery in the first degree. State v. Hawkins, Mo., 418 S.W.2d 921; State v. Ray, Mo., 354 S.W.2d 840; State v. Thompson, Mo., 299 S.W.2d 468. By the same token the record here does not support...
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State v. McNeal, 35535
...485 S.W.2d 96 (Mo.1972); State v. Hutchinson, 458 S.W.2d 553 (Mo.Banc 1970); State v. Hampton, 430 S.W.2d 160 (Mo.1968); State v. Dulaney, 428 S.W.2d 593 (Mo.1968); State v. Thompson, 425 S.W.2d 80 (Mo.1968). Additionally, see State v. Pruitt, 479 S.W.2d 785 (Mo.Banc 1972); State v. Terry, ......
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State v. Holt, 55826
... ... Hawkins, Mo., 418 S.W.2d 921, 924(4), flourishing and pointing a gun at the victim without a technical touching in the course of a robbery, constitutes 'substantial and submissible evidence of violence under § 560.120.' See also State v. Dulaney, Mo., 428 S.W.2d 593, 595(2, 3); State v. Tinson, Mo., 461 S.W.2d 764 ... The next defect urged with respect to the instruction is the use of 'find * * * each and all of the facts submitted to you for your finding as set forth in this instruction,' rather than 'find all the facts ... ...
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State v. Burse, 40375
...use of a gun in the robbery attempt was sufficient evidence for the jury to find that the victim was placed in fear. State v. Dulaney, 428 S.W.2d 593, 595 (Mo.1968). We hold that the evidence in support of the jury verdict is not insufficient, that no error of law appears and that an extend......