State v. Gaitan, 54164
| Decision Date | 14 July 1969 |
| Docket Number | No. 54164,No. 2,54164,2 |
| Citation | 442 S.W.2d 530 |
| Parties | STATE of Missouri, Respondent, v. Benton Benito GAITAN, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Jefferson City, Robert O. Snyder, Sp. Asst. Atty. Gen., St. Louis, for respondent.
Ward B. Stucky, Stuckey & Hutcherson, Kansas City, for appellant.
BARRETT, Commissioner.
Upon a charge of first degree robbery with a dangerous and deadly weapon Benito Gaitan has been found guilty and his punishment fixed at life imprisonment. RSMo 1959, § 560.135, V.A.M.S.
These were the circumstances of the charge and conviction: Leo Tomlinson was an employee of National Biscuit Company. He was furnished a company-owned 1966 'turquoise over white' Chevrolet automobile. One of his customers was North Oak United Supermarket, owned by Bob Lemons. Over the years and as a favor to Lemons, usually on Friday, Tomlinson would go to the bank in North Kansas City with a check and bring back bills and coins for change and check-cashing for the weekend business. On August 18, 1967, about 9:30 in the morning Lemons gave Tomlinson a check for $10,000.00 and Tomlinson, in the automobile furnished by National, and a store employee, Franklin, went to the bank and obtained $6850.00 in currency which Tomlinson placed in his pocket and $3150.00 in silver in two or three money bags which was placed on the floorboard in front of the driver. They left the bank at 10:15 and when Tomlinson stopped the automobile at a stop signal at 32nd and North Oak Trafficway on the return trip, looked to his left for traffic and when he 'looked back around there was a man standing at the side of the car with a gun pointed through the (passenger side) window of the car.' The gunman told Franklin to 'Move over,' reached in and opened the rear door and got in the back seat and with the gun pointed at Tomlinson said, 'Now, go where I tell you.' He directed Tomlinson to a parking lot, ordered the automobile stopped and said, 'Get out of the car, walk around to the right-hand side of it and take off across that field and run like hell.' Tomlinson and Franklin did as commanded and as they ran into a plowed field they heard a car door slam and 'looked back and the car was leaving the parking lot and going down North Oak.' They went to Farmland Industries where a receptionist called the police. Later that day the automobile was found in front of the Northgate Apartments on Buchanan Street and returned to Tomlinson but the bags of money were missing. Between 11 and 12 o'clock on that same day Shirley Hann of 3002 Buchanan Street checked her front door and in front of her house there was a blue and white Chevrolet and she watched a man take 'out a satchel, a bag,' and 'as he lifted it out of the car, his legs buckled underneath him,' and he placed the bag in a blue station wagon across the street and drove off 'going fast.' She got the license number 'as best I could' and it was a Kansas license plate, there were five numerals: 'They were five, two something five four, and again, they were basically the same.' The station wagon was also a Chevrolet. On September 29, 1967, the appellant, Gaitan, was arrested at 215 W. Pershing Road in Kansas City. He was employed by the Dodsworth Stationery and Printing Company in Kansas City, Kansas, and when arrested was driving the company's 1967 blue station wagon, Wyandotte County, Kansas license plate 5--3454. Tomlinson and Franklin made a police line-up and in-court identification of Gaitan as the gunman and Mrs. Hann identified him as the man she saw removing the heavy bags from one vehicle to another. Needless to say, these briefly narrated circumstances support the charge and verdict.
This background also puts in proper posture the appellant's two-fold claim that the information is defective and that therefore he is entitled to a new trial. The objections are that the information is insufficient to allege robbery in the first degree in that, one, it does not allege that the defendant took money and property from Tomlinson 'in his presence' but only alleges that he 'made an assault upon Tomlinson' in his presence, and, two, it does not allege that the Chevrolet, 'the property of Leo D. Tomlinson' was 'taken in his presence.' And, in this connection and citing only the one robbery statute, § 560.120, it is said for the same reasons, failure to state 'in the presence,' Instruction 2 was prejudicially erroneous.
In the first place, these objections to the information go to its form rather than its substantive allegations, there were no motions directed to the information prior to trial, there is no claim of...
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