State v. Dupree

• Decision Date: 13 March 1972
• Docket Number: No. 56178,No. 2,56178,2
• Citation: 477 S.W.2d 129
• Parties: STATE of Missouri, Respondent, v. Jack William DUPREE, Appellant
• Court: Missouri Supreme Court

Page 129

477 S.W.2d 129

STATE of Missouri, Respondent, v. Jack William DUPREE, Appellant.

No. 56178.

Supreme Court of Missouri, Division No. 2.

March 13, 1972.

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

James C. Jones, III, Eugene F. Killoren, St. Louis, for appellant.

MORGAN, Presiding Judge.

Appellant was convicted of first degree murder under the felony-murder doctrine, Section 559.010 RSMo 1969, V.A.M.S., and sentenced to life imprisonment.

Although there is no dispute as to the facts, it is necessary to detail somewhat the state's evidence in order to consider the grounds for reversal now submitted.

David Washington, the deceased, had been employed several years prior to his death as a security guard at Feingerts' Market in the City of St. Louis. On the evening of October 22, 1969, Mr. Feingerts was working at the check-out counter in his store. In addition to customers, others were there: Campbell, the butcher; Monroe, the stock boy and the deceased guard. At the time appellant and one Shelton entered, Campbell was behind the meat counter, Monroe was stocking shelves and the deceased was sitting in the rear of the store near the door to the stockroom. Appellant and Shelton began taking groceries from the shelves and placing them on the check-out counter. Both, at different times, asked to be informed when they had gathered $25.00 worth of groceries. After about 15 to 20 minutes of such activity, appellant approached the meat counter and requested some frozen lima beans. When Campbell started to comply, appellant produced a pistol and directed him, at gunpoint, to proceed to the rear of the store and into the stockroom. When they reached the entrance to the storeroom, where the now deceased guard was sitting, the latter asked, 'What's going on?' Appellant replied by firing five rounds into the deceased, who was armed and returned the gunfire. Appellant, injured to some extent, fled with Shelton. Both were apprehended two months later in Colorado at a residence in Colorado Springs. The state also presented evidence that between the time of the alleged crime and apprehension, appellant had personally contacted a friend in Venice, Illinois, for some medical 'band-aids'; as well as the fact, that Shelton's fingerprints were on some of the canned goods presumably gathered for purchase. After a requested severance, appellant was tried alone.

First, it is submitted that the trial court erred 'in submitting the case to the jury on the theory of a felony-murder, because the evidence was insufficient to show an attempted robbery.' This issue was not presented to the trial court in the motion for new trial. However, even though it is directed only to one element of the felony-murder doctrine involved, i.e., '. . . perpetration or attempt to perpetrate . . . robbery' (Section 559.010), the point is actually an attack on the sufficiency of the evidence to sustain the judgment of conviction and will be considered under the plain error rule 27.20, V.A.M.R. The crux of appellant's argument on this point is that to show attempted robbery there must be 'either an attempt to take property or an expression of an intention to take property.' A similar argument as to whether or not there must be an actual 'attempt to take property' was made in State v. Thompson, Mo., 414 S.W.2d 261. At l.c. 264, the court said: 'If we were to adopt defendant's reasoning we would establish the rule that proof of an actual physical move to take possession of property of the intended victim would be necessary to support a conviction of attempted robbery.' Such reasoning was rejected. However, it is true, contrary to the facts in the Thompson case, that neither appellant nor Shelton specifically declared that a robbery was in progress. From this fact, appellant attaches great significance to the following question directed to and answered by witness Campbell: 'Q. All right. And did you see the man that held up the store? A. It wasn't a holdup, that held up the store; he didn't hold up the store.' In response, the state submits that it would be purely speculative to surmise what legal...